- (1.) Heard Sri Daya Shanker Misra, Sri Chandrakesh Misrha, learned counsel for the petitioner, learned A.G.A. for the State of U. P. and Sri Anurag Khanna, learned Counsel for the C.B.I.
(2.) The petitioner Sanjay Arora, preferred the writ petition against the FIR dated 4.7.2013 bearing no. R.C.1202013 A0012 of 2013 P.S. C.B.I.A.C.B. Ghaziabad under sections 120-B,420 I.P.C. and section 13(2) read with sections 13(1)(d) of Prevention of Corruption Act with a prayer to quash the same and to stay the arrest during the pendency of the investigation of the above mentioned case or to pass any other order, which this court deems fit and proper in the interest of justice.
(3.) It is contended by the learned counsel for the petitioner that :- i.the petitioner has not committed any offence punishable under section 120-B 420 I.P.C. and section 13(2) read with 13(1)(d) of Prevention of Corruption Act of the aforesaid offence are not made out on the basis of the allegations made in the impugned FIR. ii.the petitioner is the proprietor /owner of a shop running in the name and style of M/s Arora Optical Super Market in the back of Taj Hotel, Saharanpur. The petitioner is not the proprietor of M/s Netra Jyoti Ravi Optical, Bhagat Singh, Marg, Saharanpur, which is proprieted/owned by his father Sri Shyam Lal Arora. The petitioner is not, even the partner of the shop. The allegation in the FIR has been made with regard to the shop M/s Netra Jyoti Ravi Optical, no allegation is made with regard to the shop M/s Arora Optical, which is proprieted/owned by the petitioner. iii.a written complaint dated 2.7.2013 of Sri C.B.S. Adhikari Inspector of Police C.B.I. Dehradoon addressed to the Head of the Branch, Central Bureau of Investigation, Anti Corruption Branch, Ghaziabad was received, which was registered as first information report the contents of the complaint are reproduced below; "To The Head of Branch, CBI/ACB, Ghaziabad Sir, In compliance with the order dated 15.11.2011 of the Hon'ble High Court of Uttar Pradesh, Lucknow Bench, relating to utilization of NRHM funds, a Preliminary Enquiry was registered at CBI, Dehradun branch on 31.01.2013 against unknown officers of Health & Family Welfare Department, District Saharanpur and against unknown private persons to enquire into alleged irregularities/ illegalities in the expenditures incurred specially purchases made by officials of Health and Family Welfare Department of District Saharanpur, U.P. and also to find out deliberate acts of omission and commission of officials of Health and Family Welfare Department o District Saharanpur and other unknown private persons during implementation and utilization of NRHM funds. During the enquiry, it is revealed that DR. S.K. Singh was posted and working as Chief Medical Officer, Family Welfare, Saharanpur and Dr. Sunil Verma look after the work of School Health Programme of district Saharanpur during the financial year 2010-11. The Director General. Family Welfare, Lucknow has released Rs. 1,97, 000 for the purpose of purchase and distribution of spectacles for school' students who were infected with eye vision disorder under SCHOOL HEALTH PROGRAMME, of NRHM vide its order No. Pa Ka/NRHM/45/2010-11/97-70 dated 11/02/2011. It was clearly instructed to all CMO (FW) that the aforesaid fund was allotted for distribution of spectacles for student, infected with vision disorders. It is further mentioned in this order that CMO will direct to CMS of district hospital and concerned Community Health Centres (CHCs) to examine the vision disorders of those students who referred to them under School Health Programme and treat those students accordingly and provide them free spectacles as per allotted refractive error number and fill the referral slip with countersign on