Calcutta High Court (Appellete Side)
Central Bureau Of Investigation vs Shri S. P. Sengupta & Ors on 29 August, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Toufique Uddin
CRA 632 of 2011
CENTRAL BUREAU OF INVESTIGATION
-vs-
SHRI S. P. SENGUPTA & ORS
For Appellant : Mr. Ashraf Ali
For the respondent No. 3: Mr. Susil Kumar Mahata
For the respondent No. 4: Mr. Sandipan Ganguly
Mr. Gautam Bandhu Chowdhury
For the respondent No. 2.: Mr. Biplab Mitra
Mr. Sourav Chatterjee
Mr. Trina Mitra
For the respondent Nos
1 & 5. Mr. S.S. Roy
Ms. Minoti Gomes.
Heard on :
Judgment on : 29.8.2013
Toufique Uddin, J :
This appeal arose out of judgment and order dated 21st March, 2011 passed by the learned Judge, First Special Court, Alipore, 24- 2 Parganas (South) in connection with Special Case No. 9 of 1997 arising out R.C. No. 6/S/1995 and thereby acquitting the accused persons punishable under Section 120B/420 of the Indian Penal Code and under Section 13(2) read with Section 13(1)(d) of the Prevention and Corruption Act, 1978.
In the background of this appeal, the fact in a nutshell is as follows:-
On 22.6.1995 Shri A.M. Marwah, Chief Plant Manager of Indian Oil Blending Ltd. of P-68, Karl Marx Sarani, Paharpur, Kolkata -43 lodged a written complaint before SP/CBI narrating the fact that two trucks bearing Nos. WB-03-1219 and WMQ-245 with packed lubricants worth Rs. 12 lacs (approxi) were loaded on 5.4.1994 and 25.4.1994 respectively at IOBL Godown at Paharpur, Kolkata for its delivery at Ranigunj and Bastacola (Dhanbad) Lube Godwns through their authorized transporters M/s Durga Transport Corporation. But the said trucks did not deliver the materials at the aforesaid destination. On internal investigation, it was suspected that the 3 representative of the transporter and some other outsiders involved in the act of malpractice regarding non-delivery of the consignment at the destination of the plant.
On the basis of the written complaint, CBI registered the case as RC No. 6/S/1997 and after investigation the Investigating authority submitted charge sheet under Section 120B/420 of the Indian Penal Code and under Section 13(2) read with Section 13(1)(d) of the Prevention and Corruption Act, 1988 against the accused Nos. 1,2,3 and 4, under Section 120B/420 of the Indian Penal code against the accused No. 5, Bidhan Chandra Majhi.
On hearing of both sides, charges were framed under the above noted Sections.
The contents of the charges were read over and explained to the accused persons, who pleaded not guilty and claimed to be tried.
To contest this case, the prosecution examined as many as 25 witnesses, while the defence side examined two witnesses.
The defence case, is denial of offence with a plea of innocent. On trial, the learned trial court below acquitted the accused persons by the impugned judgment.
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It has to be seen if the impugned judgment suffers from any material irregularity and calls for any interference or not.
The relevant Sections read as follows :
Section 120B-
"120B.- Punishment of criminal conspiracy:- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2(imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Section 420.
420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable secutrity, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Of fraudulent deeds and dispositions of property.
13(2). Criminal misconduct by a public servant. - (3) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which 5 shall be not less than one year but which may extend to seven years and shall also be liable to fine.
13(1)(d) Criminal misconduct by a public servant- (1) A public servant is said to commit the offence of criminal misconduct,-
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) which holding offence as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or The learned lawyer of the C,.B.I advanced oral arguments. The learned Advocates on behalf of the opposite party nos. 3 and 4 also submitted separate written arguments. Their arguments are found on the same line of attack as the opposite party no. 2 did.
To appreciate the case from a better angle some pieces of evidences are required to be mentioned.
The FIR is Exhibit - 44. The written complaint is Exhibit 1/1. Therein, it was stated that regular transportation of packet lubricants are made through authorized transporters to the various upcountry locations and accordingly, in the month of April, 1994, the 6 complainant's company (Lube Blending Plant) loaded two trucks of packet lubricants (drums) in Truck Nos. WB-03-1219 and WMQ 245 for onward delivery to Raniganj and Bastacola (Dhanbad) lube godowns. But lubricants were not delivered.
