Madhya Pradesh High Court

Tarun Kumar Anand vs The State Of Madhya Pradesh on 17 March, 2021

Author: Atul Sreedharan

CRR No.2111/18,

CRR No.4104/2018,

M.Cr.C No.35445/2018
MCrC No.35448/2018
HIGH COURT OF MADHYA PRADESH : PRINCIPAL SEAT AT JABALPUR

1&2 Case Number & Parties Cr.R.No.2111/18 (State of M.P. Vs. Shivendra Singh & others);

name Cr.R.No.4104/18 (M/s. Samdariya Builders Pvt. Ltd & Ors. Vs. State
of M.P. & others); M.Cr.C.No.35445/18 (Shivendra Singh Vs. State
of M.P.) &

M.Cr.C.No.35448/18 (Tarun Kumar Anand vs. State of M.P. )

3 Date of Order 17/03/2021

4 Bench Constituted of Hon. Shri Justice Atul Sreedharan &

Hon. Shri Justice J.P. Gupta

5 Judgment delivered by Hon. Shri Justice J.P. Gupta

6 Whether approved for YES

reporting
7 Name of the counsel for Shri Satyam Agrawal, learned counsel for the applicant /
Lokayukta Organization.
the parties
Shri Anil Khare, Senior Advocate with Shri Priyank Agrawal,
Advocate for the respondent no.1.

Shri Harshit Patel, learned counsel for the respondent no.9

Shri Sanjeev Mishra, learned counsel for the respondent no.12

Shri Manish Datt, Senior Advocate with Shri Siddharth Datt,
Advocate for respondent no.15 and 16. (Cr.R.No.2111/18)

Shri Sanjay Agrawal, learned counsel for the applicants.

Shri Satyam Agrawal, learned counsel for the respondent/
Lokayukta Organization.

Shri Anil Khare, Senior Advocate with Shri Priyank Agrawal,
Advocate for the respondent no.4. (Cr.R.No.4104/18)

Shri Anil Khare, Senior Advocate with Shri Priyank Agrawal,
Advocate for the petitioner.

Shri Satyam Agrawal, learned counsel for respondent/ Lokayukt.
(M.Cr.C.No.35445/18 and M.Cr.C.No.35448/18)

8 Law laid down & (i) If Investigation Agency files the closure report,
Significant paragraphs the Magistrate or the Special Judge has jurisdiction
number to accept it or reject it and if the material is not
sufficient and looking to the facts and
circumstances of the case further investigation is
2

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CRR No.4104/2018,

M.Cr.C No.35445/2018
MCrC No.35448/2018
desirable to reach on a prudent conclusion then
the investigating agency can be directed to make
further investigation or the complainant may be
directed to produce material in support of the
complaint. In a case when the Magistrate / the
Special Judge is of the opinion that the cognizance
can be taken but if there is need of the sanction
order for prosecution then cognizance cannot be
taken and the matter would be left on the
investigation agency to take action in accordance
with law for the purpose of getting sanction for
prosecution. In the present case, having rejected
the prayer with regard to acceptance of the
closure report, the learned Special Judge has
observed that in this matter sanction for
prosecution will be required, therefore, the
material be placed before the sanctioning
authority for consideration. Hence, there is no
mandate or command to the sanctioning authority
to grant sanction for prosecution and it is only
obiter dicta. It does not amount to direction to
sanction authority or to file the charge sheet. This
aspect has been considered by Hon'ble the Apex
Court in the case of Arun Kumar Aggrawal vs.
State of M.P., and ors (2014) 13 SCC 707 para 35 to
38.

