Karnataka High Court
Sri T Shyam Prasad vs The Superintendent Of Police on 21 June, 2012
Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10,
1 Crl.RPs 634, 474 & 761/11
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JUNE, 2012
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL REVISION PETITION No.195 OF 2011
C/w.
CRIMINAL PETITION Nos.6475 OF 2009, 4402 OF 2010,
CRIMINAL REVISION PETITION Nos.634, 474 AND 761 OF 2011
In Crl.RP 195/2011:
BETWEEN:
T. Shyam Prasad,
Aged about 46 years,
S/o. Narayana Reddy,
Managing Partner,
M/s. Balaji Realtors,
No.9, 2nd Floor,
Bheemasena Garden Street,
Mylapore, Chennai-600 004. ... PETITIONER/S
[By M/s. C.V. Nagesh Associates, Advs.]
AND:
The Superintendent of Police,
Central Bureau of Investigation,
Anti-Corruption Bureau,
Bangalore. ... RESPONDENT/S
[By Sri. C.H. Jadhav, Adv. for CBI.]
This Crl.R.P. is filed u/Section 397 read with 401
of Cr.P.C. praying to set aside the Order dt.22.01.2011
passed by the XXXII Addl. C.C. and S.J., and Spl. Judge
for CBI cases, Bangalore in Spl. C.C. No.31/2010.
Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10,
2 Crl.RPs 634, 474 & 761/11
In Crl.P 6475/2009:
BETWEEN:
T. Shyam Prasad,
Aged about 46 years,
S/o. Narayana Reddy,
Managing Partner,
M/s. Balaji Realtors,
No.9, 2nd Floor,
Bheemasena Garden Street,
Mylapore, Chennai-600 004. ... PETITIONER/S
[By M/s. C.V. Nagesh Associates, Advs.]
AND:
The Superintendent of Police,
Central Bureau of Investigation,
Anti-Corruption Bureau,
Bangalore. ... RESPONDENT/S
[By Sri. C.H. Jadhav, Adv. for CBI.]
This Crl.P. is filed u/Section 482 Cr.P.C., praying
to quash the First Information Report in No.
R.C.01(A)/2007 registered by the CBI/ACB, Bangalore, for
offences which are made penal under Section 120-B read
with Section 420 of IPC and Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act,
1988 which information report has been filed on the file
of the Special Judge for CBI cases and XXXII Addl. City
Civil and Sessions Judge, Metropolitan Area, Bangalore
City.
In Crl.P 4402/2010:
BETWEEN:
T. Shyam Prasad,
Aged about 46 years,
S/o. Narayana Reddy,
Managing Partner,
M/s. Balaji Realtors,
Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10,
3 Crl.RPs 634, 474 & 761/11
No.9, 2nd Floor,
Bheemasena Garden Street,
Mylapore, Chennai-600 004. ... PETITIONER/S
[By M/s. C.V. Nagesh Associates, Advs.]
AND:
The Superintendent of Police,
Central Bureau of Investigation,
Anti-Corruption Bureau,
Bangalore. ... RESPONDENT/S
[By Sri. C.H. Jadhav, Adv. for CBI.]
This Crl.P. is filed u/Section 482 Cr.P.C. praying
to set aside the Order dt.02.02.2010 passed by the XXXII
Addl. C.C. & S.J. and Spl. Judge for CBI cases, Bangalore
city in Spl.C.C. No.31/2010, directing the registration
of a case against the petitioner for an offence which is
made penal under Section 120-B r/w 420 of IPC and under
Section 13(2) read with 13(1)(d) of Prevention of
Corruption Act, 1988 and ordering process against him for
his appearance in the case before the Court, presumably,
after taking cognizance of the offences complained and
further pleased to quash the entire proceedings in the
case.
In Crl.RP 634/2011:
BETWEEN:
1. V.R. Talithaya,
S/o. Ramakrishna Talithaya,
Aged about 66 years,
R/at 103, Horizon Homes,
Museum Road, Mangalore.
2. C.B. Subramanian,
S/o. Late C.S. Balakrishnan,
Aged about 60 years,
R/at 53, Annabelle Manor-2,
Near KMC Bejai, Mangalore. ... PETITIONER/S
[By Sri. Siddappa, Sri. Sunil & Sri. Nitin, Advs.]
Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10,
4 Crl.RPs 634, 474 & 761/11
AND:
The Superintendent of Police,
The Central Bureau of Investigation,
C.B.I. Office, Bellary Road,
Bangalore. ... RESPONDENT/S
[By Sri. C.H. Jadhav, Adv. for CBI.]
This Crl.R.P. is filed u/Section 397 read with 401
Cr.P.C. praying to set aside the Order dt:22.01.2011 in
Spl.C.C. No.31/10 (arising out of FIR) No.01A/2007) on
the file of the XXXII Addl.C.C. and S.J., and Spl. Judge
for CBI cases, Bangalore.
In Crl.RP 474/2011:
BETWEEN:
P.N. Radhakrishnan,
Advocate,
Aged 50 years,
S/o. P.N. Nambisan,
41, Manali Nagar,
Arumbakkam,
Chennai-600 106. ... PETITIONER/S
[By M/s. M.T. Nanaiah & Associates, Advs.]
AND:
The Superintendent of Police,
Central Bureau of Investigation,
Anti-Corruption Branch,
No.36, Bellary Road,
Ganganagar,
Bangalore-560 032. ... RESPONDENT/S
[By Sri. C.H. Jadhav, Adv. for CBI.]
Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10,
5 Crl.RPs 634, 474 & 761/11
This Crl.R.P. is filed u/Section 397 read with 401
Cr.P.C. praying to set aside the Order dt.22.01.2011
passed by the XXXII Addl. City Civil and S.J. and Spl.
Judge for CBI cases, Bangalore in Spl.C.C.No.31/2010 and
acquit the petitioner from all charges.
In Crl.RP 761/2011:
BETWEEN:
P.S. Ravindran,
S/o. P.B. Sripathy Rao,
Aged about 56 years,
Associate Vice-President (Finance),
M/s. Mangalore Refinery and
Petrochemicals Ltd.,
Mangalore. ... PETITIONER/S
[By Sri. R. Nagendra Naik, Adv.]
AND:
Superintendent of Police,
Central Bureau of Investigation,
Anti-Corruption Branch,
36, Bellary Road,
Ganga Nagar,
Bangalore. ... RESPONDENT/S
[By Sri. C.H. Jadhav, Adv. for CBI.]
This Crl.R.P. is filed u/Section 397 Cr.P.C.
praying to set aside the Order dated:22.01.2011 passed by
the XXXII Addl. C.C. and S.J., and Spl.Judge for CBI
cases, Bangalore in Spl.C.C. No.31/2010.
These Crl.Ps & Crl.RPs having been heard and
reserved for Orders, this day the Court pronounced the
following:
* * *
Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10,
6 Crl.RPs 634, 474 & 761/11
ORDER
The petitioners in these cases are accused Nos.1 to 5 in Special Case No.31/2010 pending on the file of XXXII Addl. City Civil Judge, Bangalore City, wherein they have challenged the Orders, taking up cognizance, issue of process and rejecting their plea for discharge in the aforesaid case registered for the offence punishable under Sections 120-B r/w. 420 IPC and under Section 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 [hereinafter called as "P.C. Act" for short].
2. Sans unnecessary details, the brief facts of the case are as under:
The parties are referred to as per their rank before the trial Court for the sake of convenience.
(1) Sri. V.K.Thalithaya [accused No.1], the then Senior Vice President, HR of M/s. Mangalore Refinery and Petrochemicals Limited, Mangalore, [hereinafter called as "M/s.MRPCL". (2) Sri. C.B.Subramanyam [accused No.2], Vice President of Marketing of M/s.MRPCL. and (3) Sri. P.S.Ravindran [accused No.3], Associate Vice President of Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 7 Crl.RPs 634, 474 & 761/11 M/s. MRPCL are said to have entered into a criminal conspiracy with Sri.T.S.Sham Prasad [accused No.4], Managing Partner of M/s. Balaji Realtors, Chennai and Sri. P.N.Radhakrishnan [accused No.5], Practicing Advocate, Chennai, in the matter of awarding contract for acquiring 100 acres of land for setting up of an Oil Terminal near Ennnore Port, Chennai, Tamil Nadu, for M/s. MRPCL.