P.W. 1 is the de-facto complainant. He is presently the Deputy General Manager, Lube Trombay Mumbai-74. He stated how the trucks were loaded after observing paraphernalia but those did not reach the destination at unloading point. He lodged the complaint for missing of aforesaid two trucks on 5.4.1994 and 25.4.1994. He deposed regarding procedure to load and prepare documents thereof viz., AC-20, AC-5, etc. His cross-examination shows that the whole set of officers /staff who were earlier looking after the entire subject of supplies and distribution were withdrawn on the same day. He had no knowledge as to whether there was a domestic enquiry.
P.W. 2 is a retired Senior Manager (Operation). He was declared hostile.
P.W. 3 is the Senior Foreman, IOBL at Paharpur. He was working in Loading Section. He made necessary entries in the register 7 and AC- 20 Form No. 245 dated 25.4.1994 in respect of vehicle Nos. WB-03-1219 and WMQ-245.
In cross-examination he has stated that he has no knowledge as to the procedure at that time. He further stated that his duty was to write AC- 20 form only. He denied his duty was to load the materials in the truck with the help of Driver and Khalasi. He stated that he has no knowledge as to the procedure at that time.
P.W. 4 is the Senior Assistant of IOBL. He filled up A/C 20 form. He stated that the register of S & D IOBL is maintained by the officer of S & N department. the number of truck, name of product supplied , number of transporters are written in the register. He has stated that at the relevant time, the accused Miltan Chakraborty used to fill up the loading slips at the instruction of in-charge of S & D department.
P.W. 5 is the Deputy Manager, Plant in-charge of Engineering Department, IOBL, New Mumbai, Maharastra. In 1994 he was Assistant Manager Plant, IOBL Paharpur Calcutta. He proved AC- 20 dated 5.4.1994 in respect of M/s. Durga Transport Corporation of Vehicle No. WMQ-245 and another AC -20 dated 5.4.1994 in respect 8 of M/s. Durga Transport Corporation of Vehicle No. WBQ - 6914. He has stated "it is fact that had the truck Nos. WMQ-245 and WB- 03/1219 being loaded with goods, the copies of the relevant loading slips/ papers were found in the office".
P.W. 6 is a senior Foreman. His duty was to load the truck by contract labours as per entries in A/C 20 in respect of products. He proved the entries in respect of two vehicles.
P.W. 7 is another Security Guard of IOBL, Paharpur. He stated the procedure permitted the truck to inside the plant premises and also go out of the plant. On 5.4.1994 he was present at the gate when truckNo. WMQ 245 came inside the plant and thereafter the vehicle left with the consignment. So it is apparent from the evidence of such witnesses that he had find out the said vehicle while Prokash Chandra Soingh, in-Charge of the Security Department passed in the said vehicle.
P.W. 7's evidence shows that the approved list of truck was not maintained at the office of the Security Gate.
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The prosecution case was that false registration was put on the truck but it is very difficult for the Security Guard to verify it because it does not seem to be their duties.
The respondent no. 4 appears to have only on the basis of the endorsement made in the AC-20 form and AC 5 challans In cross- examination P.W. 21 states that he has not seen the particulars documents on the basis of which he allowed sanctioned order. The FIR appears to have lodged after five months but no explanation has been given for such delay.
P.WS. 8 stated that the representative of the transporter used to produce the AC 20 forms before him to prepare AC 5. Mr. Sourabh Sinha (O.P. No. 3), used to sign AC-5. After preparation of the same, who are the officers to prepare the AC 5 has not been disclosed. It is not clearly established that Mr. Sourabh Sinha is the only one person who was in-charge of preparation of AC 5. So he alone cannot be held responsible. It is nowhere of the evidence that the accused Sourabh Sinha was instructed to follow any procedure or system in functioning S & N section of IOBL where he is all on a sudden posted after withdrawing him from another department of IOBL 10 From the evidence of P.W. 9 also it is available that during the period when truck came inside the plant and thereafter left with the consignment. P.W. 9 did not show about the participation or the presence of the respondent no. 4.
