Sanjiv Paul v. Union of India through C.B.I

These Criminal Revision Petitions arise out of order passed by the Special Judge, CBI, Ranchi in RC Case no. 4 (A)/2006 (R) registered under Sections 120B read with 420 IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 whereby and whereunder the discharge petition under Section 239 of Cr.P.C. filed by the petitioners /accused persons has been rejected. Since all the revision arise from the common order therefore they have been heard together and will be disposed by common order.

Cr. M.P. Nos. 2, 3 and 13 of 2022 were filed under Section 482 of the Cr.P.C. for quashing of the order of cognizance and entire proceeding. This Court vide order dated 8.7.2022 permitted these cases to be heard analogous with the present revision petitions for the reason that earlier the revision petitions filed by these petitioners against the discharge petitions were permitted to be withdrawn for being heard in these criminal miscellaneous petitions. These petitions have been also been heard together and shall be disposed of by common order. PROSECUTION CASE

A First Information Report was registered by the Anti-Corruption Bureau, CBI, Ranchi P.S. on 30.03.2006 under Sections 120B read with Section 420 of the Indian Penal Code and Section 13(2) read 3 with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the following :- (i) A. K. Khan, Asst. Professor, National Institute of Technology, Jamshedpur. (ii) K. N. Jha, Chief (Planning, Engineering & Construction), M/s Jamshedpur Utilities & Service Company Limited. (iii) M/s Jamshedpur Utilities & Services Company Limited (hereinafter referred to as JUSCO) represented by Sri Sanjiv Paul, Managing Director.

As per the FIR the contract was awarded in favour of Jamshedpur Utility Services Company (hereinafter called JUSCO) under a criminal conspiracy joined by A.K. Khan, Assistant Professor, National Institute of Technology, K.N. Jha, Head of the TPE and Mr. Sanjeev Paul representing JUSCO deliberately ignoring offers of L-1 to L-8 parties thereby causing financial loss of Rs.162.68 lakh (Rs.700.48-Rs.537.80) to NIT. a. Sh A. K. Khan, the then Asst. Professor NIT, Jamshedpur, in the capacity of Chairman of Building Advisory Committee negotiated with L-6, to L-9 bidders instead of L-1 in the matter of appointment of Architect-cum-Consultant and dishonestly and fraudulently recommended the name of Town Planning Engineering (TPE) of Tata Steel for the appointment of Architect- cum- Consultant by ignoring offers of L-1 to L-8 T.P.E. was L-9 in the tender. b. Sh. K. N. Jha, as head of TPE (Tata Steel) and as a consultant got the work of Civil and electrical work contract awarded in favour of M/s. Jamshedpur Utilities & Service Company Ltd. (JUSCO)

represented by its Managing Director, Shri Sanjiv Paul in spite of the fact that M/s JUSCO was not the L-1 bidder and also by ignoring the bid of M/s Adisons Constructions Ltd., Kolkata which was the L-1 party. M/s Adisons had quoted a rate of 537.80 lakhs, whereas, the work was awarded to M/s JUSCO for Rs.700.48 Lakhs and that too with a condition of rebate of 2.5% against grant of 10% interest free mobilization advance. c. M/s JUSCO was not eligible to purchase the tender documents as per the condition laid down in Notice Inviting Tender in absence 4 of requisite Income Tax Clearance Certificate and was also not registered with State Tax and Central Tax authorities at the time of submitting Tender documents. M/s JUSCO had not submitted requisite certificate (credential) at the time of submitting its tender for the said Civil and Electrical work. d. Erstwhile Town Division of Tata Steel later became JUSCO and Town Planning and Engineering was part of Town Division of M/s Tata Steel. TPE headed by K. N. Jha was selected as Architect cum Consultant and was associated with the Tendering process. It was TPE which had selected M/s JUSCO for award of the Civil & Electrical work Contract. Both TPE & M/s JUSCO were parts of Tata Steel only but they were single entity. Thus, K. N. Jha in fact selected M/s JUSCO for award of work in which he had natural interest. e. Thus, with the aforesaid facts as alleged a loss to the tune of Rs.162.68 Lakhs had been caused to N.I.T., Jamshedpur.

