In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.M-18789 of 2008 ..... Date of decision:21.4.2009 Surinder Dalal .....Petitioner v. State of Haryana .....Respondent .... Present: Mr. Jasjit Singh Bedi, Advocate for the petitioner. Mr. K.C. Gupta, Assistant Advocate General, Haryana for the respondent-State. ..... S.S. Saron, J. On the last date of hearing, learned counsel for the petitioner had submitted that no loss had been caused to the respondent-State by prematurely withdrawing the SDRs dated 11.12.2006 (Annexure-P.2) and 21.6.2007 (Annexure-P3). It was submitted that he shall re-deposit the amount of Rs.13,70,000/- subject to outcome of the arbitration award. Learned counsel for the State had submitted that by agreeing to deposit the amount would not absolve the petitioner of his criminal liability. Besides, the petitioner had not been co-operating in the investigation. In any case, he took time to seek instructions from the XEN (Construction Division-31), Gurgaon. Learned counsel for the State has submitted that the department Cr. Misc. No.M-18789 of 2008 [2] is not agreeable to the re-deposit of the amount of Rs.13,70,000/-. Heard counsel for the parties. The petitioner seeks pre-arrest bail in a case registered against him for the offences under Sections 420, 467, 468 and 471 IPC. The FIR has been registered on the complaint made by XEN (Construction Division- 31), Gurgaon. It has been alleged that the petitioner is a Class-I Contractor of Haryana Irrigation Department and in his said capacity, was a successful bidder for two works for which tender had been floated i.e. providing earth work and lining of STP Channel from KM 4.5 to 13-100 and constructing 3 village road bridges and one drainage crossing STP Channel and 2 construction of pump houses at km 13.100 of STP Channel. The work for execution and completion were to be carried out in terms of agreements dated 4.12.2006 and 31.8.2007. The condition for allocation of the work was that the petitioner shall furnish the performance security of Rs.10,50,000/- and Rs.3,20,000/-, respectively by way of a bank guarantee. The petitioner submitted two SDRs i.e. dated 11.12.2006 (Annexure-P2) and 21.6.2007 (Annexure-P3) for amounts of Rs.10,50,000/- and Rs.3,20,000/- respectively. During routine checking of records, these two SDRs were found to be without renewal. Therefore, the department wrote letters dated 2.5.2008 to the Bank of India Bhiwani Branch for renewal of the SDRs. It is then that the Bank authorities informed that the said SDRs were coloured photostat copies. Besides, they further intimated that the original SDRs were with the Bank and had been encashed by the petitioner in his account No.19101 on 18.6.2007 and 29.6.2007, respectively. It was further stated that the SDRs had been released by the Bank with the Cr. Misc. No.M-18789 of 2008 [3] permission of the XEN concerned. The department officials then checked the records of the Bank and obtained photocopies of the SDRs bearing note of the XEN as; “release pl.”. It was then revealed that the signatures of the Executive Engineer on the SDRs for the release of the SDRs were forged. On inquiry it was found that the SDRs were encashed by the petitioner and instead of depositing the original with the department, coloured photostat copies of the same were deposited. In this manner, it was alleged that the petitioner had cheated the department, besides had committed forgery by way of depositing forged coloured photostat copies of the SDRs and also by getting them encashed from the bank by making forged authority of the Executive Engineer by writing on the said SDRs; “release pl.”. He has also affixed seal of the department thereon and thus committed the offence. Leaned counsel for the petitioner has submitted that the SDRs (Annexures-P.2 and P.3) were encashed by the petitioner on the report and signatures of the Executive Engineer and there is no forgery on the same. It is further submitted that, in any case, no loss has been caused to the respondent-State, inasmuch as, the SDR (Annexures-P.2) for a sum of Rs.10,50,000/- was for a period of 179 days only i.e. from 11.12.2006 to 7.6.2007. The FDR (Annexures-P.3) for a sum of Rs.3,20,000/- was for a period of 60 days from 21.6.2007 to 20.8.2007. Therefore, it is submitted that with the encashment of the SDRs no prejudice has been caused. Besides, the work allotted to the petitioner has been cancelled and arbitration proceedings are pending. In the said arbitration proceedings also the petitioner has expressed his willingness to deposit the amount of the SDRs in question i.e. Rs.13,70,000/- subject to outcome of the arbitration award. It is submitted that in fact encashment of the SDR (Annexure-P.2) Cr. Misc. No.M-18789 of 2008 [4] of Rs.10,50,000/- is after the expiry of 179 days. It was encashed on 18.6.2007. As regards |SDR (Annexure-P.3) it is submitted that the same has been encashed on 29.6.2007 although