P.W. 10 is the retired Senior Airport terminal-cum-Manager, IOC, Kalai Kunda. He was Manager Lubricant Regional office, IOC Gariahat Road, Calcutta. His job was to float Public Tender to arrange Truck and Transporters through Tender Committee. He issued works order in favour of M/s. Durga Transport Corporation.
P.W. 11 is running Transport Company named and styled of M/s Durga Transport Corporation. He submitted tender. It was accepted. He stated that he submitted Indemnity Bond (Exht. 13 and
14). He stated that trucks mentioned in 3 and 4 series never belonged to them.
P.W. 12 is one of the Partners of M/s. R.S. Sonthalia. He worked under the supervision of Senior Division Manager, IOC Dhanbad. He has stated that he checked but found that the materials covered by Ext. 7 were not received.
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P.W. 13 is an employee of Kolkata Municipal Corporation. He wrote in the register that the vehicle No. WB-03-1219 under KMC was broken down and kept inside the garage during the period 17.8.1993 to 21.8.1993.
P.W. 14 is the registered owner of Truck No. WBQ -245. He stated that since 9.3.1994 for two months the vehicle was in garage for the purpose of repairing.
P.W. 15 was the Deputy Manager Plant of IOBL, Kolkata. He stated that he also produced register before the CBI.
P.W. 16 prepared a seizure list on his production of some documents. He produced the Blue Book of Vehicle No. WB-03-1219. The vehicle belongs to his department of KMC. He also brought movement register and "break down vehicles" register.
P.W. 17 is a formal witness. He proved the signature of Bidhan Majhi. He also proved that Saroj Kumar Singh wrote different types of hand-writing, initials in six pages. Those were marked as 25 series collectively.
P.W. 18 was a retired Deputy General Manager, Indian Oil Corporation. He was aware as regards procedure of selling lubricants. 12 He proved the work order but he stated that Exht. 8 was not prepared in consultation with him rather it bore the signature of T.K. Banerjee, Manager (Operation).
P.W. 19 has a business of garments. He purchased one lorry being No. WMQ-245. He gave it on lease of Shri Naser Mohammed.
P.W. 20 is a Senior Foreman. He proved the daily shipment summary dated 5.4.1994.
P.W. 21 is a retired Executive Director of IOC. He issued sanction for prosecution against the three officers of IOBL, namely, Sourav Sinha, Milton Chakraborty and P.C. Chowdhury, being the competent authority for according sanction.
P.W. 22 is a Research assistant, National atlas & thematic Mapping Organization, his signature was taken along with Milton Chakraborty and Sourav Sinha.
P.W. 23 is the Deputy Government Examiner of questioned documents. He examined some documents and gave opinion.
P.W. 24 is an Inspector of Police posted at Intelligence Branch. He lodged formal FIR. Took up the investigation. Did investigation. Obtained specimen signature of Milton Chakraborty in presence of 13 witness S.R. Bharti. He proved some documents Exhts. 48, 49 and 50 etc., previously also he took specimen signature for verification. He made over the case towards Shri P.K. Nag, for further investigation.
P.W. 25 is another S.P. He completed the investigation and then submitted charge-sheet.
The accused persons denied their involvement while examined under section 313 of the Code of Criminal Procedure.
The learned Advocate for the CBI argued that the judgment of the court below is not at all sustainable in the eye of law and it should be set aside. While arguing the learned Advocate of the appellant, argued mainly on the following points:
That the defence side failed to prove any documents to show that they were authorized agent to carry the lubricants. Conspiracy has been soundly proved in this case.
The learned Advocate of the appellants further drew my attention to the pages 275 to 290 onwards of the judgment. He summed up his argument by stating that this is a case where re-
appraisal of evidence is required to be made and the judgment is a perverse one and requires interference by this court.14
On hearing of both sides and from the materials on record, the following facts emerged.
The alleged loss suffered by IOBL was estimated to the tune of 12 lakhs approximately.
The appellants appear to be the employees of the IOB/IOBL S & D Section of Paharpur Plant. They were previously under the control of Indian Oil Corporation. Only 19.3.1994 the said Section was taken by IOBL and the incident took place during the period of transferring the management from IOC to IOBL. This picture emerges from the evidence of P.W. 1 to 6. Further it appears from the evidence of P.W. 1 that the entire set of officers and staff who were looking after the affairs of S & D Section or IOC were withdrawn on the same day.
