PUSHPENDRA KUMAR SINHA versus STATE OF JHARKHAND on 24 August 2022

PUSHPENDRA KUMAR SINHA

v.

STATE OF JHARKHAND

(Criminal Appeal No. 1333 of 2022)

AUGUST 24, 2022

[N. V. RAMANA, CJI, J. K. MAHESHWARI ANDHIMA KOHLI, JJ.]

Penal Code, 1860 – ss.109, 409, 420, 467, 471, 477A and120B – Prevention of Corruption Act, 1988 – s.13(1)(c) ands. 13(1)(d) – Charges under – While giving effect to an award infavour of RPCL, JSEB faced shortage of funds – JSEB decided tomake internal enquiry into handling the work contract given toRPCL – On basis of the said enquiry, allegations of malpracticeand financial irregularity were levelled against the appellant andsome others – FIR was registered – Charge sheet was filed –Appellant moved a discharge petition u/s.239 of Cr.PC, which wasdismissed by the Special Judge – Revision was also dismissed bythe High Court – On appeal, held: The decisions in the boardmeetings were taken with mutual consent of the parties – Appellantwas neither involved nor was a part in the proposal or the decisionmaking process – Appellant had merely prepared the agenda forappointment of an arbitrator and had nothing to do with approvalof award and payment of money – Prima-facie there is nothing whichaffixes culpability or constitutes commission of offence includingmens-rea on the part of the appellant – Appellant was neitherentrusted with funds of JSEB nor he had fraudulently or dishonestlydeceived senior officials of the JSEB to cause any benefit to RPCLor any wrongful loss to JSEB and no evidence of illegal gratificationor disproportionate assets were found against the appellant –Consequently, appellant is discharged in the criminal proceedings.

Allowing the appeal, the Court

HELD: 1. The perusal of material indicates that becauseit was difficult for the JSEB to implement the award due tofinancial difficulty, a roving and fishing enquiry was conducted, inconsequence of which, Secretary, JSEB vide letter dated30.07.2010 and then Vigilance Commissioner vide letter dated

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A03.09.2010, requested the DGP, Vigilance Bureau to register anFIR against the Appellant. This Court fails to understand as towhy the same person, who had approved the implementation ofaward as a member of the Board, had later as VigilanceCommissioner, recommended initiation of prosecution againstthe Appellant, who had merely prepared the agenda forBappointment of an arbitrator and had nothing to do with theapproval of the award and payment of money. In view of theaforesaid, if at all any culpability had to be assigned, it shouldhave been assigned after examining the role of senior authoritieswho were involved in the decision-making process. Astonishingly,Cmost of the senior officials, who approved various decisionsregarding extension of time, appointment of arbitrator andimplementation of arbitration award and consequent payment toRPCL have not been arrayed as accused. In our considered view,prima-facie there is nothing which affixes culpability or constitutescommission of offence including mens-rea on the part of theDAppellant. It seems that an attempt has been made to implicatethe Appellant for the decisions in which prima-facie, he did nothave any role to play, nor do his acts establish any culpabilityregarding the alleged offences. [Para 13][36-D-H]

2. If at all there were issues with respect to theEmaintainability of the award due to the provisions of the contract,particularly as per the contended negative covenant, the sameshould have been highlighted by the Attorney General, especiallywhen his opinion was expressly sought. This Court finds it difficultto accept that the opinion of the learned AG was prejudiced merely Fbecause he was not made aware of the negative covenantpertaining to price variation by an engineer of the JSEB who haslimited exposure in the domain of law. This Court has no hesitationin stating that AG being the highest law officer of a State, iscompetent to advise the State on legal matters after due diligence,

taking into consideration all relevant factors and material.GTherefore, the Appellant cannot be said to influence or impactthe opinion of the learned AG which had resulted in approval ofJSEB to implement the award. Hence, in considered view of thisCourt, it cannot be inferred that the Appellant led the AG and the JSEB to implement the award with fraudulent or dishonestintention to cause loss to JSEB and benefit to RPCL. [Para 14][37-A-C]