(ii) Undoubtedly, at the stage of consideration, the
prayer for acceptance of the closure report, very
lengthy and analytic order is not required but if the
matter is sent back with the direction for further
investigation or rejection of the prayer for
3

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M.Cr.C No.35445/2018
MCrC No.35448/2018
acceptance of closure report, the order must have
such contents which indicate shortcoming of the
investigation including suggestions and guidelines
with regard to further investigation, if needed,
when the further investigation is not required and
the closure report is not acceptable and the prayer
is rejected, the order must indicate in brief the
material, available with the report, supporting the
allegations and the reasons with regard to
contrary opinion to the Investigating officer.
Merely saying that prima facie there is suspicion of
the commission of the crime is not sufficient to
reject the prayer for the closure report filed by the
investigating agency. Brief, indicative and speaking
order is required to strike balance and to ensure
justice with the investigating agency and accused
persons. The requirement of reasoning in judicial
order has been emphasised by Hon'ble the Apex
Court in the case of Assistant Commissioner,
Commercial Tax Department, Works Contract and
Leasing, Kota Vs. Shukla and brothers, (2010) 4
SCC 785.

(ATUL SREEDHARAN) (J.P. GUPTA)
JUDGE JUDGE
4

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CRR No.4104/2018,

M.Cr.C No.35445/2018
MCrC No.35448/2018

HIGH COURT OF MADHYA PRADESH : JABALPUR

(DB: Hon'ble Shri Justice Atul Sreedharan &
Hon'ble Shri Justice J.P. Gupta)

Criminal Revision No. 2111/2018

The State of M.P.
Vs.
Shivendra Singh and others

Shri Satyam Agrawal, learned counsel for the applicant /
Lokayukta Organization.
Shri Anil Khare, Senior Advocate with Shri Priyank Agrawal,
Advocate for the respondent no.1.
Shri Harshit Patel, learned counsel for the respondent no.9
Shri Sanjeev Mishra, learned counsel for the respondent
no.12
Shri Manish Datt, Senior Advocate with Shri Siddharth Datt,
Advocate for respondent no.15 and 16.

Criminal Revision No. 4104/2018

M/s Samdariya Builders Private Limited & others.
Vs.
State of M.P and others

Shri Sanjay Agrawal, learned counsel for the applicants.
Shri Satyam Agrawal, learned counsel for the respondent/
Lokayukta Organization.
Shri Anil Khare, Senior Advocate with Shri Priyank Agrawal,
Advocate for the respondent no.4.
------------------------------------------------------------------------
M.Cr.C. No.35445/2018
Shivendra Singh
vs.
The State of M.P.
------------------------------------------------------------------------
Shri Anil Khare, Senior Advocate with Shri Priyank Agrawal,
Advocate for the petitioner.
Shri Satyam Agrawal, learned counsel for respondent/
Lokayukt.
5

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CRR No.4104/2018,

M.Cr.C No.35445/2018
MCrC No.35448/2018
------------------------------------------------------------------------

M.Cr.C. No.35448/2018
Tarun Kumar Anand
vs.
The State of M.P.
------------------------------------------------------------------------
Shri Anil Khare, Senior Advocate with Shri Priyank Agrawal,
Advocate for the petitioner.
Shri Satyam Agrawal, learned counsel for respondent/
Lokayukt.
------------------------------------------------------------------------

Whether approved for reporting (Yes/No).

ORDER

(17.03.2021)

Per J.P. Gupta, J

The aforesaid four cases have been filed against the impugned order dated 18/01/2018 passed by the Special Judge (Lokayukt) (Prevention of Corruption Act) Jabalpur. Hence this common order shall govern the disposal of the aforesaid cases.

2. By the impugned order dated 18/01/2018, learned Special Judge, Jabalpur has rejected the prayer of Special Police Establishment, Lokayukt Organization, Jabalpur with regard to acceptance of the closure report filed after investigation of Crime No. 134/2011 under section 13(1)(d), 13 (2) of the Prevention of Corruption Act and under sections 420, 109, 120B of IPC directing the Lokayukt police to place all the original documents / records and the material collected during the investigation before the Sanctioning authority for obtaining sanction for prosecution against the concerned governments employees / accused persons.

