Supreme Court - Daily Orders
G. Somarajan vs M/S Pamba Engg.& Const.(P) Ltd. . on 7 May, 2014
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ITEM NO.201 COURT NO.5 SECTION XVIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
TRANSFER PETITION (CIVIL.) NO(s). 634 OF 2013
G. SOMARAJAN Petitioner(s)
VERSUS
M/S PAMBA ENGG.& CONST.(P) LTD. & ORS. Respondent(s)
(With appln(s) for stay, permission to file additional
documents,exemption from filing O.T.) (For Final Disposal)
Date: 07/05/2014 This Petition was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE T.S. THAKUR
HON’BLE MR. JUSTICE C. NAGAPPAN
For Petitioner(s) Mr. R.Basant, Sr. Adv.
Mr. Hari Kumar G., Adv.
Mr. Karthik Ashok, Adv.
Mr. A.Venayagam Balan,Adv.
For Respondent(s) Mr. Sidharth Luthra,ASG
Mr. P.K.Dey, Adv.
Mr.Shadman Ali, Adv.
Mr. Arjun Diwan, Adv.
Mr. D.S.Mahram, Adv.
Mr. Tarunvir Singh Khehar, Adv.
Mr. Shree Pal Singh,Adv.
UPON hearing counsel the Court made the following
O R D E R
In this petition under Section 25 of the Civil Procedure Code, the petitioner seeks transfer of CC No. 8366 of 2011 titled G.Somarajan Vs. M/s Pamba Engg. and Const. (P) Ltd. and Ors. pending in the Court of Shri Atul Varma, Metropolitan 2 Magistrate, Patialia House, New Delhi to an appropriate Court of Metropolitan Magistrate, Kannur in the State of Kerala.
The petitioner’s version giving rise to the filing of the complaint case mentioned above and the present petition seeking transfer of the same to Kerala is set out in para 3 (a) to (F) of the transfer petition which read as under:
a) In and about 2005, Sh. A.T.Sainudheen, Flat No. 83, Akrithi Apartment near Balco Markat Patparganj, Delhi who was the Managing Director of M/s. Pamba Engineering and Construction Co. Pvt.
Ltd. C-45, Sector-2, NOIDA-201301 invited the complainant/petitioner to Karnataka Food House, R.K.Puram for dinner through common friend Shri Gopinath, Director, M/s. Pamba Engineering and Constructions Co. () Ltd.
b) Petitioner/complainant went to Karnataka Food House for dinner. At the Karnataka Fod House some other people were also present namely S/Sh. A.T.Sainudheen Gopinath, Shaju Sainudheen and K.C.Lath claiming to be the Finance Director of Pamba engineering and Construction Co. (P) Ltd. During the dinner, Shri A.T.Sainudheen informed the complainant/petitioner that the Shipping Corporation of India has invited tender for 6 Nos. LRI Oil Tanker Ships (Tender No. T&OS/ND/LR-1). A south Korean Company, M/s. STX Shipbuilding Co. Ltd. has approached him through Samsung Corporation for precessing the contract. In view of the connections of the complainant/petitioner he ws requested to act as a Consultant for Sh. A.T.Sainudheen for coordinating the shipping 3 contract and offered the complainant/petitioner Rs. 26 crores as his service charge.
c) The complainant/petitioner accepted the
officer of Sainudheen who took the
complainant/petitioner to Sh. K.S.Kwon, then the
Indian Deputy General Manager of Samsung
Corporation. Shri K.S.Kwon acknowledged the deal
and assure the complainant/petitioner the due
payment of service charge if the shipping contract is materialized. Subsequently Sh. J.B.Shin, Chief Representative of Samsung Corporation coordinated the process of contract instead of Sh. Kwon along with A.T.Sainudheen.
d) That for the due payment of service charge to the complainant/petitioner M/s Pamba Engineering and Construction Co.(P) Ltd. issue 4 cheques for Rs. 26 crores i.e. 2 cheques for Rs. 5 crores each and 2 cheques to rs. 8 crores each with an authority letter. The company also executed an agreement dated 22.9.2006 with the assurance of payment of service charge. However, on 22.9.2006 they gave only one cheque No. 284517 for Rs. 5 crores. Later they gave original agreement with Cheque No. 284514 for rs. 8 crores, Cheque No. 284515 for Rs. 8 crores and Cheque No. 284516 for rs. 5 crores.