this referral slip. This programme was only for the students of Class 1st to 5th and of age between 6 to 10 years. Enquiry has further revealed that the aforesaid budget was allotted on the basis of reports of 2009-10. This fund was allotted to distribute spectacles to 985students of 11 blocks of district Saharanpur. Enquiry further revealed that as per aforementioned order of DG Family Welfare, CMO Saharanpur has received RS. 1,97,000 for School Health Programme of district Saharanpur. In pursuance of this order, Dr. S.K. Singh, the then CMO (FW) Saharanpur ordered to Optometrist, Primary Health Centre Muzaffarabad, District Saharanpur vide the letter No. Vi Swa Karya/2010-11 dated 29.03.2011 to co0ordinate with Optometrist of PHC Sadoli Kadeem and distribute them the spectacles and produce the respective bills to CMO office for payments. In pursuance of the aforesaid letter of CMO (FW), Saharanpur, Sh. No. Nil dated nil and informed to CMO (FW) that the 158 spectacles were distributed to students of Muzaffarbad block and produced the invoice No. 744 dated 27/03/2011 of M/s Netra Jyoti Ravi Optical, Saharanpur of Rs. 31,600/- which showing the supply of 158 spectacles at the rate of Rs. 200/- per spectacle, On the basis of back dated bill of M/s Netra Jyoti Ravi Optical and report of Sh. Mukesh Agarwal, CMO (FW) has issued a cheque No. 639947 dated 29.3.2011 of Rs. 31,600 in favour of M/s Ravi optical, Saharanpur. Enquiry further revealed that Sh. Mukesh Agarwal, Optometrist had mentioned on bill of M/s Netra Jyoti Ravi optical that i have received the spectacles and distributed Sh. S.K. Singh, CMO (FW) had also mentioned PASSED on aforesaid bill. Enquiry has further revealed that on the summary of cheque which was maintained at office of CMO, Saharanpur, Sh. Mukesh Agarwal has mentioned Cheque Received. Enquiry has further revealed that Sh. Mukesh Agarwal, Optometrist, PHC Muzaffarabad against submitted his report to CMO (FW) vide letter No. Nil dated nil and informed that the 500 spectacles were distributed to students of Sadoli kadeem, Puwarka and Muzaffarbad block and produced the bill No. 38 dated 30.3.2011 of M/s Doon Optical Centre, Ranjha wala Dhang, Raipur, Dehradun of Rs. 1,00,000/- which showing the supply of 500spectacles at the rate of Rs. 200/- per spectacle. On the basis of bill of M/s Doon Optical Centre, Ranjha wala Dhang, Raipur, Dehradun and report of Sh. Mukesh Agarwal, CMO (FW) had ordered to issue a cheque to Usha Sharma and then issued a cheque no. 635912 dated 30.3.2011 of Rs. 1,00,000 in favour of M/s Doon Optical Centre, Raipur, Dehradun. It is also revealed that Sh. Mukesh Agarawal has mentioned on bill that he has received and distributed the spectacles. Dr. S.K. Singh, the then CMO (FW) also ordered on bill that please issues the cheque in favour of Usha Sharma. Enquiry has further revealed that the business affair of M/s Doon Optical Centre were being looked after by Sh. Rohit Sharma, son of Smt. Usha Sharma, proprietor of M/s Doon Optical Center. Enquiry has further revealed that Sh. Mukesh Agarwal, Optometrist, PHC Muzaffarabad again submitted his report vide letter no nil dated nil and informed that the 324 spectacles were distributed to school students and produced the bill no. 49 dated 31.03.2011 of M/s Doon Optical Centre Raipur, Dehradun of Rs. 64,800/- which showing the supply of 324 Supply of 324 spectacles at the rate of Rs. 200/- per spectacle. On the basis of bill or M/s Doon Optical Centre, Raipur, Dehradun and report of Sh.Mukesh Agarwal. Sh. S.K.Singh the then CMO (FW) had issued a cheque no. 635921 dated 31.03.2011 in favour of M/s Doon Opitcal Centre, Raipur, Dehradun. It is worth to mention here that on the summary of cheque which was maintained at office of CMO Sh.Mukesh Agarwal has