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M.Cr.C No.35445/2018 MCrC No.35448/2018

3. That the respondents of Cr.R No.2111/2018 namely; Shivendra Singh, G.N Singh, Tarun Kumar Anand, D.S. Sharma, Sanjay Khare, Shyam Mandal, V.K Jha, S. C. Jain, C.L. Rakhya, Sanskar Pandey were posted at Jabalpur Development Authority, Jabalpur and were discharging their duties in their respective capacities and respondent S. K. Mahawar was posted at Town and Country Planning, District Jabalpur and was discharging his duty as Joint Director and S.S. Apouriya, A.K Verma, and Bhoopendra Singh were posted as Registrar/Sub Registrar in District Jabalpur Registration Department and Ajay Kumar Sharma, Ajay Kumar Pandey, Ashok Kumar Saxena and L.N. Upadhyay were posted in MPMKVVCL and respondent no.19 Ajeet Samdariya and respondent no.20 Kishore Samdariya were Directors of Samdariya Builders Private Limited.

4. On the basis of the documents seized in the raid in the premises of respondent no.2/G.N. Singh on preliminary enquiry it was revealed that the aforesaid public servants by misusing their power provided economic benefit to the private party M/s Samdariya Builders for granting lease of land belonging to the Jabalpur Development Authority (in short JDA) then the Crime No. 134/2011 was registered for the offence under sections 13(1)(d), 13(2) of the Prevention of Corruption Act and sections 420, 109, 120B of the IPC.

5. The facts of the transaction which had allegedly taken place illegally by misusing the power by the aforesaid Government servants with a view to favour M/s Samdariya Builders are that the J.D.A. issued an advertisement on 16/07/2004 in the newspaper inviting tender from the qualified contractors under the promoter scheme for the area

CRR No.2111/18,

CRR No.4104/2018,

M.Cr.C No.35445/2018 MCrC No.35448/2018 41,149 sq.ft. situated in Civic Centre, Jabalpur and reserve price was mentioned as Rs.1500 per sq.ft. M/s Samdariya Builder submitted its tender quoting Rs.1799 per sq.ft., which was found to be highest bid, therefore, the same was accepted and the agreement was executed on 01/05/2006 and under the agreement the promoter having paid the entire cost of the land was given absolute right to choose the allottee of his choice, therefore, the promoter had absolute right to determine who will get the lease and JDA had to execute the lease deed in favour of the person whom the promoter chose and as per terms of the agreement, at the instance of M/s Samdariya Builder lease deed was executed in favour of M/s SBPL (Samdariya Builder Private Limited) treating it to be different and distinct entity. Accordingly, private builder M/s SBPL is an allotee of J.D.A.

6. At initial stage of investigation, following illegalities or irregularities were emerged about aforesaid transaction for deep investigation :-

(i) The land reserved for commercial complex was allotted illegally as at the time of invitation of the tender no minimum price was fixed and no efforts were made to get highest price.

(ii) The lease rent was fixed @ 2% which is less than 6.5%, which requires to be fixed for the land belonging to Nazul land as per the relevant Rules;

(iii) Contrary to the terms of the agreement, the builder was provided electricity line on the cost of public fund;

(iv) Additional land 6,240 sq. feet was allotted to M/s Samdariya Builder illegally with a view to provide

CRR No.2111/18,

CRR No.4104/2018,

M.Cr.C No.35445/2018 MCrC No.35448/2018 favour to M/s Samdariya Builder.

(v) The officers of the Municipal Corporation sanctioned the map of building construction without taking compounding fee;

(vi) The lease agreement and thereafter lease-deeds were executed without paying proper stamp duties and registration fees;

(vii) Electricity Department illegally provided facility to deposit amount in installment for getting supply of high voltage line, thereby have caused economic loss to the electricity Board.