e) Besides the shipping deal, the complainant/petitioner had worked with
A.T.Sainudheen for powr projects of Doosan Company, Sou officials to meet Shri. H.D.Kumaraswamy, Shri Y.S.Rajashekhar Redy and various ministers and government officials of Andhra Pradesh, Tamil Nadu and Karnataka.
f) On the promise and instructions given by S/ Shri A.T.Sainudheen, Gopinath, K.C.Lath, K.S.Kwon and J.B.Shin. The complainant/petitioner 4 followed up the work of the above mentioned bid with the help of Shri Anbazhagan, M.L.A. of Chennai who was claiming to be close to Sh. Stalin, former Dy. Chief Minister of Tamil Nadu and some others by moving the papers in time and by arranging meetings of officials of M/s STX Corporation with the then Shipping Minister and Government Officials. A.T.Sainudheen provided airfares and travelling facilities for the complainant/petition. Later, M/ s. STX Corporation successfully secured the contract of Shipping Corporation of India for supplying 6 ships.
To the same effect is the petitioner’s version in Complaint Case No. 6081 of 2014 filed before the Chief Metropolitan Magistrate, Karkardooma Courts, Delhi. In paras 1 to 5 of the said complaint, the complainant has stated the very same story in the following words:
1. The complainant ages 54 years is a citizen of India and is presently a resident of the above mentioned place in Kerala. The complainant was a resident of A-1125, Second Floor, G.D.Colony, Mayur Vihar, Phase-3, Delhi-110096 since 2003, a flat owned by him is a businessman/consultant by profession for the last more than 30 years.
2. The accused Nos. 1 to 6 are from Delhi, and accused Nos. through accused Nos. 10 and 11 who are also from Korea and are having their business operations/corporate office in Delhi. The accused Nos. 7 and 8 are from Chennai (Tamil Nadu) and were regular visitors to Delhi in connection with various business activities, particularly in connection with the business of the complainant.5
3. The complainant was introduced to accused nos. 3 through Mr. Unni Menon, a Keralite during 2004 at Karnataka Food House, R.K.Puram.
Subsequently the accused No. 3 introduced the complainant to accused Nos. 1,2,4,5 and 6. The accused No. 7 was known to the complainant since 2000 and through him the complainant knows accused No. 8.
4. The accused No. 1 and 4 through their Managing Director, Mr. A.T.Sainudheen (Accused No.
2) along with Mr. Shaju Sainudheen (Accused No. 5), Mr. K.C.Lath (accused No. 6) who is the Finance Director of accused No. 4. Mr. Gopinathan (accused No. 3) who is the Director of accused No. 1, contacted the complainant somewhere in the first week of January, 2005 to work for them for the purpose of consultancy/follow up/ service/arranging appointments with various officials mainly for the officials of accused Nos. 9 and 12 in connection with an order from M/s. Shipping Corporation of India for 6LR Oil Tanker Ship. during the period March 2005-November 2006. on behalf of and in continuation of an agreement/understanding entered between accused No.-12, M/s. STX Shipbuilding Co. Ltd. and accused No. 9 M/s. Samsung Corporation, Delhi through accused No. 10 and 11 who made an understanding with accused No. 1, for the orders for the ships and for establishment of their business in India. The visiting card of the complaint was printed by the accused No. 4 on the instructions of accused No. 2 and 5. A mobile connection with No. 9910161109 was also provided to the complainant by the accused No. 1,2,4 and 5. The monthly payments against mobile bills for the number 991061109 was also made either by cheque or credit card/cash by the accused no. 2 and 5 through 6 Mr. Raju their clerk or directly. Almost 90% of the business transactions were conducted through the mobile phone of the complainant 9311141109 and the mobile provided by the accused No. 1 to 6 no. 910161109. The complaint was actively engaged with the service of the accused no. 1 to 6 during the period at least for 02.01.2005 and 18.08.2008 which is evident from Mobile, Bank, Flight, Tickets and various correspondence and hotel bills along with accused no. 1,3,5,6,7,8,10 and 11 together and separately travelled and stayed together at Chennai, Bangalore, Hyderabad, Bhopal etc.
5. In consideration of the services rendered by the complainant to the accused No. 1 to 12, on the instructions of accused no. 1 to 6 for accused no. 1 to 13, complainant was issued 4 cheques to the value of Rs. 26 crores by accused No. 1, signed by accused No. 3 on the instructions of accused No 2 and 5, all without date and name somewhere on 22.09.2006. Along with the said 4 cheques, the complainant was also delivered a covering letter issued by accused No. 1 mentioning the details of the 4 cheques issued by them mentioning the value of the cheques amounting to Rs. 26 crores along with an agreement date 22.09.2006 on a stamp paper duly signed by accused No. 3.
