(-1-) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.202 OF 1995 Shri.Gajanan Pandurang Baindur ] C/o Mazgaon Docks Ltd. ] Bombay-400010 ]..Petitioner Vs. 1. State ] Through the Central ] Bureau of Investigation ] (Special), Bombay Kitab ] Mahal, D.N.Road, ] Bombay-400001 ] ] 2. Shri.A.H.Shah ] Special Judge, Court of ] Sessions at Greater Bombay]..Respondents .... Mrs.Meena H.Doshi Advocate for Petitioner Mr.H.V.Mehta Advocate for Respondent no.1 Mr.A.S.Shitole A.P.P. for State. .... WITH (2) CRIMINAL WRIT PETITION NO. 458 OF 1993 Mr.M.L.Shah ] 3, Veenita, 21/3, Tilak Road ] Wadala, Bombay-400031 ]..Petitioner Versus 1. The Central Bureau of ] Investigation (special) ] Kitab Mahal, D.N.Road, ] Bombay-400001 ] ] 2. The State of Maharashtra ]..Respondents .... Mr.R.A.Shaikh, Advocate for the Petitioner Mr.H.V.Mehta Advocate for Respondent no.1 (-2-) Mr.A.S.Shitole, A.P.P. for the State. .... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE OF RESERVING DATE OF RESERVING DATE OF RESERVING THE JUDGMENT : 15.9.2004 THE JUDGMENT : 15.9.2004 THE JUDGMENT : 15.9.2004 DATE OF PRONOUNCING DATE OF PRONOUNCING DATE OF PRONOUNCING THE JUDGMENT : 23.9.2004 THE JUDGMENT : 23.9.2004 THE JUDGMENT : 23.9.2004 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Gajanan Pandurang Baindur petitioner in W.P.No.202 of 1995 is the original accused no.1 in Special Case No. 41 of 1980. The said case is under Sections 420, 468, 471, 120-B read with Section 34 of IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. M.L.Shah the petitioner in W.P.No. 458 of 1993 is original accused no.1 in Special Case No. 38 of 1979. The said case is under Sections 420, 468, 471, 120-B read with Section 34 of IPC and Sections 5(2) read with Sections 5(1)(d) of the Prevention of Corruption Act, 1947. These two petitions have been preferred for quashing of the said proceedings in Special Case No. 41 of 1980 and 38 of 1979. 2. I have heard Meena Doshi the learned advocate for the petitioner Mr.G.P.Baindur in W.P.No. 202 of 1995 and Mr.Shaikh learned advocate appearing for the petitioner Mr.M.L.Shah in W.P.No. 458 of 1993. (-3-) I have also heard Mr.H.V.Mehta the learned counsel for the respondent-Central Bureau of Investigation and Mr.A.S.Shitole the learned A.P.P. for the State in both the matters. I have also perused the material pertaining to the present case. 3. It is undisputed position that both the cases i.e. Special Case Nos. 38 of 1979 and 41 of 1980 are to be tried together, and the charges in respect of both these petitioners are also more or less identical, in the circumstances, it would be convenient to dispose of both these petitions by this common judgment and order. 4. Both the petitioners had earlier preferred applications for discharge before the learned Special Judge. The said applications for discharge came to be dismissed on 31st March, 1992. Thereafter, the present writ petitions have been preferred. On 7th December, 1995 rule came to be issued and the proceedings in both the cases pending before the Special Judge, came to be stayed. It may be stated here that the applications for discharge came to be preferred mainly on the ground that there was delay in the trial. It is alternative it is orally submitted before me that there is no material at all against the petitioners which connects both (-4-) the petitioners with the offence and hence, the petitioners may be discharged from the said cases or the cases be quashed. 5. The learned advocates for the petitioners have relied upon several authorities on the aspect of delay. Shri.H.V.Mehta the learned counsel appearing for Central Bureau of Investigation has submitted that both the petitioners are also facing the charges under the Prevention of Corruption Act and hence, these decisions would not be applicable to the present case. Mr.Mehta has also placed reliance on the judgment of the Supreme Court in the case of P.Ramchandra Rao Vs. State of Karnataka reported in P.Ramchandra Rao Vs. State of Karnataka reported in P.Ramchandra Rao Vs. State of Karnataka reported in (2002) 4 S.C.C. 578. (2002) 4 S.C.C. 578. (2002) 4 S.C.C. 578. Shri.Mehta has submitted that this decision is delivered by the Bench of the Supreme Court comprising of seven Judges and all the other decisions on which reliance has been placed on behalf of the petitioners are delivered by the Bench of the Supreme Court comprising of less than seven Judges. Moreover, he has submitted that the decision in the case of P.Ramchandra Rao P.Ramchandra Rao P.Ramchandra Rao is the latest judgment of the Apex Court on this point and in the said judgment the previous judgments on the point of delay have been considered. In the judgment of P.Ramchandra Rao, it has been observed as under: (-5-) . "At the most periods of time prescribed in those decisions can be taken by the courts in seisin of the trial or proceedings to act as reminder when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration several relevant factors as pointed in A.R.Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not be treated by any Court as a bar to further trial or proceedings and as mandatorily obliging the Court to terminate the same and acquit or discharge the accused." . In view of the decision of the Supreme Court in the case of P.Ramchandra Rao (supra), I am not inclined to quash the proceedings in the aforesaid two Special Cases pending before the learned Magistrate on the ground of delay. In these proceedings also the petitioners-accused are facing serious charges including those of corruption. 6. On behalf of petitioners, reliance has been placed on two decisions of the Supreme Court which have been rendered after the decision in the case of P.Ramchandra Rao (supra). The said decisions are in the case of State through Central Bureau of Central Bureau of Central Bureau of Investigation Vs. Dr.Narayan Waman Nerurkar Investigation Vs. Dr.Narayan Waman Nerurkar Investigation Vs. Dr.Narayan Waman Nerurkar reported in 2002(7) SCC 6 and State of Bihar Vs. reported in 2002(7) SCC 6 and State of Bihar Vs. reported in 2002(7) SCC 6 and State of Bihar Vs. (-6-) Baidnath Prasad alias Baidyanath Shah and Another Baidnath Prasad alias Baidyanath Shah and Another Baidnath Prasad alias Baidyanath Shah and Another reported in (2002) 1 S.C.C. 465. reported in (2002) 1 S.C.C. 465. reported in (2002) 1 S.C.C. 465. In both the said cases, the point of delay in the trial was raised. However, in both the cases, the Supreme Court has observed that the High Court has erred in quashing proceedings on the ground of delay in proceedings of the case. On the other hand on behalf of the respondents reliance is placed on the case of Jagdish Ram Vs. State of Rajasthan and another Jagdish Ram Vs. State of Rajasthan and another Jagdish Ram Vs. State of Rajasthan and another reported in (2004) 4 S.C.C. 432 reported in (2004) 4 S.C.C. 432 reported in (2004) 4 S.C.C. 432 wherein, there was a delay of 19 years. The Supreme Court has held that that it was not a good ground to quash the proceedings. It was further observed that it was due to the appellant (accused) that the criminal proceedings before the Magistrate did not cross stage of taking cognizance. It was also observed that the offence in question relating to untouchability was a serious one and hence, no case was made out to quash the proceedings on the ground of delay. In the present case also from the affidavit of Ms.S.B.Kumra, Police Inspector, ACB, CBI, Mumbai filed on behalf of respondent, it is seen that delay has been caused in respect of framing of charge on account of the petitioners. In the said affidavit, it is stated that the petitioners were furnished the copy of the charge-sheet around 28.8.1979 together with all the (-7-) relevant documents. The said documents were legible. The respondents were ready and willing to proceed with the matter as expeditiously as possible, however, the petitioners from time to time used to say that the documents are illegible. In fact, the Public Prosecutor on several occasions asked the petitioners that whichever documents are illegible documents, can be exchanged but the petitioners have not responded to the said request. In view of this position, the respondents had to make an application to the Special Court to direct the petitioners to return the copies of the documents which are illegible to enable the respondents to supply fresh copies of the same, but there was no response from the petitioners. In June, 1980, the case was specifically fixed for framing of charge but the Court could not do so as the Court was busy and the accused also remained absent. The draft charges were prepared and the matter was adjourned for considering the charges. However, thereafter from time to time the petitioners raised grievance that the copies of the documents which were furnished to them were illegible. Thereafter, the present petitions have been filed in the year 1993 and 1995 and stay has been obtained by the petitioners in the present case. In such case, it cannot be said that the (-8-) prosecution is responsible for causing delay in the trial. Looking to the averments in the reply there appears to be some merit in this submission. Moreover, looking to the fact that the charges in the present case are also of a serious nature i.e. prevention of corruption and on perusal of the material and the case law cited above, I am not inclined to quash the proceedings only on the ground of delay. 