Criminal Revision Application No.92 of 2015

25th February, 2016.

Petitioner Counsel: Shri M.P. KHAJANCHI
Respondent Counsel: Shri S.S. AHIRKAR, Special P.P

Cases Cited:
State of Orissa Vs. Debendra Nath Padhi, 2005(1) Crimes 1(SC) [Para 5,6]
Harshendra Kumar D. Vs. Rebatilata Koley and Ors., 2011 ALL MR (Cri) 955 (S.C.)=(2011) 3 SCC 351 [Para 5]
Ajay Kumar Das Vs. State of Jharkhand and Anr., 2011 ALL SCR 2758=2011(12) SCC 319 [Para 5]
Union of India Vs. Prafulla Kumar Samal and Anr, 2015 ALL SCR (O.C.C.) 119=(1979) 3 SCC 4 [Para 5]
Rajiv Thapar and others Vs. Madan Lal Kapoor, 2013 ALL MR (Cri) 1107 (S.C.)=(2013) 3 SCC 330 [Para 5]
Rukhmini Narvekar Vs. Vijaya Satardekar and Ors., 2008 ALL SCR 2279=(2008) 14 SCC 1 [Para 5,8]
Ajay Kumar Das Vs. State of Jharkhand and Anr., 2011 ALL SCR 2507 [Para 5]

JUDGMENT

JUDGMENT :- Heard Shri M.P. Khajanchi, advocate for the applicants and Shri S.S. Ahirkar Special P.P. for the non-applicant.

2. Rule. Rule made returnable forthwith.

3. The applicants have approached this Court under Section 397 read with 401 of the Code of Criminal Procedure challenging the order passed by the learned Additional Sessions Judge rejecting the application (Exh. No.42) filed by them praying for discharge from the prosecution for the offence punishable under Section 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 and Sections 120B and 409 of the Indian Penal Code.

4. The non-applicant Central Bureau of Investigation has filed final report before the Special Judge, Chandrapur against the applicants for the offence punishable under Sections 120B and 409 of the Indian Penal Code and Section 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. The case of the prosecution is that on the complaint dated 20th/21st January, 2012 received from the Vigilance Officer at Western Coalfields Limited, Nagpur, a surprise check in association with the Survey Team of Wani North Area and Majri Area of Gauri Open Cast Mine-1 of Ballarpur Area was conducted on 3rd December, 2010 and shortage of 8806.7553 tonnes of coal was detected which was 22.466% short than the permissible limit as per the Yellow Book Manual of W.C.L. The cost of the coal found to be short is shown to be Rs.1,33,16,782.30/-. It is alleged that the applicants/accused abused their official position and entered into criminal conspiracy with dishonest intention to misappropriate coal entrusted to them over which they had dominion. The applicant no.1 was working as SubArea Manager of Gauri Open Cast Mine-1 of Ballarpur and the applicant no.2 was working as Mines Manager of Gauri-1 Open Cast Mine at the relevant time.

The applicants filed the application (Exh. No.42) praying for discharge. This application is rejected by the learned Additional Sessions Judge by the impugned order.

The applicants being aggrieved by the order passed by the learned Additional Sessions Judge, have filed this revision application.

5. Shri Khajanchi, learned advocate for the applicants has pointed out the communication issued by the Area Finance Manager, Ballarpur Area on 25th May, 2013 stating that the balance sheet of 31st March, 2011 or Profit and Loss Account for the period 2010-2011 of Ballarpur Area does not show financial loss due to shortage of coal or theft of coal. The communication issued by the Area Finance Manager Ballarpur Area dated 29th November, 2013 is pointed out to show that financial loss is not shown in the Books of Account/Balance Sheet/Profit and Loss Account of W.C.L. Ballarpur Area due to shortage of coal or theft of coal in the year 2010-2011. The communication issued by the Chief Manager (Min) Manager Gauri Extension Open Cast Mine on 18th/20th October, 2013 is pointed out which shows that there is no "write off" of coal in 2010-2011. Referring to the above communications, the learned advocate for the applicants has submitted that the claim of the prosecution about loss of huge quantity of coal is not prima facie established and, therefore, the applicants are entitled for being discharged from the prosecution. It is submitted that the learned Additional Sessions Judge has wrongly relied on the judgment given in the case of State of Orissa V/s. Debendra Nath Padhi reported in 2005(1) Crimes 1(SC) and refused to consider the communications which show that there was no shortage or theft of coal in 2010-2011. The learned advocate has submitted that it is not that the defence material cannot be looked into by the Court while framing of the charge and there are cases when defence material is required to be considered by the Court while framing the charge, if the defence material convincingly demonstrate that the prosecution version is absurd or preposterous. It is further submitted that the trial Court is entitled to sift and weigh the material on the record including the defence material, for the purpose of finding out whether a prima facie case exists against the accused for prosecution or not. To support this submission, Shri Khajanchi, learned advocate has relied on the following judgments:

