IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.216 of 2006 Decided on: 21.3.2011 State of H.P …..Appellant. VERSUS Kharaiti Lal Anand and others …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondents: Mr.Anand Sharma, Advocate for respondents No.1 to 4. Mr.Ravinder Thakur, counsel for respondent No.5. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 28.3.2006 delivered by the Learned Special Judge, Solan in Sessions Trial No.2-S/7 of 2004 whereby he acquitted the accused of having committed offences punishable under Sections 420 and 218, IPC read with Section 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes Sh.Kharaiti Lal Anand, his wife Sudesh Kumari and his son Kamal Kishore Anand were running two separate businesses under the name and style of M/s.Surya Steel Industries and M/s.Sudesh Enterprises. These two businesses were engaged in the manufacture of paints, brushes, chemicals etc. The respondent No.4, Ashok Kumar Sharma at the relevant time was posted as Assistant Director (Chemical), Small Scale Industries Services Institute, Chambaghat and respondent No.5 Geeta Ram was the then Extension Officer (Industries), Development Block, Solan. The case set up by the prosecution is that the first three respondents did not have the capacity nor were they manufacturing bitumen emulsion. According to the prosecution, when respondents No.1 to 3 came to know that tenders are going to be invited for the supply of bitumen emulsion, they purchased some machinery for the manufacture of this emulsion. The respondents No.4 and 5 were to verify whether respondents No.1 to 3 had the wherewithal, i.e., necessary machinery, chemicals etc. for manufacturing the bitumen emulsion and if so, to what capacity. It is not disputed that respondents No.4 and 5 issued certificates in favour of respondents No.1 to 3. Ext.PA/1 was issued by respondent No.4 according to …2… which M/s.Sudesh Enterprises had the capacity to manufacture 50 metric tonnes of bitumen emulsion on single shift basis and 10 metric tonnes of coal tar emulsion on single shift basis. As far as M/s.Surya Steel Industries is concerned, similar certificate Ext.PA/2 was issued by the respondent No.4 in favour of this firm. As far as respondent No.5 Geeta Ram is concerned, he issued a letter Ext.PG/2 which was addressed to his superior officer. In this letter, he recommended the registration of the firm for the manufacture of bitumen emulsion. The main case of the prosecution is that these two officials in connivance with the respondents No.1 to 3 misused their official capacity and gave undue benefit to respondents No.1 to 3 by recommending that the firms be registered for the manufacture of bitumen emulsion and secondly by certifying manufacturing capacity for manufacturing bitumen emulsion. According to the State, at the relevant time, when these industrial concerns were inspected by respondents No.4 and 5, no machinery had been installed for manufacturing bitumen emulsion and the firms were not in a position to manufacture the bitumen emulsion and, therefore, the said recommendations had been made to earn pecuniary benefit in illegal manner. …3… The learned Court below on the basis of the evidence found that it cannot be said that the industrial concerns had no machinery whatsoever to manufacture the bitumen emulsion prior to April, 1998 when these letters were issued. In fact, letter, Ext.P1 dated 26.11.1997 shows that M/s.Surya Steel Industries had purchased bitumen and this bitumen was purchased for the purpose of manufacturing the bitumen emulsion. Similarly, there are documents showing that machinery necessary for making emulsion was purchased in February, 1998 and vide Ext.PW18/A, similar documents are there with respect to the other concern also. It is not the case of the State that after the orders were placed on the industrial concerns. they failed to supply the bitumen emulsion. The fact is that bitumen emulsion was supplied by respondents No.1 to 3. The present proceedings have arisen only on the basis of a complaint filed by the person who was previously supplying bitumen emulsion to the State. It is more than obvious that this complaint is actuated by business rivalry. After going through the documents Exts.P/1 and P/2, it is more than obvious that both the industrial units were having machinery for manufacturing the bitumen emulsion on the dates when these letters were issued. Even …4… otherwise, the letters are only recommendatory in nature and the officials to the best of their ability have after verifying the physical nature of the machinery given an estimate of the production capacity of the industrial units. These are estimates only and one fails to understand how any pecuniary advantage would be caused either to the firms or to the respondents No.4 and 5 by issuing such certificates. The prosecution had miserably failed to prove its case and in fact, even the Investigating Officer had not stated that on the date when these letters were issued, both these industrial units were neither having the machinery nor the expertise for making such bitumen emulsion. This Court cannot loose sight of the fact that an industry which is in a related trade can use some of its machinery to expand its business. It is not disputed that registration was given to the accused for making of bitumen emulsion also. Bitumen emulsion is used only for tarring of roads and obviously any industry will start manufacture such bitumen emulsion only when it receives orders for the same. Therefore, what the officials had to do was only to inspect the factories and see whether the industrial units had the requisite machinery and expertise to manufacture the bitumen emulsion or not. From the …5… evidence on record, it is not proved that Ashok Kumar Sharma and Geeta Ram, respondents No.4 and 5 respectively had misused their official positions. There is no evidence to show that they obtained any pecuniary benefit for advantage. No loss had been caused to the State and in fact, the State had purchased bitumen emulsion at the best terms since the order was given to the lowest bidder. The industrial units had also obtained I.S.I marks from the Bureau of Indian Standard to manufacture the bitumen emulsion. This also casts a strong doubt on the case of the prosecution. In view of the above discussion, I am of the considered view that the prosecution has miserably failed to prove its case. Therefore, the learned Trial Court was fully justified in acquitting the accused. I find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. 21st March, 2011 ( Deepak Gupta ) (m) Judge. …6…