AMBARISH RANGSHAHI PATNIGERE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard Counsel for the parties.

(2.) To state in brief, Writ Petition No. 2785 of 2009 is filed by the five accused persons in Crime No. 1-73/2009, registered with CBD Belapur police Station, Navi Mumbai on 17-5-2009. The petitioners are the senior officers of Municipal Corporation of Navi Mumbai. Petitioner No. 1 was the Deputy Municipal Commissioner, petitioner No. 2 was the Assistant Municipal Commissioner, petitioner No. 3 was the Office Superintendent/Ward Officer and then Assistant Municipal Commissioner, petitioner No. 4 was working as Senior Accountant and the petitioner No. 5 was the Deputy Accountant and then Assistant Account Officer. On 16-5-2009, Suresh Ramu Patil, Assistant Commissioner of Navi Mumbai Municipal Corporation filed a report with the Senior Inspector of Police, CBD Belapur Police Station, Belapur, Navi Mumbai. That report revealed that for the purpose of removal of encroachment and for transportation of he goods removed after encroachment, the Municipal Corporation required supply of labourers, instruments, machinery and vehicles. For this purpose, Municipal Corporation had called tenders. H.B. Bhise & Co.. of which H. B. Bhise was the proprietor, had submitted tender which was accepted. On 12-5-2009, a meeting of all the concerned officials and the Assistant Commissioners was called by the Deputy Commissioner for the purpose of removal of encroachment and unauthorised construction, to stop new encroachment and for carrying out immediate works during the rainy season. During the meeting, some officers made a grievance that men and machinery and vehicles were not made available by the contractor H. B. Bhise and, therefore, the work of removal of encroachment, unauthorised construction, etc. could not be carried out effectively. It was also pointed out by some of the officers that the contractor was required to submit one copy of the challan showing the work done by him and the bill for that work to the concerned ward officer and one copy in the office for passing the bills, so that the concerned officers of the different areas could verify the correctness of the bill. In view of the complaint that the contractor was not following the procedure and used to was submit the bills and challans directly in the office to get them passed, the Deputy Commissioner became suspicious and, therefore, he called the record for the period from 1-4-2007 to 31-3-2008. Several officers pointed out that either the bills and the challans did not bear their signatures or when they were signed by the officers, there were over-writings and forgery in respect of number of labourers, vehicles and machinery supplied. It appears that in some cases, the signatures of the concerned officers of the different areas were not obtained and in some cases after obtaining their signatures, changes were made in the contents of bills and challans by over-writing for the benefit of the contractor. The said contractor was working for the Navi Mumbai Municipal Corporation since 27-2-2003. On audit of the record for the financial year 2007-08, it was revealed that the bills, worth Rs. 53,68,575/- submitted by the contractor H. B. Bhise, were passed and payment was made. However, as per the entries taken in the note books pertaining the work of removal of encroachment the actual work done was worth Rs. 17,51,916/-. It did not include the amount of work done for Airoli area. That amount appears to be Rs. 6,82,610/-. Excluding that amount and the actual work done as per the record, excess payment of Rs. 26,31,796/- was made to the contractor H. B. Bhise for one financial year. In the report lodged by the police, it was stated that this was the excess payment for one year and as the said contractor was working since February 2003, there was possibility of much more excess payment and defalcations. On the basis of that report, the offence was registered as Crime No. 1-173/2009 for the offences punishable under sections 420, 465, 467,468, 471 Indian Penal Code against H. B. Bhise, the proprietor of H. B. Bhise and Co.

(3.) During investigation, it was revealed that excess payment to the tune of Rs. 1,38,03,008/- was made and several persons including staff members of the Municipal Corporation were involved in commission of the said offence and helped the said contractor H. B. Bhise. As per the remand report dated 9-9-2009 submitted by CBD Belapur Police Station before the J.M.F.C. Vashi, Navi Mumbai, besides H. B. Bhise, 7 other persons were already arrested and remanded to Judicial Custody. On 8-9-2009, at 16.30 hrs., 5 more persons, who are the petitioners before the Court, came to be arrested for the said offence. In the remand report, it was submitted that these accused persons were also involved in commission of offence, as some of them were in charge of the concerned areas, the Assistant Municipal Commissioner and some were accountants and the offences are committed by H. B. Bhise in collusion with and active assistance of these petitioners. However, as per' the remand report immediately after the arrest each of these five persons, complained of different medical problems and were required to be taken to the Municipal Corporation Hospital at Vashi where they were immediately admitted in the Intensive Care Unit. In the remand report, it was stated that in view of their admission in ICU in the Hospital, they could not be produced before the Court. Therefore, in absence of those accused persons, the learned Magistrate was requested to grant their judicial custody, but at the same time, the Investigating Officer clearly stated that this application for remand was without prejudice to his right to make an application for police custody remand as and when these accused persons would be found medically fit. In view of this, on 9-9-2009, the learned Magistrate granted Judicial Custody remand of these petitioners till 11-9-2009.