After investigation charge-sheet has been submitted on 29.05.2009 under sections 120 B IPC and Section 13 (2) and 13 (1) (d) of the Prevention of Corruption Act. 1988. against 8 accused persons viz (i) Prof A.K. Khan the then Profession In-Charge, Civil Works, NIT, Jamshedpur (ii) K.N. Jha, Chief Planning Engineering and Construction, M/s JUSCO, Tata Steel, Jamshedpur (Private Person) (iii) M/s JUSCO represented by Sanjeev Paul, M.D. (iv) Dr. Debasis Bhattacharya, the then Director, NIT, Jamshedpur (v) Prof. A.B. Chattopadhyay, the then Prof. I/c EMR, NIT, Jamshedpur (vi) Prof. R.P. Singh, Assistant Professor, Civil Engineering Department, NIT, Jamshedpur (vii) Kamal Kumar Ghosh, Sr. Manager, Architecture and Consultancy Services, Town Division, Tata Steel (Private Person) (viii) Sanjeev Paul, M.D., M/s JUSCO, Tata Steel.

As per the Prosecution case criminal conspiracy was executed in multiple stages resulting in wrongful loss to NIT, Jamshedpur a fully funded institute of Government of India and wrongful gain to M/s JUSCO by ignoring the L-1 bidder M/s Adisons Constructions Limited which was the L-1 party.

In execution of this conspiracy Sri AK Khan assistant professor NIT while heading the Building Advisory Committee as chairman, in the 5 first stage appointed Sri K.N. Jha, Head of Town Planning and Engineering (hereinafter called TPE), Tata Steel and M/s Jamshedpur as Architect-cum-Consultant for construction and expansion of NIT by ignoring L-1 to L-5 and negotiating with L-6 to L-9 and finally awarded contract in favour of TPE which was L-9. In the second stage that TPE awarded the contract to M/s JUSCO by ignoring the L-1 bidder M/s Adisons Constructions Limited which was the L-1 party. The BAC comprised of A.K Khan as the chairman and Prof A.B. Chattopadyaya, Sh R.P. Singh and Sh Deepak Kumar, Asstt. Engineer who prepared a Tender as well as the Tender Opening-cum- Comparative statements which shortlisted L-6 to L-9 bidders including M/s TPE @ 4.9% of the total value proposed work for negotiation by ignoring L-1 namely, M/s S.P. Associates Patna @

2.09 % on the pretext of observing the Handbook of Manual of Architecture, which was only optional as per the statement of PW sh Rajesh Kumar, Executive Engineer, CPWD. Thereafter, negotiation was held by the BAC comprising of Prof A.K. Khan, Sh R.P. Singh, Sh Deepak Kumar and Smt. Namrata Kumari, Lecturer Dept. of Elect Engineering NIT. On the recommendation of BAC approval was obtained from Building Works Committee (BWC) headed by Dr D. Bhattacharya and from the chairman BOG Sh Muthuraman and thereupon M/s TPE was awarded the consultancy on 30.12.2003 by NIT.

After the term of award of the work to M/s TPE, the consultant was authorised to invite, receive and analyses tenders; advise client on appointment of contractor. The consultant had also to prepare the estimates, design and drawings and architectural maps EDC relating to the said Civil and Electrical work. NIT published notice inviting tender for civil and Electrical works and the last date of purchase of tender documents was fixed on 23.01.04. Later by corrigendum dated

