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Punjab-Haryana High Court
Jimmy Subawalla And Ors vs Cbi on 15 March, 2021 In virtual Court

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM-M-40489-2016 (O&M)
Date of decision: 15.03.2021

Jimmy Subawalla and others
… Petitioners

Vs.

Central Bureau of Investigation and another
… Respondents
CORAM: HON’BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present: Mr. J.S. Bedi, Sr. Advocate with
Mr. Karan Pathak, Advocate
for the petitioners.

Mr. Sumeet Goel, Advocate
for the respondent-CBI.

*******

ARVIND SINGH SANGWAN, J.

Prayer in this petition is for quashing of FIR

No.RCCHG2014A0021 dated 09.12.2014 under Section 120-B of the Indian

Penal Code (for short ‘IPC’) read with Section 420 IPC and Section 13 (2) read

with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short ‘PC

Act’), registered at ACB, CBI, Chandigarh as well as report under Section 173

Cr.P.C. dated 10.10.2016 and further proceedings pending before Special

Judge, CBI, Chandigarh, being misuse of process of law.

It is worth noticing that at the stage, when the case before the trial

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Court/Special Judge, CBI was fixed for framing of charge, this petition was

filed in the year 2016 and on 06.12.2016, it was directed that charge be not

framed. Interim order is continuing, as the arguments are not advanced on

behalf of the petitioners.

The Special Judge, CBI, Chandigarh, vide request letter dated

16.02.2021, has sought permission for resuming the trial process in view of

judgment of the Hon’ble Supreme Court in Asian Resurfacing of Road

Agency Pvt. Ltd. and anr. Vs. CBI, 2018 (2) RCR (Crl.) 415, wherein it is

held that the cases, which are at trial stage and proceedings are stayed by the

higher Court, after a lapse of six months, said order will automatically be

lapsed, unless it is extended by a speaking order and the trial Court may, on

expiry of aforesaid period, resumed the proceedings.

Learned senior counsel for the petitioners has submitted that the

FIR was registered after conducting a preliminary inquiry against S.K. Bansal,

the then Chief Engineer, Municipal Corporation, Chandigarh (for short ‘MCC’),

S.R. Aggarwal, the then Superintending Engineer, MCC, Public Health, R.C.

Diwan, then Executive Engineer, MCC, Public Health and M/s Selvel Media

Services Pvt. Ltd. and its partners i.e. petitioners. It is further submitted that on

completing of the inquiry, a report under Section 173 Cr.P.C. was submitted

against six persons i.e. R.C. Diwan, Bishwadeep Dutta, G.M., M/s Selvel Media

Services Pvt. Ltd., Jimmy Subawalla, Director, M/s Selvel Media Services Pvt.

Ltd., Mysa Ganesh, Director, M/s Outdoor Communication Pvt. Ltd. and two

firms i.e. M/s Selvel Media Services Pvt. Ltd. and M/s Outdoor Communication

Pvt. Ltd. through its directors, whereas S.R. Aggarwal and S.K. Bansal were

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kept in column No.2, as no chargesheet was presented against them. It is further

submitted that the allegations against the petitioners are that in the year 2007,

two tenders for operation and maintenance of 40 toilet blocks in various

complexes of Chandigarh were floated by MCC and these 40 number of toilet

blocks were in two parts. Part A of the work consisted of display of

advertisement on the wall of the toilet blocks and Part B was of displaying the

advertisement on the connecting passage. Similarly, for 46 number of toilet

blocks, tenders were floated by MCC for earning the revenue with a stipulation

that the agency will quote licence fee per toilet and minimum proposed licence

fee per toilet per month was Rs.500/- for each toilet in each group of toilet

blocks per month for a period of five years. It was also submitted that the

contractor will pay the advertisement tax in respect of the advertisement

displayed on the wall of the toilet along with licence fee and other taxes

leviable from time to time. Petitioners Jimmy Subawalla and Bishwadeep Dutta

being the authorized representatives of M/s Selvel Media Services Pvt. Ltd.

submitted their tender with MCC and demanded an amount of Rs.9800 per

month per toilet. Later on, there were some negotiation between the petitioners

and MCC regarding waiving off advertisement fee and the tax, however, it was

specified by MCC that no remission for licence fee will be allowed, in case any

advertisement space remains un-utilized. It was also provided that the

contractor will comply with the byelaws and legal orders of the local body or

any public authority. As per Clause 7 of the tender, the contractor was required

to pay the advertisement fee to MCC along with licence fee, if offered by the

agency and all incidental service charges levied from time to time. As per terms

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and conditions of Part 2 of the tender, MCC shall not be responsible in case

advertisements are not displayed on the board and no waiver shall be given in

the licence fee, as per Chandigarh Advertisement Order, 1954. It was also

provided that some other stringent provisions like Clauses 17 & 19 will be

adhered to by the contractor.