7. The proceedings in a case, can be quashed only when there is not enough material to proceed with the trial in the said case. Keeping this aspect in mind, I have perused the material relating to both the cases. At the time of incident, the petitioner M.L.Shah was working as a Purchase Officer and the petitioner Gajanan Baindur was working as an Assistant Purchase Officer. They were working in Mazgaon Docks Ltd. (hereinafter referred to as "MDL") during the period from June 1976 to May 1977. In the absence of M.L.Shah, G.B.Baindur was attending to the work of direct purchase. It is the prosecution case that the petitioners while functioning as public servants entered into a criminal conspiracy with Shri.Jaywant Pai (accused no.2). The common object of the conspiracy was to give contracts to Pai Motor Company at exorbitant (-9-) rates on the basis of false and forged quotations obtained in the name of M/s. Sabrawal Brothers and M/s. Evershine Automobiles. The petitioners used to show the lowest rates of Pai Motors vis-a-vis other two companies in the rates charge of the parties. The procedure for making the enquiries from different suppliers and collecting quotations from different suppliers was not followed. The draft purchase orders showed the rates of Pai Motors Company to be the lowest. The quotations of Pai Motors Company and two other quotations i.e. of M/s. Sabrawal Brothers and M/s. Evershine Automobiles, were forwarded to the competent authority. In many cases, it was found that M/s. Pai Motors Company had delivered the goods without purchase orders being issued to it and at the time of delivery of goods, the rates were also not recorded on the delivery chalans which was in contravention of the conditions of purchase orders. During the said period, goods valued at Rs.49,688/- had been purchased for Rs.1,46,555-59 by the petitioner M.L.Shah resulting in loss of revenue to the extent of Rs.97,058-51 ps. to MDL and the goods valued at Rs.22,398-14 had been purchased for Rs.63,981/- by petitioner G.B.Baindur resulting in loss of revenue to the extent of Rs.41,582-86 to MDL. (-10-) 8. On behalf of the petitioners, it has been argued that there was no loss to MDL as no money was received by M/s. Pai Motors Co. from MDL in relation to the transactions in question. It is submitted that in respect of these transactions, as no money was received by Jaywant Ramji Pai of Pai Motors Co. he filed Short Cause Suit No. 785 of 1979 in this Court against MDL for recovery of an amount of Rs.2,94,553-48. Thus, it is submitted that there is no wrongful gain to Pai Motors Co. and no wrongful loss to MDL and hence, no case is made out against both the petitioners. However, I do not find this argument to be very attractive on two grounds, the first ground is that the said suit came to be withdrawn on 28th February, 2000 and secondly one cannot loose sight of the fact that the petitioners are not facing a prosecution only under Section 420 of IPC but they are also facing prosecution under various other Sections i.e. 468,. 471, 120-B read with Section 34 of IPC and 5(2) and 5(1)(d) of Prevention of Corruption Act. Only if no case is made out against the petitioners under any of the sections with which they have been charged, only then, can the case against them be quashed. 9. I have perused the material in the case against (-11-) both the petitioners and I find that there is prima facie sufficient material against them to show their complicity in the crime. The first was the statement of Shri.Anand Bapat. Shri.Anand Bapat was working in the purchase department of MDL at the relevant time. He has stated that Mr.M.L.Shah the Purchase Officer, was looking after the purchase of auto spare parts, crane parts etc. In the absence of Mr.M.L.Shah, Mr.G.P.Baindur was attending to the work of direct purchase. Anand Bapat has stated that he was working under Mr.M.L.Shah and was attending to clerical work under his instructions. In the absence of Mr.M.L.Shah, he was working under Mr.G.P.Baindur who was giving him directions. . Shri.Anand Bapat has further stated that the procedure for direct purchase was that on receipt of written Direct Purchase forms duly filled by the main stores, a comparative statement was prepared and tender forms were despatched to the suppliers by post. In case of urgency of the material, the suppliers were directly contacted by telephone by the Purchase Officer for rates without sending the tender form and to send their quotations immediately in the Tender Box, which was opened regularly. Then the material was obtained by telephonic talk, the same was recorded in comparative chart, placed (-12-) before the competent authority for