3. It is a well settled law that at the time of framing of thecharges, the probative value of the material on record cannot begone into but before framing of charge the Court must apply it’sjudicial mind on the material placed on record and must be satisfiedthat the commission of offence by the accused was possible.Indeed, the Court has limited scope of enquiry and has to seewhether any prima-facie case against the accused is made out ornot. At the same time, the Court is also not expected to mirrorthe prosecution story, but to consider the broad probabilities ofthe case, weight of prima-facie evidence, documents producedand any basic infirmities etc. In this regard the judgment of “Unionof India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4” can beprofitably referred for ready reference. Having due regard to thedocuments placed before us and in the light of the submissionsand discussion made above, we are of the considered view thatsufficient grounds casting a grave suspicion on the Appellant, donot exist. It is observed that the ingredients of alleged offencescannot be prima-facie established against the Appellant as neitherhad he been entrusted with funds of JSEB nor he had fraudulentlyor dishonestly deceived senior officials of the JSEB to cause anybenefit to RPCL or any wrongful loss to JSEB and no evidence ofillegal gratification or disproportionate assets has been foundagainst the Appellant. [Para 18][40-E-H]

Union of India v. Prafulla Kumar Samal (1979) 3 SCC4 : [1979] 2 SCR 229 – referred to.

Case Law Reference

[1979] 2 SCR 229referred toPara 18

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1333 of 2022.

From the Judgment and Order dated 06.01.2020 of the High Courtof Judicature at Jharkhand at Ranchi in Criminal Revision No. 1057 of2018.

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APrashant Bhushan, Ms. Alice Raj, Rahul Gupta, Shiv Kumar Vats,Advs. for the Appellant.

Arunabh Chowdhury, AAG, Vishnu Sharma, Shantanu Sagar,Karma Dorjee, Dechen Wangdi Lachungpa, Advs. for the Respondent.

The Judgment of the Court was delivered byB

J. K. MAHESHWARI, J.

Leave granted.

2. The Appellant has assailed the final judgment dated 06.01.2020passed by High Court of Jharkhand at Ranchi in Criminal Revision No.C1057 of 2018, by which the order dated 04.07.2018 passed by learnedSpecial Judge, Anti-Corruption Bureau dismissing the application fordischarge filed by the Appellant under Section 239 of Code of CriminalProcedure, 1973 (for short “Cr.P.C.”) in connection with Special CaseNo. 02 of 2011 has been affirmed. The criminal case was registeredDagainst the Appellant and others for commission of offences underSections 109, 409, 420, 467, 471, 477A and 120B of Indian Penal Code(for short “IPC”) and Section 13(1)(c) and 13(1)(d) read with 13(2) ofPrevention of Corruption Act, 1988 (for short “PC Act”).

3. The facts briefly put are that the Appellant was working as anExecutive Engineer (Electrical) (“EE”) in the Accelerated PowerEDevelopment Reforms Program (“APDRP”) Wing of Jharkhand StateElectricity Board (in short “JSEB”) from 07.12.2004. During his tenureas EE, one Ramjee Power Construction Limited (hereinafter “RPCL”)was awarded a contract of work under APDRP vide work order dated27.01.2005. On account of delay in execution of the work and to resolveFthe said issue, the then Chairman JSEB, Mr. Shivendu, convened a meetingon 21.12.2006, wherein he orally instructed Mr. R.P. Agarwal, the thenChief Engineer (“CE”), to place the agenda for next board meeting fortermination of the contract of M/s RPCL. Prior to convening of the nextBoard meeting, Mr. V.N. Pandey was appointed as the new Chairman,JSEB on 04.01.2007. The new Chairman called for a meeting onG06.02.2007/07.02.2007 for the agenda to review the progress of RPCL’swork. In the said meeting, other officers of JSEB including Mr. R.P.Agarwal, CE, had participated. In the meeting, it was mutually agreedby JSEB and RPCL that full effort to complete the work within theextended time, i.e. July, 2007 shall be made by RPCL. In furtherance ofH

