Gujarat High Court
Rajesh Nanubhai Jhaveri vs Central Bureau Of Investigation on 14 March, 2024
NEUTRAL CITATION
R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 535 of 2015
With
R/CRIMINAL REVISION APPLICATION NO. 682 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question YES
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAJESH NANUBHAI JHAVERI
Versus
CENTRAL BUREAU OF INVESTIGATION & ANR.
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Appearance:
MR KINNAR A SHAH(3290) for the Applicant(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
LD.SPE.P.P.MR RC KODEKAR(1395) for the Respondent(s) No. 1
MR JIRGA JHAVERI, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 14/03/2024
ORAL JUDGMENT
1.This revision application is filed under Section 397 read with 401 of the Code of Criminal Procedure, 1973 ('the Cr.P.C.' referred hereinafter) challenging the order Page 1 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined passed by the learned Additional Sessions Judge, Special Court at CBI Court No.1 dated 20.08.2015 in Special Case No.9 of 2008 below Exhibit 27 whereby the application preferred by the present applicant seeking discharge from the charges punishable under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988 came to be rejected.
2.The case of the prosecution is that CBI has registered an offence for the above mentioned charges against the accused No.1, namely, Ashutosh Chandra (the then Senior Divisional Commercial Manager, Western Railway, Ahmedabad) on 31.01.2005. It has been alleged in the aforesaid case that accused No.1 Ashutosh Chandra joined Railway during 1995 as an Operational Manager, the check period was from 01.03.1996 to 02.02.2005, during this period it was revealed that an amount of Page 2 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined Rs.1,11,25,000/ was detected to have been received into the Bank account of Shri Ashutosh Chandra and his family member to their various Bank accounts maintained at Ahmedabad and it was found that same was disproportionate to his known source of income for which he could not furnish any satisfactory explanation. During the course of investigation, the CBI arraigned 12 persons as accused including the present applicant. Charge against the present applicant was that from the Bank account No.971 of M/s.Rajesh N. Jhaveri sole proprietor concerned through eight cheques an amount of Rs.24 Lakh was transferred into the account of Mr.Chandrika Prasad as well as Mrs.Chandrakanti Sinha who are parents of accused No.1 Ashutosh Chandra. This amount was transferred through cheque wherein the signature of Mr.Gautam Jhaveri was made as a Page 3 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined proprietor of M/s.Rajesh N. Jhaveri. On the basis of this cheuqe the applicant was arraigned as accused and the chargesheet was filed against the present applicant. 2.1. The present applicant after filing the chargesheet has filed, an application below Exhibit 27 praying to discharge from the charges on the ground that firm,namely M/s.Rajesh N. Jhaveri is not the sole ownership of the present applicant. It is contended in the application that the applicant is not account holder of A/c No.971 of Canera Bank of India, Ahmedabad Stock Exchange Branch, Ahmedabad along with an application he filed a certificate issued by the Bank stating that M/s.Rajesh N. Jhaveri's account No.1023356205(CD971) is a proprietorship firm, the account was opened by the proprietor, namely, Gautam Page 4 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined N. Jhaveri in the Branch on 23.04.1999 and is being maintained with the branch till date. This certificate was issued on 05.12.2011. By producing this certificate, it is contended that as except the charge that the amount was transferred from the current account No.971 wherein the firm which was stated to have been opened in the name of the applicant, was not the proprietorship firm of the applicant and except this allegation, no other allegations were made, therefore, prayer was made to discharge from the charges alleged in the chargesheet.
2.2. The said application came to be rejected by the learned trial Court vide order dated 20.08.2015 on the ground that there is a grave and serious suspicion against the present applicant and therefore, Page 5 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined prosecution is required to be given one opportunity to prove the case. The authority to operate the Bank account or the real ownership of the firm or whether accused was having any interest in the firm is required to be proved through the evidence during the trial and therefore, the application for seeking discharge from the charges came to be rejected, the same is impugned before this Court.
3.Heard the learned advocate Mr.Vishal Anandjiwala for the applicant and learned Special Public Prosecutor Mr.R.C.Kodekar for respondent No.1.