approval. Shri.Anand Bapat has further stated that in the terms and conditions printed in the Tender form there is no mention that the quotations should be delivered to the Purchase Officer directly. On receipt of the quotations, through tender box, tenders are opened by the tender opening Committee and the members of the committee sign on each and every quotation received by them as well as on the comparative chart and the papers are placed before the Purchase Officer for issuing Purchase Orders amongst the parties who have offered their lowest price. . Anand Bapat has clearly stated that the procedure mentioned by him was not followed by the Purchase Officer in some purchases and they were directly collecting quotations from the suppliers i.e. M/s. Pai Motors Co. and the quotations so collected, were given to this witness for writing their rates at the right side of the direct purchase order. He has stated that though these quotations were not obtained by the Tender opening committee and their signatures did not appear on the quotations, even then, he was asked by the Purchase Officer to write the rates on the direct purchase order. Anand Bapat has further stated that he was working under the (-13-) directions of Purchase Officer and he was not responsible to collect and select the supplier and the rates. . Anand Bapat has further stated that he has seen Jaywant Pai (accused no.2) and Shri.U.M.Shenoy visiting MDL on behalf of Pai Motors Co. and they were directly discussing with Mr.M.L.Shah and in his absence with Mr.G.P.Baindur. Anand Bapat has also stated that the quotations of M/s. Pai Motors Co. were given to him directly by the Purchase Officer for writing their comparative rates on the Direct Purchase Order at right side. Along with the quotations of M/s. Pai Motors Co., quotations of M/s. Evershine Automobiles and M/s. Sabrawal Bros. were also given to him. He recorded their rates on the direct purchase order and enclosed the same with the direct purchase orders and forwarded the same to the competent authority for approval. This witness was shown many direct purchase orders signed by G.P.Baindur and some direct purchase orders signed by Mr.M.L.Shah. Anand Bapat has further stated that purchase officer who signed these direct purchase orders i.e. Mr.M.L.Shah and Mr.G.P.Baindur were responsible for collecting the quotations and after that they have given the same to him for writing the rates. (-14-) 10. The statement of Kailash Varma has been recorded. Kailash Varma was working in the purchase department as a clerk at the relevant time. He was working in the purchase section of MDL and his job was to assist Mr.M.L.Shah, Purchase Officer and in his absence, Mr.G.P.Baindur, Assistant Purchase Officer. This witness has stated about the procedure for making enquiry in respect of any direct purchase order. He has stated that on receipt of direct purchase order form duly filled in by main stores, a comparative statement is prepared on which the names of the supplier is recorded and the tender enquiry is sent to various suppliers. Suppliers are asked to send their quotations in sealed cover covering tender enquiry number either directly in the tender opening box or by post. In case quotations are received by post, they are dropped in the tender box. It is mentioned in column no.12 of the terms and conditions contained in the tender for supply of stores that the tender should be deposited in the tender box kept at the main Gate of the MDL or post the same quoting the tender number and closing the date so as to reach the Asstt.Material Manager, MDL on or before the closing date and time specified therein. The tender form was filled by him in the name of different (-15-) suppliers, sometime it was sent for typing. These forms were filled by him when he was asked by the purchase officer. The reply of the tenders were received by the Tender Opening Committee consisting of one member from the Purchase Department and one from the Accounts Department. The officer who opens the tender also signs the tender quotation and comparative statement. After their signatures, the papers are placed before the purchase officer who selects suitable supplier (specially the lowest) for placing Purchase Order and orders are placed with the competent authority for approval. This procedure was known to Shri.M.L.Shah and Shri.Baindur who were signing the same from time to time. . Kailash Varma has stated that he has seen that Mr.M.L.Shah and Mr.G.P.baindur were not following the above laid down procedure and they were directly accepting quotations from the suppliers and after collecting the same they were giving these quotations to him for writing the name of the parties in