IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION Dated : Nainital the 21th May, 2011 Order on the bail application of accused 1st Bail Application No. 351 of 2011 CRIMINAL SIDE Yogendra Prasad S/o Late Indrasan Prasad R/o House No. E/118, Ajabpur Kalan, Saket Colony, Dehradun 248001 …Applicant Versus State of Uttarakhand …Opposite Party Arising out of FIR No. 13/10 Under Sections 409 & 120-B of I.P.C. & Section 7/13 (1) (c), 13 (1) (d) & Section 13(2) of the Prevention of Corruption Act. P.S. Vigilance Section, Dehradun. Hon’ble Tarun Agarwala, J. Heard Mr. Kavin Gulati, the learned counsel assisted by Mr. Aditya Singh and Mr. H.M. Bhatia, Advocates for the applicant and Mr. Rakesh Thapliyal, the learned Addl. Advocate General assisted by Mr. Vinay Kumar, the learned counsel for the State. The first information report dated 04.09.2010 indicates that the applicant had misused his authority as Chairman of Uttarakhand Jal Vidyut Nigam Limited i.e. UJVNL and as Special Advisor (Energy) to the Chief Minister in order to give undue benefit to M/s Kayviate Internationals Project Consultants Pvt. Limited, which is a company incorporated under the Indian Companies Act, in which, the applicant was also an Advisor. The first information report alleges that on account of causing undue benefit, the State Government was put to a loss of an approximately ` 2.5 crores between the period 2005-2008. It is alleged that the pre-tender specification consultancy work in six projects were given by the applicant which consultancy work could have been done by the department i.e. by the UJVNL itself. The first information report contends that a criminal conspiracy was hatched by the applicant and the applicant had misused his power in giving this consultancy work to this Company, which was not competent nor qualified to do so. In the Kali Ganga First and Second Project, it is alleged that the contract was awarded to this Company to re-examine the detailed project report which work could have been done by the 2 officials of the Nigam. For Maneri Bhali project, the contract for approximately ` 1.52 crores was given to monitor the commissioning of the project. It was contended that this monitoring of the commission of the project could have been done by the UJVNL itself and that the applicant misused his authority in awarding the contract in order to favour this company. The first information report further indicates that a commission was given for Vyasi Hydro Electric Project for ` 12.05 lacs and in Pathri and Mohamadpur Projects assignment was given to the company to review the detailed project report etc. In Lakhwad and Vyasi Projects, it is alleged that in order to give wrongful gain to the company, a contract of ` 26.30 lacs was given and similarly in Asiganga First and Second Projects, ` 37.06 lacs was awarded to monitoring the project and to give technical advice. The applicant retired as Chairman of National Hydro Power Corporation in the year 2005. It is alleged that the applicant is an expert in the Energy Sector and on 7th January 2006 he was appointed as a Special Advisor to the Chief Minister. It is alleged that Maneri Bhali Project work which had commenced in the year 1979 and which showed no sign of nearing completion, as a result, tenders were invited in March 2007 for appointing consultants. The applicant, being the Special Advisor to the Chief Minister, was nominated to undertake regular and intensive review of this project being carried out by the Irrigation Department and by UJVNL. The Central Purchase Committee of UJVNL under the Chiarman of the then Director met on 1st May 2007 and noted that even though the company called M/s Kayviate Internationals Company did not fulfill the tender requirement, yet the said committee recommended that the contract should be given to this company since the work was required to be completed by October 2007 and that inviting fresh tenders would delay the project. In this meeting the applicant insisted that if he was given the complete charge, he would get the project commissioned by October 2007 and also recommended that notwithstanding the fact that the company does not fulfill the tender requirement, it has the necessary manpower and could provide the consultancy work. Based on the recommendations recorded in the minutes of the Central Purchase Committee of 1st May 2007, a unified command was given to the applicant to complete the 3 project by a letter of 7th May 2007. Subsequently, by an order of 24th May 2007, the applicant was appointed as Chairman and part time Director of UJVNL. It transpires that the recommendations of the Central Purchase Committee dated 1st May 2007 was approved by the Board of the Directors on 15th May 2007. The Board noticed the fact that the project was suffering a loss of ` 30 lacs per day and, even though, the company does not meet the parameters of the tender specification, nonetheless, the Board decided to award the contract to the company subject to certain terms and conditions. It is alleged that these terms and conditions were not accepted by the company but on the insistence of the applicant the company was directed to start the project and that the terms and conditions would be settled later on. At a subsequent stage, it is alleged by the respondent that when the applicant took over as Chairman and part time Director of UJVNL, the applicant ensured that the terms and conditions was modified in order to cause undue gain to the Company and that the value of the contract from ` 89 lacs was enhanced to ` 152 lacs. The terms and conditions as specified in the minutes of the Board dated 15.05.2007 was also modified. The respondents alleged