The officers and the staff who were deputed to IOBL from IOC at the relevant time were not fully aware about the system of S & D Section. Further it appears from the evidence of P.W. 3 that the respondent nos. 2 and 3 being the new incumbent, in IOBC had no experience in respect of the work in S & D Section. P.W. 3 was given duty of writing register and filling up AC 20 forms. He stated that he had no idea of the procedure or verifying the number of the vehicle 15 with the approved list before entering the number in AC-20 form. The number of the vehicle is recorded in the AC 20 form from the number of the vehicle, mentioned within the loading advice slip.
The allegation as appears from the evidence that the respondents hatched up a criminal conspiracy and allowed vehicles to enter inside the plant and allowed them to be loaded and make exit with lubricants though the vehicles are not approved according to approved list. Needless to mention that approved list is to be maintained in the gate but no such approved list has been proved or produced in this case. The Transporter is one M/s Durga Transport Corporation but their authority does not seem to have been examined by any responsible officer. So it is a mystery who issued necessary pass to come 'in' and who issued to make the vehicle loaded and make necessary pass to go 'out'. These two are vital aspects on which mainly the prosecution case depends. But unfortunately the prosecution could not unfold the fact behind this case to see actually who was the man behind the so-called incident.
The Investigating Officer has neither seized nor produced any approved list from any of the department, namely, S& D, OMS and 16 the gate to show that the respondents were guilty in allowing the vehicles to enter inside the plant whose number does not find place in the alleged approved list. P.W. 3 stated that his duty in the S & D Section was to make entries in the register as per entries in the loading advice slip and then fill up the AC 20 Form. He used to maintain the register since 1994 by his own hand-writing. He approved his entry in AC 20 form No. 245 dated 25.4.1994 in respect of vehicle No. WB-03-1219 Exts. 5 and 6. He further stated that he has no idea as to the procedure of verifying the number of vehicles with the approved list before entering the number of vehicles. Interestingly there is no iota of evidence that this staff was given instruction well-ahead or this staff was allowed the duty to check the number of vehicles with reference to approved list. No such direction or duty chart has been proved in this case. He is working only from 21.3.1994. At that time S & D department was under IOC. So it is clear during the transit period i.e., transfer to some staff from the control of IOC to IOBL, the alleged incident took place. The staff of the IOC who worked in the S & D department was withdrawn prior to 1994. Further it is seen that Milton Chakraborty and Saurav Sinha have no experience in the work of S & D department. 17
It also appears that P.W. 4 did not ascertain from IOBL as to the duties assigned to the officers of S & D section in 1994. Needless to mention that there was an allegation regarding non-supply of material to the IOC godown at Ranigunj and Dhanbad by the said two trucks. Also there was an enquiry regarding M/s Durga Transport Corporation and some outsider. But no such enquiry report has been forthcoming.
The evidence of P.W. 5, P.W.6 and P.W. 9 creates a new dimension in the prosecution case. They have identified the handwriting of one Krishnendu Chowdhury, an officer of OMS department IOBL. He appeared to have made the endorsement 'please allow in'. But that man has not been examined. On the basis of which document and authority he made endorsement 'please allow in' is not clear. This aspect 'please allow in' has a dangerous consequence. But if it is proved that the entry 'please allow in' was not proper, there is a case of the prosecution. It has not been soundly cleared by the prosecution. No noting was seized. Moreover, the officer who was responsible to verify truck number with reference to loading obviously after verification of approved list was also not examined. The Chief Plant Manager, Deputy Terminal Manager, S & D Section had also 18 not been examined. They could have given better ray of light in this case. Stock register of Bastacola (Dhanbad) and Ranigunj godown of Indian Oil Corporation has not also been seized. So it is actually not clear whether they have received the lubricants or not.
The substance of the prosecution case is unauthorized entry of the trucks, getting the same filled with lubricants and escaping with the same without unloading the lubricants at the destination at Bastacola (Dhanbad) and Ranigunj godown. It is a mere bold statement. Sound proof I do not get.
The Ext. 3 is the sanction order. At least it does not show that the sanctioning authority applied his mind because on the hot haste such sanction order was accorded. The basis on which it was accorded is not clear.
