1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR COMMON ORDER CRIMINAL APPLICATION NO.1501/2009 (Suresh Borkar ..vs.. C.B.I.) WITH CRIMINAL APPLICATION NO.1525/2009 (Sunilkumar Mathur ..vs.. C.B.I.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : S.R.DONGAONKAR, J. DATE : 24th APRIL, 2009 ORAL ORDER Heard Shri Shashank Manohar & Shri V.M.Deshpande, Advocates for applicant in Criminal Application No.1501/2009, Shri S.B.Wahane, Advocate for applicant in Criminal Application No. 1525/2009 and Shri Shyam Ahirkar, Special Counsel for Respondent. 2. Both these applications are arising out of the same alleged offence, hence they are disposed of by this common order. 3. The applicants are apprehending arrest for the offences under section 120-B r/w section 420 of I.P.C. And under section 13(1)(d)r/w section 13(2) of Prevention of Corruption Act in crime No. R.C.04(A)/2009-NGP, registered by Central Bureau of Investigation, Nagpur. 4. The applicant in Criminal Application no.1501/2009 is working as Airport Director of Dr. Babasaheb Ambedkar International Airport, Nagpur. Whereas the applicant in Criminal Application No. 1525/2009 is a licensee who 2 is running restaurant at the said Airport. 5. The licence of applicant in Cri. Application No.1525/2009 was awarded in 2005. It appears to be renewable every year for 10 years. Relevant terms of contract and licence are settled by way of legal documents. It is the case of the prosecution / respondent that the respondent had received information from secret sources, rather undisclosable sources. Thereafter, in pursuance to the provisions in their manual the preliminary enquiry was conducted and the report was submitted to S. P., C.B.I. On that report raids were conducted and after appreciation of facts and circumstances, the relevant offence was registered. The first information report was thus registered after the due enquiry. 6. The first information report which was registered after preliminary enquiry is thus: INFORMATION On the basis of reliable information, on 13.1.2009 a surprise check was conducted by the officers of CBI, ACB, Nagpur in the presence of independent panch witnesses at the office of Airport Authority of India, at Dr. B.R.Ambedkar International Airport at Nagpur and the various areas in the Airport premises allotted by the Airport Authority to private persons for carrying out business. The surprise check disclosed that, Airport Authority of India had allotted an area of 431 sq.mtr on the first floor of the Airport Main Terminal building and 9.31 sq. mtre on the ground floor of the Terminal building to M/s Sunil Kumar Mathur for running the restaurant on the first floor and running the coffee shop on the ground floor. This area was allotted vide agreement dated 22.09.2005 entered into with the Airport Director and Shri Sunil Kumar Mathur for a period of 10 years commencing from 01.07.2005. During the surprise check, it was disclosed that Shri Sunil Kumar Mathur was using 638.78 sq.mtr. covered 3 area and 311 sq. mtre uncovered area on the first floor for the restaurant against 431sq. Mtr. allotted to him under the agreement and he was using 15.96sq.mtrs for the coffee shop on the ground floor against the allotted space of 9.31 sq. mtre vide the licence agreement. The licence fee for this allotment of space for providing amenities and facilities to the passengers and visitors at the airport was fixed as Rs.72,000/- p.m.to be enhanced by 10% yearly. It is alleged that Shri S.N.Borkar, Airport Director, and Shri Maheshkumar, Commercial Manager fraudulently and with some ulterior motive entered into criminal conspiracy and permitted private contractor Shri Sunil Kumar Mathur to use 638.78sq.mtrs.covered area and 311 sq.mtrs uncovered area against the allotted space of 431 sq.mtr and 9.31 sq.mtr allotted under the licence agreement. Information disclosed that the licence fee was fixed on the basis of the extent of space allotted and thus by fraudulently permitting the contractor to avail additional space, had caused wrongful loss to the Airport Authority of India as detailed below for the period from July 05 to December 2008. Period Monthly LF Rate LF for the additional space Rentals for uncovered space July 05 to June 06 72,000 163.5 420,711.6 321,064 July 06 to June 07 79,200 179.9 462,911.8 321,964 July 07 to June 08 87,120 197.9 509,228.3 321,064 July 08 to Dece 08 95,832 217.6 279,960 160,532 1,672,811.7 1,123,724 Information disclosed that by fraudulently and dishonestly allotting additional space to the contractor, wrongful loss to the tune of rs.27,96,535/- was caused to the Airport Authority and corresponding wrongful gain was made to the private contractor and themselves. The surprise check also disclosed that M/s Akbar Travels was using 239.32 Sq.Mtrs. of area for Car Rental service and 2.23 Sq. Mtrs. for counter in the terminus building instead of the officially allotted space of 25 Sq.Mtr for car parking and and 1.5Sq.mtr for counter as per agreement entered into between them and Airport Authority of India on 07.02.2008 which was subsequently changed to 194 sq.mtr. on 30.07.2008 after a 4 surety conducted by Airport Authority of India. Thus information disclosed that in furtherance of the criminal conspiracy entered into by the Airport Director and the Commercial Manager with M/s Akbar Travels, they were allowed to use excess space of 45.32 sq.mtr car parking space and caused wrongful loss of Rs.14,495/- for the period of 5 months from July 2008 onwards towards car parking space and Rs.3,620/- towards the excess space of 0.73 sq.mtr covered area inside the building. Surprise