Learned senior counsel has next submitted that two companies M/s

Selvel Media Services Pvt. Ltd. and M/s Outdoor Communication Pvt. Ltd.

submitted their conditional bids and MCC was demanded payment of operation

and maintenance of toilet blocks, therefore, they did not submit bid for the

licence fee with reference to the connecting passage and in the bid, against this

column, it was stated as Nil and even no technical bids were submitted by both

the companies. Though it was specific condition of the MCC that no conditional

tender will be accepted, however, both the companies submitted their

conditional bids. M/s Selvel Media Services Pvt. Ltd. demanded a sum of

Rs.9800 for operation and maintenance of toilet blocks and M/s Outdoor

Communication Pvt. Ltd. demanded an amount of Rs.1198 for operation and

maintenance of toilet blocks, but did not submit any bid regards licence fee for

display of advertisement on connecting passage by quoting the licence fee as

Nil, despite the fact that the contractor was expected to earn huge revenue from

the display boards.

During the inquiry, it was found that R.C. Diwan, being the

Executive Engineer of MCC negotiated with M/s Selvel Media Services Pvt.

Ltd. and reduced the amount from Rs.9800/- to Rs.8800/- with an annual

increase of 10% instead of 15%, as quoted in the original bid, which shows that

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both of them connived and conspired with each other, as an undue favour was

shown to M/s Selvel Media Services Pvt. Ltd. and no licence fee payable for the

connecting passage was offered by this company. It was also found that R.C.

Diwan in order to give undue favour to M/s Selvel Media Services Pvt. Ltd.

placed a supplementary agenda in a meeting of F&CC without disclosing the

change in the nature of original tender floated by MCC for operation and

maintenance of toilet blocks and the connivance and conspiracy was to bar

MCC from recovering the revenue generated by the advertisement on the

connecting passage, as in the supplementary agenda, it was offered to provide

connecting passage free of costs to M/s Selvel Media Services Pvt. Ltd. Since

F&CC had upper power of finance limit upto Rs.35.00 lacs but in the tender,

the value more than Rs.5.00 crores was involved, therefore, F&CC did not

approve the tender as per the policy decision. It was further found that while

preparing the comparative statements of bids submitted by two companies, R.C.

Diwan, in order to give undue benefit to M/s Selvel Media Services Pvt. Ltd.,

mentioned at his own that apart from licence fee and advertisement tax, M/s

Selvel Media Services Pvt. Ltd. is not willing to pay any other levy to MCC. At

the time of allotment of tender to M/s Selvel Media Services Pvt. Ltd., R.C.

Diwan, S.R. Aggarwal and S.K. Bansal, the officials of MCC, gave undue

benefit to M/s Selvel Media Services Pvt. Ltd. while allotting work for

operation and maintenance of toilet blocks for a period of five years on

10.09.2007. Thereafter, within a period of three months, R.C. Diwan sent a

communication to M/s Selvel Media Services Pvt. Ltd. that as per advice of

Chief Auditor, MCC, advertisement tax as per Punjab Municipal Corporation

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Act, shall be payable on the allotted work. Upon this, M/s Selvel Media

Services Pvt. Ltd. through its officials i.e. petitioners No.1 & 2, undertook to

pay the advertisement tax, however, later on, all the accused, in conspiracy with

each other, did not recover/collect the advertisement fee/tax from M/s Selvel

Media Services Pvt. Ltd., which resulted into loss of crores of rupees.

