Order on BA 38-24 MHCC020002292024

BEFORE THE DESIGNATED COURT UNDER M.P.I.D. ACT CITY CIVIL & SESSIONS COURT, MUMBAI
ORDER ON BAIL APPLICATION NO.38 OF 2024 IN C.R. NO.65 OF 2023

Romin Chandrakant Chheda
Aged : 42 years, Occ : Business
Residing at 2101-2102, Kent Garden CHSL,
TPS Road, Next to BES College,
Borivali (W), Mumbai 400 092 (At present in judicial custody and lodged at Arthur Road Central Prison)
Applicant/ ]… Accused

Versus

The State of Maharashtra (Through EOW, Mumbai) ] ]… Respondent

Appearances:Ld. Advocate Ayush S. Pasbola a/w Ld. Advocate Prajyot Srivastav for
the Applicant.

Ld. SPP Seema Deshpande for the State/ Respondent.

CORAM : HER HONOUR JUDGE ADITEE UDAY KADAM, (Court Room no. 7) DATE : 30th January, 2024.
ORAL ORDER

1.The present application is moved by the Applicant/Accused Romin Chheda resident of Borivali (W), Mumbai under Section 439 of The Code of Criminal Procedure, 1973 for grant of regular
bail.

2. A case being C.R. No.65 of 2023 is registered with EOW, Mumbai (F.I.R. No.0929 of 2023 registered with Nagpada Police Station) against the present Applicant for the offences punishable under Sections 218, 418, 465, 467, 468, 471 r/w Sections 34 and 120(B) of the Indian Penal Code, 1860 (hereinafter referred as “IPC”).

3.Application is resisted by the Prosecution by filing it’s say at Exhibit-2.

4. Prosecution case in nutshell is as under :-

During Covid-19 upsurge in 2021, the Municipal Corporation of Greater Mumbai (hereinafter referred as ‘M.C.G.M.) approved two (2) tenders in favour of applicant for installation of oxygen generation plants. Out of these two (2) tenders for installation of oxygen generation plants, one was for installation at nine (9) M.C.G.M. Hospitals and other was for installation at Jumbo Covid Centers and the contractor had to complete the installation work of the oxygen generation plants within thirty (30) days at the site hand over to the contractor. As per the tender conditions the oxygen generation plants were not commissioned within thirty (30) days and therefore a penalty of Rs.3,16,32,426/- (Rupees Three Crores Sixteen Lakhs Thirty Two Thousand Four Hundred Twenty Six only) was levied. Subsequent to the completion of installation the applicant’s firm delivered the oxygen generation plant to the respective hospitals by way of handing over and taking over report. It is alleged that the said report was not
signed by the Designated Authorities with dates except for three MCGM hospitals and therefore, the oxygen generation plant was not completed prior to 01.09.2021 and it was completed during
October 2021, but to reduce penalty forged documents were prepared without putting dates on it. Thereby, huge financial scam is done by the applicant by making collusion with other accused who may be the authorities of MCGM or of hospitals.

5.Heard the Ld. Advocate for the Applicant and Ld. SPP for the State at length.

6.Ld. Advocate for the applicant submitted that the allegations in the report are based on contractual liability of the applicant in respect of agreement for installation of oxygen generation plants. Pressurized Swing Absorption (PSA-2) was allotted to the applicant on 27.09.2021 with purchase order value of Rs.53 Crores. There is no case against PSA-2 but in respect of PSA-1 value of Rs.68.88 Crores, there was penalty for delay in commissioning was 1% per week on PO value to maximum of
10% of it. There is difference in the say by Investigating Agency that initially it contended that the oxygen is generated only in October but now it is the contention of Investigating Agency that
oxygen samples were collected from 4 hospitals on 12.08.2021 and from 5 hospitals on 13.08.2021. In fact, all test reports are subsequent to collection of oxygen samples of the said dates. There is no allegation as to purity of oxygen or that the test report is fabricated. In such circumstances, prima facie case is vitiated. PSA-1 arranged the supply of copper pipes to third party vendor and therefore, document for copper pipe for PSA-1 was not readily available for the applicant. Later on, applicant was
able to locate the third party copper pipe vendor viz. Janya Extrusions Pvt. Ltd. and collate the copies of invoice for copper pipes supplied for PSA-1 dated 15.07.2021. Ocular evidence to that effect is readily available through you-tube ABP news report published on 29.07.2021. Furthermore, it is submitted that
handing over and taking over reports were of certain past events.