A Committee was constituted consisting of accused Nos.1 and 2 and others for awarding the contract pertaining to procurement of 100 acres of land for setting up of Oil Terminal near Ennnore Port, Chennai, Tamil Nadu, for M/s. MRPCL. and the accused had approved the publication of a tender notice bereft of details in response to the tender notice. As many as 15 parties had submitted their bids out of which, only 5 persons had fulfilled the requirements of M/s. MRPL.
Accused Nos.1 to 3 were the members of tender processing Committee, which was constituted on 20.11.2003 and they recommended acquisition of the land through M/s. Balaji Realtors at Rs.6.50 lakhs per acre excluding Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 8 Crl.RPs 634, 474 & 761/11 registration and stamp duties leaving out Sri. M.Sudhakar and M/s. Saravanan arbitrarily. The committee is said to have not assessed the guidance value/market value of the land prevailing at the time of awarding the contract, which resulted in the contract being awarded at a rate much higher than the prevailing market rate and higher than the rate quoted by the other two bidders. They said to have awarded the contract pertaining to fencing of the land to M/s. Balaji Realtors though the same did not form part of the work shown in the tender notice. Thus it is alleged that accused Nos.1 to 5 in the matter of awarding contract of procurement of the 100 acres of land over and above the market guidance value and thereby caused loss of Rs.2,62,33,282 to M/s. MRPCL and it is under these circumstances that a criminal case was registered vide RC 01(A)/2007, dated 18.01.2007 against the aforesaid accused for the offence punishable under Section 120-B r/w. 420 IPC and under Sections 13(2) r/w. 13(1)(d) of the P.C. Act. On the basis of a source of information regarding fraudulent transaction in procurement of 100 acres of land for setting up of an oil terminal near Ennore port. It is alleged against the accused that in Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 9 Crl.RPs 634, 474 & 761/11 furtherance of conspiracy among accused Nos.1 to 5, accused No.1 had issued a tender notice for the outright purchase of 100 acres of land at Ennore, Chennai and the same was published in the daily newspapers viz., Hindu, The New Indian Express and The Daily Tanthi inviting quotations to this submitted on or before 07.11.2003 and in addition to Sri. M.Sudhakar, M/s. Balaji Realtors [accused No.4] among others had submitted their quotations in response to the tender notice. The Technical Committee aforesaid had evaluated the land offered by the said bidders on parameters such as locations, the exit/entry to the said site, railway lane, distance from Ponneri High Road, distance from Ennore Port etc., and a report was submitted identifying the lands at 3 locations and accused No.2 had contacted accused No.5, the Advocate and sought his services for obtaining valuation certificates with respect to the lands identified by the Technical Committee as suitable for setting up of the marketing terminal. Accordingly, accused No.5 obtained the valuation report from Capt. Kaliamoorthi, Government Approved Valuer and Sri. Balasubramani and it was sent to accused No.1, the then Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 10 Crl.RPs 634, 474 & 761/11 Vice President, M/s. MRPCL. The Committee consisting of accused Nos.1 to 3 processed the tenders and after opening the bids found that accused No.4 had quoted the rate at Rs.9.5 lakhs per acre, M/s. M.Sudhakar at Rs.4.3 lakhs per acre, M/s. Shriram Enterprises at Rs.10.5 lakhs per acre, M/s. Saravanan at Rs.6.6 acres per acre and M/s. Rama International had quoted price at Rs.12 lakhs per acre. The prosecution also alleges that accused Nos.1 to 3 in conspiracy with the other accused after negotiating the price with accused No.4, accepted the tender for sale of 100 acres of land at the rate of Rs.6.5 lakhs per acre and that accused No.5 had given his legal scrutiny report without taking into account the provisions made under Rule 34 of Re-union of the Immovable Trust Property Rules. There was no liquidated damages clause for failure to comply with the terms of the agreement and the process was delayed enabling accused No.4 to handover 100 acres of land, without attracting penalty for the delay. It is also alleged that in unprofessional manner in respect of methodology for deciding the tender, the bid of M/s. M.Sudhakar was rejected denying him an opportunity to immobilize the Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 11 Crl.RPs 634, 474 & 761/11 documents of 100 acres of land by accepting the report of recommendation of accused No.5 and their conduct was sufficient to indicate that they intend to eliminate the said bidders in favour of M/s. Balaji Realtors [accused No.4]. It is alleged against accused No.4 that he had suppressed the information that 8.69 acres of land was held by temples and that accused No.5 deliberately issued a favourable legal scrutiny report concealing important information. It is also the case of the prosecution that accused No.4 quoted value of the land at Rs.6.5 lakhs per acre and the same was accepted by accused Nos.1 to 3 though market value or the guidance value of the land at that time was very much low. It is under these circumstances that the charge-sheet came to be laid against the accused for the aforesaid offences.
