BAIJAYANTI SWAIN Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioners along with another are accused persons in T.R. Case No. 332 of 2007 pending in the Court of the learned Special Judge (Vigilance), Cuttack for alleged commission of offences under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Section 120-B of the IPC. The petitioner's application to discharge them having been rejected by the learned Special Judge (Vigilance), Cuttack by his order dated 03.11.2011, they have filed this criminal revision. In a nutshell the prosecution case is that on the allegation that the then Vice-Chairman, Cuttack Development Authority, Cuttack (co-accused) was showing undue official favour to the petitioner's firm, M/s. Chinmayee Enterprisers and thereby causing loss to the C.D.A., an enquiry was taken up. The enquiry revealed that co-accused, who was the Vice-Chairman. C.D.A. from 30.06.1999 to 16.05.2001 invited quotations vide Notice No. 19056/CDA dated 30.10.2000 for purchase of 5000 number of good quality welt dressed granite stone pillars of size 5" x 5" x 2' for use in different sections of Bidanasi Project Area. On the basis of the quotation call notice, three firms including the petitioner's firm offered their quotation. The other two firms, namely, M/s. Juvenile Enterprisers, Talatelenga Bazar, Cuttack and M/s. Abhisek Enterprisers, Palitpara, Cuttack offered their quotations @ Rs. 111/- and 110/-whereas the petitioner's firm quoted Rs. 99/- per pillar stone. It was alleged that no Tender Call Notice was given through the newspapers by the Vice-Chairman of the C.D.A. for wide publicity, though the materials worth Rs. 4,50,000/- were purchased in bulk, thereby violating the provisions of O.G.F. Rule 96 and O.P.W.D. Code 3-5-9. It is further alleged that after receipt of the quotations, the Dealing Assistant and Planning Member of the C.D.A. gave office note indicating that the earlier purchase rate per pillar stone was @ Rs. 38.90, but the Vice-Chairman, C.D.A. made negotiation with the petitioners and ultimately supply order was placed @ Rs. 90 per piece of pillar stone and an agreement was executed with the petitioner's firm. The firm supplied 5000 number of pillar stones in two phases. A sum of Rs. 2,70,000/- was paid to the firm towards the cost of 3000 pillar stones supplied in 1st phase and payment for the rest 2000 number of pillar stones is yet to be made. During enquiry it was also ascertained that the pillar stones of the size 6" x 5" x 2' were purchased by the Settlement Officer, Cuttack @ Rs. 35/- per piece during the relevant year. It is alleged that had there been wide publicity by the C.D.A. about the requirement they would have got the material at better competitive rates. It is thus alleged that the co-accused, Vice-Chairman of the C.D.A. conspiring with the petitioners for pecuniary gain had paid excess amount of Rs. 1,65,000/- with ulterior motive in disregard of the O.G.F. Rule and O.P.W.D. Code.

(2.) The learned counsel for the petitioner submits that though the petitioners are being charged under Sections 120-B of the IPC along with the co-accused, there is no iota of material to show that any agreement was reached between the petitioners and the Vice-Chairman of the C.D.A. to cause any wrongful pecuniary gain to any body or any wrongful loss to the C.D.A. or any other wrongful act and in absence of any material with regard to such agreement or meeting of mind by the accused persons, no charge of conspiracy could be framed against the petitioners. It is his further submission that in case the Vice-Chairman of the C.D.A. failed to follow any Rule of O.P.W.D. Code or O.G.F. Rule, the petitioners could not be held liable for such violation.

(3.) Learned Standing Counsel for the Vigilance Department, on the other hand, submits that there cannot be any direct evidence of conspiracy in each and every case and that conspiracy can be gathered from the circumstances. It is his submission that in the instant case, the petitioners themselves having supplied similar stone pillars on the very previous year @ only Rs. 38.90 per piece, it cannot be expected that within a year the price was increased to Rs. 90/- per piece and that this rise in price within a short duration by itself is a circumstance to presume that the petitioners entered into a conspiracy with the co-accused Vice-Chairman.