The HOTOR records the report number and the date of report and also states that installation includes oxygen pipeline. Thus, it clarifies all the transactions. Howsoever it may be, the State /Respondent has already recovered penalty. The allegations of forgery cannot hold because there is no basis that the applicant has either forged any signature or document etc. Other charges leveled against applicant are bailable one. Applicant is behind bar since 24.11.2023. Most of the investigation is completed and
therefore, there is no need to languish the applicant behind bar. Hence, it is submitted that the applicant be released on bail. In support of his contention, he relied on the following authority:

1.7.Md. Ibrahim and Ors. Vs. State of Bihar reported in AIR 2010 SC (SUPP) 347 wherein it is held that, ‘a person is said to have made a ‘false document’, if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.’
Per contra, Ld. SPP argued that the applicant on behalf of Highway Construction Company had completed the project. There is evidence to indicate that he has made collusion with MCGM officials. There are suspicious circumstances that he has obtained oxygen sample report within 2 days from Highdel Laboratories Ltd. from Gaziyabad, Uttar Pradesh. In that regard, investigation is going on.

Further it is pointed out that the applicant has supplied the goods to the hospitals during September 2021 to December 2021 whereas, it should have been completed within 30 days i.e. upto 16.07.2021. Handing over and taking over reports does not bear signatures of concern authorities. Only in GTB, Kasturba and KEM hospitals, there are dates mentioned as 12.10.2021, 11.10.2021 and 30.10.2021
which is after the limitation prescribed as per agreement. In fact, huge financial scam is committed during the span. Thorough investigation is to be done. Such plants were installed in 9 MCGM hospitals and thereby, it is necessary to collect documentary evidence from the various departments of those hospitals. Therefore, it the applicant would be released on bail, there is every possibility that he may tamper with prosecution evidence. Applicant is not qualified person to obtain such tender but he has
manipulated the process and secured the same for unlawful gain. Investigation is in progress. Therefore the application filed by the applicant be rejected.

8.On perusal of record it reveals that the applicant has obtained the contract and penalty to the tune of Rs.3.16 Crores for default / delay in installation of oxygen plants is levied. He has duped additional penalty of Rs.6 Crores by making collusion with other accused. Statements of witnesses recorded by the Investigating Officers clearly indicates that the handing over and taking over report were obtained in the month of October 2021. Suspect is created since inception i.e. obtaining tender without possessing sufficient qualification for the same and obtaining reports from the Laboratories at another State. Some reports of handing over and taking over does not bear dates of signing the same. It cannot be taken as mere irregularity. It seems that this is not only in regard with duping substantial amount of fine and causing loss of public money but much more than that.

9.All these transactions / activities were done during April 2021 to January 2022, but it was revealed in 2023. In all, 9 hospitals are involved along with MCGM authorities. Reason for delay, intention behind the act committed by applicant and whether there was misuse of grant of tender during the Covid period is to be find out. Applicant is regular contractor of MCGM. Admittedly, he has secured 57 tenders from MCGM though 117 tenders of the applicants were refused. As per the prosecution, applicant has received tender price to the tune of near about Rs.130 Crores. Thus, huge public fund is involved in the case. Forensic audit is yet to be done. Possibility of tampering of document for disappearing the evidence of offence, cannot be ruled out. Therefore, at this stage, final remark as to applicability
of forgery cannot be passed on.

10.Allegations in the F.I.R. and the investigation, the statement of witnesses corroborates the case of prosecution as to swindle committed during the process of installation of oxygen plants, obtaining tender, supply and completion of the procedure of handing over and taking over etc. Prima facie it reflects that the act is committed with pre-planned – conspiracy. Merely because the fine would be imposed, it cannot be termed as ‘civil dispute’. On the contrary, acuity of the offence is much more than it prima facie looks. Uncontroverted allegations reflected in the material on record, prima facie reveals the complicity of the applicant in the alleged offence which involves huge financial scam of public
fund. It is necessary to investigate the matter in it’s true sense. In such circumstances, if the applicant would be released on bail, there is every possibility that he may flee away from justice and tamper with the prosecution evidence. Hence, the following order is passed :

ORDER

1. The present Bail Application No.38 of 2024 filed by the Applicant/ Accused Romin Chandrakant Chheda in connection with C.R. No.65 of 2023 is registered with EOW, Mumbai (C.R. No.929 of 2023 registered with Nagpada Police Station) against the present Applicant for the offences punishable under Sections 218, 418, 465, 467, 468, 471 r/w Sections 34 and 120(B) of the Indian Penal Code, 1860 is hereby rejected

2. The present Bail Application No.38 of 2024 is disposed off accordingly.
(Dictated and pronounced in the open Court.)

Date: 30/01/2024 Mumbai (ADITEE UDAY KADAM) Designated Judge under The Maharashtra Protection of Interest of Depositors Act, 1999, for Gr. Bombay Dictated directly on computer: 30/01/2024 Signed by HHJ on : 30/01/2024 :8: Order on BA 38-24 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT /ORDER” 30.01.2024 at 10.31 a.m. UPLOADED DATE AND TIME Ms. R. D. Tari NAME OF STENOGRAPHER Name of the Judge (with Court Room no.) H.H.J. A. U. Kadam C.R. No.07 Date of Pronouncement of Judgment/Order 30.01.2024 Judgment /Order signed by P.O. on 30.01.2024
Judgment/Order uploaded on 30.01.2024