Umesh Prasad Kamal V. Union of India through CBI

B.A./7786/2023

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Umesh Prasad Kamal, the petitioner, was accused in a case involving corruption and misconduct related to the procurement of desktop computers and the payment of Annual Maintenance Charges (AMC) to M/s Omni Infoward Pvt. Ltd. The allegations included causing wrongful loss to CMPFO by recommending the purchase of computers with lower specifications than required and making excess payments for AMC bills during a period when the SAP system was not in use. The Central Bureau of Investigation (CBI) opposed the bail, citing violations of the DGS&D Rule and improper financial transactions. However, the court granted bail considering the petitioner's cooperation and other mitigating factors.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 695568 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 13-10-2023
• Assessment Year: misc
• Laws Referred To: Indian Penal Code, Prevention of Corruption Act, DGS & D Rule
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ANIL KUMAR; NITISH SARTHI; CHANDANA KUMARI
• Assessee Lawyers: INDRAJIT SINHA; RISHAV KUMAR
• Keywords: Corruption; Excess payment; AMC bills; Tender violation; Computer purchase
• Section: 13(2); 13(1)(d); 420; 120B

Judgement Text

" IN THE HIGH COURT OF JHARKHAND AT RANCHI B. A. No. 7786 of 2023 ----- Umesh Prasad Kamal … …. Petitioner Versus Union of India through CBI … …. Opp. Party ----- CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- For the Petitioner : M/s Indrajit Sinha & Rishav Kumar, Advocates For the CBI : M/s Anil Kumar, Addl.S.G.I. Nitish Parth Sarthi & Chandana Kumari, AC to Addl.S.G.I. ----- Oral Order 04 / Dated : 13.10.2023 Heard learned counsel for the parties. 1. The petitioner named above has been made accused in connection with RC 10(A)/2018(D) for the offence under Sections 120B and 420 of the Indian Penal Code and Sections 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, pending in the court of Addl. District and Sessions Judge-III-cum-Special Judge, CBI, Dhanbad. 2. The prosecution case in brief is that M/s Omni Infoward Pvt. Ltd. supplied 500 Desktop computers to CMPFO at a higher price and thereby caused wrongful loss to CMPFO. This company also dishonestly got recommendation for excess payment of Rs.37,23,140 in respect of AMC bills for the period from May, 2009 to November, 2009 when SAP system was not in use in CMPFO which caused wrongful loss to CMPFO. 3. In the process of purchase, petitioner Umesh Prasad Kamal who was Joint Commissioner of CMPFO favoured the supplier company, causing wrongful loss to the CMPFO by recommending purchase of computers of lower than recommended configuration and making excess payment in respect of AMC bills. As per the recommended specification of CSIR-Central Institute of Mining and Fuel Research, the desktop computers had to be of configuration of minimum 8 GB RAM, whereas the supplied desktop computers were of configuration of 4 GB RAM expandable to 8 GB. 4. After investigation, charge sheet has been submitted and cognizance has been taken in the present case. 5. It is submitted by learned Senior counsel for the petitioner with regard to violation in DGS & D Rule in payment of AMC for 3rd year at the initial stage is that it is not the case of the prosecution that the petitioner-Umesh Kumar Kamal was not under obligation to go for open tender and therefore, Desktop were purchased as per DGS & D Rule. It is submitted that AMC amount had to be paid in any case, and the only fault on the part of the petitioner was that it was paid initially rather than at the end of 4th and 5th year. It was not a personal decision of the petitioner and the requisite approval was given by the Commissioner and not by the petitioner(s) and for the decision taken by the Commissioner, petitioner(s) cannot be vicariously held liable for it. 6. It is submitted that the Petitioner has now retired from service, he has co-operated in the investigation and charge-sheet has also been submitted. 7. Learned ASGI appearing for the CBI has opposed the prayer. With regard to TDS, it is submitted that it was petitioner Umesh Prasad Kamal who had handed over certificate to the EDP Section for needful. It was not that the petitioner was a small cog in the department through whom the filed had moved. In order to make the payment in derogation of the norms the petitioner-Umesh Prasad Kamal ignoring the note of the dealing assistant, put up note misleading, the Commissioner, CMPFO, referring the matter to the Board of Trustee meeting held on 10.04.2016 to justify purchase of system with five years factory built warranty and sought financial sanction of Rs.3,30,84,500/-. 8. It is further submitted on behalf of the CBI that open tender could be dispensed with, when the purchase was as per DGS & D Rule. Here there was violation of the DGS&D Rule, which could have been made only in case of open tender. The rule permitted payment for AMC only after completion of the three years period of warranty, during the extended period 4th and 5th year of installation of goods that too on quarterly basis. As per DGS & D rate contract, AMC for 4th & 5th year cannot be paid in one time at the time of supply, which was made in the present case. 9. The second charge against petitioner-Umesh Prasad Kamal is that M/s Omni Infoword Pvt. Ltd. 18.12.2015 claimed balance payment of Rs.74,13,012/- in respect of AMC bills for the period 01.01.2009 to 21.11.2009 on the ground that CMPFO had availed AMC even after 31.12.2008. In this regard, this petitioner sought legal opinion which was obtained on 12.01.2016 wherein it was mentioned that SAP application was in operation in CMPFO till 30.04.2009 which comes to Rs.36,89,872/- but the petitioner recommended to give approval to release the total balance amount of Rs.74,13,012/- without deducting TDS. Petitioner has now retired from service, he has co-operated in the investigation and charge-sheet has also been submitted, considering the facts and circumstances of the case, the petitioner, named above, is directed to be released on bail on furnishing bail bond of Rs.1,00,000/- (Rupees One Lakh) with two sureties of the like amount each, to the satisfaction of learned Court below, subject to condition that one of the bailor(s) must be Income Tax Payee. (Gautam Kumar Choudhary, J.) AKT Uploaded "