Criminal Revision Application No. 25 of 2019

20th September 2019

Petitioner Counsel: Mr. S. P. Dharmadhikari Mr. C. S. Dharmadhikari
Respondent Counsel: Mr. M. J. Khan
Act Name: Indian Penal Code, 1860 Prevention of Corruption Act, 1988 Code of Criminal Procedure, 1973

Section :
Section 109 Indian Penal Code, 1860 Section 420 Indian Penal Code, 1860 Section 120-B Indian Penal Code, 1860 Section 13(1)(c) Prevention of Corruption Act, 1988 Section 13(1)(d) Prevention of Corruption Act, 1988 Section 13(2) Prevention of Corruption Act, 1988 Section 227 Code of Criminal Procedure, 1973 Section 228 Code of Criminal Procedure, 1973

Cases Cited :
Para 9: Union of India Vs. Prafulla Kumar Samal and another (1979) 3 SCC 4
Para 9: Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 Supreme Court Cases 368
Para 10: State of Bihar Vs. Ramesh Singh (1977) 4 Supreme Court Cases 39
Para 20: Munna Devi Vs. State of Rajasthan and another AIR 2002 Supreme Court 107
Para 20: Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary and Ors. AIR 2009 Supreme Court 9
Para 20: Vijay Dhondiram Kamble, Rajendra Dhondiram Kamble Vs. State of Maharashtra, Vilas Namdev Kamble 2008(2) Mh.L.J. (Cri)458
Para 21: Soma Chakravarty Vs. State Through CBI (2007) 5 Supreme Court Cases 403

JUDGEMENT

By this revision application, the applicant (original accused No.6), has challenged order dated 10/09/2018, passed by the Court of District Judge – 11, Nagpur (Trial Court), whereby application for discharge moved by the applicant herein was rejected.

2. An FIR dated 30/04/2017, was registered in the present case against the applicant and other accused persons for offences under Sections 13(1)(c), 13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988 and Sections 109, 420 R/w 120-B of the Indian Penal Code. The incident in respect of which the FIR was registered had allegedly taken place on 20/06/2006. Some of the accused persons were officials of the Vidharbha Irrigation Development Corporation while the others, like the applicant herein were the employees of a private entity called “M/s Hindustan Construction Company Limited”.

3. The case of the prosecution against the accused persons in the present case was that they had all entered into a criminal conspiracy to cause undue losses to the State Government and that the accused who were officials of the Vidharbha Irrigation Development Corporation and employees of the said M/s Hindustan Construction Company Limited i.e. co-accused had hatched the said conspiracy when tenders were being awarded for works in Ghodazari branch canal of the Vidharbha Irrigation Development Corporation. The allegation against the applicant was that at the relevant time, he was working as General Manager (Business Development) with M/s Hindustan Construction Company Limited and that he was party to the activities undertaken by the said company for caterlization along with other bidders, in order to cause illegal loss to the State Government to the tune upto Rs.7.81 Crores.

4. On the basis of investigation conducted by the investigating agency, chargesheet was submitted on 31/07/2018, before the Court below, wherein charges were levelled against the accused persons, including the applicant herein for the aforesaid offences. At this stage, applications were filed by the accused persons, including the applicant herein for discharge, under Section 227 of the Code of Criminal Procedure. The application filed by accused Nos.1 to 5 i.e. the officials of the Vidharbha Irrigation Development Corporation was allowed and they were discharged on the ground that proper sanction was not obtained before launching prosecution against them. The said order has been made subject matter of challenge before this Court in separate proceeding, which is said to be pending.

5. The application for discharge filed on behalf of the applicant (Exh.51), was however rejected by the Trial Court by holding that there was sufficient material on record disclosing existence of all required ingredients of alleged offences and of the role of the applicant in hatching conspiracy in question. The said order passed on 10/09/2018, is made subject matter of challenge in the present revision application.

6. Mr. S.P. Dharmadhikari, learned senior counsel appearing with Mr. C.S. Dharmadhikari, learned counsel for the applicant submitted that even if material placed on record by the investigating agency in the form of chargesheet and supporting documents, was to be accepted as it is, no case of suspicion leave alone grave suspicion was raised against the applicant and that, therefore, the Trial Court had committed grave error in rejecting the application filed by the applicant. It was submitted that the only role attributed to the applicant was that he had addressed a communication to the bank requesting for issuance of 3 demand drafts to be submitted with an application on behalf of the said company i.e. M/s Hindustan Construction Company Limited as also for applications being submitted by other bidders. It was submitted that the said letter was issued on the basis of specific written instructions given by accused No.7, who was working as Senior Vice President of M/s Hindustan Construction Company Limited and that since the said communication had been issued by the applicant in the normal course of his official work, no criminality could be attributed to the said action of the applicant. It was submitted that in absence of any other material against the applicant, he ought to have been discharged by the Trial Court. The learned senior counsel placed reliance on Judgments of the Hon'ble Supreme Court in the context of the manner in which jurisdiction was to be exercised by the Court under Section 227 of the Code of Criminal Procedure, while considering an application for discharge. Reference would be made to the said Judgments at the appropriate place in this Judgment.