26.01. 04 the date of purchase of tender documents was extended up to 28. 01.04. For purchase of tender documents ₹ 20,000 was to be deposited by way of demand draft. But, M/s JUSCO, Jamshedpur was issued the tender documents after the last date of issue against the invalid demand draft of ₹ 20,000 dated 29.01.04. All four parties including JUSCO submitted their tenders. All these four parties were 6 scrutinised by the tender committee comprising of Sri KN Jha Head M/s TPE (chairman) and Prof A.K. Khan and Sh Kamal Kumar Ghosh and purportedly all the four parties were called for negotiation by the tender committee. However, no records were available to suggest that M/s Adisons Construction (L-1) was called for negotiation. The tender committee rejected the offer of M/s Adisons Construction on the ground that it was conditional which was mere assumption that could have been settled by negotiation. M/s JUSCO was given an interest-free mobilisation advance of Rs.70 lakhs by the aforesaid Tender Committee, this condition was not mentioned in the tender notice. After negotiations by the tender committee L-2 party represented by its MD Sanjiv Paul was recommended for award of civil and Electrical work for value of Rs.700 lakhs which was much higher than the offer of L-1 which stood at Rs.537 lakhs. On the recommendation of the tender committee Dr D Bhattacharya put his remarks that the offer of M/s Adisons was conditional and also that the party declined to withdraw the conditional offer and therefore the work order was placed on M/s JUSCO. The BWC and BOG approved the said one off work post facto. Thus a loss to the tune of Rs.162.768 lakhs was caused to NIT Jamshedpur.

The individual roles as per the charge sheet is against Prof. Ashok Kumar Khan, Sh. K. N. Jha, Head M/s TPE, M/s JUSCO represented by Sh. Sanjiv Paul, MD, Dr. D. Bhattacharya, Prof. A. B. Chattopadhyaya, Prof. R. P. Singh and Sh. Kamal Kumar Ghosh are as under :- I. Prof. A. K. Khan : (a)As Chairman, BAC, NIT, he dishonestly rejected the bids of L-1 to L-5 parties on the grounds of having quoted low rates and lack of requisite experience and negotiated with parties (L-6 to L-9) which were other than L-1 in violation of CPWD norm for appointment of Architect- cum- Consultant and thereupon, recommended the name of L-9 (M/s TPE) for award of consultancy. (b) As Chairman, BAC, Prof. A. K. Khan did not adopt two bid system namely, ‘Price bid’ and ‘Commercial bid’ for selection of Consultant for NIT, Jamshedpur. (c)As a member of Tender Committee for Civil Electrical works of 7 NIT (headed) by Sh. K. N. Jha, Head, M/s TPE), he negotiated with L-2 party instead of L-1 (M/s Adisons Constructions) in violation of CPWD/ CVC norms and thereupon, the name of M/s JUSCO (L-2), a non-eligible firm was recommended for award of Civil & Electrical work.

29.01.04 i.e. after the expiry date for sale of tender papers. (b) M/s JUSCO was illegally awarded the Civil & Electrical construction work by other accused persons although, it was non- eligible firm in terms of its eligibility documents. (c) M/s JUSCO (Erstwhile M/s TPE) as a corporate legal body/ entity the firm is the beneficiary of the award of the Civil & Electrical construction work. As Consultant to NIT, Jamshedpur M/s TPE (Headed by Sh. K. N. Jha) awarded the said work to M/s JUSCO, its sister concern. (d) A loss of Rs.4,86,000/- to NIT, Jamshedpur has been caused by the award of consultancy to L-9 (M/s TPE) instead of L-1 (M/s S. P. Associates, Patna). And, another loss of Rs.49,60,257/- has been caused to NIT by the award of Civil & Electrical construction work to L-2 (M/s JUSCO) instead of L-1 (M/s Adisons Constructions). (e)By the award of consultancy by NIT to M/s TPE and thereafter, by the receipt of Civil & Electrical Works by M/s TPE to M/s JUSCO, a total loss of Rs.54,46,257/- has been caused to NIT, Jamshedpur and corresponding gain to M/s JUSCO and other accused persons.

