High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.239 OF 20201Mr. Khaja Aminuddin,Age 63 yrs., Occ. Managing Partner,Mascot Construction Companyhaving its office atH. No.1-27-45, New Road,Manzoorpura, Aurangabad. 2Mr. Khaja Moinuddin Shaikh Mehboobuddin,Age 64 yrs., Occ. Non working Partner,Mascot Construction Company,R/o Plot No.145, Arif Colony, Asif Baug,Aurangabad. 3Mr. Khaja Kalimoddin Shaikh Mehboob,Age 59 yrs., Occ. Non working PartnerMascot Construction Company,R/o Plot No.154, Arif Colony, Asif Baug,Aurangabad. … Applicants… Versus …1The State of MaharashtraThrough Police Station In-chargePolice Station, Paithan,Dist. Aurangabad (Rural). 2Bramhadev Vasudev Gavde,Deputy Superintendent,Anti Corruption Division,Aurangabad. … Respondents... 2Cri.Appln_239_2020Mr. A.A. Yadkikar, Advocate for applicantsMr. A.D. Wange, APP for respondent No.1...CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.RESERVED ON :06th FEBRUARY, 2025PRONOUNCED ON :06th MARCH, 2025.ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed for quashment of FirstInformation Report vide Crime No.399/2019 dated 22.11.2019 registeredwith Police Station, Paithan, Dist. Aurangabad, for the offence punishableunder Sections 13(1), (2) and 12 of the Prevention of Corruption Act, 1988and under Section 120-B of the Indian Penal Code, 1860. 2Heard learned Advocate Mr. A.A. Yadkikar for applicants andlearned APP Mr. A.D. Wange for respondent No.1. 3After taking us through contents of First Information Report,learned Advocate appearing for applicants submits that they are accusedNo.13. They are the partners i.e. applicant No.1 is the Managing Partner andapplicant Nos.2 and 3 are non working/dormant partners in Partnership Firm‘Mascot Construction Company, Aurangabad’. Their Firm is a registered Civil 3Cri.Appln_239_2020Works Execution Contractor. The Firm participates in different tendersfloated by Government Authorities for various civil work. An offence came tobe lodged vide Crime No.399/2019 with Police Station, Paithan stating thataccused Nos.9 to 13, who are the construction company or firms, hadconspired with original accused Nos.1 to 8, who are the public servants incompletion of concrete road under Paithan-Apegaon Vikas Pradhikaran.There is huge amount of corruption, which was then revealed whencomplaint was made and District Collector had appointed a technical squadfor audit of work done by accused Nos.9 to 13. The road was constructedand construction activity was given in tender to the company i.e. accusedNos.9 to 13 for different patches/portions. It is stated that for personalbenefit to gain financially the road has been constructed with sub-standardmaterial, which had developed cracks, rendering the road unusable andresulted in loss of near about 1.5 crores. Learned Advocate for applicantssubmits that at no point of time in the inquiry applicants – company was everinvolved. Even if we take the report as it is, it may lead to breach of contract,if the quality of work is of sub-standard quality. But, certainly, there is noevidence regarding offering bribe. Even after so many years the investigationhas not progressed and applicants are prejudiced because they cannot movefreely, they cannot go abroad either for work or for enjoyment. When there isabsolutely no evidence collected, it would be futile exercise to ask applicants 4Cri.Appln_239_2020to face the trial or proceedings, which is at a very initial stage, even after sixyears. He relies on the decision in Karnataka Emta Coal Mines Limited andothers vs. Central Bureau of Investigation [AIR 2024 SC 5081], wherein alsoafter taking into consideration facts of case which are of almost similarnature that at the most civil dispute is the remedy but it cannot be given acolour of criminal offence. 4When the statement was made that investigation has notprogressed, we had asked learned APP to get the present status. Our orderdated 29.01.2025 is very clear in that respect. We had asked learned APP tomake a statement, upon taking instructions from the officer with whom theproposal for verification is pending, as to when the verification would becompleted by him. A report has been submitted giving details as to whatalleged investigation has been made. He had stated that whatever evidencehas been collected has been submitted for scrutiny to his superior. He onlyreiterates that there is loss to the extent of Rs.1.5 Crores to State Exchequer. 5Here, it is to be noted that accused Nos.1 to 8 are Governmentservants from Public Works Department. Tender was floated in 2013regarding construction of work, which was then divided in five portions. Itwas found, after the work was done that the road has developed cracks, then 5Cri.Appln_239_2020a complaint was received at the Anti Corruption Bureau and, therefore, anopen inquiry was held in 2015. District Collector had also appointed acommittee and quality of road was got assessed through various institutions.Those companies/institutions have given their reports stating that crackshave been developed due to use of sub-standard material. Now, even if wetake reports submitted by those institutions as it is, it can be considered thatconstruction has been made with sub-standard material. That cannot be perse corruption. The report submitted by Investigating Officer is totally silentthat even after the period of almost six plus years, he could not reveal as tohow any amount has been paid as bribe by any of the institutions, who hadtaken the contract. Out of that how much was paid to accused Nos.1 to 8.There was no answer from State side, as to why the State has not providedfor the civil remedy if the Government is of the opinion that there is breach ofterms of contract and instead of giving quality road, a road that has beengiven having sub-standard material. Construction of road in sub-standardmaterial will not amount to corruption. The corruption can be either in cashor kind. Here, there is absolutely no such evidence. Further, from the reportit can be seen that out of those 08 accused persons, accused Nos.1 to 3 stoodretired from their post. The fact is not given, as to whether anyDepartmental Enquiry was initiated against them and what was its result.Therefore, the facts of case basically show at the most the relief under the 6Cri.Appln_239_2020Civil Law would have been maintainable. There is no substance and supportto allegations of using non corrupt practice amounting to an offence underthe Prevention of Corruption Act as against applicants. 6Another fact to be noted is that the company has been made asaccused No.13 and not the individual. A juristic person cannot have mind tocorrupt anybody in the form of giving bribe. A company is always runthrough human beings. The Investigating Officer has not reported thatwhether he had seen accounts of company, where present applicants areDirectors. It would have given an indication, as to how amount of bribe hasbeen paid. Therefore, with this kind of material, it would be futile to askapplicants to face the trial. Hence, following order. ORDERi)Criminal Application stands allowed. ii)First Information Report vide Crime No.399/2019 dated22.11.2019 registered with Police Station, Paithan, Dist. Aurangabad, for theoffence punishable under Sections 13(1), (2) and 12 of the Prevention ofCorruption Act, 1988 and under Section 120-B of the Indian Penal Code,1860, stands quashed and set aside as against applicants.( SANJAY A. DESHMUKH, J. )( SMT. VIBHA KANKANWADI, J. )agd