1 Cri.Appln.No.4016/2010 & Ors. IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4016/2010 Ranjeet s/o Padmakar Mulay - APPLICANT VERSUS The State of Maharashtra & Anr. - RESPONDENTS ***** Mr.PR Patil Advocate for Applicant; Mr.VH Dighe, APP for State. WITH CRIMINAL APPLICATION NO.4115/2010 Sudam s/o Bajirao Kadam - APPLICANT VERSUS The State of Maharashtra. - RESPONDENTS ***** Mr.Joydeep Chatterji, Advocate for Applicant; Mr.VH Dighe, APP for State. WITH CRIMINAL APPLICATION NO.4077/2010 Nandkumar s/o Bhaskarrao Magar - APPLICANT VERSUS The State of Maharashtra & Anr. - RESPONDENTS ***** Mr.RN Dhorde, Adv.h/for Mr.VS Kadam, Advocate for Applicant; Mr.VH Dighe, APP for State. 2 Cri.Appln.No.4016/2010 & Ors. WITH CRIMINAL APPLICATION NO.4084/2010 Vishnu s/o Dagadu Palve - APPLICANT VERSUS The State of Maharashtra & Anr. - RESPONDENTS ***** Mr.VD Hon Advocate for Applicant; Mr.VH Dighe, APP for State. WITH CRIMINAL APPLICATION NO.4070/2010 Rajiv s/o Nilkanth Shrikhande & Anr. - APPLICANTS VERSUS The State of Maharashtra & Anr. - RESPONDENTS ***** Smt.SS Jadhav, Advocate for Applicants; Mr.VH Dighe, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 26th April, 2011. PER COURT : 1) Heard the learned Counsel for the parties extensively and finally. 2) Applicant in Criminal Application No. 4016/2010 is a Contractor; in Criminal 3 Cri.Appln.No.4016/2010 & Ors. Application No.4115/2010 is a Project Coordinator on behalf of the Contractor; in Criminal Application No.4070/2010 – applicant no.1 Rajiv Shrikhande is Jt. Managing Director and applicant no.2 – Sudhir Apte is Director of M/s Shrikhande Consultants Pvt.Ltd. over the construction of the road under a specific project. Applicant in Criminal Application No. 4084/2010 was a City Engineer at the relevant time. Applicant in Criminal Application No. 4077/2010 was In-charge City Engineer, holding additional charge. 3) Applicant – Ranjeet, in consortium, had received contract of developing a road, namely – "Nepti Naka – Delhi Gate – Law College – Lal Taki – Patrakar Chowk" in Ahmednagar city. Based on certain reports, it was found that there were deficiencies in quality of the construction; rubble/metal required to be used were of inferior quality, requisite standards were not maintained. Specialist/Consultant – Mr. Rajiv Shrikhande had put up grievance in respect of non-cooperative attitude of the contractor, including low quality in the work. Based on the grievances, put up by several authorities, F.I.R. was lodged for an offence under Section 420 r/w 34 of IPC, informing that while carrying the construction of 4 Cri.Appln.No.4016/2010 & Ors. the road in question, several illegalities are revealed. Several instances of deficiencies, numbering 21, are given in the FIR. The complainant has also arrayed the City Engineer, the Consultant – Mr.RL Shrikhande, as party accused for their dereliction in discharge of the duties. The construction of the road was not in terms of the contract. 4) Owing to the looming fear of arrest, based on Crime No.I-207/2010, registered at Topkhana Police Station, Ahmednagar, the applicants rushed to this Court by the present respective applications. 5) By order dated 11th October, 2010, this Court directed the Investigating officer to obtain an independent Expert’s opinion about the costs and quality of the construction carried by some of the applicants, supervised by few of other applicants and to obtain a specific report from such independent Expert, qualified in the field, to assess the nature of construction and quality of construction and value thereof, within a period of four weeks. Based on such directions, after consuming substantial time, Superintending Engineer (Quality Control), Nashik has furnished detailed/elaborate and exhaustive report, pointing the deficiencies and also putting up 5 Cri.Appln.No.4016/2010 & Ors. certain suggestions to rectify the deficiencies and the loss suffered by the Corporation, which according to the Expert’s opinion, comes to Rs. 38,91,197/-. The loss was due to not adhering to quality parameters and consequently, the difference in measurement was also taken into consideration, reaching to the above referred figure of deficiencies or loss to the Corporation. 6) Mr.Patil, the learned Counsel submits, Rs.1,25,00,000/- (Rupees one crore and twenty five lakhs) belonging to the contractor are with the Corporation. These are the outstanding payments due for the works carried from time to time. He impressed, that original cost of the works of subject tender was more than nine crores, since it was reduced, a suggestion was given by the contractor/applicant that testing of the materials, to be utilized for the work, would be carried out in Government laboratory and consequent thereupon, the work was allotted to him on 24.9.2008 and thereafter he carried out the activities. By letter dated 12.11.2008, the contractor has informed the authorities of the Corporation that he will be getting testing of the materials from Government Technical institution at Aurangabad. Elaborately details of user of murum, sand, crushed-metal, were given 6 Cri.Appln.No.4016/2010 & Ors. on 15.11.2008 and even subsequent four reports of Government Polytechnic Ahmednagar were furnished to the authorities. These details, according to Mr. Patil, and prima facie, establish, were to the knowledge of the Consultant – M/s Shrikhande Consultants Pvt.Ltd. as on few of the letters, acknowledgement of one Mr.Kulkarni is seen. 7) It is pointed that running bills were raised for the work done and the Consultant, on each and every information of such running bill, has approved release of the payments in favour of the contractor without any demur. Consequently, the grievance of the Consultant that he was not taken in confidence, has lost its significance and is diluted. 