IV.Dr. D. Bhattacharya: (a) As director, NIT, Jamshdpur, he dishonestly approved the recommendation of the Building Advisory Committee (BAC), NIT, Jamshedpur dated 23.12.03 and M/s TPE (L-9) was selected as Architect-cum- Consultant for NIT works instead of M/s S. P. Associates, Patna (L-1) in violation of CPWD and CVC norms and that too before the approval of BOG. (b) Dishonestly termed the offers of M/s Adisons Constructions (L-1) as conditional’ on the basis of which the Civil & Electrical work was awarded to M/s JUSCO (L-2). On the other hand the offer of M/s JUSCO was not treated as conditional although, the party had 9 asked for 10% interest free mobilisation advance at the time of negotiation. (c) As Director, NIT he dishonestly approved the award of work to M/s JUSCO, an ineligible party before the approval of BOG, NIT as against the norms of its Memorandum of Association. (d) By the award of consultancy to M/s TPE and thereafter, by the award of Civil & Electrical works by M/s TPE to M/s JUSCO, a total loss of Rs.54,46,257/- has been caused to NIT, Jamshedpur.

IV. Prof. A. B. Chattopadhyaya : (a) As a member of BAC or the Tender Committee he dishonestly short listed and recommended for negotiation with L-6 to L-9 instead of L-1 party in violation of CPWD/ CVC norms which resulted in award of consultancy to L-9 and thereby, NIT has sustained a loss of about Rs.4,86,000/-. VI. Prof. R. P. Singh : As a member of BAC or the Tender Committee he dishonestly short listed and recommended for negotiation with L-6 to L-9 instead of L- 1 party in violation of CPWD/ CVC norms which resulted in award of consultancy to L-9 and thereby NIT has sustained a loss of about Rs.4,86,000/- VII. Kamal Kumar Ghosh (Pvt. Person) : (a) As a member of Tender Committee for Civil Electrical works of NIT (Headed by Sh. K. N. Jha), he alongwith Prof. A. K. Khan processed the bids of 4 parties and dishonestly negotiated with party/ parties other than L-1 (M/s Adisons Constructions) in violation of CPWD/ CVC norms and thereupon, the name of M/s JUSCO (L-2), a non-eligible firm was recommended for award of Civil & Electrical work due to which NIT has incurred a loss of about Rs.49,60,257/-. (b)By the dishonest award of consultancy to M/s TPE and thereafter by the award of Civil & Electrical works by M/s TPE to M/s JUSCO, a total loss of Rs.54,46,257/- has been caused to NIT, Jamshedpur. 12 numbers of bidders responded to the tender notice.

Ld. Special Judge, CBI took cognizance of offences under Section 120B read with Section 420 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 vide order dated 18.07.2009 and consequently summons were issued against the 10 accused persons including the petitioner. SUBMISSION ON BEHALF OF PETITIONER- SANJIV PAUL

The petitioner challenged the order taking cognizance dated

18.07.2009 under the provisions of Section 482 Cr.P.C. This Court vide order dated 31.01.2013 in Cr.M.P. No.1582 /2009 was pleased to quash the order dated 18.07.2009, inter-alia for the following reasons:-

It appears that whatever allegations are there for securing award in favour of the Company, in spite of being ineligible to participate in the bid, it was upon the Company. Further it is the Company who is said to have gained benefit from the award. This petitioner has never been alleged to have gained any benefit out of the award or any allegation is there to the effect that at the behest of this petitioner M/s JUSCO was awarded with contract. In such situation, one is at loss to comprehend as to how offence is made out under Section 420 even with the aid of Section 120(B) of the Indian Penal Code and also under Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the petitioner in his personal capacity. Thus, I am constrained to hold that no offence is made out against the petitioner who is prosecuted in his personal capacity under which cognizance of the offence has been taken and thereby the order taking cognizance is hereby quashed so far the petitioner is concerned

. In the result, this application stands allowed”.

CBI being aggrieved by the aforesaid order of the Hon’ble High Court, preferred SLP (Crl.) No.9590 of 2013 before the Hon’ble Supreme Court, which was allowed by the Hon’ble Supreme Court vide its order dated 10.01.2017 observing as under :- On due consideration, we are of the view that the stage at which the High Court had quashed the proceedings was not appropriate. We, therefore, interfere with the order of the High Court but leave it open to the respondent- accused to seek discharge before the learned trial Court. All questions are left open to be urged before the learned trial Court.”

