IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32427 of 2009 SURENDRA KUMAR,son of Sri Sheo Prasad, resident of village-Pardhana, P.S.-Konch, District-Gaya. .. Petitioner Versus THE STATE OF BIHAR through C.B.I. .. Opp.Party ----------- 08/ 28 -04-2010 Mr. Rana Pratap Singh, learned senior counsel appearing on behalf of the petitioner and Mr. Raghib Ahsan, learned Assistant Solicitor General of India, appearing on behalf of the C.B.I. have been heard at length. Petitioner apprehends his arrest in connection with R.C.Case No.16(A)/2009 dated 08-06-2009, corresponding to Special Case No.05 of 2009, registered under Sections 120B, 420, 467, 468 and 471 of the Indian Penal Code as also under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. According to prosecution case, officials of the BSNL, who have been named as accused in the FIR, vide Annexure-1, entered into criminal conspiracy with the petitioner and other private contractors, who are also named in the FIR as accused. In furtherance of the aforesaid criminal conspiracy, the petitioner and other contractors are alleged to have submitted false/bogus bills with respect to unexecuted works/maintenance of cable works of Gaya Telecom district, and those false and bogus bills to the tune of Rs.1,63,50,106/- (Rupees one crore sixty three lac fifty thousand and one hundred six) were passed by the officials of the BSNL and payments were illegally made to the petitioner and 2 other contractors causing financial loss to the BSNL and financial gains to the petitioner and other accused persons. By referring to Annexure-2, it is submitted by the learned senior counsel appearing on behalf of the petitioner that in response to tender notice, petitioner had submitted his tender in the year 2002 for underground cable laying etc. works in the Telecom district-Gaya and his tender was finally accepted, whereafter agreement dated 28-02-2003 was entered into between the petitioner and the officials of the BSNL Telecom district-Gaya. The agreement was valid till 31-03-2005. The estimated cost of the works was rupees one crore only. It is further submitted that though the petitioner started executing the works in right earnest as per terms of the agreement vide Annexure-4, but in the mid way the works, which were allotted to the petitioner even with respect to the district of Aurangabad, Jehanabad, Nawada and Arwal, were taken out and were allotted to the other private contractors by order dated 02-12- 2004 vide Annexure-8 to the petition. The petitioner being aggrieved by the aforesaid order filed CWJC No.15612 of 2004, which was finally dismissed by order dated 26-04-2005 (Annexure- 9), but the liberty was granted to the petitioner to raise this issue by invoking arbitration clause of the agreement vide Annexure-4. The petitioner has admitted in paragraph-14 of the petition that he had received payment of rupees one crore and Rs.18,49,238/-(Rupees eighteen lac forty nine thousand and two 3 hundred thirty eight) is still due, for which he had filed an arbitration case. By referring to para-21 of the petition it is stated that total payment by the BSNL has been made to the tune of Rs.2,63,00,106/- (Rupees two crore sixty three lac and one hundred six), but the case has been instituted only for an amount of Rs.1,63,50,106/- (Rupees one crore sixty three lac fifty thousand and one hundred six). Therefore, the payment made to the petitioner is not the subject matter of investigation of the present case. On these grounds, it was pleaded that the petitioner is entitled for anticipatory bail in the present case. Mr. Raghib Ahsan, learned counsel appearing on behalf of the C.B.I. submitted that the petitioner is specifically named in the FIR as an accused and huge amounts of Rs.1.63,50,106/- have been defalcated/gobbled by the petitioner and other accused persons in conspiracy to each other, and therefore, the petitioner is not entitled to have the privilege of anticipatory bail. By referring to FIR vide Annexure-1, it was submitted that though tender was issued for one crore for underground cable laying works in Gaya Telecom district including the districts of Gaya, Aurangabad and Nawadah, but the petitioner was not completing the works as per schedule, therefore, by invoking clause-20 and clause-59 of the agreement dated 28-02- 2003(Annexure-4) underground cable laying works with respect to districts of Aurangabad and Nawadah, as also the districts of 4 Arwal and Jehanabad, which are part of Telecom district-Gaya, were allotted to some other private contractors by order dated 02- 12-2004(Annexure-8) and that order was even affirmed by this Court by order dated 26-04-2005 passed in CWJC No.15612 of 2004 (Annexure-9). Accordingly, the works order issued to the petitioner was restricted to Rs.57.5 lac only. It is further highlighted on behalf of the C.B.I. that the petitioner has been paid Rs.44,70,273/- (Rupees forty four lac seventy thousand and two hundred seventy three) with respect to cable laying works and he further submitted false and bogus bills of Rs.68,09,966/- (Rupees sixty eight lac nine thousand and nine hundred sixty six) towards unexecuted maintenance works of the cable and the same were illegally processed and passed by other co-accused persons, who were officials of the BSNL and thereby the petitioner had received total payment of Rs.1,12,80,036/-(Rupees one crore twelve lac eight thousand and thirty six), for which he was not legally entitled. It was also submitted that during course of investigation the witnesses have supported the prosecution case regarding illegal withdrawal by the petitioner in conspiracy with the officials of the BSNL on the basis of forged and bogus bills for cable maintenance works. Taking into consideration the entire facts and circumstances of the case, particularly taking into consideration that the petitioner is alleged to have submitted a false and bogus bills for Rs.68,09,966/-(Rupees sixty eight lac nine thousand and 5 nine hundred sixty six) on account of unexecuted cable maintenance works and the payment of the said amount was illegally received by him in conspiracy with the officials of the BSNL, who are also accused in the present case, this Court is not inclined to accede to the prayer made on behalf of the petitioner for grant of anticipatory bail. Accordingly, the prayer for anticipatory bail made on behalf of the petitioner is rejected. The petitioner must surrender in the court below within a period of four weeks from today and seek regular bail, if so advised. If such a petition is filed, the same may be considered and disposed of on its own merit without being prejudiced by the present order. The observations made in this order are only for the purpose of disposal of the present anticipatory bail petition and this would not adversely affect the case of either party during the course of trial. AH/ ( Birendra Prasad Verma, J.)