4.Learned advocate Mr.Anandjiwala submits that the cheque which was the base for the prosecution against the present applicant was signed by Mr.G.N.Jhaveri as a proprietor of M/s.Rajesh N. Jhaveri. Learned advocate Page 6 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined Mr.Anandjiwala submits that Mr.G.N.Jhaveri is neither accused nor witness in the chargesheet filed by the prosecution and except this evidence no other material was placed on record showing the involvement of the present applicant.
4.1. Learned advocate Mr.Anandjiwala submits that certificate which was issued by the Bank, namely Central Bank of India dated 05.12.2011 which was annexed with the application below Exhibit 27 suggests that the account was operated by Mr.Gautam N.Jhaveri as a proprietor of M/s.Rajesh N.Jhaveri since 23.04.1999. Learned advocate submits that merely because the account was operated in the name of firm M/s.Rajesh N.Jhaveri, the applicant was arraigned as accused in the case. 4.2. Learned advocate Mr.Anandjiwala submits Page 7 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined that, the reasons assigned by the learned trial Court while rejecting the application is that there is a grave and serious suspicion against the applicant and therefore, the opportunity is required to be given to the prosecution to prove the case during the trial. Learned advocate Mr.Anandjiwala submits that, at the stage of framing the charge, the Court has to see that, is there any sufficient ground for presuming that the accused has committed an offence and if the answer is in affirmative then order of discharge cannot be passed and accused have to face the trial, but if the answer is in negative then learned trial Court certainly can exercise the power to discharge the accused from the charges. 4.3. With the aforesaid submissions, learned Page 8 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined advocate Mr.Anandjiwala prays to quash and set aside the impugned judgment and order of the trial Court and allow this application by discharging the present applicant from the charges.
5.On the other hand, learned Special Public Prosecutor Mr.R.C.Kodekar submits that, the FIR impugned was registered against one Ashutosh Chandra (the then Senior Divisional Commercial Manager, Western Railway, Ahmedabad) on 31.01.2005 with allegation that he has amassed the assets, disproportionate to his known source of income to the extent of Rs.7,48,630/. After conclusion of the trial, chargesheet was filed against Mr.Chandra and his family members and other private persons including the present applicant, Mr.Rajesh Jhaveri for the offence punishable under Section 109 of the Indian Page 9 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined Penal Code and Section 13(2) r/w Section 13(1)(e) of Prevention of Corruption Act, 1988.
5.1. Learned Special Public Prosecutor Mr.Kodekar further submits that the applicant was arraigned as accused as he had abated the accused, who is the public servant and evidence comes on the record that the applicant got Rs.24 Lakh transferred from the account No.971 at Central Bank of India, Stock Exchange Branch, Ahmedabad which stands in the name of the proprietorship firm of Mr.Rajesh Jhaveri. The said amount was transferred to the account of parents of the accused, public servant and subsequently said funds were utilized for the purchase of various movableimmovable assets by the accused public servant.
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NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined 5.2. Learned Special Public Prosecutor Mr.Kodekar submits that, further evidence comes on the record that initially the amount of Rs.32,60,000/ was credited by way of different vouchers/cheques by Shri Mohan C. Shah, Chartered Accountant, who is also accused in the present case through his firm, namely, C.B.Rathod during the period from 03.09.2003 to 11.09.2003 on four instances. Subsequently, out of the aforesaid amount, Rs.24 Lakh got credited by M/s.Rajesh Jhaveri through different cheques in the account Nos.28510 and 28529 of IDBI Bank, Boadakdev Branch, Ahmedabad which runs in the name of Shri Chandrika Prasad and Smt.Chandrakanti Sinha, who are the parents of the public servant, namely, Ashutosh Chandra. The aforesaid amount was Page 11 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined transferred in eight instances during the period of 11.09.2003 to 18.09.2003, thereafter, the aforesaid funds were withdrawn and untilized for purchase of the flat being No.C301 and C304 at Silver Spring, Lokhandwala Complex, Andheri, Mumbai. Thus, aforesaid transactions were highly suspicious and clearly establish the nexus between the present applicant accused with the Mohan C. Shah, Ashutosh Chandra and his parents. 5.3. Learned Special Public Prosecutor Mr.Kodekar further submits that, along with the present applicant, other private persons namely Mohan C. Shah, Mr.Rakesh Sheth, Mr.R.K.Patel and both the parents of the accusedpublic servant have also been chargesheeted for abetment in the present case.
