Paragraph numbers below are the court’s original numbering, recovered from the source text.
1. Shri V.N. Pandey Chairman
2. Shri R.P. Agarwal Chief Engineer (APDRP)
3. Shri P. Ranjan General Manager-cum- Chief Engineer/Jamshedpur
4. Shri Niranjan Rai Director (Finance)
5. Shri Madhup Kumar Director (RE/Plan)
6. Shri P. Raghu RITES Ltd.
7. Shri Y.P. Singh do
8. Shri A.K. Singh RPCL
9. Shri T.K. Bhattacharya do The issue of M/s RPCL was discussed in length. Work of Jamshedpur town under APDRP has been awarded to M/s RPCL vide W.O. Nos. 28 & 29 dated 27.01.2005. The progress was reviewed and found that progress is very-very slow. After discussion, JSEB & M/s RPCL mutually agreed on the following points:- 1. M/s RPCL will submit photo copy of all orders placed by them for procurement of materials for the APDRP work of Jamshedpur to Chief Engineer/APDRP & m/s RITES Ltd., the consultant. 2. JSEB will help Ms RPCL for procurement of materials. 3. JSEB will be make payment immediately (probably within a week) after submission of bills by M/s RPCL. 4. Approval of additional B.O.Q. and items shall be given by JSEB immediately. 5. M/s RPCL will submit fresh inspection call of materials to Electrical Superintending Engineer-cum-CEO/General Manager-cum-Chief Engineer, Jamshedpur for getting inspecting officer deputed. 6. M/s RPCL will contract Chief Engineer (APDRP) if here is any delay in issuing Road permits by Chief Engineer (S&P). 7. M/s RPCL agreed that they will apply their full efforts to complete the project so that it may be completed within extended completion period i.e. July’ 07 instead of going for Arbitration/Court of Law. 8. JSEB will review the matter of L.D. clause after completion of the project work. PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND [J. K. MAHESHWARI, J.] Sd/- (R.P. Agrawal) Chief Engineer (APDRP) Memo No. …………… Dated……………… Copy 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 agenda dated 27.12.2006 prepared by Mr. R.P. Agarwal, CE, reveals that the oral recommendation of the then Chairman, Mr. Shivendu, was drawn in the proposed agenda but it was not acted upon as per the noting dated 19.01.2007 made by the Member Technical who made an endorsement “Please discuss”. Thereafter, what was the agenda that was put forth in the next JSEB meeting, is not on record. The minutes of the Board meeting reflect that Mr. R.P. Agarwal who had prepared the agenda dated 27.12.2006, was a part of the said meeting. The decisions were taken in the said meeting with the mutual consent of the parties. The Appellant was not a part of the decision-making process. In the said meeting as per clause (7), it was decided that “M/s RPCL agreed that they will apply their full efforts to complete the project so that it may be completed within extended completion period, i.e., July’ 07, instead of going for Arbitration/Court of Law.” Correspondences further 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 was dated 25.04.2007, requesting RPCL for implementation of the contract as per the decision of JSEB. The said correspondence also does not show any involvement of the Appellant. As alleged, the agenda dated 08.06.2007 was prepared by the Appellant, wherein the following instructions were required to be obtained: “…….Hence instruction may be obtained on: (i) Appointment of an arbitrator in light of the advice of the AG Jharkhand. (ii) Waiver of penalty in light of the advice of the AG, Jharkhand, and (iii) Putting the agenda for further time extension incorporating the condition of approval of revised BQO which could not be given till date.”
11. On perusal of the JSEB Board meeting dated 06.02.2007 and 07.02.2007, it is clear that extension was granted up to July 2007 instead of going in for arbitration or approaching the Court of Law. The JSEB and its members were not inclined to cancel the contract and the decision was taken by mutual consent. Therefore, the instructions sought by the Appellant as per the agenda dated 08.06.2007, were either based on the advice of the learned AG of Jharkhand or in furtherance of the previous decision of the Board. Later, it was directed that JSEB, Member Technical may constitute a committee consisting of officers from ‘Technical’, ‘Finance’ and ‘Law’ to suggest the names to appoint an Arbitrator, after approval of the Chairman. The Member Technical proceeded in the matter of appointment of Arbitrator and three names were proposed on 09.08.2007, out of which, Mr. Ramayan Pandey, Ex-Law Secretary, State of Jharkhand was appointed as an arbitrator. The Arbitrator passed an interim award on 25.11.2007, in favour of RPCL.