Crl.P. Nos. 6475/2009 and 4402/2010 have been filed by accused No.4 challenging issuance of process, registration of the FIR and the crime against him. Accused Nos.1 and 2 have filed Crl.R.P. No.634/2011, challenging the Order rejecting their plea to discharge them, accused No.3 to 5 have filed Crl.R.P. No.761/2011, Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 12 Crl.RPs 634, 474 & 761/11 Crl.R.P. No.195/2011 and Crl.RP.474/2011 respectively for the same relief.
3. In the circumstances, I have heard learned counsel for the parties.
4. The point that arises for my consideration is;
Whether the petitioners have made out grounds to call for interference in the Order passed by the trial Court dated 22.01.2011 rejecting their request for discharge?
5. Learned counsel for the petitioners would contend that the price of the land at Rs.6.5 lakhs per acre fixed by the Committee is even far less than the prevailing market price as is evident from the statement of the Manager [HR-ONGC] and therefore, an Agreement was entered into on 03.08.2004 to purchase the land. He also contends that subsequent to the Agreement of Sale, Sale Deeds have been executed through power of attorney holder of the vendors and interest in the land has been transferred to M/s. MRPCL. So far as 8 acres of land is concerned, he contends that the sanction of Muzarai Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 13 Crl.RPs 634, 474 & 761/11 Department was obtained and difference in price was adjusted from the amount payable to accused No.4. Therefore, he contends that there is no loss at all to M/s. MRPCL and further even the writ petition filed by M/s. Shriram Enterprises challenging the acceptance of the bid of accused No.4 was dismissed on 26.07.2004 by the High Court of Judicature at Madras and therefore, he claims that the sanctity of the sale transaction is proved by the Judgment of the High Court and therefore, the prosecution launched against the petitioners is improper and there is no material on record to prima facie prove amassing of wealth and an act of cheating. He further contends that the committee was justified in rejecting the bid of M/s. M.Sudhakar who had produced title deeds of only 35 acres of land and even the land offered was not contiguous one. So, it is contended that there is no wrong committed by the Committee in accepting the bid of accused No.4. Further, it is also the contention that in pursuance of acceptance of the bid, as the amount was not paid, accused No.4 initiated arbitration proceedings, wherein an Award has been passed against M/s. MRPCL and the execution proceedings in Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 14 Crl.RPs 634, 474 & 761/11 pursuance of the Award passed is pending. It is the further contention that there is no material on record to constitute an offence under Section 420 IPC and further that there is no material against accused No.5 about any conspiracy to cheat the company. Some additional documents have been produced in the revision petitions vide memo dated 11.01.2012 in Crl.RP. No.195/2011, which include execution petition filed by accused No.4 in the High Court of Judicature at Madras, Agreement dated 03.08.2004 entered between accused No.4 and M/s. MRPCL., the orders passed by the High Court of Judicature, Madras in E.P. No.692/2009 and also the Sale Deeds of the temple lands. Learned counsel contends that these documents though produced in the petition could be considered as this Court has inherent jurisdiction under Section 482 Cr.P.C.
6. So far as production of the additional documents before this Court and acceptance of the contents therein are concerned, learned counsel has relied upon the decisions reported in (1) ILR 1997 Kar. 2595 [M/s. Silk Import & Export, INC, Vs. M/s. Exim Aides Silk Exporter & anr.]; (2) (2009)1 Supreme Court Cases Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 15 Crl.RPs 634, 474 & 761/11 516 [R.Kalyani Vs. Jank C.Mehta and others]; (3) 2011 AIR SCW 1199 [Harshendra Kumar D Vs. Rebatilata Koley Etc.] and (4) Air 2009 Supreme Court 1013 [Rukmini Narvekar Vs. Vijaya Satardekar & Ors.].