The version given by the complainant- petitioner in the complaint filed under Section 138 of the Negotiable Instruments Act is also on similar lines as is evident from the following passages extracted from the same:
"4. The complainant is the Consultant of M/s 7 Marklinks Pvt. Ltd., housed at the same building of the above accused No. 1 and the both companies are sister concerns. The second accused is one of the Directors and the Managing Director of both the said companies. Out of such proximity of the complainant with the accused No. 2 and the said M/s Star Marklinks several business transactions of both the above accused No. 1 and the said Marklinks were performed by the complainant.
5. One of such business transactions was a a ship project relating to the contract for 6 Nos. LRs Oil Tankers with STX, South Korea which involved M/s. Samsung Corporation Ltd. in South Korea and their agent in India is with the first accused above. Towards the works of the 1st accused in such contract, and their sub-contract, the complainant had worked as a consultant and towards his services, a total amount of 01% of the total contract value eligible to the 1st accused there under was stipulated to be paid to the complainant by the 1sst accused. it is an amount to be paid to the complainant by the 1st accused. It is an amount to be paid to the complainant by the 1 st accused. It is an amount of rs. 26,00,00,000/- (Rupees Twenty six crores only). The complainant was entitled to receive such amount from the 1st accused.
6. From out of such total amount due to the complainant, the post dated cheque bearing No. 284517 dated 5.5.2008 for Rs.. 5,00,00,000/- (Rupees five crores only) drawn on the Bank of the First accused namely The Federal Bank Ltd. New Delhi-110001. was duly used and handed over to the complainant by the accused No. 2. The said cheque was signed by the accused No. 3 on behalf of the accused No. 1. The amount covered by the said 8 cheque is a part of the aforesaid total amount due to the complainant by the accused No. 1.
7. At the time of the issuance of the said cheque, both accused Nos. 2 and 3 had promised to duly honour the same on its due presentation for encashment to the Bank of the 1st accused by the complainant. The accused No. 3 had also signed and executed three other post dated cheques, one for rupees Five crores, two for Rupees eight crores, each. Another agreement dated 22.9.2006 stipulating the aforesaid payment due to the complainant and an authorization dated 22.9.2006 authorizing the complainant to do the follow up works in relation to the aforesaid transaction citing the particulars of the said four cheques were also executed and signed by the accused No. 3 at the time of executing the aforesaid cheque and when the said cheque was handed over to the complainant by the accused No. 2 after the accused No. 3 signing and executing the same and the said three other cheques, agreement, authorization etc. undertaking to hand over other cheques subsequently by handed over their copies only to the complainant on22.09.2006 at the office of the accused No. 1 at their address in New Delhi.
8. It was on the strength of the promise made by the accused Nos. 2 and 3 that the complainant had received the said cheque from them towards the part payment of the total amount due to the complainant from the accused No. 1 and completed the follow up works in the said contract."
When the matter came up before us initially on 15.04.2013 it was argued by Mr. V.Kanagaraj, learned senior counsel appearing for the petitioner 9 that apart from the cheque for a sum of ‘ 5,00,00,000/- (Rupees Five Crores only) which forms the subject matter of the proceedings sought to be transferred, three other cheques were similarly drawn in favour of the petitioner towards payment of consultancy charges to him. Two of these cheques were for a sum of Rs. 8,00,00,000/- (Rupees Eight crores only) each whereas the third cheque was for a sum of Rs. 5,00,00,000/-. The total amount thus payable to the petitioner came to Rs. 26,00,00,000/- (Rupees Twenty six crores only). He submitted that one of the four cheques aforementioned was presented to the Bank but was dishonoured. It was also contended that the remaining three cheques drawn in favour of the petitioner were handed over by him along with the original agreement executed between the parties to one Shri J. Anbalagan a member of the Tamil Nadu State Legislative Assembly to enable him to use his good offices for facilitating encashment of the same and payment to the petitioner. It was also submitted that the petitioner had in his possession a copy of the complaint made by him to the Economic Offences Wing in Delhi which he could file along with an additional affidavit. The petitioner also offered to give details of the air fare and travelling facilities provided to the petitioner by 10 the accused persons in connection with the consultancy services rendered by him. Two weeks’ time prayed for by the petitioner was granted to him to file a copy of the complaint which the petitioner claimed to have filed before the Economic Offences Wing and the additional affidavit in which he was required to set out the details of the air fare and other facilities referred to in para (f) of the Special Leave Petition. The Economic Offences Wing, New Delhi was at the same time directed to submit a status report as to the action taken by it on the complaint filed by the petitioner.
