BIJAYA KUMAR SETHY Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this case, the Petitioner has challenged the order dated 17.02.2006 passed by the learned Special Judge Vigilance, Sambalpur in C.T.R. Case No. 21 of 2006, wherein, he took cognizance of the offence under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 read with Section 409/120 -B of IPC.

(2.) AS per the F.I.R., the Executive Engineer (RW) Division, Sundergarh called for quotation for execution of improvement of work for Kuarmunda -Kucheru R.D. Road under Western Orissa Development Council for the year, 2001 -2002. After observing all the formalities of tender process, the final rate was fixed at Rs. 18,56,096/ -, which was 8.55% excess over the estimated cost of Rs. 17,09,906/ - with co -accused -Rajesh Kumar Agarwala a L -1 Contractor. Accordingly, agreement was made to that effect on 9.1.2002 and Rajesh Kumar Agarwala commenced work on the same date and completed it on 8.5.2002. The total amount of the work was of Rs. 16,92,128/ - which was paid to the contractor. On physical verification made by the help of local engineers on 3.4.2003, it was found that the entire length of the road measuring 2520 meters was less in thickness compared to the agreement. There was less collection of metal and moorum. On verification of Measurement Works (M.Bs.), it was ascertained that value of the work done at the site was less than what was paid to the contractor. The differential value of H.G. Metal moorum and labour charges came to Rs. 1,09,928/ -. So, it was prima facie established that the accused persons, namely, Bijaya Kumar Sethy (Petitioner), Ramagopal Padhi the then Assistant Executive Engineer (A.E.E.) took inflated measurement showing excess thickness of metal for which the contractor Rajesh Kumar Agarwal was paid excess Government money of Rs. 1,09,928/ -. During physical inspection both the accused Sri Sethi and Sri Padhi were given chance to show the actual thickness of the metal as per their measurement and check measurement, but they failed to show the thickness, which they had shown in the Measurement Book. So, it shows that accused -Ramgopal Padhi, A.E.E. and Shri Bijaya Kumar Sethy, J.E. (Petitioner) entered into a criminal conspiracy with Contractor Rajesh Kumar Agarwala and showed undue official favour to him by recording inflated measurement of the work and making excess payment. On the basis of the report before the Superintendent of Police Vigilance, Sambalpur Division, Sambalpur, Vigilance P.S. Case No. 55 dated 20.12.2004 under Section 13(2)(1)(c)(d) of Prevention of Corruption Act, 1988 read with Section 409/120 -B of I.P.C. was registered against Ramgopal Padhi, A.E.E., Rajesh Kumar Agarwal, contractor and the present Petitioner and the case was investigated into. After completion of investigation, charge sheet was submitted under the aforesaid sections against all the three accused persons before the Chief Judicial Magistrate Vigilance, Sambalpur in C.T.R. Case No. 21 of 2006, whereafter he transferred the record to the Special Judge, Vigilance, Sambalpur who took cognizance as per the impugned order dated 17.2.2006. The present case has been filed under Section 482 of Code of Criminal Procedure assailing the said order of taking cognizance.

(3.) LEARNED Counsel for the Petitioner next submitted that the roads in the country are being designed as per the specification laid down by the Indian Road Congress (IRC). In table No. 7.3 of the I.R.C., it has been clearly stated that if the metals are manually laid, there would be (+/ -) 15 mm of tolerance in the surface level in one layer or (+/ -) 30 mm of tolerance in two layers. In the present case, the required thickness of the compacted material was fixed at 150 mm and it is the admitted case that the metals had been laid manually by the contractor. So, there is no shortage of thickness of the road in question. Under such circumstances, learned Counsel for the Petitioner submitted that there is no material against the Petitioner to proceed against him on the aforesaid offences.