that this was done deliberately to cause undue gain to the said company for vested reasons. The applicant contends that he was able to commission the project in February 2008, which for certain reasons was not liked by certain departments of the State Government. It was also contended that the applicant levelled allegations against the functioning of one Sri B.C.K. Mishra, the Director (Operations) in UJVNL, which was brought to the notice of the Government. According to the applicant, the discrepancy and irregularities pointed out by the applicant was not liked. It was further alleged that the State Government had initiated some scheme for Small Scale Hydro Electric Project and that 56 projects in the Private Sector were allocated by the State government vis a vis by the Chief Minister without getting a detailed project report prepared. Some public interest litigation was filed and since the prescribed procedure was not followed, the applicant alleges that the Chief Minister requested the applicant to put his signatures recommending the project on behalf of the UJVNL. It is further alleged 4 that since the applicant refused, the State Government turned against him and the Chief Minister became inimical which eventually led to his removal as Special Advisor to the Chief Minister, and thereafter, from the post of Chairman cum part time Director of UJVNL. It has been stated that against his removal as Special Advisor a writ petition was filed, and during the pendency of the petition, the first information report was lodged. It is also alleged that against the first information report, a writ petition was filed in which an interim order dated 6th December 2010 was passed staying the arrest of the applicant during the investigation but subsequently, the said stay order was vacated on 3rd March 2011 and that the said writ petition was disposed of by an order of 24th March 2011 directing the applicant to appear before the Investigating Officer on 5th April 2011. It is alleged that the applicant appeared on 5th April 2011 before the Investigating Officer and participated in the investigation and presented himself again on 17th April 2011 and 2nd May 2011 when he was arrested. The learned counsel for the applicant contended that the applicant is a retired person, being 66 years of age, and has roots in the society. The applicant is an expert in the Energy Sector and had been honoured by the State Government of Uttarakhand and had also been the Chairman cum Managing Director of N.H.P.C. The learned counsel for the applicant submitted that the applicant’s bail was rejected by the court below on the short ground that the investigation process is going on and that the applicant may not only tamper with the evidence but may hamper the investigation. The learned counsel for the applicant submitted that the reasons indicated by the trial court was patently erroneous inasmuch as the charge sheet has now been filed on the basis of documentary evidence which the Investigating Agency had collected. The learned counsel for the applicant, consequently, submitted that upon the filing of the charge sheet, there is no question of influencing the investigation or tampering with the evidence. The learned counsel for the applicant submitted that the Investigating Agency is patently relying upon the minutes of the Board of Directors of UJVNL in which the applicant earlier participated as a Special Advisor and, thereafter, presided over the meetings as 5 Chairman of UJVNL in which the decision taken by the Board was not an individual decision but was a collective decision. On one hand, the document reveals that it was a collective decision but the State Government has chosen only to investigate the actions of the applicant and not the other officials of UJVNL who were members of the Board of Directors and who had participated in the decision making process. It was further contended that the alleged nexus showed by the opposite party between the applicant and the Company was far fetched and that there is nothing on the record to prove that the applicant had gained any monetary benefit out of the entire alleged transactions as alleged in the first information report and the charge sheet. The learned counsel for the applicant contended that no kickbacks has been received nor any evidence has been brought on record. On the other hand, the learned Addl. Advocate General contended that soon after the applicant retired as Chairman of N.H.P.C., the applicant became an Advisor of the company called M/s Kayviate Internationals Company and that this company had executed a lease agreement with the daughter of the applicant on 11th October 2005 for a period of three years for taking on lease an accommodation at Faridabad in Haryana. The learned Addl. Advocate General contended that the nexus with this company became very clear since the applicant was an Advisor to this company at some stage, but as Special Advisor to the Chief Minister, insisted that the project should be given to this company even though the said company did not qualify as per the terms and conditions mentioned in the tender notice. The insistence by the applicant to give the contract was only to give unlawful benefit to this company. The learned Addl. Advocate General further contended that the matter did not end here but upon becoming the Chairman of UJVNL, the applicant modified the terms and conditions of the contract by diluting the conditions to benefit the company. The applicant, by exercising his unfettered powers increased the value of the contract from ` 89 lacs to ` 152 lacs in order to give undue benefit to the company. The learned counsel for the respondent