7. The Investigating agency/Special Police Establishment Lokayukat, Jabalpur, made investigation with regard to the aforesaid illegalities and arrived at the conclusion that the aforesaid transaction of the land has taken place in accordance with law and no public servant has misused his power for providing undue benefit to M/s Samdariya Builders or to cause any harm to the public exchequer, therefore, prima facie no offence is made out against any of the respondents and accordingly filed closure report before the Special Judge, Jabalpur. However, the learned Special Judge rejected the aforesaid prayer and opined that on record the alleged role of the aforesaid public servants are seriously probable. Hence, the closure report is disallowed and further directed that the record of the investigation be placed before the competent sanctioning authority for obtaining sanction for prosecution against the aforesaid public servants.

8. The aforesaid impugned order has been challenged

CRR No.2111/18,

CRR No.4104/2018,

M.Cr.C No.35445/2018 MCrC No.35448/2018 here by the Special Police Establishment Lokayukat Organization Jabalpur on the ground that the order of the learned trial court is contrary to law and learned trial court has exceeded its jurisdiction and passed the order without going through and appreciating the material available on record. While the material collected by the police, prima facie support the opinion of the investigating agency and there is nothing on record to arrive at different conclusion. Apart from it, the learned trial court by the impugned order has directed to file the charge sheet as well direction to the sanctioning authority to grant sanction due to which the sanctioning authority and investigating authority has left with no other option. Thus, the order is beyond jurisdiction of the learned Special Judge and the learned Judge has not assigned any relevant reason with regard to justify grave suspicion in the role of the aforesaid public servants in the aforesaid prosecution. Hence, the impugned order be set aside and the closure report be accepted.

9. Criminal Revision No. 4104/2018 has been filed by M/s Samdariya Builders Private Limited for setting aside the impugned order and allowing the closure report with the submission that M/s Samdariya Builders has not committed any offence and the prosecution with regard to land in question has taken place in accordance with law and no undue benefit has been given to the builder and all the allegations have rightly been found to be not established by the investigating agency.

10. M.Cr.C No.35445/2018 has been filed by applicant/Shivendra Singh, who was posted as Chief Executive Officer, J.D.A. at relevant point of time and M.Cr.C No. 35448/2018 has been filed by applicant/Tarun Kumar

CRR No.2111/18,

CRR No.4104/2018,

M.Cr.C No.35445/2018 MCrC No.35448/2018 Anand, who was posted as Superintending Engineer, J.D.A., on the ground that no favour has been made by the J.D.A. to provide any undue economic benefit to M/s Samdariya Builder in the transaction in question and the closure report is acceptable. It is submitted that the closure report submitted by the investigating agency has dealt with every aspect of the allegation leveled against the accused persons. The effect of adjudication of the relevant subject matter by this Court in earlier writ petition, cannot be ignored merely by saying that it is related prior to the FIR, while after adjudication from this Court in different litigation there is nothing left to adjudicate afresh by any authority other than the High Court. Learned Special Judge instead of detailing the reasons as to why the report of the investigating agency cannot be accepted, on hypothetical ground rejected it, which is bad in law. Undoubtedly, the learned trial court is vested with the discretion as to whether refuse or accept the report or direct further investigation. However, the aforesaid discretion should be exercised judiciously and cannot be unregulated or unbridled. In the present case, learned Special Judge presumed the role of public servants to be doubtful and suspicious without assigning any relevant reasons for such finding, which is contrary to the record.

11. In this case none is objector or private complainant as the Lokayukat Police itself took cognizance on the basis of some documents in another criminal case and after investigation, Lokayukt Police have arrived at the conclusion that no wrong has been committed in the transaction of the land in question, therefore, no offence is made out and filed the closure report. Learned Trial court has disallowed the aforesaid prayer and directed to place the material before the

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CRR No.4104/2018,

M.Cr.C No.35445/2018 MCrC No.35448/2018 sanctioning authority for sanction of prosecution.