the decision taken in the aforesaid meeting, Mr. R.P. Agarwal, CE, madevarious correspondences reminding RPCL to complete the pending work.On retirement of Mr. R.P. Agarwal, Mr. S.C. Shrivastava SuperintendingEngineer (Electrical) was made in charge in place of Mr. R.P. Agarwal.Meanwhile, RPCL sent letters dated 16.05.2007, 18.05.2007 and08.06.2007 requesting him for further extension of time. In the saidcorrespondences, it was said that RPCL had already invoked thearbitration clause on 22.12.2006, in terms of the contract and requestedJSEB for appointment of an arbitrator. The said letters were handedover to the Appellant, on which under the instructions, the Appellantprepared a note dated 08.06.2007 and placed it before the Chairman onthe issue relating to appointment of an arbitrator and waiver of penalty,as advised by learned Advocate General (“AG”) of State of Jharkhandin similarly placed transmission lines projects.

4. Thereafter, vide JSEB resolution dated 28.06.2007, a committeeconsisting of one Mr. GNS Munda (Member, Technical), Mr. A. Banerjee(Finance) and Mr. A.K. Mishra (Law Officer) was constituted, whichon 09.08.2007 suggested three names for appointment of an Arbitrator.Out of the three names as suggested, Mr. Ramayan Pandey wasappointed as the arbitrator by consent. Arbitration proceedingscommenced and an interim award dated 25.11.2007 was passed in favourof RPCL. Thereafter, an agenda accompanied with the aforesaid awardwas put before Chairman, Mr. B.M. Verma prior to asking for an opinionfrom the AG--, State of Jharkhand, regarding enforceability of the award.Later, as per the opinion of the AG, JSEB vide Board Resolution dated05.04.2008 and 07.04.2008, decided to implement the interim award. Itis worthwhile to state that, Mr. GNS Munda (Member, Technical) aswell as Smt. Rajbala Verma (then Finance Secretary, State of Jharkhand)were part of this Board meeting.

5. It is pertinent to mention that, while giving effect to the award,JSEB was facing shortage of funds. However, JSEB decided to makeinternal enquiry into handling the work contract given to RPCL. On thebasis of the said enquiry, allegations of malpractice and financialirregularity were levelled against the Appellant and some others. TheSecretary, JSEB vide letter dated 30.07.2010, made a request to theDirector General of Vigilance Bureau (“DGP”) to lodge an FIR againstthe Appellant and others for offences punishable under Sections 109,409, 420, 467, 471, 477A and 120B of IPC and Section 13(1)(c) and AB

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A13(1)(d) read with 13(2) of PC Act. Additionally, another letter dated03.09.2010, was issued by Smt. Rajbala Verma (then VigilanceCommissioner) to the DGP, recommending the same action against theAppellant. As already noted above, Smt. Rajbala Verma was also a partof the Board meeting (being the then Finance Secretary, State ofJharkhand) that had approved the implementation of the arbitral award.BIn the said facts, FIR dated 20.01.2011 was lodged against the Appellantand other officers of the JSEB. Investigation was carried out, chargesheetdated 08.01.2016 was filed and cognizance was taken by the Court dealingwith vigilance cases vide order dated 11.01.2016. Thereafter, theAppellant moved a discharge petition under Section 239 of the Cr.P.C.,Cwhich came to be dismissed by the learned Special Judge vide orderdated 04.07.2018. The Court observed that sufficient material exists tomake out a prima-facie case against the Appellant for framing ofcharges.

6. Aggrieved by the same, the Appellant preferred a criminalDrevision assailing the aforesaid order. The High Court vide impugnedorder dismissed the revision and affirmed the order passed by the learnedSpecial Judge. The High Court was prima-facie influenced by the factthat the previous chairman, JSEB, Mr. Shivendu had orally instructed toput up the agenda for termination of the contract of RPCL. On demittingthe office by the said Chairman, the Appellant had put the file notingEbefore the subsequent Chairman Mr. V.N. Pandey, regarding referral ofthe matter for arbitration without mentioning about the instructions givenby the previous Chairman, JSEB. The High Court found fault in theaction of the Appellant of having proposed an agenda regarding wrongfulimplementation of the award which was challenged belatedly. Thus, Fhaving found a prima-facie case against the Appellant, the High Courtdismissed the revision petition.7. Learned counsel for the Appellant, Mr. Prashant Bhushanstrenuously urged as under:

