Biswajit Pandav vs C.B.I

Heard Shri Ashok Kumar Pandey, learned counsel appearing for the applicant, Shri Gyan Prakash, learned Senior Advocate assisted by Shri Sanjay Kumar Yadav, learned counsel appearing for the C.B.I. as well as learned A.G.A for the State and perused the record.

As per prosecution case, one Biswajit Pandav, a Contractual Engineer during years 2012-13 posted in Project Management Department of M/s. Bharat Electronics Limited (in short to be referred as M/s. B.E.L.), floated a firm by the name M/s. Exigent Solutions Private Ltd. (in short to be referred as M/s. E.S.P.L.), in which, his wife Smt. Barnali Barik and one Ajay Kumar Acharya were the Directors, conspired with one Sunil Kumar, Senior Deputy General Manager (in short to be referred as S.D.G.M.) and other officers of the B.E.L., M/s E.S.P.L supplied China made C.D.M.A. dongles to M/s. B.E.L. falsely showing them to have been sourced from M/s. Gurav Services, U.K., which put Govt. of India to a wrongful loss of Rs. 54.50 lacs and corresponding gain to the accused persons. Ministry of Defense and M/s. B.E.L. had entered into a contractual agreement on 13.4.2012 for supply, installation, commissioning and A.M.C. of the Mobile Cellular Communication System for Indian Army at the total contractual value of Rs. 237 crores. M/s. B.E.L. itself proposed the dongle to be included in the contract agreement and finally 1000 dongles with the make from M/s. Atricknet or better and model as "Adcelero" or better, was approved and mentioned in the aforesaid contract agreement. M/s. B.E.L. initially contacted M/s. Atricknet Consultancy Private Ltd. (in short to be referred as M/s. ACPL), New Delhi, represented by Sri Ajay Kumar Acharya, for supply of C.D.M.A. dongles. The M/s. ACPL provided one sample of dongle as per drawing proposed by M/s. B.EL. with brand name as "Adcelero". At that time, Sri Biswajit Pandav was also working in M/s. B.E.L. therefore due to their respective positions, Bishwajit Pandav and Ajay Acharya had insider information about various items being required by M/s. B.E.L. for C.D.M.A. project implementation and the rates of dongles likely to be quoted by M/s. Atricknet and after quitting the firm, M/s. Atricknet in association with Biswajit Pandav, floated a firm by the name M/s. ESPL, in which, Smt. Barnali Barik and Sri Ajay Acharya were made Directors. The firm was registered on 12.7.2012 with the Registrar of Companies, Delhi. For procurement of the said 1000 dongles, only 2 inquiries, inviting technical and price bids, were sent to M/s. E.S.P.L. and M/s. Atricknet on 16.8.2012, whereas as per relevant purchase procedure of M/s. B.E.L., the inquiry for this item was required to be sent to minimum three sources. Moreover, M/s. ESPL was on the approved vendor directory of B.E.L. at the relevant time. The aforesaid both the firms submitted their bids on 25.7.2012, whereon price bids were opened and the rates quoted by M/s. ESPL was found to be L-1. M/s. ESPL represented to the M/s. B.E.L. that they would supply the data dongle of U.K. origin. The said firm was allotted with vendor code on 14.9.2012 and subsequently purchased order no. 4900140991 dated 3.10.2012 was issued in its favour. In the said purchase order, it was mentioned clearly that the dongle to be supplied would not be of Chinese origin but ignoring the origin of the said dongles, the stock of 1000 dongles was declared as acceptable and taken in the store of M/s. B.E.L.. Questions to the request of issuance for acceptance certificate, a letter was sent from Col. Rohit Malhotra, Director (I/O) for DDG PMO Plan ARAEN to M/s. B.E.L. on 20.3.2013 mentioning therein that the make and model being offered for dongles was not as per the contract agreement and thus M/s. B.E.L. was requested to reconcile and offer their comments/justification duly supported with documents and OEM (Original Equipment Manufacturer) certificate in original on the subject for issue of pre-dispatch certificate/acceptance certificate by army. In reply, Sri Sunil Kumar, S.D.G.M., B.E.L., wrote back on 20.3.2013 that data dongle model, "Adcelero" mentioned in the said contract was manufactured by M/s. Gurav Services Ltd., London and that (a) M/s. Greenmax Systems (b) M/s. ESPL and (c) M/s. ACPL were its distributor in India. He further informed that M/s. B.E.L. had sourced the dongles from M/s. E.S.P.L. and further added that the make and model of the data dongle was M/s. Gurav Services Ltd., London, U.K. and "Adcelero" respectively. Subsequently acceptance certificate was procured by M/s. B.E.L., keeping the army in dark. Later on M/s. Greenmax System and M/s. A.C.P.L. denied that they were the distributors of M/s. Gurav Services Ltd. and M/s. Greenmax Systems also informed that dongles which were supplied by M/s. E.S.P.L. to M/s. B.E.L. had been assembled by their firm in Bhopal by importing major parts from China. The Adcelero logo was also found to have been printed in Bhopal. In the course of enquiry, the dongle which was initially supplied in M/s. B.E.L. as sample, regarding purchase order dated 3.10.2012, was also physically verified and opened in front of the vigilance officers of the B.E.L., proprietor of M/s. Greenmax Systems and independent witnesses, during which, on main hardware electronic circuit "CHINA TY890A111231KCZP93241023KND" was found mentioned, which corroborated the claim of the M/s. Greenmax. During inquiry, it transpired that there was no company registered in the name of M/s. Gurav Services Ltd. in London, U.K., which indicates that the letters shown to have been issued to M/s. B.E.L. directly by M/s. Gurav Services Ltd., London regarding OEM and channel partners of M/s. Gurav Services Ltd. in India were fake.