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NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined 5.4. Learned Special Public Prosecutor Mr.Kodekar further submits that, private persons in the similar matter have credited different amounts in the account of parents of the accused public servant and subsequently said funds were also utilized for purchasing movable as well as immovable assets by the accusedpublic servant in his own name as well as in the name of other family members.
5.5. Learned Special Public Prosecutor Mr.Kodekar submits that as per the investigation, total amount of Rs.84 Lakh got credited in the account of the parents of the accusedpublic servant by Shri Rajesh Jhaveri, Shri Rakesh Sheth and Shri R.K.Patel all private persons in the business, share, brokerage and money lending at the instance of Shri Mohan C. Page 13 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined Shah Chartered Accountant, who was managing the work of filing the Income Tax Return of the accusedpublic servant. 5.6. Learned Special Public Prosecutor Mr.Kodekar submits that, during the investigation polygraph test of the present applicant, Mr.Ashutosh Chandra, Mr.Mohan C. Shah and Mr.Rakesh Shah was done at DFS, Gandhinagar and as per the report received from the forensic expert, Mr.Mohan Shah, Mr.Rajesh Jhaveri and Mr.Rakesh Sheth were found to have been connected with Mr.Ashutosh Chandra in money transaction and it was opined that so called loan amount deposited in the Bank account of the parents of Ashutosh Chandra is fake and loan was shown only for accounting purpose.
5.7. Learned Special Public Prosecutor Page 14 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined Mr.Kodekar submits that after examining all materials, the learned trial Court comes to the conclusion that the prosecution is required to give opportunity to prove its case during trial by leading evidence and therefore, learned trial Court has rightly rejected the application filed by the present applicant and therefore, no interference is required.
6.Considering the submissions advanced by the learned advocates for the respective parties, as per the allegation made in the charge sheet it transpires that the amount of Rs.24 Lakh has been transferred through the cross cheque from Bank account No.979 of Central Bank of India wherein the signature was made by Mr.G.N.Jhaveri as a proprietor of M/s.Rajesh N. Jhaveri. This amount was Page 15 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined transferred in the account of parents of the accusedpublic servant, namely, Mr.Ashutosh Chandra.
7.The Investigating Officer has also collected the cheque which was issued by M/s. Rajesh N. Jhaveri in favour of the accused Nos.2 and 3 to establish the case against the accused, namely, Ashutosh Chandra with regard to the disproportionate of assets.
8.Chargesheet which was laid for the offence punishable under Section 109 of the Indian Penal Code and Section 13(2) r/w Section 13(1)(e) of the Prevention of Corruption Act, 1988. The said provisions are reproduced herein below for the convenience of the Court:
"Section 109:Punishment of abetment if the act abetted is committed in consequence and when no express provision is made for its punishment.Page 16 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024
NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation.--An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
Section 13(2): Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than (four years) but which may extend to (two years) and shall also be liable to fine.
Section 13(1):A public servant is said to commit the offence of criminal misconduct-
*** 13(1)(e): if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income."Page 17 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024
NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined
9.The material which was placed by the Investigating Officer to show the involvement in the offence against the present applicant is only the cheques through which the amount was transferred, the said cheques are part of chargesheet wherein the signature of Mr.G.N.Jhaveri was made as a proprietor of M/s.Rajesh N. Jhaveri. Perusing the chargesheet, it transpires that neither the statement of Mr.G.N.Jhaveri was taken nor he was impleaded as an accused in the offence. The name of the applicant is Mr.Rajesh N.Jhaveri in whose name the account was opened as a proprietorship firm, however, from the Bank certificate which was produced along with the application seeking discharge showing that the account was opened by Mr.Gautam N.Jhaveri on 23.05.1999 as the proprietor of M/s.Rajesh N. Jhaveri. Page 18 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024
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10. It is true that the grave and serious suspicion is raised then the trial is required to be permitted and the prosecution is required to give the opportunity to lead the evidence, but at the same time, if there is no legal evidence then framing of charge would be groundless and compelling the accused to face the trial is contrary to the procedure offending under Article 21 of the Constitution of India. The learned judge while considering the question of framing of charge under section 227 of the Cr.P.C. has undoubtedly power to shift and wait to the evidence for the limited purpose of finding out whether or not prima facie case against the accused has been made out or not. Section 227 of the Cr.P.C. provides for discharge from the charges which reads as under:
"Section 227:Discharge:- If, upon consideration of the record of the case and documents submitted therewith, Page 19 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
11. The words "no sufficient ground for proceedings against the accused" appearing in the section postulate exercising of judicial mind on the part of the judge to the fact of the case in order to determine whether a case for trial has been made out by the prosecution or not.