further submitted that a perusal of Form 16-A issued by the company to the daughter of the applicant clearly indicates that large sums of money were paid to the daughter of the applicant. It was also stated that during 6 the course of the investigation, it was found that this rental accommodation had burnt down and that there was no office of the company at that place in spite of which rent was being paid. It was also alleged that during the course of the investigation, a raid was made at the premises of the applicant at Dehradun and cashbook of certain months and statement of accounts of M/s Kayviate Internationals Company was recovered. In the light of the aforesaid, the learned Addl. Advocate General submitted that the audit report as well as the lease agreement executed by the company in favour of the applicant’s daughter, the recovery of cashbook and statement of accounts being found at the premises of the applicant indicates that there was a nexus between the applicant and M/s Kayviate Internationals Company. As per the audit report there has been a loss of Rs. 1.60 crores to the exchequer which has been caused by the applicant by unnecessarily awarding the contract to this company which work could have easily been done by the officials of UJVNL. The learned Addl. Advocate General submitted that it was not a fit case for grant of bail to the applicant. Having heard the learned counsel for the parties at some length, the Court finds that at the time of the execution of the lease agreement dated 11th October 2005 between the company and the daughter of the applicant, the applicant had no connection with the State of Uttarakhand. The applicant was only made an Advisor to the Chief Minister in June 2006 and Chairman of UJVNL in May 2007. Form 16-A relied upon by the opposite party only indicates that certain payments had been made to the daughter of the applicant in terms of the lease agreement towards rental charges. The applicant has also filed the details of the payment received by his daughter, which also indicates that no payment beyond 2008 has been made. There is nothing to indicate at the present moment that the lease agreement is still subsisting or that rent is still being paid by the company. The lease was for a period of three years which had expired in October 2008. No doubt the applicant may have been an advisor to the company but to allege that the applicant was responsible for awarding the contract to this company, would be stretching the matter a little too far. When the tender was called, the applicant was not in the picture but 7 subsequently may have insisted that this company should be awarded the contract, which could have been made on the basis of his personal knowledge. The applicant while recommending the case of the company also submitted that the Government Agency, namely, SJVNL would not be able to carry out the work. It has come on record that the applicant was also CMD of this company at some earlier stage and consequently, it could also be attributed that he also gave his personal inputs while recommending the case of the company and recommending against SJVNL. Allegation of criminal conspiracy is alleged against the applicant, namely, that by ulterior motive, the applicant had brought unlawful gain to this company in which he was an Advisor at some point of time. In order to bring home the charge of conspiracy, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. The Court finds that there are some missing links in the chain of events. Strong reliance has been made on the lease agreement executed by the company with the daughter of the applicant which was executed in the year 2005 when in fact, the applicant was not the Special Advisor nor had he become the Chairman of UJVNL. The payments made to the daughter of the applicant under this agreement cannot be said by any stretch of imagination, at least at this stage, to be the kickbacks in relation to the award granted to the company. Mere recovery of cashbook of certain months and statement of accounts of the bank at the residence of the applicant, cannot by itself conclusively prove that there was a conspiracy between the applicant and M/s Kayviate Internationals Company. Apart from rental income shown in favour of the applicant’s daughter, no such evidence has come forward as yet to indicate that the applicant had received any monetary gain by giving this contract to this company. In the light of the aforesaid, without commenting anything further on the merits of the case coupled with the fact that the applicant was an expert in the Energy Sector and was invited by the Chief Minister as a Special Advisor and thereafter was given the task to get the Maneri Bhali-2 project commissioned within a stipulated period which project had started as far back in the year 1979 coupled with the fact that the State Government had also honoured the applicant for the 8 work done by him in commissioning the project and considering the fact that the charge sheet has been filed and chances of tampering with the evidence is bleak, this Court is of the opinion that the applicant deserves to be enlarged on bail at this stage. The bail application is allowed. In the light of the aforesaid, let the applicant be released on bail in connection with FIR No. 13/10, under Sections 409 & 120-B of I.P.C. and Sections 7/13 (1) (c), 13 (1) (d) and Section 13 (2) of the Prevention of Corruption Act, P.S. Vigilance Section, Dehradun, on executing a personal bond and two sureties each in the like amount to the satisfaction of the Magistrate concerned. Certified copy of the order to be made available within three days. (Tarun Agarwala, J.) Dated 21.05.2011 VKG