MADHU SHARMA Vs. C.B.I

JUDGEMENT

(1.) Heard Sri Anoop Trivedi, learned Senior counsel assisted by Sri Mohd. Rashid Siddiqui and Sri Abhinav Gaur, learned counel for the applicant and Sri Gyan Prakash, learned Senior counsel assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I.

(2.) This application under Section 439 Cr.P.C. has been moved seeking bail in Case Crime No. 1 of 2019, under Sections 120B, 420 IPC and Section 13(2) read with 13(1)(d) Prevention of Corruption Act, Police Station CBI/ACB, Ghaziabad, District Ghaziabad, during the pendency of trial.

(3.) It is argued by the learned counsel for the applicant that applicant was Deputy Manager in M/s. Bharat Electronic Limited, Ghaziabad and retired from service in the year 2019 after having completed 38 years of long and spotless service. As per prosecution case, one Biswajit Pandav, a Contractual Engineer during years 2012-13 posted in Project Management Department of M/s. Bharat Electronics Limited (in short to be referred as M/s. B.E.L.), floated a firm by the name M/s. Exigent Solutions Private Ltd. (in short to be referred as M/s. E.S.P.L.), in which, his wife Smt. Barnali Barik and one Ajay Kumar Acharya were the Directors, conspired with one Sunil Kumar, Senior Deputy General Manager (in short to be referred as S.D.G.M.) and other officers of the B.E.L., M/s Exigent Solutions Private Ltd. supplied China made C.D.M.A. dongles to M/s. B.E.L. falsely showing them to have been sourced from M/s. Gurav Services, U.K., which put Govt. of India to a wrongful loss of Rs. 54.50 lacs and corresponding gain to the accused persons. Ministry of Defense and M/s. B.E.L. had entered into a contractual agreement on 13.4.2012 for supply, installation, commissioning and A.M.C. of the Mobile Cellular Communication System for Indian Army at the total contractual value of Rs. 237 crores. M/s. B.E.L. itself proposed the dongle to be included in the contract agreement and finally 1000 nos. of dongles with the make from M/s. Atricknet or better and model as "Adcelero" or better, was approved and mentioned in the aforesaid contract agreement. M/s. B.E.L. initially contacted M/s. Atricknet Consultancy Private Ltd. (in short to be referred as M/s. ACPL), New Delhi, represented by Sri Ajay Kumar Acharya, for supply of C.D.M.A. dongles. The M/s. ACPL provided one sample of dongle as per drawing proposed by M/s. B.EL. with brand name as "Adcelero". At that time, Sri Biswajit Pandav was also working in M/s. B.E.L. therefore due to their respective positions, Bishwajit Pandav and Ajay Acharya had insider information about various items being required by M/s. B.E.L. for C.D.M.A. project implementation and the rates of dongles likely to be quoted by M/s. Atricknet and after quitting the firm, M/s. Atricknet in association with Biswajit Pandav, floated a firm by the name M/s. ESPL, in which, Smt. Barnali Barik and Sri Ajay Acharya were made Directors. The firm was registered on 12.7.2012 with the Registrar of Companies, Delhi. For procurement of the said 1000 dongles, only 2 inquiries, inviting technical and price bids, were sent to M/s. E.S.P.L. and M/s. Atricknet on 16.8.2012, whereas as per relevant purchase procedure of M/s. B.E.L., the inquiry for this item was required to be sent to minimum three sources. Moreover, M/s. ESPL was on the approved vendor directory of B.E.L. at the relevant time. The aforesaid both the firms submitted their bids on 25.7.2012, whereon price bids were opened and the rates quoted by M/s. ESPL was found to be L-1. M/s. ESPL represented to the M/s. B.E.L. that they would supply the data dongle of U.K. origin. The said firm was allotted with vendor code on 14.9.2012 and subsequently purchased order no. 4900140991 dated 3.10.2012 was issued in its favour. In the said purchase order, it was mentioned clearly that the dongle to be supplied would not be of Chinese origin but ignoring the origin of the said dongles, the stock of 1000 dongles was declared as acceptable and taken in the store of M/s. B.E.L. Questions to the request of issuance for acceptance certificate, a letter was sent from Col. Rohit Malhotra, Director (I/O) for DDG PMO Plan ARAEN to M/s. B.E.L. on 20.3.2013 mentioning therein that the make and model being offered for dongles was not as per the contract agreement and thus M/s. B.E.L. was requested to reconcile and offer their comments/justification dully supported with documents and OEM (Original Equipment Manufacturer) certificate in original on the subject for issue of pre-dispatch certificate/acceptance certificate by army. In reply, Sri Sunil Kumar, S.D.G.M., B.E.L., wrote back on 20.3.2013 that data dongle model, "Adcelero" mentioned in the said contract was manufactured by M/s. Gurav Services Ltd., London and that (a) M/s. Greenmax Systems (b) M/s. ESPL and (c) M/s. ACPL were its distributor in India. He further informed that M/s. B.E.L. had sourced the dongles from M/s. E.S.P.L. and further added that the make and model of the data dongle was M/s. Gurav Services Ltd., London, U.K. and "Adcelero" respectively. Subsequently acceptance certificate was procured by M/s. B.E.L., keeping the army in dark. Later on M/s. Greenmax System and M/s. A.C.P.L. denied that they were the distributors of M/s. Gurav Services Ltd. and M/s. Greenmax Systems also informed that dongles which were supplied by M/s. E.S.P.L. to M/s. B.E.L. had been assembled by their firm in Bhopal by importing major parts from China. The Adcelero logo was also found to have been printed in Bhopal. In the course of enquiry, the dongle which was initially supplied in M/s. B.E.L. as sample, regarding purchase order dated 3.10.2012, was also physically verified and opened in front of the vigilance officers of the B.E.L., proprietor of M/s. Greenmax Systems and independent witnesses, during which, on main hardware electronic circuit "CHINA TY890A111231KCZP93241023KND" was found mentioned, which corroborated the claim of the M/s. Greenmax. During inquiry, it transpired that there was no company registered in the name of M/s. Gurav Services Ltd. in London, U.K., which indicates that the letters shown to have been issued to M/s. B.E.L. directly by M/s. Gurav Services Ltd., London regarding OEM and channel partners of M/s. Gurav Services Ltd. in India were fake. In the light of above facts, a regular case was registered against (1) Sri Sunil Kumar, Senior Deputy General Manager, M/s B.E.L., Ghaziabad, (2), Biswajit Pandav, the then Senior Engineer, Project Management Department (3) Ajay Kumar Acharya, Director, M/s ESPL, (4) Barnali Barik, Director, M/s E.S.P.L. and unknown others.