check also disclosed that additional space was allowed to be used by some other agencies also by the accused officials causing wrongful loss to the Airport Authority of India. The aforesaid acts of Shri S.N.Borkar, Airport Director, Shri Maheshkumar, Commercial Manager, Airport Authority of India, Dr. B.R. Ambedkar International Airport, Nagpur, Shri Sunil Kumar Mathur and M/s Akbar Travels of India. Car Rentral Services constitute commission of cognizable offences punishable under Section 120-B r/w 420 IPC and 13(2)r/w13(1)(d) of the Prevention of Corruption Act, 1988. Hence the case is registered for detailed investigation. The main allegations, as per the report , against these applicants are that the applicant in Criminal Application No.1525/2009 was granted area for running restaurant, of about 431 square meters. It is the contention of the respondent that this applicant was using considerably more area which included some covered premises as well as terrace for his restaurant than what was allotted to him, illegally, with the active support making abetment and conspiracy by other applicant. 7. As regards the other accused M/s Akbar Travels of India, it may be stated; his application is not before this court, who is also alleged to have committed the same offence of using more space than the allotted space. 8. It is the case of the respondents that applicant in Cri. Application no. 5 1525/2009, was using more area than what was allotted to him under agreement/ licence and it was with the tacit consent and malafide and offending act committed by the applicant in Criminal Application no. 1501/2009. Similar allegations are leveled against one Maheshkumar Commercial Manager, Airport Authority. 9. As regards the evidence collected against the instant applicant, it appears that C.B.I. authorities had inspected the site with the help of C.P.W.D. officials and on actual measurement the licensee was found to be using more space than what was allotted to him under the licence. 10. It is the case of the respondent that the applicant Suresh Borkar had allowed to use this excess space by these persons to allow them to make illegal gain and to cause financial loss to the concerned authorities and the central government. The further contention is that during the raid, accused- applicant Suresh Borkar was found to have having about Rs.5,00,000/- in his bank account, and two immovable properties in his name , besides Rs.2,93,000/- actual cash in the house. It is also a contention that the some sale deeds which are in the name of brother in law and sister of the applicant Suresh Borkar were also found. On the basis of this material, the aforesaid first information report & offence was registered. 11. While advancing the contention on behalf of applicants, the learned counsel for the applicant Suresh Borkar; submitted that case against the applicant in latter case, can, at the most; be that of encroachment by the licensee. It would be only a civil dispute and the matter would be within the purview of Civil Aviation Ministry, in view of the licence given to the parties. According to him, there was no complaint by the relevant authorities nor from 6 Civil Aviation Ministry as well as by superior officers of the applicant. Regarding alleged illegal loss caused to the Central Government etc. he has pointed out the relevant terms and conditions of the licence to contend that the area which was allotted to the licensee was variable at the instance of Airport Authority and the licence fees was fixed per annum irrespective of the area under use, which was dependent on the administration. It had nothing to do with the area which was to be used by the licensee. He has pointed out that in any case, if there was some dispute it could be resolved on the basis of the terms and conditions attached to the license and in absence of any such complaint of relevant superior officers, no action or offence can be contemplated, much less arrest. 12. Learned counsel for the applicant in latter matter, has submitted the similar arguments; as made in the first application. 13. Learned counsel for the respondent relying on some authorities which I would refer later on, contended that there is no need of any formal complaint and that prior to registration of offence preliminary enquiry was conducted and then the offence was registered, as it was noticed that the applicants have committed offences. It is his submission that during the course of enquiry in surprise checks it was found that applicant Sunilkumar was using excess area than that was granted by the license. He has referred to the material which was seized such as sale deeds etc from the house of the applicant. Besides referring to the measurements, he has submitted that due to excess use of area, Airport Authority and Central Government had suffered loss to the tune of about Rs.27 lacs. He has referred to the circulars and notifications from the manual of C.I.B. for the purposes of supporting his contention regarding registration of offence against the applicant, particularly section 420, 120-B of IPC as well as section 7 13(1)(d), 13(2) of the Prevention of Corruption Act. 14. In order to appreciate the rival contentions of the learned counsel, it is necessary to bear in mind that the contention of the respondents is that the investigation is at only preliminary stage. The concrete inferences are yet to be drawn. What is appearing against the applicant is nothing but the offences by the persons as mentioned in first information report, causing considerable loss to the Airport Authority and to the government. 