Pursuant to the above order of the Hon’ble Supreme Court dated

10.01.2017, the petitioner appeared before the Trial Court on

11.04.2017 and thereafter filed a Discharge Petition under Section 11 239 of the Criminal Procedure Code, 1973 before the Special Judge, CBI, Ranchi and contended that the charges leveled against the petitioner as emanating from the charge-sheet is without any materials on record and are completely baseless and imaginary and do not create any grounds for which charge can be framed against the petitioner.

The Ld. Special Judge, CBI vide its order dated 02.02.2019 was pleased to reject the discharge petition of all the accused persons.

The petitioner being aggrieved by the order dated 02.02.2019 approached this Court by filing a criminal revision petition which was registered as Cr. Rev. No.552 of 2019. The said case was finally heard on 21.08.2019 and subsequent to the hearing, the learned Court was pleased to remand the matter to the learned Special Judge. The operative part of the order reads as under :- “(13) From perusal of the case diary, it appears that the further statement of Sanjiv Paul was recorded on 27.07.2006 and when he was confronted with the letter addressed to CFO, M/s JUSCO by Rituraj Sinha, he has admitted that he signed the letter on

28.01.2004. So it submitted by the learned counsel for the petitioner that JUSCO is a legal entity and is an accused and admittedly the petitioner was the Managing Director and material has come in the case diary that Ritu Raj Sinha has accepted that two persons were authorized to deal with the aforesaid tender. (14) Further allegation against the petitioner is that tender documents were purchased on 29.01.2004. Learned Counsel for the petitioner submitted that witnesses have admitted that petitioner had merely endorsed OK on 28.01.2004 on the letter addressed to CFO, JUSCO before the last date and the petitioner has not purchased the tender document and so the petitioner cannot be fastened with any criminal liability. All these document and facts have not been considered by Learned Special Judge. (15) Learned Counsel for the CBI, on the other hand, submitted that in view of the material collected in the case diary, learned Special Judge has passed the order correctly and there is a scope for interference in the merit of the case. So, the criminal revision is liable to be dismissed. 12 (16) After hearing the parties and carefully examining the materials available on records, I find considerable force in the submissions advanced by learned counsel for the petitioner. It appears that petitioner had merely endorsed O. K. on 28.01.2004 for purchasing tender documents, but the petitioner was not involved in the process of purchasing the tender documents, which find support from the statement of the P.W.-47, Ritu Raj Sinha, but this fact has not been considered by learned Special Judge, CBI and he has failed to exercise the jurisdiction vested upon him. So the impugned order dated 02.02.2019 passed by learned Special Judge, CBI, Ranchi in R.C. No.04(A)/2006 [R], so far as petitioner is concerned, is hereby set aside. (17) This criminal revision stands allowed. (18) The matter is remitted to court below with a direction to pass appropriate order preferably within 16 weeks from the date of receipt of copy of the order after hearing the parties and giving due consideration to all the materials available on records and the points raised by the petitioner.”

It is submitted that the findings contained in the aforesaid order of the Hon’ble High Court has attained finality since neither the prosecution nor the petitioner challenged the aforesaid order before any competent forum. Accordingly, the Revision petition was remitted back to the Ld. Special Judge for hearing on the discharge petition of the petitioner.

The Ld. Special Judge, CBI vide its order dated 06.01.2020 has been pleased to reject the discharge petition and the Operative part of the order reads as under :-

However, this is the stage of framing of charge and the above materials surfaced during the investigation shows that the charge against the petitioner is not groundless. Thus, on the basis of above materials collected by the CBI during investigation this Court comes to the conclusion that there is sufficient material on record to presume that petitioner has committed the offence and accordingly the above discharge petition having no merit is hereby rejected

.

