TaxTMI 
TaxTMI 
2024 (9) TMI 1945
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.... in IITM and has retired from service. Revision Applicant-Vipin Mali was holding the position as 'Senior Technical Officer, Grade-II' in IITM. IITM implemented a program named 'System of Air Quality and Weather Forecasting And Research' (SAFAR) for monitoring and reporting air qualities in cities. IITM proposed display of results of SAFAR program at strategic locations within cities through Digital Display System. It appears that IITM had already installed Digital Display System in New Delhi. For display of SAFAR data in Pune City, IITM decided to procure Digital Display System for Pune City and surrounding areas. The Digital Display System for SAFAR Pune was to consist of 12 Outdoor LED Displays and 5 Indoor Display systems. 3) Applicant-Dr. Gufran Beig (Accused No. 1) was functioning as Project leader at IITM at the relevant time and accordingly prepared an Indent for procurement of Digital Display System for Pune City comprising of 12 Outdoor LED Display and 5 Indoor LED Display at approximate cost of Rs.4 crores. The Indent dated 4 October 2011 prepared by Dr. Gufran Beig was placed for approval of Director, IITM through Accused No.2-Vipin Mali. When the Inde....
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....er notice particularly with regard to the brightness. According to CBI, the brightness specified was 9000 NIT (Cd/M) whereas during the testing conducted by COEP the maximum brightness of the LED tile was found to be only 3312.73 NIT. The CBI also alleged that contractor-M/s. Video Walls procured the LED display units from China which were cheaper in quality and price and thereafter cheated IITM in connivance with Accused Nos.1 and 2. 5) CBI accordingly recorded statements of various persons including the members of the then TEC and CEC. An FIR came to be registered on 30 June 2020 and CBI has filed chargesheet in Special Case No.1010 of 2021 before the learned Special Judge against total six accused, in which Applicants are arraigned as Accused Nos.1 and 2. The other accused are (i) Shri. Anil Girkar, Managing Director of M/s. Video Wall, Mumbai, (ii) Smt. Manisha Girkar, Director of M/s. Video Wall, (iii) the Company-M/s. Video Wall India Pvt. Ltd., Mumbai and (iv) Shri. Manoj Kumar, the then authorised representative of M/s. Video Walls. It is alleged in the chargesheet that Accused Nos.1 and 2 deliberately diluted the pre-condition/criteria for procurement of Digital Display....
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....ca Gonsalves, the learned counsel appearing for Accused No.1-Dr. Gufran Beig. She would canvass the following submissions: (i) That Accused No.1 followed the procedure prescribed by IITM without any deviation during procurement process and there is absolutely no wrongdoing on his part; (ii) That the entire process of procurement is conducted by TEC and CEC and that therefore it is erroneous to selectively blame only Accused Nos.1 and 2 for decisions taken by the committees. More importantly, the minutes of both the Committees have been ultimately approved by Director, IITM; (iii) That the other members of TEC and CEC are neither made accused in the case nor the then Director of IITM, who is the ultimate decision maker, is sought to be prosecuted for his decisions; (iv) That there is no complaint raised with regard to the decision-making process within IITM during registration of FIR and that there is absolutely no complaint from IITM about quality and/or functioning of Digital Display Systems. (v) That the approval process took place during the years 2010-11 and that the Digital Display Boards were installed during 2012-13 and the same w....
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....l on record to infer that the items were over-priced resulting in wrongful loss to IITM. The boards were in running condition when joint inspection was conducted and there is no material to show any complaints about their functioning. (xii) That there is absolutely no material to show any wrongdoing on the part of the Applicant or showing undue favour to M/s. Video Walls and most importantly, there is no allegation of receipt of any monetary benefit to the accused. On above submissions, Ms. Gonsalves would pray for discharge of Accused No.1. 9) Mr. Avchat, the learned counsel appearing for the Applicant in Criminal Revision Application No.205 of 2023 would adopt the submissions of Ms. Gonsalves. Additionally, he would submit that disciplinary proceedings were initiated against Accused No.2 for very same charge. That he has been exonerated in the same. That if the charge could not be proved on the test of preponderance of probabilities, it is unlikely that conviction of Accused No.2 can be secured in criminal prosecution. In support of his contention, Mr. Avchat would rely upon judgment of the Apex Court in Radheshyam Kejriwal Versus. State of West Bengal and Anr. [(2....
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....- made Display Boards. 11) Mr. Mundhe would take me through the Affidavit-in- reply opposing the Revision Applications to demonstrate that the rate quoted by M/s. MIC Electronics Ltd was Rs. 2.63 crores, which was deliberately ignored for accepting the bid of M/s. Video Wall at an excessive cost of Rs.4.66 crores. That Accused No.1 issued bogus test report in respect of Digital Display Boards by blindly relying on the test certificate produced by M/s. Video Walls without himself conducting any test. Mr. Mundhe would therefore submit that there is enough material available on record for bringing home charges against the accused and therefore the prosecuting agency must be afforded an opportunity to take the case for trial rather than interdicting the same at a premature stage. 12) Mr. Mundhe would submit that this Court has rejected Criminal Writ Petition No. 1043/2023 filed by Manojkumar (Accused No.10) and that therefore there is no reason why the applications filed by the Applicants need to be entertained. So far as exoneration of Vilas Raghunath Mali is concerned, Mr. Mundhe would submit that mere exoneration in Departmental Enquiry does not mean that prosecution has to be....