15. Before proceeding further it is necessary to refer to the contents of the directions issued by the CBI which indicate that the CBI can investigate the offence committed by public servant under the control of central government who are involved either themselves or along with state government servants and or other persons. Learned counsel has pointed out that the actions are taken by the CBI for curbing corruption by pointing out the Thrust areas was to hit hard at high level corruption in all departments and public sector undertakings by registering quality cases of disproportionate assets, traps and abuse of official position and to inviogorate, sharpn and strengthen intelligence- gathering all over the country in order to detect quality cases against corrupt officials. It is also referred to contend that on receipt of a complaints or after verification of an informations received or on completion of a preliminary enquiry undertaken up by CBI if it is revealed that prima facie a cognizable offence has been committed and the matter is fit for investigation to be undertaken by CBI, a first information report has to be recorded under section 154 of Cr.P.C. and investigation can be thereafter taken up. 16. Learned counsel has referred to 2008 ALL MR 3486 Sandeep Rammilan Shukla & others ..vs.. State of Maharashtra & others, to contend that the first 8 information report can be registered whenever such information is received and investigation should not be hampered by the courts. According to him, it is duty of the investigating authority to register the offences; if they are found to have been committed and investigate the same. 17. There is no difficulty in saying that when the cognizable offences are seen to have committed; they have to be registered under section 154 of the Cr.P.C. And need to be investigated. The crucial question in the present case is whether ex-facie any offences are made out against the applicants at this stage, for which they are sought to be arrested by respondent for custodial interrogation. 18. In this context, it is necessary to refer the Licence Deed of the applicant Sunil Kumar Mathur which is entered into dated 2.9.2005. It is executed by Airport Authority of India and the applicant. Learned counsel for the applicant has rightly pointed out that the licence fees was stated and it was not variable according to area used by the licensee. The licensee fee has been directed to be paid every month in advance on or before 10th day of English Calander month and it appears that licence fee was increasing per annum. Clause 15 of the said licence reads as under: “15- That the authority reserves to itself the right to change the location of the premises at any time and may at tits discretion to call upon the Licensee to vacate the site and may give him alternative premises for the purpose of this license. In such a case, the licensee shall be bound to vacate the premises immediately and accept the said alternate premises. The entire expenditure on such shifting shall be borne by him and the licensee shall not be entitled to claim any compensation or revision in the licensee fee on that score.”” 9 Thus, authority had plenary right to change location of the premises and had its discretion to call upon licensee to vacate the. It was empowered to allot alternative premises at its choice. It is also mandatory that in such cases licensee are bound to vacate premises immediately and accept alternative premises. Further this license provides for arbitration clause as below: “4- All disputes and differences arising out of or in any way touching or concerning this Agreement ( except those the decision whereof is otherwise herein before expressly provided for or to which the Public Premises (Eviction of Unauthorized Occupants) Act and the rules framed there under which are now enforce or which may hereafter come into force are applicable), shall be referred to the sole arbitration of a person to be appointed by the Chairman / Member of the Authority. The award of the arbitrary so appointed shall be final and binding on the parties. The Arbitration and Conciliation Act 1996 shall be applicable.” Apart from this, the special guideline in the said licence that needs to be considered reads thus: “1- The area of Restaurant Dining hall and Kitchen (NTB-1st Floor) are approx. 431 sqm and of snack bar in Departure hall on ground floor is 9.31 sq.m. 2- Airport authority of India shall charge the licensee @ 10% of gross sale of inflight catering as its share of revenue as and when such catering is lifted through the tender by any airlines irrespective of use of Airport restaurant / snack bar or otherwise. The licensee shall also render monthly statement of sales on account of in-flight catering to the Airport incharge by the 10th of the following month along with 10% share due to the Authority at his own initiative, failing which simple interest @ 18% per annum shall be levied on delayed payment.” It appears that the licence fee was to be increased depending upon the increase 10 in the income as well. 19. At this stage, it is necessary to mention that the present applicants – Suresh Borkar and Sunilkumar Mathur are apprehending arrest. It is informed that the other accused, namely Maheshkumar, Commercial Manager, Airport Authority of India and M/s Akbar Travels of India, Car Rental Services, whose names have been mentioned in the first information report as an offenders are still working at Airport and perhaps as they are not apprehending arrest, they have not moved any application for anticipatory bail. 20. Here is the case, where Airport Director is accused of allowing the licensee to use more space than what was licenced. One of such persons has produced the license before the court. The main terms which are necessary to be considered have been referred above. Prima facie, it appears that because of the terms which are quoted above in the licence, the license could have been immediately terminated or they could have been even charged with more licence fee, if necessary. 