(i) the Appellant was not having decision-making power orGfinancial authority to carry out the contract and the awardpassed. The nature of duty assigned to the Appellant wasconfined to follow instructions of his superiors and by nostretch of imagination he can be said to have the power torefer the matter for arbitration in a case where the disputeHis arising out of a work contract between JSEB and RPCL;

(ii) there is no concealment of the instruction of the previousChairman pertaining to termination of the contract assubstantiated by noting dated 08.06.2007 on page no. 48 ofthe APDRP file which was the next page of noting of theCE on page no. 47, under instructions from the Chairman;

(iii) the prosecution has concealed that the verbal instructionfor termination of contract given by the previous Chairmanin the meeting dated 21.12.2006, had been overturned withintwo months by the new Chairman, Mr. V.N. Pandey in theJSEB tripartite meeting held on 06.02.2007 and 07.02.2007,in which the Appellant was not a member;

(iv) the questionable noting dated 08.06.2007 of the Appellantwas based on facts and documents forming part of theAPDRP file endorsed to him by his controlling officer;

(v) the Appellant is being prosecuted on a wrong premise fromthe stage of granting time to complete the work, referencemade to arbitration and till further directions for making thepayment for the interim award passed against JSEB, infavour of the RPCL. He was not a part of the decision-making process or of taking further steps to implement thesaid award. Thus, culpability as alleged against theAppellant, on the pretext of not putting up the agenda forcancellation of the contract amounts to abuse of the powerand prima-facie, no case to prosecute him is made out;

(vi) there is no allegation of illegal gratification, undue benefitor disproportionate assets qua the Appellant in the FIR orcharge-sheet which is also backed by the income tax recordsof the Appellant;

(vii) prosecution has failed to establish any nexus between theAppellant and RPCL to whom the benefit is alleged to havebeen made;

(viii) while granting bail to the Appellant on merits, it wascategorically observed by the High Court that the Appellanthad put up the matter before higher authorities forinstructions before proceeding further and did not actunilaterally; A

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A(ix)except for the Director of Finance, none of the decision-making authorities namely, members of Central PurchaseCommittee and the Board of JSEB have been made accusedin this case;

8. Per contra, learned counsel for the Respondent-State has arguedBin support of the concurrent findings of both the Courts and contendedthat the entire factual gamut of the instant appeal stems around thepleadings of defence including reliance on documents which cannot bepermitted to be raised at this stage. It is further urged that at the stage offraming of charge, the scope of interference is limited, and the Court isnot required to see as to whether there are sufficient grounds forCconviction. The Court has to only see the material collected duringinvestigation and on consideration of the same, a prima facie case ismade out or not.

9. After having heard learned counsel for the parties and on perusalof the record, which reveals that after the board meeting dated 21.12.2006,Dthe then Chairman Mr. Shivendu had orally instructed the then CE,Mr. R.P. Agarwal to place the agenda for termination of the contract ofRPCL. As per the said instructions, the agenda was proposed and placedon 27.12.2006 by Mr. R.P. Agarwal. On the said proposed agenda,Member Technical put up a note on 19.01.2007, recording “pleaseEdiscuss”. Thereafter, the meeting of the JSEB was held on 06.02.2007and 07.02.2007, which was presided over by the new Chairman Mr.V.N. Pandey and Mr. R.P. Agarwal, CE, was a member of the saidmeeting. Either at the stage of the proposed agenda or in the meeting ofthe JESB held on 06.02.2007 and 07.02.2007, the Appellant had notparticipated in the decision-making process. The minutes of the aforesaidFmeeting is relevant and reproduced as under:

“MINUTES OF THE MEETING HELD ON 06.02.2007 &07.02.2007 AT JSEB HQR.