8) The tender papers of the Ahmednagar Municipal Corporation, placed today, have several terms to be adhered by the Contractor while executing the work under Tender, which also discuss about line-out, expected risks, temporary works, urgent works. Clause 25 of the contract, signed by the parties, speaks of defects and rectification. The defect liability period for the work from the date of issuance of the completion certificate in accordance with para - “Final inspection and Acceptance”, shall remain liable for any of the works or costs thereof or 7 Cri.Appln.No.4016/2010 & Ors. equipments and fittings, which shall be for a period of two years. The contract also provide for defect liability period of 24 months. The remedy for defective work is spelt out in clause 24.0, which reads as under, - “24.0 - DEFECTIVE WORK : All defective works are liable to be demolished rebuilt and defective material shall be replaced by the Contractor at his own cost. All work shall be as per specification specified and in line and level as per approved drawings only. In the event of such works being accepted by carrying out minor repair as specified by the Engineer, the cost of such repair, rectification etc. shall be borne by the Contractor. In the event of work accepted by a given "Design Concession" arising out of but not limited to undersizing, under strength, shift in location and alignment etc. and accepting design stress in member, which are higher than those provided for in original proposal/Design or by accepting material not fully metting the specifications etc., the tenderer will be paid for the work actually carried out by him at suitable reduced rate (minimum 10%) of tendered rate for the portion of work thus accepted." 9) Mr.Patil has rightly pointed that mechanism is provided in the tender document itself as to how the deficiencies, if any, are to 8 Cri.Appln.No.4016/2010 & Ors. be rectified/removed and for that purpose, there cannot be an element of cheating or fraudulent earning by the contractor. 10) In view of the Expert’s report/opinion, as indicated above, excess payment received by the contractor, is Rs.38,91,197/-. For that purpose, care can be taken as Rs.50,00,000/- of the contractor are lying with the Corporation; though Mr.Patil submits that this figure is at Rs.1.25 crores. Mr.Patil also accepts the Corporation to retain Rs.50,00,000/- (Rupees fifty lakhs), subject to Accounts. 11) So far as role of the other agencies is concerned, I find that they did not coordinate in the attempt of cheating the Corporation. At the most, dereliction can be said to have been surfaced on the part of City engineers while carrying out the inspection at the time of developmental work of the site. The engineers of the Corporation did not carry time to time inspection nor protested for inferior quality of constructions of the road. The quality control was to be verified by the Shrikhande Consultants Pvt. Ltd., which they too, could not do so, due to non-cooperative attitude on the part of the contractor. 9 Cri.Appln.No.4016/2010 & Ors. 12) With all said and done, the contractor has also suffered the brunt of the same by virtually loosing the contract, as rest of the part of the work, according to Mr.Patil, is ventured to be assigned to somebody else. 13) Re-visiting of the facts, it does not prima facie appear, there was an element of cheating in the light of report of the Superintending Engineer. The deficiencies in erection of the road in question, can be rectified; user of inferior quality of material/metal though is surfaced, however, for that purpose, Rs.39,00,000/- are to be accounted for by the contractor, which can be adjusted by the Corporation from the deposit of Rs. 50,00,000/-. 14) Custodial interrogation of each of the accused/applicants, in the set of above facts, is not imperative, and more particularly, the relevant documents and record is available with the Municipal Corporation. The applicants would not be in a position to influence the witnesses concerned or involve with identical activities. Hence, order. 15) The interim protection dated 11th October, 2010 in favour of each of the applicants 10 Cri.Appln.No.4016/2010 & Ors. is made absolute. Additionally, the applicants shall attend the Investigator, whenever so specifically commanded. They shall desist from pressurizing the witnesses. 16) Applicant – Ranjeet Padmakar Mule, the Contractor, shall not withdraw the amount of Rs. 50,00,000/- (Rupees fifty lakhs) lying with Ahmednagar Municipal Corporation, Ahmednagar for a period of six months from today. Such amount would be naturally subject to accounts in view of the deficiencies pointed in first part of the order. 17) Additionally, accused/applicant, the contractor, shall carry rectification of the defects pointed by the Superintending Engineering, Quality Control. 18) The Municipal Corporation, is at liberty to nominate an Expert representative, from a Government agency or otherwise, to monitor the work of rectification of the defects to be carried by the applicant/contractor. The costs for payment of the Expert shall be borne by the Contractor. 19) Criminal Applications are allowed in aforesaid terms. (K.U.CHANDIWAL) JUDGE bdv/