- (1.) THIS application has been filed for quashing of the entire criminal proceeding of R.C.case no.1(A) of 2010-R including the charge sheet (Annexure 2) submitted in the case on 28.4.2011 as well as the order dated 21.5..2011 whereby and whereunder learned Special Judge, C.B.I, Ranchi took cognizance of the offences punishable under Section 120B, read with Sections 420, 468 and 471 of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the petitioner.
(2.) PURSUANT to the order passed by this Court in W.P (PIL) No.803 of 2009, the C.B.I made a preliminary enquiry in relation to irregularities committed by the engineers and contractors of Road Construction Department in the matter of procurement of Bitumen for construction of roads. The C.B.I having found grave irregularities in the matter of procurement of Bitumen lodged a case was which registered as R.C.Case no.1(A) of 2010-R on the allegation that M/s. Kalawati Construction (P) Ltd was awarded with a contract for special repair of Balumath-Harharganj Panki Road at an estimated amount of Rs.1,32,83, 679/-. As per the agreement, Bitumen was required to be procured from the Government company on the requisitions tobe made by the Executive Engineer. Accordingly, requisition was issued for lifting of 141 MT Bitumen from the Oil Companies of the Government of India by the contractor to be utilized in the execution of the work. In course of time, M/s. Kalawati Construction (P) Ltd. submitted 13 invoices claiming to have procured Bitumen under those invoices for execution of the work. But during enquiry, 11 invoices covering 224.25 M.T Bitumen were found to be forged/fake. In spite of that, entry was made in the measurement book by the Junior Engineer which was counter signed by Assistant Engineer and then bills were allowed to be drawn by the contractor and thereby all the accused persons put the Government to loss to the extent of Rs.55,41,979/-. On such allegation, case was registered as R.C.Case No.01(A) of 2010-R. After completion of investigation, charge sheet was submitted not only against the company but also against this petitioner, who happened to be the Director of the company and also against other Directors and also employees of the company as well as engineers of the Road Construction Department. On submission of the charge sheet, cognizance of the offence was taken vide order dated 21.5.2011 which is under challenge. Mr.B.P.Pandey, learned Sr. counsel appearing for the petitioner submitted that the petitioner happened to be the Director of M/s. Kalawati Construction (P) Ltd. to whom contract was awarded for repairing of Balumath-Harharganj Panki Road. During enquiry, when it has been found that payment of the amount covered under 11 fake/forged invoices has been taken by the contractor, a case was lodged not only against the company but also against this petitioner, who happened to be the Director of the company as well as against other accused persons without there being any materials to show that this petitioner being the Director of the company did any act constituting offence of cheating, forgery or misappropriation.
(3.) IN this regard, it was further submitted that it has been the case of the parties that the contract on being awarded to the company, the company through Bijay Kumar Tiwary, one of the Directors of the company entered into an agreement whereupon work order was issued in favour of the company and the work of the company was being looked after by one Uday Shankar Tiwary on the strength of power of attorney executed in his favour by M/s. Kalawati Construction (P) Ltd. It is also come during investigation that he was also looking after the work of the procurement of Bitumen from H.P.C.L, Ranchi and in fact, it is he whose signatures are there on the 11 forged invoices and that on the basis of forged invoices, bills were drawn and the payments are said to have been made to the company. IN spite of that, this petitioner has been made accused simply for the reason that he happened to be the Director of the Company, M/s. Kalawati Construction (P) Ltd. Thus, on the ground that the petitioner is vicariously liable for the commission of offence committed by the company, the petitioner is being prosecuted in absence of any allegation that the petitioner, being the Director was In-charge of or responsible to for day-to-day affairs of the company, which is quite illegal. In support of his submission, learned counsel has referred to a decision rendered in a case of S.K.Alagh vs State of Uttar Pradesh and others [(2008) 5 SCC 662] and also in a case of Maksud Saiyed vs. State of Gujarat [(2008) 5 SCC 668). ;