It is contended on behalf of petitioner that the Hon’ble High Court 13 while remitting the discharge application back to the Ld. Special Judge had directed the Ld. Special Judge to consider the materials available on records while deciding the discharge application. That even after such categoric directions and findings contained in the order dated 21.08.2019 of the Hon’ble High Court in Cr. Rev. No.552 of 2019, the Ld. Special Judge has failed to appreciate the facts on the basis of which the aforesaid Criminal Revision was remitted and has made observations which are contrary to the materials on record.

It is argued that the Ld. Special Judge has incorrectly found the criminal involvement of the petitioner by clearly over-reaching the findings recorded by the Hon’ble High Court and the materials on the record in the following manner :- (a) Town Division, Tata Steel Limited became JUSCO, which was headed by Mr. Sanjiv Paul (petitioner hereinafter). TPE headed by Mr. K. N. Jha was also a part of the Town Division. TPE thus had natural interest to award the civil and electrical contract in favour of JUSCO in spite of JUSCO was L-2 and had quoted more than Adisons Limited (L-1). (b) After the signature of the petitioner on 28.01.2004, the tender documents were purchased after the expiry of the date of purchase of tender documents. (c) Further, after the endorsement of ‘Ok” JUSCO’s participation in the tendering process was initiated despite the knowledge that JUSCO was not eligible for award of the tender. (d) Though, there is no direct evidence of involvement of the petitioner for the act of criminal conspiracy with other co-accused, but the circumstantial evidence collected during the investigation reveal the same as without having any essential requisite and bypassing L-1, JUSCO was awarded the contract work even after submitting the tender documents after the last date. (e) The petitioner played the most important role of endorsing ‘Ok’ as it was assured of the award of tender, which was also clear from maps in relation to 4 number of civil and electrical works which were prepared by TPE much prior to the award of the contract.

It is argued that solitary act of making one endorsement of ‘OK’ is not sufficient to impute criminality against the accused persons. Even 14 if the materials on record as collected by the prosecution during investigation are considered without any objections, yet these materials are grossly insufficient to warrant conviction, but shall only cause a protracted involvement in criminal proceedings. Further, neither such documentary evidence collected nor statements collected during investigation at all reveal the petitioner had misrepresented any critical fact nor had suppressed any material fact. It is contended that for tendering of civil and electrical works was initiated by the publication of the notice inviting tender having the following dates: Event Original Dates Revised Dates Tender Document

23.01.2004

28.01.2004 Purchase Tender Document

24.01.2004

29.01.2004 Submission

That Ld. Special Judge has held at page 11 of the impugned order that M/s JUSCO represented by the petitioner was not eligible to participate in the tender process and the petitioner by approving the purchase of the tender documents had caused an illegality. The petitioner being the Managing Director of M/s JUSCO was not involved in the day to day operations of the organization. Further, it is argued that the petitioner also denied that he had ever himself read the Notice Inviting Tender to comprehend the conditions contained therein. However, upon its recent careful perusal, the petitioner could only note the following condition as contained in the Notice Inviting Tender [D-23], which forms part of the police papers handed over to the Petitioner in terms of Section 207 and 208 of the Criminal Procedure Code. The Party who has executed such civil and electrical job of Rs.10 crores or more in a single contract or having such experience experts under it or the Contractors enlisted with PWD, CPWD, MES, and any PSU and have executed such value of works in last 10 (ten) years may collect the Tender documents from the Consultant engaged for the above job by NIT from the office at Town Division, Tata Steel, Jamshedpur on payment of Rs.20,000/- non- 15 refundable towards cost of tender documents.