7. As could be seen from the sum and substance of the principles laid-down by this Court and the Apex Court in the aforesaid decisions, it has been held that the public documents or the material relied upon by the accused, which is beyond suspicion can be taken into consideration by the Court while exercising power under Sections 397 and 482 Cr.P.C. When in a criminal case, yet the trial is to commence, the materials relied upon by the accused can be looked into if the public document are beyond suspicion or doubt and if they are helpful to the accused, the said documents can be taken into consideration even to quash the proceedings. The documents which are sought to be produced vide Memo dated 11.01.2012 are the copies of Execution Petition No.692/2009 filed before the High Court of Judicature at Madras. Copy of the Award, Sale Deeds relating to the property purchased from the owners to accused No.4 as a power of attorney holder and all these documents are Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 16 Crl.RPs 634, 474 & 761/11 subsequent to acceptance of the bid. It is relevant to note that the prosecution of the accused before the trial Court is only because that the land offered by accused No.4 in the bid were accepted by accused Nos.1 to 3 at a higher price than the actual market value of these land and the prosecution has come up with a case that the guidance value of these lands is in between Rs.50 to 60 thousand per acre and that accused No.4 in conspiracy with the other accused having offered the land at Rs.6.5 lakhs per acre, the same was accepted only to cause wrongful loss to the company and thereby the accused having committed the offence for which they have been charge-sheeted, which includes an offence under Section 420 IPC. The documents, which had been produced by memo dated 11.01.2012 referred to supra are in relation to the events that occurred subsequent to acceptance of that land at the rate of Rs.6.5 lakhs per acre. As the proceedings relating to acceptance of the bid, the negotiations in relation to the price of the land were never stayed, in fact there was no difficulty for accused No.4 to proceed against the company to realize the sale consideration by filing arbitration proceedings getting Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 17 Crl.RPs 634, 474 & 761/11 an Award and seeking execution of the same after the Sale Deeds were executed by the vendors through a power of attorney holder-accused No.4. Therefore, as these documents pertain to subsequent events, the accused cannot take the benefit of these documents produced in the petition. Even if the principles laid-down by the courts in the decisions referred to supra are be accepted as the documents which have been produced have no relevance for prosecution of the accused, the said documents need not be looked into for any purpose.
8. Learned counsel for accused Nos.1 and 2 has placed reliance on the decision of the High Court of Gujarat, reported in AIR 1999 Gujarat 341 [Amit B.Thakker Vs. Air India, Ahmedabad and another]; wherein it has been held as under:
"Note (B): Where tender in respect of ground flight handling was awarded to tenderer quoting higher rate, it cannot be said to be arbitrary because in matters where public interest is involved merely low rate should not be the criterion for awarding contract. On the other hand, unless public interest is involved and affected, the action should not be Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 18 Crl.RPs 634, 474 & 761/11 interfered with simply on the ground that by accepting higher rate, some burden to the exchequer is likely to be caused. After all, if better services are to be obtained for rendering to passengers of International Flight and if some higher price is paid to the person offering such services, it cannot be said that public interest is adversely affected; rather public interest is adequately served when sufficient services are rendered by experienced experts offering such services." [emphasis supplied by me]
9. Learned counsel relying on the decision referred to supra and the statements of the witnesses to the effect that the lands sold at Rs.6.5 lakhs per acre is less than the prevailing market value of the land claimed that when a huge land of about 100 acres is being purchased, there is a possibility that the sellers may quote higher price to get the benefit as accused Nos.1 to 3 wanted the land which is contiguous, it may be that there is some burden to the exchequor in accepting the higher rate. Therefore, the learned counsel contend that this itself is not prima facie sufficient to hold that there is a conspiracy to purchase the land at higher Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 19 Crl.RPs 634, 474 & 761/11 price and cheat the company. On this aspect of the matter, if the statements of the witnesses and the material placed on record is perused, it