The following officer, consultant & contractors were present in the meeting:- G

1. Shri V.N. PandeyChairman

2. Shri R.P. AgarwalChief Engineer (APDRP)3. Shri P. RanjanGeneral Manager-cum- Chief Engineer/Jamshedpur H

The issue of M/s RPCL was discussed in length. Work ofJamshedpur town under APDRP has been awarded to M/s RPCLvide W.O. Nos. 28 & 29 dated 27.01.2005. The progress wasreviewed and found that progress is very-very slow. After discussion,JSEB & M/s RPCL mutually agreed on the following points:- C

1. M/s RPCL will submit photo copy of all orders placed bythem for procurement of materials for the APDRP workof Jamshedpur to Chief Engineer/APDRP & m/s RITESDLtd., the consultant.

2. JSEB will help Ms RPCL for procurement of materials.

3. JSEB will be make payment immediately (probably withina week) after submission of bills by M/s RPCL.

E4.Approval of additional B.O.Q. and items shall be givenby JSEB immediately.

5. M/s RPCL will submit fresh inspection call of materials toElectrical Superintending Engineer-cum-CEO/GeneralManager-cum-Chief Engineer, Jamshedpur for gettinginspecting officer deputed.F

6. M/s RPCL will contract Chief Engineer (APDRP) if hereis any delay in issuing Road permits by Chief Engineer(S&P).

7. M/s RPCL agreed that they will apply their full efforts toGcomplete the project so that it may be completed withinextended completion period i.e. July’ 07 instead of goingfor Arbitration/Court of Law.

8. JSEB will review the matter of L.D. clause after completionof the project work.

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34SUPREME COURT REPORTS

[2022] 11 S.C.R.

ASd/-

(R.P. Agrawal)Chief Engineer (APDRP) Dated..................

Memo No. ...............

BCopy forwarded to all concerned officers/M/s RITES Ltd./M/s RPCL for information and necessary action.

Fax – 2543986"

10. The perusal of the aforesaid minutes and the proposed agendadated 27.12.2006 prepared by Mr. R.P. Agarwal, CE, reveals that theCoral recommendation of the then Chairman, Mr. Shivendu, was drawn inthe proposed agenda but it was not acted upon as per the noting dated19.01.2007 made by the Member Technical who made an endorsement“Please discuss”. Thereafter, what was the agenda that was put forthin the next JSEB meeting, is not on record. The minutes of the BoardDmeeting reflect that Mr. R.P. Agarwal who had prepared the agendadated 27.12.2006, was a part of the said meeting. The decisions weretaken in the said meeting with the mutual consent of the parties. TheAppellant was not a part of the decision-making process. In the saidmeeting as per clause (7), it was decided that “M/s RPCL agreed thatthey will apply their full efforts to complete the project so that itEmay be completed within extended completion period, i.e., July’ 07,instead of going for Arbitration/Court of Law.” Correspondencesfurther reflect that prior to demitting the office, Mr. R.P. Agarwal, CE,wrote three letters, of which two were dated 05.04.2007 and one wasdated 25.04.2007, requesting RPCL for implementation of the contractFas per the decision of JSEB. The said correspondence also does notshow any involvement of the Appellant. As alleged, the agenda dated08.06.2007 was prepared by the Appellant, wherein the followinginstructions were required to be obtained:

“…….Hence instruction may be obtained on:G

(i) Appointment of an arbitrator in light of the advice ofthe AG Jharkhand.

(ii) Waiver of penalty in light of the advice of the AG,Jharkhand, and H

PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND[J. K. MAHESHWARI, J.]

(iii) Putting the agenda for further time extensionincorporating the condition of approval of revised BQOwhich could not be given till date.”