mentioned Cheque Received and signed. Enquiry has further revealed that the amount of Rs. 1,97,000 was allotted to CMO ( FW) Saharanpur for distribution of spectacles to those students of class 1st to 5th who suffered with vision disorder. It was clearly mentioned in order that CMO will direct CMS of district hospital and CHCs and this fund was allotted for all 11 blocks of district Saharanpur. But Dr.S.K.Singh, the then CMO (FW) kept all orders and instructions aside and vide his letter no. Vi Swa Karya/2010-11 dated 29.3.2011 ordered Sh.Mukesh Agarwal in this regard only for PHC Muzaffarabad, Sadoli Kareem and Puwarka without any specific reason. Enquiry further revealed that Sh.Mukesh Verma did not organize any eye check camp programme for the school children at Block Muzaffarbad, Puwarka, and Sadoli Kareem. Even no supply order was produced before any suppliers. No list of beneficiary is available in the records of CMO Office. During enquiry, Sh.Rohit Sharma, M/s Doon Optical Centre were examined and he stated that he never made any supply of spectacles to CMO (FW)Saharanpur and he gave Rs. 1,48,500/- Sh.Mukesh Agarwal in cash and in lieu of that Sh. Mukesh Agarwal gave him two cheques of Rs. 1,00,000/- and Rs. 64, 800/-in favour of Smt. Usha Sharma. The examination of Sh. Sanjay Arora, Proprietor M/s Netra Jyoti Ravi Optical also revealed that he never made any supply of spectacles to CMO ( FW) Saharanpur and he gave Rs.27000 to Shri Mukesh Agarwal in cash and in lieu of that Sh. Mukesh Agarwal gave him on cheque of Rs. 31600 in the name of Ravi Optical. Both the suppliers stated that they provided only bills of spectacles to CMO office at the behest of Sh. Mukesh Agarwal. Optometrist and in lieu of that, they got 10% money of total bill amount. During enquiry, the examination of Smt. Shobha Shakdhar, Optometrixt, PHC, Sodoli Kadeem and Shri Sunil Kumar Tyagi, Optometrist, PHC, Puwarka revealed that they did not have any knowledge about the orders of CMO. FW Saharanpur regarding distribution of spectacles in their blocks. They further stated that no eye screening camp was organised by Shri Mukesh Agarwal in their blocks and no spectacles were distributed to school children during March and April 2011 in their blocks. Enquiry further reveals that neither quotation nor tender were called for the purchase of aforesaid spectacles and violated all set rules and regulation No end use of these spectacles, list of beneficiary and no quotation regarding purchase are available in the records of office of CMO,Saharanpur. The bills which showing the supply of total 982 spectacles were found false during enquiry. On the basis of facts and circumstances, mentioned above, prima facie , it appears that Dr. S.K.Singh, the then CMO (Family Welfare), Saharanpur in connivance with Sh. Mukesh Agarwal, Optometrist, Sh. Rohit Sharma, Sh. Sanjay Arora and other unknown persons had violated all the norms/ guidelines for purchase of spectacles under School Health, Programme of NRHM and submitted/ accepted false bills and showed false utilization of funds allotted under this programme, thereby caused a wrongful loss to the Government and corresponding gains to themselves to the tune of Rs. 1,96,400/- It is therefore, requested that a regular case may please be registered under section 120-B, 420 IPC & 13(2) r/w 13(1)(d) PC Act 1988 against the following. 1.Dr. S.K. Singh, the then Chief Medical Officer (Family Welfare), District Saharanpur, Uttar Pradesh. 2.Sh. Mukesh Agarwal, Optometrist, Primary Health Centre, Muzaffarbad, Saharanpur. 3.Sh. Sanjay Arora, M/s Netra Jyoti Ravi Optical, Saharanpur. 4.Sh. Rohit Sharma, M/s Doon Optical Centre, Raipur, Dehradun. 5.Other Unknown persons. Sd/- 02/07/2013 (C.B.S. Adhikari) Inspector of Police CBI/ACB, Dehradun";