Rakesh Ranjan Prasad, J. - (1.) BOTH the cases, since arising out of the same case, were heard together and are being disposed of by this common order.
(2.) CR . M. P. No. 1201 of 2010, filed on behalf of Kanai Lal Bose, Rajesh Gandhi and Ramesh Gandhi, is directed against the order dated 01/02/2001, passed by the Special Judge, CBI, Dhanbad in RC Case No. 20(A)/95 (D), whereby and whereunder cognizance of the offences punishable under Sections 120B, 420, 465, 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, has been taken against them. So far Cr. Revision No. 32 of 2011 is concerned, it is directed against the order dated 27/09/2010, passed by the Additional Sessions Judge -I, Dhanbad, whereby and whereunder prayer made on behalf of the petitioners namely Ramesh Gandhi and Rajesh Gandhi for their discharge from the case, was rejected. Thus, it appears that petitioners Ramesh Gandhi and Rajesh Gandhi are the petitioners in both the cases, but according to the learned senior counsel appearing for the petitioners, Ramesh Gandhi and Rajesh Gandhi would not be pressing criminal miscellaneous petition, rather they would be pressing the matter relating to discharge. Before adverting to the submission advanced on behalf of the parties, case of the prosecution needs to be taken notice of. In the month of May, 1996, Coal India Limited (in short 'CIL') invited tenders for the work of screening, loading and transportation of coal from various collieries of BCCL to Alakdiha Coal Dump. Pursuant to that, three parties including M/s. Continental Transport and Construction Corporation (M/S. CTCC) submitted their tender papers. The tenders were processed by a Committee consisting of four persons, all officials of M/s. BCCL (accused Nos. 2 to 5) including the petitioner Kanai Lal Bose, the then General Manager (S & PW). During that course, they intentionally and fraudulently proposed to extend the scope of work by including additional items, such as (i) provision for transit loss (ii) stacking of grade wise coal (iii) provision for ground shortage (iv) proper supervision of stock and arrangement to maintain grade wise dispatches and (v) loading of customer's truck as and when required to show favour to the said M/s. CTCC (accused No. 6) to which the petitioners Ramesh Gandhi (accused No. 7) and Rajesh Gandhi (accused No. 8) were the partners. These additional items were approved by accused No. 1 B.R. Prasad, who, at the relevant point of time, was posted as Chairman -cum -Managing Director of M/s. BCCL, in conspiracy with other accused persons, though inclusion of additional items had never been approved by the Chairman of CIL. This had been done with a malafide intention to favour accused Nos. 6 to 8 as operation of Alakdiha Coal Dump including supervision of loading of customer's truck at Alakdiha Coal Dump was the responsibility of M/s. BCCL Officials. The work pertaining to loading of coal was awarded to M/s. CTCC by the accused person @ Rs. 5.25 per M.T. in the year 1987 whereas in the year 1992, for the same job, the work had been awarded at a lower rate of Rs. 4.08 per M.T.
(3.) FURTHER it has been alleged that in the year 1992, M/s. BCCL had invited fresh tenders for transportation of coal to Alakdiha Coal Dump. That was challenged by one Ramesh Gandhi before the Kolkata High Court. The accused No. 7 and 8 fraudulently and dishonestly represented before the Management of M/s. BCCL, that the Kolkata High Court has restrained M/s. BCCL from interfering with the contract work awarded to M/s. CTCC, as a result of which, M/s. BCCL decided to drop the transportation work for Alakdiha Coal from NIT and thereby M/s. CTCC was allowed to continue with the work and thereby the accused persons (6, 7 and 8) were benefited. Further it has been alleged that M/s. BCCL sustained huge wrongful loss on account of payment being made to M/s. CTCC towards transit loss, supervision of loading of customer's truck and maintaining grade wise stock and loading of coal to the tune of Rs. 1,32,51,305.33. Thus, it has been alleged that accused persons committed offences punishable under Sections 120B, 420, 465, 466, 468 and 471 of the Indian Penal Code and also under Section 13(2) read with Section 13(i)(d) of the Prevention of Corruption Act and correspondingly Section 5(2) read with Section 5(i)(d) of the Prevention of Corruption Act. On such allegation, FIR was registered as R.C. No. 20(A) of 1995(D). The matter was taken up for investigation. During investigation, it was found that M/s. CIL, Kolkata had issued NIT for transportation of coal/coke from colliery to the stockyard for unloading, screening, stacking size -wise and grade -wise at stockyard. The last date of submission of the tender was 1.7.1986 on which day at 3.00 P.M. technical bid was to be opened. On that day itself i.e. on 1.7.1986 a telephonic message was received by the Dy. C.M.E. (Sales) of BCCL, Dhanbad (accused No. 3) to the effect that date of sale of tender paper has been extended up to 18.7.1986 and last date of submission of tender has been extended up to 22.7.1986. Despite the extension of date, tenders, as per the order of the then C.M.D. B.R. Prasad, were opened on 1.7.1986 in utter disregard to the instruction issued by M/s. CIL, Kolkata. As per the instruction issued by M/s. CIL, tender documents received by C.I.L. and other subsidiaries all over India, pursuant to NIT issued by M/s. CIL were to be sent to M/s. CIL, Kolkata for further processing and scrutiny and thereby it was instructed by CIL to the officials of M/s. BCCL, vide its letter dated 26.6.1986 to bring the tender papers with him so that necessary processing and scrutiny be done before the next meeting of the tender committee. Instead of acting in accordance with the instruction, the then Dy. C.M.E. (Sales), M/s. BCCL (accused No. 3) sent a telex message on 1.7.1986 requesting Dy. G.M. (SY & T) and Chief of Marketing, M/s. CIL, Kolkata to give post facto approval to the opening of tender on 1.7.1986. This request was rejected by CIL, Kolkata, vide its letter dated 21.7.1986 and directed the then CMD, BCCL for cancelling the aforesaid tender and to re -tender the same. On receiving the said letter, the then CMD vide its letter dated 21.7.1986 wrote to the Chairman, M/s. CIL, Kolkata to allow him to proceed with tender and to award work by October, 1986. Further it was found that the then Chief of Marketing, CIL, Kolkata vide its letter dated 12.9.1986 did inform to the then CMD, M/s. BCCL, Dhanbad that the tender of Alakdiha, has not been processed by the Tender Committee and, as such same is being returned to M/s. BCCL for appropriate action by G.M. (Sales), BCCL so that the earnest money to the parties be refunded. In spite of that, Tender Committee consisting of accused Nos. 2 to 5, held its meeting on 31.10.1986, in which representatives of all the three concerns who had submitted tender papers including representative of M/s. CTCC attended. Thereupon Tender Committee made recommendation for inclusion of following additional items, though it were never part of the NIT and more over loading of coal was the responsibility of BCCL. ;