12. In view of the discussion made hereinabove, it is apparent that at the time of taking a decision by the JSEB on 06.02.2007 and 07.02.2007, the Appellant was neither involved nor was part in the proposal or the decision-making process. He had prepared the proposed agenda for instructions on 08.06.2007, in furtherance of clause (7) of the aforesaid Board meeting, and based on the advice of the learned AG, State of Jharkhand in the matter of appointment of an Arbitrator and waiver of penalty, as suggested. Even after the proposed agenda for termination of the contract dated 27.12.2006, prepared by the then CE Mr. R.P. Agarwal, it was not acted upon because Member Technical on 19.01.2007, had put up a note “Please discuss”. Later, the Board took a decision on 06.02.2007 and 07.02.2007. Thus, it is clear that the question of termination of contract in the opinion of the Board was dropped and the recourse to complete the work within the extended time was agreed in place of going in for arbitration/Court of Law. The same has also been observed by the High Court in its order dated 02.05.2016, while granting bail to the Appellant on merit. In the said facts, merely preparing a subsequent agenda dated 08.06.2007, seeking instructions for appointment of an Arbitrator would not bring the Appellant within the purview of culpability for commission of the alleged offences. This Court PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND [J. K. MAHESHWARI, J.] has reason to believe that the decisions, if any, taken by the JSEB and other higher officials were after perusal of the complete noting in the file. After implementation of the said decision, arbitral proceedings were commenced and award dated 25.11.2007 was passed. Thereafter, the agenda regarding implementation of the award was put up before the Chairman, Mr. B.M. Verma who vide noting dated 27.01.2008, made a request to the AG to give legal opinion about the maintainability and enforceability issues relating to the interim award. The learned AG responded by letter dated 31.01.2008, opining that the award did not suffer from any illegality and should be implemented. Accordingly, the Board of JSEB approved the interim arbitral award vide resolution dated 05.04.2008 and 07.04.2008. In the said meeting, Smt. Rajbala Verma (then Finance Secretary to the State of Jharkhand) also participated and duly approved the resolution.
13. The perusal of material indicates that because it was difficult for the JSEB to implement the award due to financial difficulty, a roving and fishing enquiry was conducted, in consequence of which, Secretary, JSEB vide letter dated 30.07.2010 and Smt. Rajbala Verma (then Vigilance Commissioner) vide letter dated 03.09.2010, requested the DGP, Vigilance Bureau to register an FIR against the Appellant. We fail to understand as to why the same person, who had approved the implementation of award as a member of the Board, had later as Vigilance Commissioner, recommended initiation of prosecution against the Appellant, who had merely prepared the agenda for appointment of an arbitrator and had nothing to do with the approval of the award and payment of money. In view of the aforesaid, if at all any culpability had to be assigned, it should have been assigned after examining the role of senior authorities who were involved in the decision-making process. Astonishingly, most of the senior officials, who approved various decisions regarding extension of time, appointment of arbitrator and implementation of arbitration award and consequent payment to RPCL have not been arrayed as accused. In our considered view, prima-facie there is nothing which affixes culpability or constitutes commission of offence including mens-rea on the part of the Appellant. It seems that an attempt has been 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 any culpability regarding the alleged offences.
14. If at all there were issues with respect to the maintainability of the award due to the provisions of the contract, particularly as per the contended negative covenant, the same should have been highlighted by the learned AG, especially when his opinion was expressly sought. We find it difficult to accept that the opinion of the learned AG was prejudiced merely because he was not made aware of the negative covenant pertaining to price variation by an engineer of the JSEB who has limited exposure in the domain of law. We have no hesitation in stating that AG being the highest law officer of a State, is competent to advise the State on legal matters after due diligence, taking into consideration all relevant factors and material. Therefore, the Appellant cannot be said to influence or impact the opinion of the learned AG which had resulted in approval of JSEB to implement the award. Hence, in our considered view, it cannot be inferred that the Appellant led the AG and the JSEB to implement the award with fraudulent or dishonest intention to cause loss to JSEB and benefit to RPCL.