12. It would be appropriate to first deal with the legal contentions before observing factual aspects. The legal objection is that the trial court has exceeded in its jurisdiction by directing to file charge-sheet and to grant sanction for prosecution. In view of this court, this contention has no substance. Neither the Special Judge has directed to file charge sheet nor has given mandate to the sanctioning authority to grant sanction for prosecution. If Investigation Agency files the closure report, the Magistrate or the Special Judge has jurisdiction to accept it or reject it and if the material is not sufficient and looking to the facts and circumstances of the case further investigation is desirable to reach on a prudent conclusion then the investigating agency can be directed to make further investigation or the complainant may be directed to produce material in support of the complaint. In a case when the Magistrate / the Special Judge is of the opinion that the cognizance can be taken but there is need of the sanction order for prosecution then cognizance cannot be taken and the matter would be left on the investigating agency to take action in accordance with law for the purpose of getting sanction for prosecution.

13. In the present case, having rejected the prayer with regard to acceptance of the closure report, the learned Special Judge has observed that in this matter sanction for prosecution will be required, therefore, the material be placed before the sanctioning authority for consideration. Hence, there is no mandate or command to the sanctioning authority to grant sanction for prosecution and it is only obiter dicta. It does not amount to direction to the sanctioning authority or to file the charge sheet. This aspect has been considered by

CRR No.2111/18,

CRR No.4104/2018,

M.Cr.C No.35445/2018 MCrC No.35448/2018 Hon'ble the Apex Court in the case of Arun Kumar Aggrawal vs. State of M.P., and ors (2014) 13 SCC 707 para 35 to 38 is as under :-

35. In the facts and circumstances of the present case, we are of the opinion that the refusal of the learned Special Judge, vide his order dated 26-4-2005, to accept the final closure report submitted by Lokayukta Police is the only ratio decidendi of the Order. The other part of the Order which deals with the initiation of Challan proceedings cannot be treated as the direction issued by the learned Special Judge.

36. The relevant portion of the Order of the learned Special Judge dealing with Challan Proceeding reads as under :

"Therefore matter may be taken up seeking necessary sanction to prosecute the accused persons Raghav Chandra, Shri Ram Meshram and Shahjaad Khan to prosecute them under Section 13 (1)(d), 13(2) of the Prevention of Corruption Act, 1988 and under Section 120-B I.P.C and for necessary further action, case be registered in the criminal case diary."

37. The wordings of this Order clearly suggest that it is not in the nature of the command or authoritative instruction. This Order is also not specific or clear in order to direct or address any authority or body to perform any act or duty. Therefore, by no stretch of imagination, this Order can be considered or treated as the direction issued by the learned Special Judge. The holistic reading of this order leads to only one conclusion, that is, it is in the nature of `'obiter dictum' or mere passing remark made by the learned Special Judge, which only amounts to expression of his personal view. Therefore, this portion of the order dealing with challan proceeding, is neither relevant, pertinent nor essential, while deciding the actual issues which were before the learned Special Judge and hence, cannot be treated as the part of the Judgment of the learned Special Judge.

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38. In the light of the above discussion, we are of the opinion that, the portion of the order of the learned Special Judge which deals with the challan proceedings is a mere observation or remark made by way of aside. In view of this, the High Court had grossly erred in considering and treating this mere observation of the learned Special Judge as the direction of the Court. Therefore, there was no occasion for the High Court to interfere with the order of the learned Special Judge".

14. The aforesaid judgment of Hon'ble the Apex Court squarely covers the aforesaid contention of the learned counsel for the applicant- Lokayukt as well as learned counsel for the respondents. Therefore, it is held that learned Special Judge has not committed any jurisdictional error directing the investigating authority accordingly.

15. Here, it would be worth mentioning for guidance of the Magistrate / the Special Judge that in case they found that the material is sufficient to take cognizance, they reject the prayer for acceptance of the closure report without observing that the matter be placed before the sanctioning authority for granting sanction to prosecute the Government servant. They may observe that the investigating agency shall proceed further in accordance with law to avoid challenging the aforesaid observation. If the matter is dealt with in this manner, the order cannot be assailed on the ground that it curtails the power of investigating agency as well as sanctioning authority. On passing the order in such manner, the impact will be that the investigating agency has to place the matter before the sanctioning authority in furtherance to the order of the trial court / the Special Judge and the authority has to examine the matter independently without being influenced by any observation of the Special Judge.