Further, the Notice Inviting Tender stipulated as follows: - The Institute/ Consultant reserves the right to reject any or all Tenders without any assigning any reason and also to deny issuance of Tender Documents if the Contractors fail to produce requisite experience, capability and other documents etc. Prior to the purchase of the Tender documents, the petitioner could at best be aware of the said stipulation. Since, the petitioner was heading M/s JUSCO as its Managing Director at the relevant time and since M/s JUSCO was formed out of Town Division, Tata Steel Limited, part of the Town Division, M/s JUSCO could comfortably meet with the requirements for purchase of the tender document. However, it will be significant to note that the prosecution had purposefully qualified the condition to read as ‘having executed work of more than Rs.10 crores in a year in a single contract’, while the condition only read, ‘having executed work of more than Rs.10 crores in a single contract.’ That the further allegation of the prosecution has been that M/s JUSCO represented by the petitioner could not have participated since it did not have the eligibility in terms of the following documents as per the requirements of the tender document (D-38); (a) JUSCO had no certificate for commencement of business (b) JUSCO has no contract labour licence (c) JUSCO had no Central Sales Tax and Jharkhand Sales Tax Certificate (d) JUSCO had no PAN card.

Further, prosecution has contended that clause 18 of the Tender Document was also not filled, which reads as follows :- The Contractor must produce Income Tax Clearance Certificate in the revised form before the tender papers can be sold to him. It is submitted that compliance of the said condition by the petitioner was impossible to be complied with it, because unless the tender document could be purchased one could not know about this condition.

To set up the charges of criminal conspiracy against the petitioner, the prosecution relies on 4 number of maps of civil and electrical which 16 were prepared by the TPE in the month of August, 2003, which was much before the award of tender. It is yet unclear to the petitioner as to how such facts are relevant to establish a charge of conspiracy against the petitioner. A careful perusal of the documents would show that on 04.06.2003 the Director of NIT namely Dr. A. Mishra wrote a letter to the M. D. Tata Steel & Chairman Board of Governors of NIT, Jamshedpur with a request to carry out the essential repairs of Hostels, face lifting of institute building and beautification of the campus.

It is submitted that the above document provides the necessary reasons for preparation of maps and sketches prior to the issuance of Notice Inviting Tender. The prior preparation of maps and sketches were carried out on valid documented instructions and the same was not at all carried out stealthily. The maps were prepared as per the request of the then Director in view of the urgent repairs to be carried out at NIT. This was done before Debashis Bhattacharya assumed office of Director NIT and the Building Advisory Committee was not even constituted, then how can these officers of the NIT be linked to it. If the then Director took an administrative decision to initiate construction work and got a map prepared to that end can it cannot lead to any criminality and to raise such suspicion will amount to paralyze the decision making body of public sector undertaking.

The price quoted by top two bidders was Rs.537.80 lakhs which also had the following conditions: (a) Price of cement was taken @ 135/- per bag. (b) Free supply of water and electricity. That the price quoted by M/s JUSCO was Rs.718.44 lakhs (price before considering the rebate), which was firm and unqualified. There cannot be any comparison between a qualified offer and a firm offer. Thus, computation of difference of price for such offers belies and logic and wisdom. By no stretch of prudence, the two rates can be treated alike, and their difference can be held to be the loss quotient. The factors of price of cement bags and value of water and electricity supply consumed in the process of fulfilling the tender obligations would certainly change the notion of loss which has been made by the prosecution in compelling circumstances only to bring about the 17 applicability of the Prevention of Corruption Act, 1988 to the entire transaction. This notional loss cannot be construed to be a pecuniary gain or advantage in favour of M/s JUSCO.

There is no investigation made by the prosecution in respect to whether the loss suffered was an actual loss or not. It is a settled principle of law that presumptive loss is no loss. It is trite that the damage suffered must be an actual damage and not mere presumptive. Apparently, it is very clear that the loss theory has been forcefully made, while the facts and circumstances of the said case did not actually put up a potential loss theory. Needless to state, that the petitioner personally could not be attributable for any loss which was never caused and even if the loss is somehow perceived, the petitioner has no liability for the same.