(i) Judgment given in the case of Harshendra Kumar D. V/s. Rebatilata Koley and others reported in (2011) 3 SCC 351 : [2011 ALL MR (Cri) 955 (S.C.)],

(ii) Judgment given in the case of Ajay Kumar Das V/s. State of Jharkhand and another reported in 2011(12) SCC 319 : [2011 ALL SCR 2758 : 2011 ALL SCR 2507]

(iii) Judgment given in the case of Union of India V/s. Prafulla Kumar Samal and another reported in (1979) 3 SCC 4 : [2015 ALL SCR (O.C.C.) 119],

(iv) Judgment given in the case of Rajiv Thapar and others V/s. Madan Lal Kapoor reported in (2013) 3 SCC 330 : [2013 ALL MR (Cri) 1107 (S.C.)] and

(v) Judgment given in the case of Rukhmini Narvekar V/s. Vijaya Satardekar and others reported in (2008) 14 SCC 1 : [2008 ALL SCR 2279].

It is submitted that the communications issued by the Authorities of W.C.L. show that there had been no shortage of coal or "write off" of coal in 2010-2011 and it cannot be said that the huge quantity of 8806.7553 tonnes of coal was found to be short during that period. The learned advocate has submitted that the learned Additional Sessions Judge has committed an error in not considering the above referred communications, under the misconception that the defence material cannot be looked into at the stage of framing of charge. It is submitted that the impugned order is unsustainable and has to be set aside and the applicants be discharged from the prosecution.

6. Per contra, Shri Ahirkar, learned Special P.P. has submitted that the prosecution has been initiated on the complaint received from the Chief Vigilance Officer of W.C.L. itself and after investigation it was found that substantiate quantity of coal (8806.7553 tonnes) has been misappropriated and ample material having been found against the applicants, the sanction of competent authority of Ministry of Coal was sought as per Section 19 of the Prevention of Corruption Act and the competent authority, after considering the material, has granted sanction to prosecute the applicants. It is submitted that the learned Additional Sessions Judge has rightly relied on the judgment given by the Hon'ble Supreme Court in the case of State of Orissa V/s. Debendra Nath Padhi (cited supra) and has rightly rejected the application filed by the applicants. It is submitted that the documents (communications), on which the applicants are relying, cannot be considered at this stage and it cannot be said that there is no material at all on the record to prosecute the applicants on the charge as levelled against them. It is prayed that the revision application be dismissed with costs.

7. After hearing the learned advocate for the applicants and the learned Special P.P. and examining the documents placed on the record, I find that the prosecution has levelled specific charge against the applicants that in furtherance of criminal conspiracy they have misappropriated the substantial quantity (8806.7553 tonnes) of coal causing wrongful loss of about Rs.1,33,16,782/- to the W.C.L. It is not disputed by the applicants that applicant no.1 was working as Area Manager of Gauri Open Cast Mine-1 of Ballarpur Area and the applicant no.2 was working as Mines Manager of Gauri Open Ca-st Mine-1 during the relevant period. It is not the case of the applicants that they being Sub Area Manager and Mines Manager, they had no control or dominion over the coal, as alleged by the prosecution. The applicants are relying on some communications which are issued under the Right to Information Act and are contending that there is neither any shortage nor "write of" of coal during 2010-2011. It cannot be said that the communications, on which the applicants are relying, convincingly demonstrate that the prosecution version is totally absurd or preposterous. The learned Special P.P. has rightly pointed that prima facie material exists against the applicants for prosecuting them and that the competent authority, after considering that material has granted sanction for prosecuting the applicants.

8. In the judgment given in the case of Rukhmini Narvekar V/s. Vijaya Satardekar and others, [2008 ALL SCR 2279] (cited supra) the Hon'ble Supreme Court has laid down, in paragraph no.22, as follows:

"22. Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi' case 6, there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted."

The learned advocate for the applicants has not been able to show that the present case is one of the exceptional cases and that the documents (communications) produced by the applicants convincingly demonstrate that the prosecution version is totally absurd or concocted.

Considering the facts of the case and the proposition laid down in the judgment given in the case of Rukhmini Narvekar v. Vijaya Satardekar and others, [2008 ALL SCR 2279] the other judgments referred by the learned Advocate for the applicants, do not assist the applicants.

9. In my view, the impugned order passed by the learned Additional Sessions Judge rejecting the prayer of the applicants to discharge them from the prosecution does not require any interference. The revision application is dismissed with costs quantified at Rs.20,000/-, out of which Rs.10,000/- shall be paid by the applicant no.1 and Rs.10,000/- shall be paid by the applicant no.2, to the non-applicant within one month.

As the proceedings are of 2013, the learned Special Judge should endeavour to dispose the proceedings till 30th May, 2016.

Application dismissed.