the expiry was on 20.8.2007. However, the agreement for the work for which the SDR was furnished as security is dated 31.8.2007 i.e. after the expiry of the SDR on 20.8.2007 and in this regard the department did not raise any objection that the SDR was inoperative. In response, learned counsel for the State has submitted that the petitioner has clearly cheated the department, inasmuch as, instead of furnishing the original SDRs he furnished coloured photostat copies of the same by representing them as the originals. Thereafter, by forging the signatures of the Executive Engineer on the original SDRs he has got them encashed, which encashment is also not in accordance with the terms of the works contract. It is submitted that the dates of expiry as mentioned in the SDRs are inconsequential as the SDRs were to be kept operative for a period of seven months (210 days) after completion of the work in terms of clause 27 of the terms and conditions of the standard work contract agreement. It is also submitted that at the time of withdrawal of the SDRs the Executive Engineer who is shown to have signed for withdrawal, namely, Shri R.S. Berwal whose signatures have been forged had, in fact, retired from service on 31.5.2007. Learned counsel for the petitioner, however, submits that the SDRs have been withdrawn under the valid signatures of Shri R.S. Berwal, Executive Engineer. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance gone Cr. Misc. No.M-18789 of 2008 [5] through the records. The allegations against the petitioner are that he deposited with the department two coloured photostat copies of the SDRs (Annexures-P.2 and P.3) instead of the original SDRs. In terms of clause 27 providing for performance guarantee, the validity of SDRs for work contract upto Rs.50 Lacs was to be 120 days and for work contact for more than Rs.50 Lacs was to be 210 days beyond the date of completion of the work. Clause 27 reads as under:- “27. Performance Security Within 15 days of receipt of notification award from the Engineer, the successful tenderer shall furnish to the Engineer performance security in any of the forms given below for an amount equivalent to 5% of the Contract price plus additional Earnest money for unbalanced tender price in accordance with the conditions of Contract with a validity of 120 days, for works upto Rs.50 lacs and 210 days for works costing more than Rs.50 lacs beyond the date of completion of the work. – A duly pledged deposit at call receipt from any scheduled bank. – A demand draft on any scheduled bank – An unconditional bank guarantee from any scheduled bank, in the prescribed format. Failure of the successful Contractor/agency to comply with the above requirements shall constitute sufficient grounds for cancellation of the award and forfeiture of the earnest money.” The petitioner not only tendered false coloured photostat copies of the Cr. Misc. No.M-18789 of 2008 [6] SDRs but he tendered SDR (Annexures-P.2) of Rs.10,50,000/- for 179 days and SDR (Annexure-P.3) of Rs.3,20,000/- for 60 days. The furnishing of the SDRs for lesser days than prescribed though may only be breach of the condition, however, the tendering of coloured photostat copies instead of the original SDRs would indeed show that he had the intention to cheat the department. Besides, the SDR (Annexure-P.2) for Rs.10,50,000/- was withdrawn on 18.6.2007 and the SDR (Annexure-P.3) for Rs.3,20,000/- was withdrawn on 29.6.2007. These were withdrawn purportedly under the signatures of Shri R.S. Berwal, Executive Engineer, who had, in fact, retired from service on 31.5.2007 and thereafter, was not competent to sign for the release of the SDRs. It cannot even be said that the endorsement for the release of the SDRs had been signed during his tenure as the SDR (Annexure-P.3) for Rs.3,20,000/- was issued by the bank itself on 21.6.2007 i.e. after the retirement of Sh. R.S. Berwal, Executive Engineer on 31.5.2007. It is well known that considerations governing the Court's decision on an application seeking pre-arrest bail under Section 438 Cr.P.C. are materially different from that seeking post-arrest bail or for that matter even seeking suspension of sentence pending appeal before a higher Court. In a case where pre-arrest bail is sought the advantage of custodial interrogation of eliciting more and useful information and material is to be kept in view. Besides, the exercise of power to grant pre-arrest bail is somewhat extra-ordinary in character. In the afore-noticed circumstances, there is no merit in this petition and the same is accordingly dismissed. However, nothing stated Cr. Misc. No.M-18789 of 2008 [7] herein shall be construed as an expression of opinion on the merits of the case and the investigating authorities or the Court as the case may be shall consider the evidence and material as adduced before it independently and in accordance with law. April 21, 2009. (S.S. Saron) Judge *asr/hsp*