21. During the course of the arguments, it was informed that the construction work of the Airport is going on since long and at various points of time, the present applicant Sunil Kumar was provided with different spaces, premises for running his restaurant. Therefore, unless, it is specifically pointed out that this was not without the active malafide support by the applicant Suresh Borkar, perhaps, requisite mense rea, is not made out. 22. Contents of first information report which is pointed out above, makes clear that Shri Mahesh Kumar Commercial Manager fraudulently and with some ulterior motive entered into criminal conspiracy and permitted private 11 contractor Shri Sunil Kumar Mathur to use 638.78 sq. meters covered area and 311 sq.mtrs uncovered area against the alloted space of 431 sq.meter and9.31 sq.meter allotted under the licence agreement. Shockingly, it is not made known as to what investigation is done in respect of the case of Shri Maheshkumar and Akbar Travels. Respondents owes explanation about this aspect. But presently this court is concerned with the cases of the present applicants. It would be clear that in view of the terms of the said license the possibility of this being only a civil dispute cannot be overruled unless, concrete offending intention on the part of the applicants to cheat the government or Airport Authority and to cause loss to them; is made out pellucid. 23. Despite a specific query to the learned counsel for the respondents, it was not made known as to why the concerned superior officers of Airport Authority has failed to make only complaint in this regard. Why the respondent did not obtain such complaint when offence was made out in preliminary inquiry; is also equally surprising. 24. This takes me to consider the evidence pressed into service against the applicant – Borkar for making out the offence under section 420, 120-B of I.P.C., as well as under section 13(1)(d) of the Prevention of Corruption Act. Learned counsel for respondent has relied on the judgments of this court in 2007 ALL MR (Cri) 2573 Vilas Narsaiya Sandal ..vs.. State of Maharashtra and 2008 ALL MR (Cri) 781 Mauvin Godinho ..vs..State. 25. Turning to the intention of the applicant the evidence which is presently available, against the applicants is in the shape of bank balance, cash found in the house and some sale deeds which are allegedly found with him. As regards the property held by him, learned counsel for the applicant, has pointed 12 out that during the return of property submitted to the office, the same has been disclosed. The amount of Rs.5,00,000/- and the cash found of about Rs. 2,92,000/- is not shown to be connected with the offence committed in respect of the relevant applicant. 26. It is not the case of the respondents that this amount was related to any illegal transaction, if any done by the applicant Sunil Kumar as well as by M/s Akbar Travels. Merely because there is same suspicion, such inference cannot be drawn warranting custodial interrogation of the applicant Suresh Borkar. 27. The salary of the applicant is stated to be about Rs.70000/- per month. He has been in service since 1990. This is not a case of disproportionate assets. It is not even a slightest suggestion that he could not have possessed this much property and it was inconsistent with the total income during his service. In these circumstances, it was obligatory for the respondents to point out some relationship with the property seized and the illegal transactions which allegedly were in favour of licensee. As regards the sale deeds found in the house of the applicant, it would be seen that the details of one of the sale deeds which are made available are that the sale deed is of 1998. Therefore, it is rather difficult to say that these properties were purchased by the applicant – Suresh Borkar from the alleged illegal transaction with the licensee referred in the first information report. 28. As regards the other sale deed of brother in law of the accused, it also appears to be of 2004. License of the applicant in latter case appears to be of 2005, therefore, this purchase also cannot be referred to any illegal transaction; in this context. Apart from this, learned counsel for the applicant has submitted that said Brother in law Manoj Gajbhiye is Branch Manager of the Bank and he 13 had purchased that property out of the bank loan. Leaving apart this explanation, suffice it to say the transaction relates to year 2004, it is difficult to correlate the said transaction with the transaction of the licensee for allowing them to allegedly use excess area, for making out an offence. Thus, gains to third person by misusing official position by applicant Suresh Borkar as found in the above referred cases of Vilas and Mauvin Godinho appear to be not even prima facie; established to warrant further custodial investigation. 29. As regards passing of interim order in such cases of 438 of Cr.P.C., learned counsel for the respondent has referred to AIR 2009 SC 502 Parvinderjit Singh & another ..vs.. State (U.T. Chandigarh) & another, wherein it has been observed in paragraph 17 thus: “17-Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438