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....of Rs.24,85,000/- per unit as compared to cost of Rs.17,29,000/- for SAFAR project, New Delhi. (iv) Deliberate rejection of bids of M/s. MIC Electronics while acting as members of TEC on bogus and flimsy grounds and with malafide intention of accommodating the bidders of M/s. Video Walls. (v) Non-procurement of details relating to make and model of every item supplied, as well as manuals and technical/electronic drawings/circuit diagrams thereby facilitating M/s. Video Walls to conceal the fact that it was not the Original Equipment Manufacturer (OEM) to supply cheaper China imported products. (vi) Issuance of bogus test report by Accused No. 1 in respect of the Digital Display Boards supplied by M/s. Video Walls and recommending passage of bills without having actually tested the items at laboratory. (vii) Failure on the part of Accused No.1 to ask for the source of procurement as well as the make of the items. Accused No.1 entered into criminal conspiracy with the other accused by abusing their official position as public servant and causing undue favour, provide supply to the Company causing huge wrongful loss of Rs. 2.50 crores to IITM and co....
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....o approved the same on 5 October 2011. This is how the Director approved constitution of TEC and CEC, which included both Accused Nos.1 and 2. The TEC was headed by Mr. P.G. Saptashi, Ex-Head, Department of Environmental Science, University of Pune as Chairman, whereas the CEC was headed by Dr. R. Krishnan, Scientist-G, superior official to Accused No.1 (who was functioning as Scientist-F) as its Chairman. 19) TEC met on 2 November 2011 and discussed the procurement bill and finalised the specifications, the minutes of the meeting of the TEC dated 2 November 2011 is signed by all the five members. Thus, the specifications relating to Outdoor LED display as well as Indoor LED display were finalised by TEC comprising of 5 members. The specifications finalised by the TEC were placed before the Director, who approved the same on 18 November 2011. Thereafter, the tender conditions were also finalised by TEC, which were approved by Director, IITM on 22 November 2011. The tender notice was published in prominent newspapers in New Delhi, Chennai, Calcutta and Bangalore in English, Hindi and Marathi. In pursuance of the tender notice, bids were received from (i) M/s. Digital Screen India....
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....l as commercial acceptance of the bids. Therefore, the above material available on record does not create any grave suspicion against the Applicants in relation to Allegations Nos. (i), (ii) and (iii) quotaed above. 21) So far as the allegation of deliberate rejection of bid of M/s. MIC Electronics is concerned, TEC recorded following reasons for rejection MIC's bids. (2) Ms. MIC Electronics Ltd., Hyderabad- : Representatives from the company made presentations. Several clarifications were sought by the Committee. After reviewing presentation and obtaining the feedback from PS-unit, committee observed following: (A) The dimension of the LED display board is not found to be as per the tendered specification. The vendor has quoted length as 9.5' whereas requirement is 10' or above. The size can not be compromised because the visibility from a distance is one of the most important parameters, which is directly related to the dimension. For best resolution the pitch of LED is specified as 10mm (physical) and 5min (visual) with 3 mm oval through hole in the tender document. Although, representative has made claim that MIC will supply the desired....
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....phatic negative. Apart from the fact that the rejection does not appear to be flimsy, the decision to reject the bid was unanimously taken by Committee of five members headed by Mr. P.G. Saptarshi, Chairman. Therefore, there is no sufficient material on record to bring home the charge of rejection of bid of MIC on bogus or flimsy grounds. 24) So far as the charge of issuance of bogus test report levelled against the First Accused is concerned, it appears that after receipt of the 12 digital display boards, Accused No.1 issued test report dated 26 March 2012 in his capacity as Indenting Officer certifying that the items were tested and found OK as per the specifications. The test report appears to be in a printed form which is filled in handwriting. The CBI possibly expects Accused No.1 to get the digital display boards tested from an independent agency rather than blindly relying on the test certificate produced by M/s. Video Walls. In this regard, it would be apposite to refer to the time taken by COEP in testing the seized tiles of 11 display boards. The tiles were seized on 30 August 2019 and the COEP gave its test report relating to readings of luminance measurement on 12 Ma....