Submissions on behalf of A.K. Khan The main allegation against this petitioner is that he dishonestly rejected the bids of L1 to L5 parties on the ground of having quoted low rates and lack of requisite experience and negotiated with parties (L6 to L9) which were other than L-1 in violation of CPWD norm for appointment architect-cum-consultant thereupon, recommended the name of L-9 (M/s T.P.E) for award of consultancy. Further allegation against this petitioner is by being a member of tender committee of NI he negotiated with L-2 party instead of L-1 and issued work order in favour of L-2. It is submitted that there is no allegation or material to show that the above decision was made for any personal pecuniary or otherwise interest. The decision was not personal but collective which involved the committee comprising of members from CPWD. While selecting the consultant the shortlisting was made not only of L-9 (JUSCO) but also L-6 to L-8 for negotiation. The choice of L-9 was essentially based on its own merits on competitive consideration. The exclusion was based on the Handbook of Manual of Council of Architecture. According to CBI the said manual is not mandatory but is optional, but this shows that such a manual does exist operates in the field. Further considerations which weighed with the BAC in excluding the L-1 to L-5 parties were their respective credentials which stand reflected in the comparative chart. The work for which the 18 consultancy was intended included variety of other works, like electrical, public health engineering, water supply, building, roads, furniture is etc in which the excluded bidders lacked experience. it is also argued that the allegations are based on total misconstruction and misapplication of the norms. Specific reasons had been assigned for not accepting L-1 for awarding of contract which will be evident tender opening-cum-comparative statement dated

20.12.2003 by the BAC. The offer of L-1 included ₹ 1000 feet for each visit per person made the offer indeterminate and incapable of being quantified in monetary terms. Not being definite, bills could be raised under this head without any restriction and limits. The rate quotation was considered merely as one of the factor, to judge the possibility of quality of work that would follow. There is no material to show that TPE was selected with intention to ultimately select JUSCO. These facts cannot be the basis for imputing criminality on the part of petitioner and at most it can, be the case of codal violations which would be the basis for departmental action and not criminal action in the light of the ratio decided in C.K. Jaffer Sharief v. State, (2013) 1 SCC 205 :

16. A fundamental principle of criminal jurisprudence with regard to the liability of an accused which may have application to the present case is to be found in the work Criminal Law by K.D. Gaur. The relevant passage from the above work may be extracted below:

Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively.

17. …………… If in the process, the rules or norms applicable were violated or the decision taken shows and extravagant display of redundance it is the conduct and action of appellant which may have 19 been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. The dishonest intention is the gist of offence under Section 13 (1) (d) is implicit in the words used ie corrupt and illegal means and abuse of position as public servant. A similar view has been taken by this Court in M Naryanan Nambiar Vs State of Kerala while considering the provision of Section 5 of the 1947 Act. It has been held by Hon’ble Supreme Court in Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617 : What is significant to note is that even the High Level Committee had in its minutes noted that financial rating cannot be the sole criterion for taking the final decision. Moreover, in a commercial transaction of such a complex nature a lot of balancing work has to be done while weighing all the relevant factors and the final decision has to be taken after taking an overall view of the transaction.

Submissions on behalf of R.P. Singh The charge against this petitioner is akin to that against A.K Khan that he as a member of BAC or the tender committee which shortlisted and recommended for negotiation L-6 to L-9 instead of L- 1 party in violation of CPWD/CVC norms. The plea raised on his behalf is also somewhat similar and are not separately reproduced to avoid any repetition. On the requisite necessary condition for framing of charge reliance is placed on Satish Mehra v. State (NCT of Delhi), (2012) 13 SCC 614 :

19. The view expressed by this Court in Century Spg. case [(1972) 3 SCC 282 : 1972 SCC (Cri) 495 : AIR 1972 SC 545] and in L. Muniswamy case [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489] to the effect that the framing of a charge against an accused substantially affects the person's liberty would require a reiteration at this stage. The apparent and close proximity between the framing of a charge in a criminal proceeding and the paramount rights of a person arrayed as an accused under Article 21 of the Constitution can be ignored only with peril. Any examination of the validity of a criminal charge framed against an accused cannot overlook the fundamental requirement laid down in the decisions 20 rendered in Century Spg. [(1972) 3 SCC 282 : 1972 SCC (Cri) 495 :