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M.Cr.C No.35445/2018 MCrC No.35448/2018

16. It is also contended that the impugned order suffers from lack of reasoning and on this ground the order is also not sustainable. The requirement of reasoning in judicial order has been emphasised by Hon'ble the Apex Court in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. Shukla and brothers, (2010)4 SCC 785 wherein in paragraph 13 it is observed as under :-

"13. At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly hamper the proper administration of justice. These principles are not only applicable to the administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as they litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment.

17. In the case of Secretary, Agricultural Produce Market Committee, Bailhongal Vs. Quasami Janab Ajmatalla Salamulla and another, reported in (2009)9 SCC 219, the Hon'ble Apex Court in para 9 held as under :-

"9. Courts, whose judgments are subject to appeal have to remember that the functions of a reasoned judgment are :

(i) to inform the litigant the reasons for the decision;

(ii) to demonstrate fairness and correctness of the decision;

(iii) to exclude arbitrariness and bias; and

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(iv) to enable the appellate/revisional court to pronounce upon the correctness of the decision."

18. So far as the present case is concerned, it cannot be said that the learned trial court has not assigned any reasons; however, the reasons given by the learned trial court are absurd. The judgments delivered in the writ petitions with regard to adjudication of the subject matter in question have been ignored merely by saying that they were delivered before the date of recording of the FIR, which is prima facie absurd reasoning as their enforceability has not been considered. The other reasonings are not in detail and the court has directly observed that the conduct of the aforesaid Public Servants is suspicious. In the circumstances, however, it cannot be said that the impugned order is a well- reasoned order dealing with all the aspects in a desirable manner.

19. Now, we will deal with the factual aspects of the case and consider the contentions advanced by learned counsel for the parties in the aforesaid cases, particularly learned counsel for Lokayukt Organization and learned counsel for M/s Samdariya Builder, who have contended that the investigating agency has deeply investigated the illegalities or irregularities emerged during the preliminary enquiry/initial stage of investigation and on every point by referring the relevant material has arrived at the aforesaid conclusion and filed the closure report and there is nothing on record to arrive at different conclusion.

20. Learned counsel of the parties by referring the documents which are part of closure report, have also contended about the transaction in question that the J.D.A. has invited the tender by publishing an advertisement in

CRR No.2111/18,

CRR No.4104/2018,

M.Cr.C No.35445/2018 MCrC No.35448/2018 prominent newspapers of the State and the proposal of highest bidder was accepted, therefore, there was no loss of price of the land and the same was more than price fixed under the guidelines of the Collector for the stamp duties payable on the sale-deeds. The relevant note sheet and acceptance letter are part of the report.

21. So far as allotment of additional land adjoining with the main land is concerned, it was in accordance with law and no loss has been caused to the public exchequer. In this regard this Court in W.P No. 9751/2006 vide order dated 18/10/2013 has decided that the allotment was in accordance with law and full amount has been paid by M/s Samdariya Builders. The copy of W.P No. 9751/2006 is also on record which proved the fact.

22. The suspicion with regard to determination of lease rent in favour of M/s Samdariya Builder was also adjudicated by this Court in W.P No. 9343/2010 filed by M/s Samdariya Builder challenging the demand of Rs.14,81,620/- as 2% lease rent and this Court has directed that the lease rent shall be determined as prescribed under the amended Rule 47 of M.P. Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavano Tatha Anya Sanrachanao Ka Vyavan Niyam, 1975, which was prevailing at the relevant time. Accordingly, the lease rent would be less than 2%, therefore, the allegation that it should be 6.5% has no basis. The copy of W.P No.9343/2010 is on record which justified the finding of the police.