Learned senior counsel for the petitioners has relied upon certain

communications between M/s Selvel Media Services Pvt. Ltd. and R.C. Diwan,

the then Executive Engineer, MCC, to submit that as per communication, no

offence under Section 120-B IPC is made out. It is argued that an offence under

Section 120-B IPC can be attracted when ingredients of Section 120-A IPC are

attracted, an ‘Illegal Act’, as defined in Section 43 IPC, says, when it appears

that two or more persons, in criminal conspiracy, agree to do or caused to be

done an act, same will be punishable under IPC. It is submitted that act of the

petitioners, in submitting the bid, showing the inability to pay the licence fee, is

neither illegal nor prohibited.

It is next argued that no offence under Section 420 IPC is made

out, as there was no dishonest intention of the petitioners from the beginning,

when initial bid was submitted. Even on subsequent occasions, when similar

bids were allotted regarding other toilets in the markets, no licence fee was

demanded by MCC. It is further submitted that no offence under Section 13(2)

read with Section 13(1)(D) of PC Act is made out. There is no evidence to show

that any valuable things or pecuniary advantage was given by the petitioners to

co-accused, who were officers of MCC and since the petitioners are not public

servants, provisions of PC Act cannot be invoked against them.

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In reply, learned counsel for respondent-CBI has opposed the

prayer on the ground that all the accused, in conspiracy with each other, have

caused huge loss to the public exchequer. It is submitted that this petition was

filed at the stage, when the charges were to be framed and for the purpose of

framing of charge, the Court is required to satisfy, if a prima facie case exists

for proceeding against the accused and for that limited purpose, the Court can

evaluate the material or documents on record and cannot appreciate the

evidence. Learned counsel has relied upon State of Orrisa and another Vs.

Saroj Kumar Sahoo, 2006 (1) RCR (Crl.) 324 to support his arguments.

Learned counsel has further submitted that present petition filed

under Section 482 Cr.P.C. praying for quashing of criminal proceedings at the

stage when the investigation was pending or before the charges were framed, is

not maintainable, as the High Court cannot evaluate the material or documents.

In this regard, reliance is placed upon State of Madhya Pradesh Vs. Awadh

Kishore Gupta and others, 2004 (1) RCR (Crl.) 233.

It is further argued that it has been held by the Hon’ble Supreme

Court in State of Andhra Pradesh Vs. Goloconda Linga Swamy and

another, 2004 (3) RCR (Crl.) 831 that while framing the charge, the material,

which is in existence, collected during the investigation, if sufficient for holding

the accused guilty, should be considered at the time of trial, whereas while

framing the charge, the Court is to see if prima facie case is made out, showing

the commission of an offence and involvement of the person charge-sheeted. It

is also held that while exercising powers under Section 482 Cr.P.C., the High

Court does not function as a Court of appeal or revision and the inherent

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jurisdiction, though wide, has to be exercised sparingly and with caution and

ordinarily, the High Court should not embark upon an inquiry whether the

evidence in question is reliable or not.

Learned counsel for respondent-CBI has lastly relied upon State of

Haryana and others Vs. Ch. Bhajan Lal and ors., 1991 (1) RCR (Crl.) 383

to submit that the present case do not fall within the parameters laid down by

the Hon’ble Supreme Court, for exercising the jurisdiction under Section 482

Cr.P.C. for quashing of an FIR.

On merits, learned counsel for CBI has argued that the conspiracy

between R.C. Diwan, the then Executive Engineer, MCC and M/s Selvel Media

Services Pvt. Ltd. is apparent on record, as in order to give undue benefit, firstly

he, by way of negotiation, reduced the bid from Rs.9800/- to Rs.8800/- with

annual increase of 10% instead of 15%, as quoted in the original bid and then

kept silent regarding licence fee payable for connecting passage, as the

petitioners deliberately quoted the price as Nil in the tender. It is further

submitted that the conspiracy between MCC officials and the petitioner is also

apparent, as the petitioners gave a conditional bid despite the fact that it was

specifically provided that no conditional bid will be accepted and thereafter, a

proposal was made by R.C. Diwan for providing free of costs passage to M/s

Selvel Media Services Pvt. Ltd., which was later on declined by F&CC. Even

while preparing the comparative statement of two bids, in order to give undue

benefit to M/s Selvel Media Services Pvt. Ltd., R.C. Diwan, in conspiracy with

the petitioners, mentioned that apart from licence fee and advertisement tax, the

petitioners are not willing to pay any other levy to MCC, therefore, prima facie

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evidence of conspiracy between all the accused, based on documentary

evidence, was sufficient to submit the report under Section 173 Cr.P.C.