is very much clear that the owners of the lands which are offered to the Company through the process of bidding was agreed to be sold at Rs.3 lakhs per acre and accused No.4 had entered into a transaction with the owners of the land measuring about 100 acres to pay a sum of Rs.3 lakhs per acre and in turn had agreed to sell the said land at the rate of Rs.6.5 lakhs per acre. Prima facie, it would indicate that accused No.4 being the power of attorney holder, which is a sort of agency on behalf of the owners of the land offered the land at Rs.6.5 lakhs per acre, to mean, for more than 150% of the actual market value of the land. Prima facie, this act on the part of accused No.4 to claim the price at Rs.3.5 lakhs per acre more than the price of the land is prima facie sufficient to infer an intention to cause wrongful loss and to make a wrongful gain. Further prima facie, a dishonest intention on the part of accused No.4 could be inferred. At the same time, it is relevant to note that accused Nos.1 to 3 were very much aware that the land owners had agreed to Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 20 Crl.RPs 634, 474 & 761/11 sell the land at Rs.3 lakhs per acre and knowingly agreed to purchase, on negotiations, the land at Rs.6.5 lakhs per acre. Prima facie, from the conduct of accused Nos.1 to 4 in either selling or purchasing the land at Rs.6.5 lakhs per acre though the market value was prima facie Rs.3 lakhs per acre, prima facie attracts the provisions of Section 420 IPC. Therefore, the principle laid-down in the decisions referred to supra cannot be attracted as it is not some burden to the exchequer and the burden is more than Rs.2 crores on the company. Though learned counsel referred to a decision of the Apex Court reported in AIR 1973 Supreme Court 326 [The State of Kerala Vs. A.Pareed Pillai & another]; wherein it is held;
"To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise."
The principle herein also cannot be applied to the facts on hand in the context of the facts referred to supra.
Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 21 Crl.RPs 634, 474 & 761/11
10. It is the submission of the learned counsel for accused Nos.1 to 3 that accused Nos.1 to 3 are the members of the Committee constituted to recommend the purchase of the land and only had an advisory role and the decision was to be taken by the Board of Directors and in the circumstances, he contends that accused Nos.1 to 3 had not taken any decision in the matter and as their part was only to recommend purchase of the land of accused No.4, they are not the deciding authority. On this aspect of the matter, learned counsel has placed reliance on the decision of the Apex Court reported in (1979)1 Supreme Court Cases 535 [S.P.Bhatnagar Vs. State of Maharashtra]; wherein it is held;
"It has also to be borne in mind that the Tender Committee which comprised of the Operation Manager and the Financial Controller in addition to A-1 had only an advisory role to play and the decision to entrust the contract to a particular contractor lay with the Chairman of the Board of Directors in consultation with the coordinator and Sales Manager who was above the Tender Committee."
Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 22 Crl.RPs 634, 474 & 761/11 Further he also relied upon the decision reported in (2009)6 Supreme Court Cases 444 [State of Punjab Vs. Sohan Singh] and the Apex Court in this decision has held;
"The respondent, who was a Junior Engineer, according to P.W.9 had no role to play in the matter. Priority in the matter of grant of connection could only be granted by the higher authorities in the Board." [Para 15]
11. It is true that accused Nos.1 to 3 were the members of the Committee constituted to recommend for purchase of the land. But, at the same time, from the material placed on record reveals that the recommendation is in respect of the land offered by accused No.4 only and no other person/s. Furthermore, so far as actual price of the land is concerned, wherein the vendors agreed to sell the property was at Rs.3 lakhs per acre, was within the knowledge of accused Nos.1 to 3 and also accused No.4, but not within the knowledge of the decision taking authority, which was to accept the recommendations. Therefore, in the absence of any material on record that the authority, which was to Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 23 Crl.RPs 634, 474 & 761/11 accept the recommendations had the knowledge that the price of the land was Rs.3 lakhs per acre and was agreed to be sold at Rs.6.5 lakhs per acre, the authority which took the decision cannot be blamed. So, when accused Nos.1 to 3, who had knowledge of the actual price of the land had recommended to purchase the land of accused No.4 alone. Prima facie, the said accused can be held responsible and this much of material on record is sufficient to proceed against the accused.