In the light of above facts, a regular case was registered against (1) Sunil Kumar, Senior Deputy General Manager, M/s B.E.L., Ghaziabad, (2), Biswajit Pandav, the then Senior Engineer, Project Management Department (3) Ajay Kumar Acharya, Director, M/s ESPL, (4) Barnali Barik, Director, M/s E.S.P.L. and unknown others.

It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. There is no direct evidence against him. He has been implicated in this case taking recourse to the provisions of Section 120-B IPC. Applicant was not Director / Manager / Employee of the company concerned. No active participation has been attributed to the applicant. In the entire evidence collected by the Investigating Officer, only allegation against the applicant is that he floated a company in the name of his wife and others and being a contractual engineer in M/s B.E.L. hatching conspiracy assured for acceptance of the bid/tender in favour of the company floated in the name of his wife. Referring to the documents annexed with the application, it is further submitted that since none of the Institutions in India were ready to manufacture the dongles said to be supplied to M/s B.E.L., therefore, relaxation was given to the company to supply the dongles manufactured in China. To substantiate the aforesaid submissions, learned counsel for the applicant referred to the annexure nos. 7 to 11 and further argued that entire allegations levelled against the applicant by the prosecution are false. It is next contended that after detailed discussions, dongles supplied by the company concerned were accepted by the Army. Thus, no loss occurred to the Government. It is further submitted that Subhash Chandra Agrawal, who has issued acceptance certificate and Smt. Barnali Barik, the Director of the company concerned and Madhu Sharma, who has sent the email messages, have been released on bail by another Bench of this Court vide orders dated 03.09.2020, 15.12.2019 and 02.11.2020 passed in Criminal Misc. Bail Application Nos. 1445 of 2020, 43728 of 2019 and 49078 of 2019 respectively. If entire prosecution case is taken into consideration then also main role for committing present offence is assigned to co-accused already released on bail. Applicant, against whom neither active role has been assigned nor any concern is shown with the company concerned is languishing in jail since 30.08.2019 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial. He has no criminal history.

On the other hand, learned Senior Advocate appearing for the C.B.I. as well as the learned AGA opposing the prayer for bail argued that applicant is the main accused. He has floated a company in the name of his wife namely Smt. Barnali Barik who was one of the Director of the said company and hatching conspiracy applicant has assured the acceptance of bid/tender in the name of the said company. It is further submitted that there was specific stipulation in the agreement that dongles said to be supplied would not be China made. Applicant was contractual engineer in M/s B.E.L.. Agreement for supply was made between M/s B.E.L. and M/s E.S.P.L.. Terms and conditions of the agreement were not complied with, instead, China made dongles were supplied. Thus, a huge loss occurred to the Government. Army has refused to accept it. Role assigned to the present applicant is distinguishable with the role of co-accused already released on bail, as applicant is the main conspirator. At this juncture, learned Senior Counsel appearing for the C.B.I. referred to the charge sheet and the conclusion drawn by the Investigating Officer concerned in the charge sheet and further argued that applicant is not entitled for bail on the ground of parity.

Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant Biswajit Pandav involved in Special Case No. 1 of 2019 arising out of R.C. No. 1202015A0006, under Sections 420, 120-B IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, P.S. CBI/ACB, District - Ghaziabad be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

The applicant will not tamper with the evidence during the trial.

The applicant will not pressurize/ intimidate the prosecution witness.

The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

The applicant shall surrender his passport, if any, before the court concerned & shall furnish an undertaking not to leave the country until permission is obtained by him from this Court till the conclusion of the trial.

In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

The party shall file computer generated copy of this order downloaded from the official website of High Court, Allahabad. The concerned Court / Authority / Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.