the comparative statement of tenderers in the right side of the direct purchase order. He has further stated that in other cases, when the purchase officer was directly collecting the quotations from the supplier, then the purchase (-16-) order was first entered in the register and then forwarded to the competent authority for signature. He was shown some of the direct purchase orders signed by Mr.M.L.Shah involved in the present case, he has stated that Mr.M.L.Shah, Purchase Officer has given quotations of M/s. Sabrawal Bros., M/s. Pai Motor Co. and M/s. Evershine Automobiles to him for recording their rates on the right side of the purchase orders and the same was done by him. This witness has further stated that the proprietor of M/s. Pai Motor Co. Shri.J.R.Pai was sometimes visiting the purchase department and he was directly contacting the purchase officer Shri.M.L.Shah. Sometimes, Shri.U.M.Shenoy was also visiting on behalf of Pai Motors Co. Mr.Sadanand Pai was regularly visiting MDL and he was directly contacting Mr.M.L.Shah. He was also shown direct purchase orders signed by Shri.G.P.Baindur and he has stated that Shri.G.P.Baindur, Purchase Officer has given him three quotations of M/s./ Pai Motor Co., M/s. Sabrawal Bros. and M/s. Evershine Automobiles for recording their rates and the same was done by him. He has further stated that he has entered the same in the direct purchase register and placed the papers before Shri.G.P.Baindur who also signed the direct purchase order. The quotations of the suppliers and the direct purchase orders were (-17-) forwarded to the competent authority for their approval and then copies of direct purchase orders were delivered to the supplier and the concerned section of MDL. In addition to this, this witness has stated that in the absence of Shri.M.L.Shah, Shri.G.P.Baindur was looking after his work. He was responsible for collecting quotations which have been signed by him. He had directly collected quotations from the suppliers without following the procedure of opening tenders by the tender opening committee. This witness has stated that he recorded the rates of the suppliers under instructions of Shri.G.P.Baindur who had given him the quotations. 11. From the statement of Anand Bapat, it is seen that the petitioners were directly collecting the quotations from M/s. Pai Motors Co. along with the quotations of M/s. Evershine Automobiles and M/s. Sabrawal Bros. The statement of Shri.Raman Sabrawal, whose father is the proprietor of M/s.Sabrawal Brothers, has been recorded. Sabrawal Brothers was dealing with sale of jeep and car parts. He has stated that the shop of Jaywant Pai was almost adjacent to the shop of this witness. Raman Sabrawal has stated that Sabrawal Brothers has never supplied any material to MDL and had no desire to do the same. He has stated that Jaywant Pai (-18-) accused no.2 had asked him to write quotations on the quotation pad of M/s. Sabrawal Brothers showing a higher rates than the rate quoted by Jaywant Pai. This witness informed his father about this, who prohibited him from writing the quotations on the directions of Jaywant Pai and his father instructed him to stop dealing with Jaywant Pai. After that no quotation was issued by this witness to Shri.Jaywant Pai or his employee in the name of Purchase Officer of MDL. This witness was shown various quotations on letter head of M/s. Sabarwal Bros. and he has stated that they are in the handwriting of Shri.U.M.Shenoy who was working for Pai Motors. 12. The statement of Mr.Kirit Champaklal Mapara who is the partner of M/s. Evershine Automobiles, has been recorded. His shop is almost next to the shop of Jaywant Pai (accused no.2). He has stated that during the period from July 1976 to May 1977, he had not issued any quotations to MDL. He was shown various quotations signed by Shri.G.P.Baindur as well as Shri.M.L.Shah and he has stated that these quotations were not issued on the quotations pad used by Evershine Automobiles. The colour of the quotation letter pad and trademark on it, is different from the one used by M/s.Evershine Automobiles. He has further stated that he had not (-19-) authorised any person to sign as Manager of M/s. Evershine Automobiles. Moreover, there is no post of Manager in his firm. This witness has clearly stated that Mr.M.L.Shah, Purchase Officer of MDL is not known to him and he has never visited his shop for verification of rates and collection of quotations. 13. It is pertinent to note that in normal cases on receipt of direct purchase order (DPO), a comparative statement is prepared on which the name of the supplier is recorded and the tender enquiry is sent to various suppliers. Suppliers are asked to send