15. On a perusal of the FIR, we find that it is alleged against Umesh Kumar, Financial Controller – III and the present Appellant, CE (APDRP), that they made payment of Rs.4,89,24,788/- against the gross value of Rs. 7,89,84,826/-, as per the arbitral award without approval of the competent authority. Mr. Umesh Kumar had filed quashment petition being ‘Cr. M.P. No. 2136/2015’ before the High Court wherein the Court on 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 on perusal of the records, I do find that nothing is there against the petitioner with respect to appointment of M/s RPCL nor anything is there in the matter of appointment of an Arbitrator. Only when award was given by the Arbitrator, the petitioner did make payment of the amount which had been awarded not from the working fund but from the loan fund. This has been taken by the Vigilance to be illegal as according to it the payment should not have been made from the existing loan amount, as the loan had never been taken for the purpose of making payment of the amount awarded by the Arbitrator. This accusation cannot be the subject matter of the prosecution in absence of PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND [J. K. MAHESHWARI, J.] anything being placed that there was restriction on the part of the authority of the Board to make payment of the amount covered under the award passed against the Board from the loan account. It is opinion of the Vigilance not based on any circular or guideline that the payment should have been made after having a fresh loan from the Power Finance Corporation. It be stated that the petitioner is to act according to his own wisdom and not as per the wishes of others and if nothing is there showing any culpability in the matter of payment of the amount, the petitioner cannot be said to have committed any wrong. 2. Coming further, it be stated that the petitioner passed release order with respect to payment of a sum of Rs. 4,89,24,788/- but that release order was passed without having any approval of the Chairman though such post facto approval according to the petitioner has been granted by the Chairman not on the file but on separate sheet which according to the Vigilance is bad but even if this irregularity is there in the matter of payment of the said amount, his culpability can only be found when something is more there showing his connivance or conspiracy with the contractor though the Vigilance has tried to establish that the file moved so fast but that never indicates about the culpability of the petitioner, as there may be conspiracy of other officials with the contractor on account of which the file moved so fast. Furthermore, it has never been the case of the vigilance that the aforesaid payments were made without the materials being supplied or short supplied. 3. Further, it be stated that the ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even, if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence. This proposition of law has been laid down by the Hon’ble Supreme Court in a case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao {(2012) 9 SCC 512}. Here in the instant case, nothing appears to be there for showing connivance or conspiracy except aforesaid two facts which have been dealt with hereinabove regarding payment of the amount to the contractor.”
16. The High Court quashed the criminal proceedings against Umesh Kumar with the above said observations. Assailing the same, Special Leave Petition (Criminal) No. 4062 of 2017, was filed by the State of Jharkhand, which was dismissed by this Court vide order dated 05.02.2020, after condoning the delay. As per the FIR allegations, it is alleged that Umesh Kumar and the present Appellant had made the payment 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 allegation against the Appellant is that he suggested that part payment of the arbitral award may be made to RPCL from the working fund, on refundable basis since there was no fund available in the Power Finance Corporation Account. It is not the case of the prosecution that the Appellant had made payment to the agency. However, it can be inferred that the Appellant has suggested the possible mode of payment in furtherance of PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND [J. K. MAHESHWARI, J.] the Board’s office order no. 243 dated 16.03.2006, after passing of the arbitral award which was required to be paid alongwith interest, but to satisfy 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 were not made from the working fund, rather, part payment of the award was made from the loan taken from Power Finance Corporation on the recommendation of Umesh Kumar, against whom criminal proceedings have been quashed as indicated hereinabove and the said order has not been interfered with by this Court.
17. It is also worthwhile to mention that during the investigation, no incriminating material or money was seized from the house of the Appellant. Further, it is not a case where allegations of illegal gratification or disproportionate assets have been successfully found by prosecution against the Appellant. On the contrary, when the Income Tax Department had assessed the block income tax return for seven years, the Department recorded a refund Rs.8843 to the Appellant after detailed scrutiny of the records.
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 but before framing of charge the Court must apply it’s judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Indeed, the Court has limited scope of enquiry and has to see whether any prima-facie case against the accused is made out or not. At the same time, the Court is also not expected to mirror the prosecution story, but to consider the broad probabilities of the case, weight of prima-facie evidence, documents produced and any basic infirmities etc. In this regard the judgment of “Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4” can be profitably referred for ready reference. Having due regard to the documents placed before us and in the light of the submissions and discussion made above, we are of the considered view that sufficient grounds casting a grave suspicion on the Appellant, do not exist. It is observed that the ingredients of alleged offences cannot be prima-facie established against the Appellant as neither had he been entrusted with funds of JSEB nor he had fraudulently or dishonestly deceived senior officials of the JSEB to cause any benefit to RPCL or any wrongful loss to JSEB and no evidence of illegal gratification or disproportionate assets has been found against the Appellant.
19. In view of the foregoing discussion, we are of the considered opinion that the High Court erred in refusing to exercise the revisional powers vested in it under Sections 397 and 401 of the Cr.P.C. and dismissing the criminal revision preferred by the Appellant. In the facts and circumstances of the case as discussed, the inescapable conclusion that can be drawn in this case that ingredients of the alleged offences are not prima-facie made out against the Appellant. Therefore, we deem it fit to allow the instant appeal and set-aside the impugned order. Consequently, the Appellant is discharged in the criminal proceedings arising out of Special Case No.02 of 2011. Ankit Gyan Appeal allowed. PUSHPENDRA KUMAR SINHA v. STATE OF JHARKHAND [J. K. MAHESHWARI, J.]