11. On perusal of the JSEB Board meeting dated 06.02.2007 and07.02.2007, it is clear that extension was granted up to July 2007 insteadof going in for arbitration or approaching the Court of Law. The JSEBand its members were not inclined to cancel the contract and the decisionwas taken by mutual consent. Therefore, the instructions sought by theAppellant as per the agenda dated 08.06.2007, were either based on theadvice of the learned AG of Jharkhand or in furtherance of the previousdecision of the Board. Later, it was directed that JSEB, Member Technicalmay constitute a committee consisting of officers from ‘Technical’,‘Finance’ and ‘Law’ to suggest the names to appoint an Arbitrator, afterapproval of the Chairman. The Member Technical proceeded in thematter of appointment of Arbitrator and three names were proposed on09.08.2007, out of which, Mr. Ramayan Pandey, Ex-Law Secretary,State of Jharkhand was appointed as an arbitrator. The Arbitrator passedan interim award on 25.11.2007, in favour of RPCL.

12. In view of the discussion made hereinabove, it is apparentthat at the time of taking a decision by the JSEB on 06.02.2007 and07.02.2007, the Appellant was neither involved nor was part in theproposal or the decision-making process. He had prepared the proposedagenda for instructions on 08.06.2007, in furtherance of clause (7) ofthe aforesaid Board meeting, and based on the advice of the learned AG,State of Jharkhand in the matter of appointment of an Arbitrator andwaiver of penalty, as suggested. Even after the proposed agenda fortermination of the contract dated 27.12.2006, prepared by the then CEMr. R.P. Agarwal, it was not acted upon because Member Technical on19.01.2007, had put up a note “Please discuss”. Later, the Board tooka decision on 06.02.2007 and 07.02.2007. Thus, it is clear that the questionof termination of contract in the opinion of the Board was dropped andthe recourse to complete the work within the extended time was agreedin place of going in for arbitration/Court of Law. The same has alsobeen observed by the High Court in its order dated 02.05.2016, whilegranting bail to the Appellant on merit. In the said facts, merely preparinga subsequent agenda dated 08.06.2007, seeking instructions forappointment of an Arbitrator would not bring the Appellant within thepurview of culpability for commission of the alleged offences. This Court AB

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Ahas reason to believe that the decisions, if any, taken by the JSEB andother higher officials were after perusal of the complete noting in thefile. After implementation of the said decision, arbitral proceedings werecommenced and award dated 25.11.2007 was passed. Thereafter, theagenda regarding implementation of the award was put up before theChairman, Mr. B.M. Verma who vide noting dated 27.01.2008, made aBrequest to the AG to give legal opinion about the maintainability andenforceability issues relating to the interim award. The learned AGresponded by letter dated 31.01.2008, opining that the award did notsuffer from any illegality and should be implemented. Accordingly, theBoard of JSEB approved the interim arbitral award vide resolution datedC05.04.2008 and 07.04.2008. In the said meeting, Smt. Rajbala Verma(then Finance Secretary to the State of Jharkhand) also participated andduly approved the resolution.

13. The perusal of material indicates that because it was difficultfor the JSEB to implement the award due to financial difficulty, a rovingDand fishing enquiry was conducted, in consequence of which, Secretary,JSEB vide letter dated 30.07.2010 and Smt. Rajbala Verma (thenVigilance Commissioner) vide letter dated 03.09.2010, requested the DGP,Vigilance Bureau to register an FIR against the Appellant. We fail tounderstand as to why the same person, who had approved theimplementation of award as a member of the Board, had later as VigilanceECommissioner, recommended initiation of prosecution against theAppellant, who had merely prepared the agenda for appointment of anarbitrator and had nothing to do with the approval of the award andpayment of money. In view of the aforesaid, if at all any culpability hadto be assigned, it should have been assigned after examining the role of Fsenior authorities who were involved in the decision-making process.Astonishingly, most of the senior officials, who approved various decisionsregarding extension of time, appointment of arbitrator and implementationof arbitration award and consequent payment to RPCL have not beenarrayed as accused. In our considered view, prima-facie there is nothingwhich affixes culpability or constitutes commission of offence includingGmens-rea on the part of the Appellant. It seems that an attempt hasbeen made to implicate the Appellant for the decisions in which prima-facie, he did not have any role to play, nor do his acts establish anyculpability regarding the alleged offences.