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....ink evidence. 26) The most striking factor in the present case is institution of disciplinary enquiry against Accused No.2-Vipin Ranganath Mali levelling same allegations based on same evidence. It would be apposite to reproduce the charge levelled against Accused No.2 in the departmental enquiry: Article-1 That during the period 2011-12, Shri. Vipin R. Mali, while posted and functioning as Sr. Technical Officer, Gr. II and in-charge of Purchase Section at Indian Institute of Tropical Meteorology (IITM), Pune entered into criminal conspiracy with Dr. Gufran Beig, the Scientist 'F' and Project-in-charge of SAFAR Project at IITM, Pune and private persons, i.e. Directors and Authorized Representative of private supplier company M/s. Video Wall India Pvt. Ltd., Mumbai and in pursuance thereof, by abusing his official position as Public Servant shown undue favour to the private party M/s. Video Wall India Pvt. Ltd., Mumbai by fecilitating the private accused persons to manipulate the tender procedure and award of the contract in their favour and also accepted below specifications cheap, Made in China, Digital Display Boards on exorbitant rates for SAFAR project....
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....f Applicants were to be acquitted in criminal prosecution and they were to seek dropping of disciplinary proceedings. In a converse situation, the submissions sought to be canvassed by Mr. Munde would have no application. Therefore, his reliance on judgments in B.K. Meena (supra), Sardar Bahadur (supra) and Bhagwan Singh (supra) would be irrelevant for determining the issue at hand. 29) Mr. Avchat has relied upon judgment of the Apex Court in Radheshyam Kejriwal. The Apex Court has held that the exoneration in adjudication proceedings which are conducted on the basis of preponderance of evidence involving lesser degree of standard of proof than criminal prosecution would have material bearing on continuation of criminal prosecution. In paras-25, 26, 29 to 31, 38 and 39, the Apex Court has held as under: 25. Mr. Malhotra, then contends that finding of the Enforcement Directorate in the adjudication proceedings is not binding or relevant in the criminal court where the appellant is facing the trial. In support of the contention, reliance has been placed on a full Bench decision of the Lahore High Court in the case of B.N. Kashyap vs. Emperor and our attention has been dra....
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....to decide in this case. When that question arises for determination, the provisions of Section 41, Evidence Act, will have to be carefully examined." 29. We do not have the slightest hesitation in accepting the broad submission of Mr. Malhotra that finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceeding can not necessarily be held guilty in criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case entire burden to prove beyond all reasonable doubt lies on the prosecution. 30. In the case of Iqbal Singh Marwah relied on by Mr. Malhotra, the question which fell for consideration was as to whether bar under Section 195 (1) (b) (i) and (ii) operates for taking cognizance when a complaint is filed alleging that will filed by the accused in a probate case is forged and while holding that the bar would not operate if the will is forged before its filing in the court, hence the aforesaid observation of this court has no bearing in the facts and circumstances of this case. ....
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....ommission was relied upon for refusing prosecution sanction. The Apex Court held in para-8 of its order as under: 8. Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22.12.2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment of the High Court and that of the Special Judge and discharge the appellant from the offences under the Penal Code. 31) Again in recent judgment in Karnataka Emta Coal Mines Ltd. & Anr Vs. Central Bureau of Investigation [Criminal Appeal No. 1659-1660 of 2024 decided on 23 August 2024] the Apex Court has held as under: 10.1. Coming next to the submission made by learned counsel for the respondent that the judgment dated 24th March, 2016 passed by the Karnataka High Court in a writ petition filed by KECML against KPCL is of no consequence, as the said judgment was confined to examining the demands made by KPCL on KECML for reimbursement towards the value of the coal rejects, the same is found to be erroneous. It is well-settled that in a case of exoneration on merits in relation to adjudication....
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....epartmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3-1996 [P.S. Rajya v. State of Bihar, Criminal Appeal No. 434 of 1996, order dated 27-3-1996 (SC)] for allowing the appeal and quashing the impugned criminal proceedings and giving con- sequential reliefs." (emphasis supplied) From the reading of the aforesaid passage of the judgment it is evident that the prosecution was not terminated on the ground of ex-oneration in the departmental proceeding but, on its peculiar facts. 21. It is worth mentioning that the decision in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] came up for consideration before a two- Judge Bench of this Court earlier, in State v. M. Krishna Mohan [(2007) 14 SCC 667 : (2009) 1 SCC (Cri) 922] . While answering an identical question i.e. whether a person exonerated in the departmental enquiry would be entitled to acqui....
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....with this Court and it rejected the same in the following words: "6. The second ground of departmental exoneration by the disciplinary authority is also not relevant. What is necessary and material is whether the facts collected during investigation would constitute the offence for which the sanction has been sought for." 33) 23. The decision of this Court in CBI v. V.K. Bhutiani [(2009) 10 SCC 674 : (2010) 1 SCC (Cri) 407], also throws light on the question involved. In the said case, the accused against whom the criminal proceeding and the departmental proceeding were going on, was exonerated in the departmental proceeding by the Central Vigilance Commission. The accused challenged his prosecution before the High Court relying on the decision of this Court in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] and the High Court quashed the prosecution. On a challenge by the Central Bureau of Investigation, the decision was reversed and after relying on the decision in M. Krishna Mohan [(2007) 14 SCC 667 : (2009) 1 SCC (Cri) 922], this Court came to the conclusion that the quashing of the prosecution was illegal and while doing so observed as follows: "6. ... In....