BAISHNAB CHARAN BARIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner in Criminal Revision No.635 of 2008 namely Baishnab Charan Barik and petitioners in Criminal Revision No.454 of 2008 namely D.K. Singh @ Dusmanta Kumar Singh and K.C. Mohapatra @ Kishore Chandra Mohapatra have challenged the impugned order dated 27.02.2008 passed by learned Special Judge (Vigilance), Jeypore in G.R. Case No. 28 of 2002 in framing charges under sections 420 , 477-A and 120-B of the Indian Penal Code against all of them and the petitioner Baishnab Charan Barik has also challenged the framing of additional charge under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter '1988 Act') against him after rejecting the petition under section 239 of Cr.P.C. filed by the petitioners D.K. Singh @ Dusmanta Kumar Singh and K.C. Mohapatra @ Kishore Chandra Mohapatra for discharge. The said case arises out Berhampur Vigilance P.S. Case No. 28 of 2002. Since both the criminal revisions arise out of a common order, with the consent of the parties, those were heard analogously and disposed of by this common judgment.

(2.) The prosecution case, as per the First Information Report dated 13.06.2002 lodged by Sri U. Rama Rao, D.S.P., Vigilance, Rayagada Unit before the Superintendent of Police, Vigilance, Berhampur Division, Berhampur is that during enquiry into the allegation of bungling in purchase of cement by the officers of O.T.D.P., Kashipur during the year 1997, it came to light that for execution of project civil works, it was decided to purchase OPC 43 grade of IDCOL cement through authorised stockists of IDCOL cement and to supply it to the contractors. The cost per bag of OPC 43 grade cement was fixed to Rs.134.00 inclusive of all taxes, loading and unloading charges and transportation charges from Rayagada to Kashipur. One J.E. was entrusted to remain in charge of the store to receive the stock of cement from the authorised dealer in good condition, maintain the stock and store register and issue the same to the contractors as per the orders of competent authority. He was also to certify on the credit bills of suppliers of cement in respect of receipt of the stock in good condition and to account it for in the stock register. On the basis of the certificate of the store keeper (J.E.), the bills were being passed for payment by the Project Manager. During the period from 14.11.1997 to 31.12.1997, the petitioner Baishnab Charan Barik, J.E. was in charge of stores of O.T.D.P., Kashipur after taking charge from J.E. Sri S.S. Nayak. It is further stated in the F.I.R. that scrutiny of stock register of cement and correspondence file revealed that during the period 14.11.1997 to 31.12.1997 M/s. Sriram Enterprisers, Rayagada supplied 10,000 bags of OPC 43 grade of IDCOL brand cement to O.T.D.P., Kashipur @ Rs.133.60 per bag and received Rs.13,36,000.00 paisa which was received by the petitioner Baishnab Charan Barik as evident from the certificate given by him on the credit bills. During enquiry at IDCOL godown at Khaliguda, Rayagada, it was ascertained that during the above period, M/s. Sriram Enterprisers had not lifted a single bag of OPC 43 grade of IDCOL cement from the godown. The supplier also could not produce any documents pertaining to purchase of OPC 43 grade of IDCOL cement either from the IDCOL dealer or from any other firm during the period and therefore, it was construed that the petitioner D.K. Singh @ Dusmanta Kumar Singh, Proprietor, M/s. Sriram Enterprisers, Rayagada supplied 10,000 bags of slag cement to O.T.D.P., Kashipur instead of OPC 43 grade cement and managed to get certificate from the petitioner Baishnab Charan Barik who was the store in charge on the bills to have delivered 10,000 bags of OPC 43 grade cement. It is further stated in the F.I.R. that the petitioner Kishore Chandra Mohapatra, Proprietor, M/s. Kishore Kirana Store, Kashipur supplied 40,000 bags of OPC 43 grade of IDCOL cement during the above period @ Rs.133.60 per bag and received Rs.53,44,000.00 paisa being passed for payment by Project Manager, O.T.D.P., Kashipur on the basis of the certificate of the petitioner Baishnaba Charan Barik on the bills. The inquiry revealed that the petitioner Kishore Chandra Mohapatra lifted 5430 bags of OPC 43 grade of IDCOL brand cement from IDCOL godown at Khaliguda, Rayagada valued at Rs.7,25,448.00 during the above period and he could not produce any documents towards the purchase of 40,000 bags of OPC 43 grade of IDCOL cement during the relevant period. Therefore, it was construed that the said petitioner supplied 34570 of slag cement (IDCOL) to O.T.D.P., Kashipur and managed to get certificate from the petitioner Baishnaba Charan Barik to have supplied OPC 43 grade IDCOL cement. During the said period, the cost of IDCOL slag cement was Rs.5.00 less than OPC 43 grade IDCOL cement and other charges remaining the same, the slag cement per bag was Rs.128.60 and accordingly, the cost of 34570 bags of slag cement of IDCOL Brand came to Rs.44,45,702.00. It is mentioned in the first information report that the petitioner Kishore Chandra Mohapatra derived pecuniary benefits of Rs.1,72,850.00 paisa by submitting false bills in connivance with petitioner Baishnaba Charan Barik. It is further mentioned in the F.I.R. that during the period from 14.11.1997 to 31.12.1997, the petitioner Baishnaba Charan Barik, being a Government servant connived with the cement suppliers petitioners Sri D.K. Singh and Kishore Chandra Mohapatra, falsified the official records and allowed pecuniary benefits of Rs.2,22,850/- to the cement suppliers causing loss to the project with ulterior motive.

(3.) During course of investigation, it was found out that the two firms namely M/s. Sriram Enterprisers, Rayagada and M/s. Kishore Kirana Store, Kashipur gave their willingness in writing to the Project Manager, O.T.D.P., Kashipur to supply 43 grade IDCOL cement @ Rs.133.60 paisa per bag which was lesser than the rate of Rs.134/- per bag fixed by the O.T.D.P. authorities. As both the firms were authorised IDCOL cement dealers, the Project Manager placed orders with them to supply OPC 43 Grade of IDCOL cement. Several notices were issued to the cement suppliers i.e. petitioners Kishore Chandra Mohapatra as well as D.K. Singh to produce the stock book, records relating to supply of cement (IDCOL) to O.T.D.P., Kashipur but they failed to produce any documents. It was ascertained that during the period from 14.11.1997 to 31.12.1997, the two agencies like M/s. Sriram Enterprises and M/s. Kishore Kirana Store had not purchased any cement from other cement suppliers of Rayagada. During the period in question, the cost of slag cement was Rs.5/- less than the cost of OPC 43 grade IDCOL cement per bag and thus it was presumed by the Investigating Officer that due to supply of slag cement by the cement suppliers, the Department sustained loss of Rs.2,28,400/-. The Investigating Officer obtained sanction order from the Engineer-in-Chief, Water Resources, Orissa to proceed against the petitioner Baishnaba Charan Barik. As the Investigating Officer found sufficient evidence against the petitioner Baishnab Charan Barik to have entered into criminal conspiracy with petitioners Dusmanta Kumar Singh and Kishore Chandra Mohapatra and manipulated records and documents of O.T.D.P., Kashipur showing receipt of OPC 43 grade IDCOL cement and accepted the delivery challan and credit bills submitted by the two firms as genuine and thereby obtained pecuniary advantage of Rs.2,28,400/- for himself and for the two firms, charge sheet was accordingly placed on 30.12.2003 against the three petitioners under sections 420 , 477-A and 120-B of the Indian Penal Code and under section 13(2) read with section 13(1)(d) of the 1988 Act.