14. If at all there were issues with respect to the maintainabilityof the award due to the provisions of the contract, particularly as per thecontended negative covenant, the same should have been highlighted bythe learned AG, especially when his opinion was expressly sought. Wefind it difficult to accept that the opinion of the learned AG was prejudicedmerely because he was not made aware of the negative covenantpertaining to price variation by an engineer of the JSEB who has limitedexposure in the domain of law. We have no hesitation in stating that AGbeing the highest law officer of a State, is competent to advise the Stateon legal matters after due diligence, taking into consideration all relevantfactors and material. Therefore, the Appellant cannot be said to influenceor impact the opinion of the learned AG which had resulted in approvalof JSEB to implement the award. Hence, in our considered view, it cannotbe inferred that the Appellant led the AG and the JSEB to implement theaward with fraudulent or dishonest intention to cause loss to JSEB andbenefit to RPCL.

15. On a perusal of the FIR, we find that it is alleged againstUmesh Kumar, Financial Controller – III and the present Appellant, CE(APDRP), that they made payment of Rs.4,89,24,788/- against the grossvalue of Rs. 7,89,84,826/-, as per the arbitral award without approval ofthe competent authority. Mr. Umesh Kumar had filed quashment petitionbeing ‘Cr. M.P. No. 2136/2015’ before the High Court wherein the Courton the allegation of payment without approval of the competent authority(as alleged against Appellant also) has observed as under:

“1.Having heard learned counsel for the parties and onperusal of the records, I do find that nothing is thereagainst the petitioner with respect to appointment ofM/s RPCL nor anything is there in the matter ofappointment of an Arbitrator. Only when award wasgiven by the Arbitrator, the petitioner did make paymentof the amount which had been awarded not from theworking fund but from the loan fund. This has beentaken by the Vigilance to be illegal as according to itthe payment should not have been made from theexisting loan amount, as the loan had never been takenfor the purpose of making payment of the amountawarded by the Arbitrator. This accusation cannot bethe subject matter of the prosecution in absence of ABC

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anything being placed that there was restriction on thepart of the authority of the Board to make payment ofthe amount covered under the award passed againstthe Board from the loan account. It is opinion of theVigilance not based on any circular or guideline thatthe payment should have been made after having a freshloan from the Power Finance Corporation. It be statedthat the petitioner is to act according to his own wisdomand not as per the wishes of others and if nothing isthere showing any culpability in the matter of paymentof the amount, the petitioner cannot be said to havecommitted any wrong.

2. Coming further, it be stated that the petitioner passedrelease order with respect to payment of a sum ofRs. 4,89,24,788/- but that release order was passedwithout having any approval of the Chairman thoughsuch post facto approval according to the petitionerhas been granted by the Chairman not on the file buton separate sheet which according to the Vigilance isbad but even if this irregularity is there in the matter ofpayment of the said amount, his culpability can only befound when something is more there showing hisconnivance or conspiracy with the contractor thoughthe Vigilance has tried to establish that the file movedso fast but that never indicates about the culpability ofthe petitioner, as there may be conspiracy of otherofficials with the contractor on account of which thefile moved so fast. Furthermore, it has never been thecase of the vigilance that the aforesaid payments weremade without the materials being supplied or shortsupplied.

3. Further, it be stated that the ingredients of the offenceof criminal conspiracy are that there should be anagreement between the persons who are alleged toconspire and the said agreement should be for doing ofan illegal act or for doing, by illegal means, an actwhich by itself may not be illegal. In other words, theessence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be provedeither by direct evidence or by circumstantial evidenceor by both and it is a matter of common experience thatdirect evidence to prove conspiracy is rarely available.Accordingly, the circumstances proved before and afterthe occurrence have to be considered to decide aboutthe complicity of the accused. Even, if some acts areproved to have been committed, it must be clear thatthey were so committed in pursuance of an agreementmade between the accused persons who were parties tothe alleged conspiracy. Inferences from such provedcircumstances regarding the guilt may be drawn onlywhen such circumstances are incapable of any otherreasonable explanation. In other words, an offence ofconspiracy cannot be deemed to have been establishedon mere suspicion and surmises or inference which arenot supported by cogent and acceptable evidence. Thisproposition of law has been laid down by the Hon’bleSupreme Court in a case of Central Bureau ofInvestigation, Hyderabad Vs. K. Narayana Rao {(2012)9 SCC 512}. Here in the instant case, nothing appearsto be there for showing connivance or conspiracy exceptaforesaid two facts which have been dealt withhereinabove regarding payment of the amount to thecontractor.”