Learned counsel for respondent-CBI has also submitted that it is

well settled principle of law that where a public servant is being tried for an

offence under the provisions of PC Act, a private person, against whom, charge

is under Section 120-B IPC, can also be tried together with the same.

It is further argued that M/s Selvel Media Services Pvt. Ltd. had

filed CWP-4163-2014 against MCC regarding charging of advertisement

fee/tax, on basis of the letters, which were written by the co-accused/officers of

MCC and the same demonstrates the conspiracy between them. It is also

submitted that vide order dated 18.05.2017, aforesaid writ petition filed by the

petitioner(s) was disposed of, by appointing an independent Arbitrator for

adjudication of the dispute.

Learned counsel further submits that CBI was not a party before

the writ Court and therefore, the MCC officials connived with M/s Selvel

Media Services Pvt. Ltd. for giving consent for appointment of an Arbitrator, on

the basis of the communications, which is the evidence in this case to prove

conspiracy. It is also submitted that in fact, the whole action of MCC officials

and M/s Selvel Media Services Pvt. Ltd. and other accused in the negotiation

bid and then in allotting the tender, is illegal and therefore, the MCC officials,

who are accused in this case, did not brought this fact to notice of writ Court

that present FIR is pending against them. Learned counsel thus submitted that it

was beyond scope of the sole Arbitrator to look into the commission of offence

by the accused persons and therefore, the proceedings before writ Court and

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Arbitrator, if any, at back of CBI cannot be considered as a defence in these

proceedings.

Learned counsel further submitted that later on, Review

Application No.241 of 2019 was filed in CWP No.13565 of 2015 by a third

party, which had filed an application under Order 1 Rule 10 CPC during

pendency of writ petition and this application was rendered as infructuous while

deciding main petition. It is further also submitted that one of the ground of

review the appointment of Arbitrator was that present FIR

No.RCCHG2014A0021 dated 09.12.2014 against officials of MCC and writ

petition is pending and in this petition itself, stay order against framing of

charge is passed on 06.12.2016. However, despite noticing this fact, the review

application was dismissed with Rs.2.00 lacs as costs vide order dated

24.09.2019.

Learned counsel has referred to Priti Saraf and another vs State

of NCT of Delhi and another, passed in Criminal Appeal No.296 of 2021

decided on 10.03.2021, wherein the Hon’ble Supreme Court has held that

initiation of arbitral proceedings has no co-relation with the criminal

proceedings and there is no reason for holding that the offence of cheating

would elude from a commercial transaction as in many cases, offence of

cheating is committed in course of a commercial transaction invoke Sections

415, 418 and 420 IPC.

Learned counsel has further referred to the case of Trisuns

Chemical Industry vs Rajesh Aggarwal, 1999(4) RCR (Criminal) 223,

wherein a similar view has been taken by the Hon’ble Supreme Court as noticed

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in Priti Saraf’s case (supra).

Learned counsel thus concluded that any award if passed by Sole

Arbitrator will have no bearing on the commission of offences and the same

should be decided independently by the Special Judge, CBI, Chandigarh.

After hearing learned counsel for the parties and going through the

record, I find that no case for quashing of the proceedings is made out within

the parameters of State of Haryana vs Bhajan Lal, 1992 Suppl (1) SCC 335,

accordingly, finding no merit, the present petition is dismissed.

Considering the fact that proceedings before the trial Court were

stayed in the year 2016, the trial Court/Special Judge, CBI, Chandigarh is

directed to expeditiously conclude the trial preferably within a period of two

years.

The order dated 18.05.2017 and 24.09.2019 in CWP No.13565 of

2015 and Review Application No.241 of 2019 titled as M/s Selvel Media

Services Pvt. Ltd. Vs. The Municipal Corporation, Chandigarh and others or

any award of Sole Arbitrator, if passed, will not be looked into evidence by the

trial Court.

[ ARVIND SINGH SANGWAN ]
15.03.2021 JUDGE
vishnu

Whether speaking/reasoned : Yes/No

Whether Reportable : Yes/No

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