7. Mr. M.J. Khan, learned APP appearing on behalf of the respondent State submitted that revisional jurisdiction was to be sparingly exercised by this Court and that in view of the law laid down in that context, the facts and circumstances of the present case did not justify invoking revisional jurisdiction in favour of the applicant herein. It was further submitted that proper application of law laid down by the Hon'ble Supreme Court and this Court in the context of Section 227 of the Code of Criminal Procedure would show that there was no error committed by the Trial Court in rejecting the application for discharge filed by the applicant and that, therefore, the present revision application deserved to be dismissed. The learned APP also referred to various Judgments, which shall be adverted to at the relevant place in this Judgment.

8. Heard learned counsel for rival parties and perused the material placed on record. Before analyzing as to whether the Trial Court was justified in rejecting the application for discharge and whether the applicant deserved to be discharged in the present case, it would appropriate to refer to the relevant Judgments.

9. In the case of Union of India Vs. Prafulla Kumar Samal and another (1979) 3 SCC 4, the Hon'ble Supreme Court identified broad principles for exercising power under Section 227 of the Code of Criminal Procedure. These principles were reiterated and further elaborated by the Hon'ble Supreme Court in its Judgment in case of Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 Supreme Court Cases 368. It was held in paragraph No.21 as follows :

“21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge :
(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.”

10. In fact, in an earlier Judgment in the case of State of Bihar Vs. Ramesh Singh (1977) 4 Supreme Court Cases 39, in the context of Section 227 of the Criminal Procedure Code, the Hon'ble Supreme Court had held as follows :

“If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.”

11. The said principles need to be applied to the facts of the present case and material brought on record on behalf of the prosecution, to examine as to whether the application for discharge filed on behalf of the applicant deserved to be allowed.

12. In the present case, FIR was registered on 30/04/2017, while the incident in question is said to have taken place on 20/6/2006. It is the case of the prosecution that the applicant working as General Manager (Business Development) with M/s Hindustan Construction Company Limited had been party to the criminal conspiracy whereby huge loss was caused to the Government exchequer in the process of implementation of said project for the Vidharbha Irrigation Development Corporation. The applicant was said to have been party to the said conspiracy wherein officials of the Vidharbha Irrigation Development Corporation abused their official position at the behest of the applicant and other officials of M/s Hindustan Construction Company Limited to bring the final offer price within 5% of the upgraded costs, thereby causing unlawful gain to the said company and illegal loss to the State Government to the tune of Rs.7.81 Crores.

13. The specific allegation against the applicant was that he was party to the process of preparation of 3 demand drafts in the name of Executive Engineer, Gosikhurd Right Bank Canal Division, all prepared from the account of M/s Hindustan Construction Company Limited, in order to be illegally used for bids and applications submitted not only on behalf of the said company, but, also on behalf of other private entities. It was alleged that investigation had demonstrated that the said two private entities were not aware of such applications being made illegally on their behalf by M/s Hindustan Construction Company Limited and that the whole set of actions to which the applicant was also party, had been undertaken for illegal cartelization in conspiracy that officials of Vidharbha Irrigation Development Corporation, to cause the aforesaid huge loss to the State Government. It was contended that since the applicant was party to such activities, he was liable to be charged with the said offences along with co-accused persons.

14. As noted above, the accused No.1 to 5, being officials of the Vidharbha Irrigation Development Corporation have been discharged by the Trial Court due to improper sanction for their prosecution. It is an admitted position that one of the co-accused person died and that now only the applicant and the co-accused No.7 i.e. Senior Vice President of M/s Hindustan Construction Company Limited are the accused persons.

15. In this backdrop, it needs to be analyzed as to whether the contention raised on behalf of the applicant is sustainable, that the material on record before the Trial Court, even if taken to be true, would not raise any suspicion or grave suspicion against the applicant and, therefore, he was entitled to be discharged. A perusal of the crucial letter being held against the applicant shows that it is a communication dated 27/09/2006, signed by the applicant and an authorized signatory on behalf of M/s Hindustan Construction Company Limited. It was addressed to the State Bank of India (Commercial Branch), wherein account of the said company exists. By the said communication, a request was made to the Bank to issue 3 demand drafts of Rs.45,59,000/- each in favour of the Executive Engineer, Gosikhurd Right Bank Cananl Division, Brahmapuri. There is also a document in the form of official noting, showing that that the accused No.7 gave a specific direction for preparation of the said 3 demand drafts and the said direction was dated 26/09/2006. The said accused No.7, in his recorded statements specifically stated that the representatives of the aforesaid private entities / contractors interested in the tender for the said work of Vidharbha Irrigation Development Corporation, had met him and requested that demand drafts were required for EMD amount to be deposited in that context. It was stated by the accused No.7 that the said representatives stated that if M/s Hindustan Construction Company Limited deposited EMD amount for the time being and work was allotted to such contractors, the company could be granted sub-contracts upto 30% to 40% of the work. The accused No.7 further stated that having worked in the same field for years and since such discussions concerning commercial decisions were always orally undertaken, he had given the aforesaid direction for preparation of 3 demand drafts for Rs.45,59,000/-.