The matter next appeared before us on 02.05.2013 when Mr. K.K.Manan, learned counsel for respondent nos. 1 to 3 and Mr. S.Wasim A.Qadri appearing Delhi Police complained that copies of the transfer petition had not been served upon them. Besides two weeks’ time was extended in favour of the petitioner to file the additional affidavit referred to in our previous order. The case eventually came up before us on 30.04.2014 when we requested Mr. Siddharth Luthra, learned ASG to assist us in the matter keeping in view the nature of the averments made in paras 3(a) to (f) of the transfer petition extracted earlier. Mr. Luthra sought time to look into the matter and make 11 his submissions. Mr. Luthra, has today placed before us copy of a communication dated 02.05.2014 received by him from the Director of CBI, Government of India which reads:
"The content of petition/document enclosed along with your aforesaid letter has been examined and it appears that the petitioner Shri G.Somarajan was working as a tout/middlemen and exercised his personal influence with concerned public servants in ensuring that the contracts were awarded to the aforesaid company by Shipping Corporation of India. In fact the petitioner has himself admitted in the petitiont aht he had earlier also worked with Shri Sainudheen for power projects of Doosan Company, South Korea and had facilitated Shri Sainudheen and company officials to meet senior officials and Ministers of State Governments of Andhra Pradesh, Tamil Nadu and Karnataka.
Prima facie there appears to be reasonable suspicion that the commission amount, which is substantial one, could be illegal gratification and this may attract the provisions of the P.C. Act, 1988."
Mr. Luthra submits that apart from what has been stated in the letter if further investigation into the matter reveals any illegality in connection with purchase of ships by the Shipping Corporation of India or the Commission of any public servant in connection with such purchases or payment of any bribe to any such authority, 12 offences punishable under Section 7 and 13(1)(d) may also be made out and investigated. He urged that if so directed the CBI shall conduct a preliminary enquiry into the matter and submit a report to this court keeping in view the seriousness of the allegations made and the likelihood of the transaction between the parties suggesting payment of illegal gratification to those charged with purchase of ships for the Corporation.
Learned counsel appearing for respondent Nos. 1 to 3 submitted that he had no objection whatsoever to a preliminary enquiry being conducted into the entire episode and the circumstances leading to the issue of the cheques in question. He argued that the petitioner was permitted access to the office of the respondents only because one of the Directors of the company like the petitioner hailed from the State of Kerala. He urged that the petitioner was allowed access to the office of the company simply to look for a job for himself and that he was in no way associated with the respondent company or its business activities nor was he engaged as a consultant to assist the company regarding the purchase of ships. The story given by the petitioner was according to the respondent false. He further submitted on 13 instructions that the four cheques amounting to ‘ 26,00,00,000/- (Rupees Twenty six crores only) were stolen by the petitioner from the office and one of such cheques was presented but dishonoured. No complaint regarding the alleged theft of these cheques was however lodged by the company. He urged that the proposed enquiry/investigation would vindicate the position of the respondents and help the court concerned to discover the truth.
Mr. R.Basant, learned senior counsel for the complainant submitted that he had no objection to an enquiry being directed so long as such enquiry does not foreclose his defence or prejudice his contentions in the complaint case which he has filed before the court. He urged that the CBI could be directed to investigate complaint Case No, 6081 of 2014 referred to above.
Before we issue any effective directions in the matter, we deem it fit to direct a preliminary inquiry by the CBI into the circumstance in which the cheques in question are alleged to have been issued/stolen by the petitioner. The preliminary inquiry would in our opinion bring forth the true facts and help us to determine whether any further direction need be issued, apart from the direction regarding the transfer of the case from Delhi to Kerala as prayed for in the petition.
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We accordingly request the Director, CBI, Government of India to have a preliminary inquiry conducted into the circumstances relating to the issue of cheques and the consideration for which such cheques were issued as also whether the cheques had anything to do with the purchase of ships by the Shipping Corporation of India and whether any bribe/kickback has been paid or received by any one in connection with the same within or outside India. A report on the subject shall be submitted by the Director, CBI expeditiously but not later than two months from the date copy of this order is received by him.
A copy of this order along with a copy of the paper book and all other documents filed in connection therewith shall be forwarded to the Director, CBI by the Registry.
List on 23.07.2014.
(Shashi Sareen) (Saroj Saini)
Court Master Court Master