AYAZ AHMAD Vs. UNION OF INDIA

JUDGEMENT

(1.) The learned counsel for the applicant has raised the following contentions before this Court: firstly, according to the testimony of Rajesh Daiya (PW-1) and Mr. S.K. Melhotra (PW-5), the appellant had no role to place in issuance of the tender, in the finalisation of the tender, and in the issuance of supply order. Therefore, the prosecution has failed to prove its case against the appellant for offences under Sec. 420 read with Sec. 120B I.P.C., 467 I.P.C., 468 read with Sections 120B I.P.C., 471 read with Sec. 120B I.P.C. and for offence under Sec. 13(1)(d) read with Sec. 13 (2) of the Prevention of Corruption Act, 1988. According to the learned counsel, the tenders were issued by one Mr. G.B. Raturi who was, at the relevant time, the Director of NRCAH, Bikaner. Since no tenders were received till the last date i.e. 10.7.2000. However, on 11.7.2000, five tenders were received and the lowest tender was that of Xerox Modi Corporation Ltd. Therefore, the said tender was approved not only by Mr. G.B. Raturi, but was also equally approved by Mr. S.K. Melhotra (PW-5). Although the appellant was a member of committee approving the tender, but he was a member only as the Assistant Account Officer, he had no major role in approving the tender. Moreover, the appellant gave the sanction for the payment of the amount only after the fax machine was received by the institution. Hence, his consent was taken and was given only after the machine was delivered. Therefore, he has no role to play in purchasing of machine.

(2.) Furthermore, relying upon the cases of State of Maharashtra Vs. Gajanan & Anr., AIR 2004 SC 1188 , and on the case of Khemraj Vs. State of Rajasthan, 2009 Cri.L.J. 3541 , the learned counsel has vehemently contended that in case there are exceptional circumstances, then the conviction can be stayed by this Court. According to him, the exceptional circumstances are that according to the testimony of Rajesh Daiya (PW-1) and S.K. Malhotra (PW-5), the appellant is almost exonerated in the case, yet the learned Judge has convicted the appellant for the aforementioned offences. Lastly, in case the convictions were not stayed, it will adversely affect his service career. Thus not only the appellant, but also his family members would suffer their economic death. Hence the learned counsel has pleaded that the conviction should be stayed by this Court.

(3.) On the other hand, Mr. Panney Singh, the learned Special Public Prosecutor, has raised the following contentions before this Court: firstly that the case of the prosecution is the tender quotations was never even submitted by the Xerox Modi Corporation Ltd. This fact is clear from the testimony of Naresh Gola (PW-7). In his testimony, Mr. Gola has informed the Court that Exhibit P-12 was never issued by the Xerox Modi Corporation Ltd. Exhibit P-12 does not contain the authentic signature of Mr. Harish Bhatiya who was posted as an Executive Officer in the Company. Moreover, according to Mr. Naresh Gola, his company had never participated in the tender process. Exhibit P-14 was given by him to Yashraj Singh. The machine which was finally delivered to the Institute was actually sold by Xerox Modi Corporation Ltd. to M/s Renu Sales Agency, which in turn sold the said machine to Yashraj Singh and by forging the signatures of Mr. Harish Bhatiya and by interpolating the documents, the tender was actually submitted by Mr. Yashraj Singh. In this entire process of acceptance of the tender, the consent given by the appellant, the appellant had a major role to play. Moreover, he has been convicted with the aid of Sec. 120B I.P.C. Furthermore, prima facie, the offence under Sec. 13 (1) (d) is made out against the appellant as he has abused his office in order to ensure pecuniary gain by Mr. Yashraj Singh. Secondly, relying on the case of KC Sareen Vs. CBI Chandigarh, (2001) 6 SCC 584 , the learned counsel has contended that according to the Honourable Supreme Court, the Courts should be aware of the fact that in the case conviction were to be stayed, then the public officers perforce would be taken back in the service. However, those who indulge in corrupt practices in this country, they should be prevented from getting back into the service. Therefore, in the case of K:C. Sareen (supra) the Honourable Apex Court has opined that conviction should be stayed, in the rarest of rare cases, and not ordinarily. According to the learned counsel the testimony of Naresh Gola (PW-7) is sufficient to establish the guilt of the appellant. Therefore, the present case does not fall within the rarest of rare case. Since there are no exceptional circumstances according to the learned counsel, this Court should refrain from staying the conviction.