12. So far as accused No.5 is concerned, though he is a Practicing Advocate and submitted his report relating to title of the land offered by accused No.4, it was he who was called upon to get the land value assessed by the Government valuers. Though the said valuers whose statements have been recorded by the Investigating Agency stated that the value of the land was assessed at Rs.7 lakhs per acre, they have made a statement before the Investigating Agency stating that the value of the land was assessed at Rs.7 lakhs per acre, as accused No.5 insisted them to assess the price of the land at Rs.7 lakhs per acre. Though the statement of these witnesses is contrary to the report submitted by them, what weight Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 24 Crl.RPs 634, 474 & 761/11 is to be attributed is a matter, which will have to be considered only after recording their evidence. So, prima facie looking to the statements of the said witnesses, which is available in the records, there is also material against accused No.5 for the aforesaid offence.
13. Finally, the learned counsel relied upon the decisions reported in (2009)8 Supreme Court Cases 617:
[State of Madhya Pradesh Vs. Sheetla Sahai and others];
wherein it has been held;
"55. This leaves us with the question as to whether an order of sanction was required to be obtained. There exists a distinction between a sanction for prosecution under Section 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain sanction in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants.
Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 25 Crl.RPs 634, 474 & 761/11
56. The sanction does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
59. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits."
He also relied upon the unreported decision in Crl.P. Nos.4707/2011 C/w. 4850/2011 [H.D.Kumaraswamy & anor. Vs. M.Vinod Kumar], dated 21.10.2011 of this Court; wherein a portion of the Judgment of the Apex Court was referred to, and it is extracted hereunder:
"41. The Apex Court further held that, it was therefore clear from the charge that the act alleged is directly and reasonably connected with his official duty as a Minister and therefore would attract Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 26 Crl.RPs 634, 474 & 761/11 the protection of Section 197(1) of the Code."
Placing reliance on these decisions, it is the contention of the learned counsel that the Investigating Agency has not obtained the sanction under Section 197 Cr.P.C. and therefore, he claims that the prosecution of he petitioners itself is illegal. To advert to the said contentions, it is relevant to note that the material placed at this stage prima facie is insufficient to hold that accused Nos.1 to 3 did the act in discharge of their official duty and when there is prima facie material on record that the said accused agreed to purchase the land at Rs.6.5 lakhs per acre though prima facie its market value was not exceeding Rs.3 lakhs per acre, at this stage it cannot be said that the duty discharged by accused Nos.1 to 3 falls within the purview of Section 197 of the Code. It is relevant to refer to the portion of the Judgment of the Apex Court referred to supra in Sheetla Sahai case and the said portion is extracted herein;
"56. The sanction does not extend its protective cover to every act or omission Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 27 Crl.RPs 634, 474 & 761/11 done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty."
"59. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits."
So, the question as to whether Section 197 Cr.P.C. is applicable or not to the accused Nos.1 to 3 may also be taken into consideration at the later stage, but at this stage, the aforesaid material in my opinion is sufficient to hold that the duty of accused Nos.1 to 3 in recommending the price of the land at Rs.6.5 lakhs per acre prima facie shows that it is not in discharge of their official duty and a prima facie case from offence under Section 420 IPC is also made out. Hence the said contention also cannot be accepted. Though numerous other contentions have been put-forth by the petitioners, the prima facie fact that the property worth Rs.3 lakhs Crl.RP 195/11 C/w.
Crl.Ps 6475/09, 4402/10, 28 Crl.RPs 634, 474 & 761/11 per acre has been sold at Rs.6.5 lakhs per acre itself would be sufficient to hold that there is a prima facie case to frame charge/s against the petitioners for the offence punishable under Sections 120-B r/w. 420 IPC and under Section 13(2) r/w. 13(1)(d) of the P.C. Act.
14. The trial Court after elaborate consideration of the material placed on record has come to a right conclusion in rejecting the plea of the petitioners. In that view of the matter, as there is sufficient material against the petitioners for the aforesaid offences, I do not find any necessity to interfere with the Orders of the Courts below:
In the result, the petitions and the revision petitions are dismissed.
Sd/-
JUDGE.
Ksm*