16. Thus, the said statement of accused No.7 read with official noting dated 26/09/2006 and the letter in question 27/09/2006, signed by the applicant show that the applicant had forwarded the request for preparation of 3 demand drafts to the bank as part of his official duty on specific instructions of accused No.7. The applicant had undertaken the said act as part of his official duty being General Manager (Business Development). It is claimed that the applicant ceased to be an employee of M/s Hindustan Construction Company Limited on 06/02/2007.

17. The question is, whether the said material demonstrates that even if the prosecutor proposes to adduce evidence in support of the said material and even if it is fully accepted before its challenge in cross-examination or rebutted by defence evidence, it could show that the applicant could be suspected of having committed the offence. If such material gives rise to two possible views and one of such view gives rise only to suspicion as distinguished from grave suspicion, power could be exercised for discharging the applicant at this stage itself. Applying the principles laid down by the Hon'ble Supreme Court in the above quoted Judgment, it becomes clear that the Court is entitled to sift and weigh the material on record for limited purpose of finding out as to whether or not prima facie case was made out against the accused. The Court is entitled to examine the theory being put forward by the prosecution or broad probabilities of the case or whether it is opposed to common sense.

18. In the present case, although the Trial Court had referred to the relevant position of law, while rejecting the application for discharge filed by the applicant, it has come to the conclusion that the prosecution has undoubtedly made out a prima facie case against the applicant and further that the material on record discloses existence of all required ingredients for the alleged offences of hatching conspiracy. The said finding of the Trial Court is based on erroneous appreciation of the material on record and principles laid down in the context of Section 227 of the Criminal Procedure Code, have not been appropriately applied to the facts of the present case.

19. On proper appreciation of the material on record, this Court is of the opinion that the only material against the applicant referred to above in the form of letter dated 27/09/2006, when appreciated in the context of official noting dated 26/09/2006 and statement of accused No.7, show that it is not enough to raise grave suspicion against the applicant and that he deserved to be discharged in the present case. The material on record is not sufficient to force the applicant to face the rigours of trial, which the Trial Court failed to appreciate while passing its order dismissing the application for discharge filed by the applicant.

20. In this context, it would be relevant to refer to the Judgments relied upon by the learned APP in the context of limited power available to this Court while exercising revisional jurisdiction. The learned APP relied upon Judgments of the Hon'ble Supreme Court Judgment in cases of Munna Devi Vs. State of Rajasthan and another AIR 2002 Supreme Court 107, Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary and Ors. AIR 2009 Supreme Court 9 and Judgment of this Court in the case of Vijay Dhondiram Kamble, Rajendra Dhondiram Kamble Vs. State of Maharashtra, Vilas Namdev Kamble 2008(2) Mh.L.J. (Cri)458. In all these Judgments it has been reiterated that revisional jurisdiction is to be exercised in exceptional circumstances when there is glaring defect or manifest error in the order under challenge. Even if the exercise of revisional jurisdiction is limited in its scope, if this Court finds that the findings rendered by the Trial Court are clearly erroneous and that the applicant ought not to be forced to face the rigours of trial, revisional jurisdiction can be exercised. In the present case, this Court finds that the only material on which the prosecution has placed reliance to claim that charge needs to be framed against the applicant, is wholly insufficient and that the applicant deserves to be discharged.

21. In this context, the learned APP placed much reliance on the Judgment of the Hon'ble Supreme Court in the case Soma Chakravarty Vs. State Through CBI (2007) 5 Supreme Court Cases 403, to contend that even if the applicant had signed the said letter / communication dated 27/09/2006, during official course of duty, he could not escape liability. But, a perusal of the facts of the said case before the Hon'ble Supreme Court shows that the accused had signed a document pertaining to a duty which was never assigned to her and that she had processed certain bills that were not even sanctioned / approved by Competent Authority. The distinguishing facts in the present case are that the accused No.7 during the course of official duty had specifically directed preparation of 3 demand drafts and it is on such instructions that the applicant had merely sent the request to the bank for preparation of 3 demand drafts and that too along with signature of an authorized signatory who was not even arrayed as accused. Thus, the said judgment would not take a case of respondent State any further.

22. In view of the above, applying well settled principles for consideration of application for discharge under Section 227 of the Criminal Procedure Code, it becomes evident that the Trial Court in the present case committed grave error by passing impugned order dated 10/09/2018, rejecting the application for discharge filed by the applicant.

23. Accordingly, the present revision application is allowed. The impugned order passed by the Trial Court is quashed and set aside and the application for discharge (Exh.51), filed by the applicant is allowed.