16. The High Court quashed the criminal proceedings againstUmesh Kumar with the above said observations. Assailing the same,Special Leave Petition (Criminal) No. 4062 of 2017, was filed by theState of Jharkhand, which was dismissed by this Court vide order dated05.02.2020, after condoning the delay. As per the FIR allegations, it isalleged that Umesh Kumar and the present Appellant had made thepayment of Rs.4,89,24,788/- against the gross value of Rs.7,89,84,826/-without approval of the competent authority. In this regard, the allegationagainst the Appellant is that he suggested that part payment of the arbitralaward may be made to RPCL from the working fund, on refundablebasis since there was no fund available in the Power Finance CorporationAccount. It is not the case of the prosecution that the Appellant hadmade payment to the agency. However, it can be inferred that theAppellant has suggested the possible mode of payment in furtherance of ABC

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Athe Board’s office order no. 243 dated 16.03.2006, after passing of thearbitral award which was required to be paid alongwith interest, but tosatisfy the award by noting, the said suggestion was made. In our view,this itself is not sufficient to implicate the Appellant. In addition thereto,it is most pertinent that even on such a suggestion, the payments werenot made from the working fund, rather, part payment of the award wasBmade from the loan taken from Power Finance Corporation on therecommendation of Umesh Kumar, against whom criminal proceedingshave been quashed as indicated hereinabove and the said order has notbeen interfered with by this Court.

17. It is also worthwhile to mention that during the investigation,Cno incriminating material or money was seized from the house of theAppellant. Further, it is not a case where allegations of illegal gratificationor disproportionate assets have been successfully found by prosecutionagainst the Appellant. On the contrary, when the Income Tax Departmenthad assessed the block income tax return for seven years, the DepartmentDrecorded a refund Rs.8843 to the Appellant after detailed scrutiny of therecords.

18. It is a well settled law that at the time of framing of the charges,the probative value of the material on record cannot be gone into butbefore framing of charge the Court must apply it’s judicial mind on theEmaterial placed on record and must be satisfied that the commission ofoffence by the accused was possible. Indeed, the Court has limited scopeof enquiry and has to see whether any prima-facie case against theaccused is made out or not. At the same time, the Court is also notexpected to mirror the prosecution story, but to consider the broadprobabilities of the case, weight of prima-facie evidence, documentsFproduced and any basic infirmities etc. In this regard the judgment of“Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4” canbe profitably referred for ready reference. Having due regard to thedocuments placed before us and in the light of the submissions anddiscussion made above, we are of the considered view that sufficientGgrounds casting a grave suspicion on the Appellant, do not exist. It isobserved that the ingredients of alleged offences cannot be prima-facieestablished against the Appellant as neither had he been entrusted withfunds of JSEB nor he had fraudulently or dishonestly deceived seniorofficials of the JSEB to cause any benefit to RPCL or any wrongful lossto JSEB and no evidence of illegal gratification or disproportionate assetsHhas been found against the Appellant.

PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND[J. K. MAHESHWARI, J.]

19. In view of the foregoing discussion, we are of the consideredopinion that the High Court erred in refusing to exercise the revisionalpowers vested in it under Sections 397 and 401 of the Cr.P.C. anddismissing the criminal revision preferred by the Appellant. In the factsand circumstances of the case as discussed, the inescapable conclusionthat can be drawn in this case that ingredients of the alleged offencesare not prima-facie made out against the Appellant. Therefore, we deemit fit to allow the instant appeal and set-aside the impugned order.Consequently, the Appellant is discharged in the criminal proceedingsarising out of Special Case No.02 of 2011.

Ankit Gyan

Appeal allowed.

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