23. Similarly, the maps of construction of the building have been approved in accordance with the Rules by the Municipal Corporation. In this regard, 3FAR were separately

CRR No.2111/18,

CRR No.4104/2018,

M.Cr.C No.35445/2018 MCrC No.35448/2018 sent for approval and it is alleged that approval for high rise building was not sent to the Town & Country Planning office. During investigation, aforesaid fact was not found correct and it was found that the maps were sanctioned in accordance with law. Earlier, in this regard, some complaint was made to the authority for which Municipal Urban Development & Administration, has constituted a Three members enquiry committee vide order dated 22.2.2010 and as per the finding of the said Committee in compliance of letter No. 1371 dated 23/05/2008 as per consensus revised compounding fee has been deposited. Therefore, no loss with regard to compounding fee has been caused. The aforesaid letter is also on record to establish the fact.

24. Similarly, agreement dated 01/05/2006 and lease deed dated 30/05/2008 have been found duly stamped after paying penalty imposed by the Collector and lastly adjudicated by the Revenue Board and accordingly, Rs.26,24,350/- has been paid and this dispute was pending

since 3rd June, 2008, therefore, it cannot be said that the stamp duties were not paid on the agreement and the lease deed and the builder was benefitted by undue favour. The order of the Revenue Board justified this finding.

25. Likewise, no loss of the transfer fees has been found as the transfers by way of lease have been made in accordance with the terms of the agreement and the transfer fee is required under clause No.6 of the agreement only in case of execution of sale deed and, in the present case, no portion of the complex has been sold and as per clause 28 of the contract, first allotment at the instance of the promoter to the allottees is not further transfer, therefore, no loss of transfer fee has been caused. The copy of the agreement is on

CRR No.2111/18,

CRR No.4104/2018,

M.Cr.C No.35445/2018 MCrC No.35448/2018 record to verify the fact.

26. The allegation or suspicion that on the public expenditure facility with regard to electricity line was provided to the builder was also not found correct. The land allotted for commercial complex was part of the Scheme No. 18 of the J.D.A. and as per resolution of the Board of the J.D.A. considering the construction of other commercial complex like Danik Bhaskar Press, Apex Bank Parisar and others and for complete development of the area high voltage electricity line was installed by the J.D.A. The copy of the Resolution of the Board of J.D.A. dated 28/10/2009 is also on record to verify the fact.

27. On behalf of the M/s Samdariya Builders for getting the facility of electricity Rs.14,28,525/- was deposited in installments about which it is said that by giving the aforesaid facility of depositing the amount in installments, loss of interest was caused to the public exchequer by the concerned officers of the electricity department. In this regard, investigating agency opined that on behalf of electricity Board as a rule the facility to deposit the amount in installments is given to the consumers in general and in this regard if any loss is caused, the Board is competent to recover it and, therefore, it cannot be said that the officers of the Electricity Department have misused their power with a view to provide undue benefit to the builder. In this regard statements of the relevant witnesses are on record to justify the opinion.

28. Learned counsel for the Lokayukt police has referred before this Court all the relevant documents which find place in the voluminous record in separate files dealing

CRR No.2111/18,

CRR No.4104/2018,

M.Cr.C No.35445/2018 MCrC No.35448/2018 item-wise allegations, on the basis of which the investigating agency has arrived at the aforesaid conclusion.

29. Having gone through the record submitted by the investigating agency and considering the contentions of learned counsel for the parties, in view of this Court, there is no reason to take a different view as taken by the investigating agency with regard to the transaction in question. Accordingly, the learned trial court has committed error in not accepting the closure report as the investigating agency has investigated the matter deeply and arrived at reasonable possible conclusion which in view of this court does not warrant any interference or to take a contrary view. Therefore, the closure report deserves to be accepted.

30. In view of the aforesaid discussions, the order of learned Special Judge is unsustainable in the eyes of law; therefore, the same is set aside. Resultantly, the aforesaid petitions are allowed and disposed of.

                  (ATUL SREEDHARAN)                      (J.P. GUPTA)
                       JUDGE                               JUDGE


Digitally signed by
TARUN KUMAR
SALUNKE
Date: 2021.03.18
14:37:51 +05'30'