12. From the material collected during the investigation, there was no iota of evidence suggesting the involvement of the applicant and where there is no material collected during the investigation then framing of charge would be ground less.
13. Merely by saying that grave suspicion would not be ground for not exercising the Page 20 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined power under Section 227 of the Cr.P.C. The learned trial Court has to satisfy itself that the material which was placed by the prosecution to frame the charge, disclose the existence of the ingredients constituting the offence. If the court would satisfy that the accusation made against the applicant, is a frivolous then instead of sending the accused to face the trial, the learned trial Court could have exercised the powers under Section 227 of the Cr.P.C. and could have discharged the applicant from the charges.
14. The material, even if, accepted on the face value suggests that the money was transferred from the account of M/s.Rajesh N.Jhaveri to the cheque which was signed by Mr.G.N.Jhaveri as a proprietor of M/s.Rajesh N.Jhaveri. The evidence which was collected i.e. the cheque, also not revealed any involvement of the present applicant and Page 21 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined therefore, this Court is of the view that application preferred by the present applicant requires to be considered and applicant is required to be discharged from the offence punishable under Sections 109 of the Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act.
15. This Court has also considered principles laid down by the Apex Court in case of Vishnu Kumar Shukla and another vs. State of Uttar Pradesh and Anr., reported in 2023 SCC OnLine SC 1582:
"20.In State of Tamil Nadu v N Suresh Rajan, (2014) 11 SCC 709, it was observed notwithstanding the difference in language of Sections 227 and 239, CrPC, the approach of the Court concerned is to be common under both provisions. The principles holding the field under Sections 227 and 228, CrPC are wellsettled, courtesy, inter alia, State of Bihar v Ramesh Singh, (1977) 4 SCC 39; Union of India v Prafulla K Samal, (1979) 3 SCC 4; Stree Atyachar Yes, the allusion is to Robert Frost's celebrated poem - The Road Not Taken. Virodhi Parishad v Dilip N Chordia, (1989) 1 SCC 715;Page 22 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024
NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined Niranjan Singh Karam Singh Punjabi v Jitendra B Bijjaya, (1990) 4 SCC 76; Dilawar B Kurane v State of Maharashtra, (2002) 2 SCC 135; Chitresh K Chopra v State (Government of NCT of Delhi), (2009) 16 SCC 605; Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460; Dinesh Tiwari v State of Uttar Pradesh, (2014) 13 SCC 137; Dipakbhai Jagdishchandra Patel v State of Gujarat, (2019) 16 SCC 547; and State (NCT of Delhi) v Shiv Charan Bansal, (2020) 2 SCC 290. We need only refer to some, starting with Prafulla K Samal (supra), where, after considering Ramesh Singh (supra), K P Raghavan v M H Abbas, AIR 1967 SC 740 and Almohan Das v State of West Bengal, (1969) 2 SCR 520, it was laid down as under:
'10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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.
(2) 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.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By Page 23 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024 NEUTRAL CITATION R/CR.RA/535/2015 JUDGMENT DATED: 14/03/2024 undefined and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.'
16. Resultantly, this application is allowed. The applicant is discharged from the FIR being No.R.C.02(A)/2005GNR registered with CBI Office, Ganghinagar on 31.01.2005 and Special Case No.9 of 2008 pending with the Court of learned Additional Sessions Judge, Special Court, CBI at Ahmedabad.
(M. K. THAKKER,J) M.M.MIRZA Page 24 of 24 Downloaded on : Fri Mar 29 21:01:26 IST 2024