In support of her case , the learned Advocate of the accused cited before me the following decisions :
Mansukhlal Vithaldas Chauhan -vs- State of Gujarat reported in 1997(7)SCC 622 therein it was propounded by the Hon'ble Apex Court :19
"The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also: Jaswant Singh v. The State of Punjab MANU/SC/0080/1957: (1957)IILLJ696SC;State of Bihar & Am. Vs P.P. Sharma MANU/SC/0542/1992:
1991CriLJ 1438."
The finding and the conclusion drawn by the Learned Judge in the court below to arrive at a finding of acquittal of acquittal deserves no interference and is well protected with the judgments of the Hon'ble Apex Court which are as follows:-
A) In the case of Rathinam @ Rathinan Vs. State of Tamilnadu and Anr. reported in 2011 (3) SCC (Cri)111, 20 the Hon'ble Apex court in paragraph no. 30 observed as follows:-
"It is now beyond dispute that interference in such an appeal should be made sparingly in a situation where the findings of the High Court are perverse and not possible on the evidence and if two views are possible the one leading to acquittal should not be disturbed. The presumption of innocence which is always raised in favour of an accused is further strengthened by an acquittal and bolsters the claim of the accused."
B) In the case of Arulvelu & Anr Vs. State reported in 2010 (1) SCC (Cri) 288, the Hon'ble Court observed in paragraph no. 36 as follows:-
"Careful scrutiny of all these judgments lead to the definite conclusion that the appellant court should be very slow in setting aside a judgment of acquittal particularly in a case were two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."
Moreover, in paragraph 24 of the said decision, the Hon'ble Apex Court qua "perversity" observed in the following manner:- 21
"The expression 'perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. and Ors. v. Hanuman Prasad (Dead) through LRs. Ors. (2001) 1 SCC 501 this court observed that the expression 'perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity."
The judgment of acquittal in the instant appeal at the behest of the CBI cannot be said to be perverse on such yardstick.
In the case of State of UP Vs. Awdhesh reported in 2010 (4) SCC (Cri) 257, a Three Judges Bench of the Hon'ble Apex Court in paragraph No. 12 thereof observed as follows:-
"In the present case, though the judgment is not happily worded and some of the reasonings are not legally supportable but the ultimate conclusion is a possible view. That being so, we decline to interfere in this appeal which is dismissed. The bail bond executed in the present case by the respondent shall stand discharged."
In the case of Bhim Singh Vs. State of Haryana reported in 2003 SCC(Cri) 1469, a Three Judges Bench of the Hon'ble Apex Court in paragraph No. 9 held as follows:-
"Before concluding, we would like to point out that this court in number of cases has held that an Appellate Court entertaining an appeal from the judgment of acquittal by the trial court though entitled to re-appreciate the evidence and come to an independent conclusion it 22 should not do so as a matter of routine. In other words, if from the same set of evidence two views are possible and if the trial court has taken one view on the said evidence, unless the Appellate Court comes to the conclusion that the view taken by the trial Court is either perverse or such that no reasonable person could come to that conclusion or that such a finding of the trial court is not based on any material on record, it should not merely because another conclusion is possible reverse the finding of the trial court".
In AIR 1963 SC 1531, the Hon'ble Court held retrial cannot be ordered on the ground that the prosecution did not provide proper evidence and did not know how to prove the case.
P.W.s 1, 7 and 9 have not spoken anything about the role played by respondent No. 4 . His case is of 'no evidence' practically.
In Murugesan and Ors. Vs. state through Inspector of Police, as reported in AIR 2013 SC 274, the Hon'ble Apex Court held:
"The reversal of the acquittal could have been made by High Court only if the conclusions recorded by the learned trial Court did not reflect a possible view. The use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such as "erroneous view" or "Wrong view". A "possible view"
denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by Court lower in the hierarchical structure may be termed as erroneous or wrong by a superior Court upon a mere disagreement. But such a conclusion of the higher Court would not take the view rendered by the subordinate Court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a 23 Court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. Possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher Court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial Court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial Court cannot be interdicted and that of the High Court supplanted over and above the view of the trial Court".
This being the position, I find no merit in the instant appeal. Accordingly, the appeal stands dismissed.
Let a copy of judgment and the Lower Court Record be sent back to the learned trial court.
Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.
sks (TOUFIQUE UDDIN,J)