Madras High Court
M/S.Syr Infrastructure vs State
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
Crl.R.C.Nos.1084 of 2021,
202 of 2022 and 225 of 2022
and connected C.M.Ps.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders reserved on Orders pronounced on
22.04.2022 26.05.2022
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022
and
CMP Nos.728, 2104, 2336 and 13993 of 2022
Crl.R.C.No.1084 of 2021
M/s.SYR Infrastructure
represented by its Proprietor
K.S.Yougandhar ... Petitioner/A5
Vs.
State
represented by Inspector of Police
Central Bureau of Investigation
Anti-Corruption Bureau
Chennai. ... Respondent
This Criminal Revision Case is filed under Section 397 r/w. 401
Cr.P.C. to set aside the order of dismissal of Crl.M.P.No.6895 of 2021 in
C.C.No.5 of 2019 on the file of XIV Additional Special Judge for CBI
Cases, Chennai, seeking discharge of the offences and thereby, dismiss
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the complaint in C.C.No.5 of 2019 on the file of XIV Additional Special
Judge for CBI Cases, Chennai, invoking supervisory revisional
jurisdiction of this Court.
For Petitioner : Mr.C.Manishankar,
Senior Counsel
for
M/s.R.Udhayakumar
For Respondent : Mr.K.Srinivasan
Special Public Prosecutor
Crl.R.C.No.202 of 2022
K.Kumar ... Petitioner/A2
Vs.
State by Inspector of Police
CBI, ACB
Chennai. ... Respondent
This Criminal Revision Case is filed under Section 397 r/w. 401
Cr.P.C. to call for the records and to set aside the order dated 07.12.2021
passed in Crl.M.P.No.4190 of 2020 in C.C.No.5 of 2019 on the file of
XIV Additional Special Judge for CBI Cases, Chennai, dismissing the
discharge petition.
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For Petitioner : Mr.K.Ravi Anantha Padmanabhan
For Respondent : Mr.K.Srinivasan
Special Public Prosecutor
Crl.R.C.No.225 of 2022
1. M/s.Eastern Bulk Trading and Shipping P Limited
represented by its Director
Tajudeen Mohamed Ilyas
2. Tajudeen Mohamed Ilyas
... Petitioners/A6 and A7
Vs.
The Inspector of Police
Central Bureau of Investigation
Anti-Corruption Branch
Madurai, (Camp at Chennai)
Chennai – 600 006.
RC MA1 2017 A 0011 ... Respondent
This Criminal Revision Case is filed under Section 397 r/w. 401
Cr.P.C. to call for the records and to set aside the order dated 07.12.2021
passed in Crl.M.P.No.5579 of 2019 in C.C.No.5 of 2019 on the file of
XIV Additional Special Judge for CBI Cases, City Civil Court, Chennai,
dismissing the discharge petition.
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and connected C.M.Ps.
For Petitioners : Mr.R.Rajarathnam
for
M/s.C.R.Malarvannan
For Respondent : Mr.K.Srinivasan
Special Public Prosecutor
COMMON ORDER
These Criminal Revision Cases have been filed against the order of dismissal of discharge petitions filed under Section 239 Cr.P.C in Crl.M.P.Nos. 6895 of 2021, 4190 of 2020 and 5579 of 2019 respectively in C.C.No.5 of 2019 on the file of XIV Additional Special Judge for CBI Cases, City Civil Court, Chennai.
2. Petitioner in Crl.R.C.No.202 of 2022 is the second accused, petitioners in Crl.R.C.No.225 of 2022 are accused 6 and 7 and the petitioner in Crl.R.C.No.1084 of 2021 is the fifth accused in C.C.No.5 of 2019.
3. Respondent filed final report against the accused 1 to 8 in 4/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
this case. The gist of the final report filed in this case is that during the period 2016-17, A1 to A3 - the officials of Chennai Port Trust, A4- M/s.M.C Jain and associates, A5-M/s.SYR Infrastructure and A6- M/s.Eastern Bulk Trading and Shipping Private Limited conspired together to cheat Chennai Port Trust in a matter of sale of iron ore and in pursuance of the conspiracy, contract was awarded to M/s.SYR Infrastructure on the basis of very low reserve price valued by M/s.M.C Jain and associates and then M/s.Eastern Bulk Trading and Shipping Private Limited was permitted to make payment for the contract, which was awarded to M/s.SYR Infrastructure against the contract terms. As per the prevailing market price, the same quality of iron ore was Rs.1,218/- per Metric Ton. Due to fixation of reserve price at Rs.400/- per Metric Ton, a wrongful loss to the tune of Rs.7,10,45,100/- was caused to M/s.Chennai Port Trust. Therefore, A1 to A3 are liable to be prosecuted for the offence under Sections 120(b) r/w.420 IPC, Section 13(2) r/w.13(1)(d) of Prevention of Corruption Act and A4 to A8 are liable to be prosecuted for the offence under Section 120(b) r/w.420 IPC. 5/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
4. Challenging the final report, petitioners filed discharge petitions under Section 239 Cr.P.C as stated above. Learned trial Judge, on considering the rival submissions and on perusal of the materials available on record, dismissed the discharge petitions. Thus, the petitioners are before this Court by way of these Revision Cases.
5. Learned counsel appearing for the petitioners made general submissions about the background of these cases. It is seen from their submissions that in and around 2010, there was a ban of iron ore mining and transportation in Karnataka and Andhra Pradesh. As a result, M/s.Chennai Port Trust stopped handling iron ore and the exporters were forced to vacate the plots allotted to them. Certain exporters failed to clear the iron ore stocked in their respective plots. M/s.Chennai Port Trust cleared the heaps of iron ore left behind by the exporters by conducting auctions. Residuals of iron ore accumulated in the stocking yards are deposited underneath the earth approximately to a depth of 6/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
around one metre, which led to increase of dust levels in the M/s.Chennai Port Trust and the Hon'ble Supreme Court appointed the Empowered Committee to handle the coal and other dusts in the Port. On 12.07.2016, a meeting was held by the Empowered Committee at Ministry of Shipping, New Delhi. As a consequence of the meeting, Chief Mechanical Engineer of M/s.Chennai Port Trust requested the Commissioner of Customs (Exports), Chennai, Commissionerate on 04.08.2012 for permission to sell the unaccounted iron ore lying underneath the iron ore plots of M/s.Chennai Port Trust through e- auction. Permission was sanctioned by Chairman of Commissioner of Customs (Exports) on 31.08.2016 with an agreement to share the sale proceeds on 50:50 basis between M/s.Chennai Port Trust and Customs Department. M/s.M.C Jain and associates, a common value approver was appointed as a valuer for assessing the quality and furnishing the value. Considering the cost of deploying, earthmoving equipment, labour cost, number of approximate days, transportation and various other costs, the valuer arrived at a reserve price of Rs.400/- per Metric 7/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
Ton. E-auction was conducted on 30.12.2016. As per e-auction catalogue, e-auction was conducted under the condition “as is where is”, as the residual ores were deposited underneath the soil and it was incalculable to precision. M/s.SYR Infrastructure, who was the highest bidder, by quoting highest price of Rs.681/- per Metric Ton. M/s.SYR Infrastructure, due to various economic factors, was not able to pay the amount within the time stipulated. On the request made by e-mail letter dated 06.01.2017, the time was extended till 19.01.2017 and again extended till 24.01.2017 on the basis of the request made on 17.01.2017 for making payment. Mean while M/s.Eastern Bulk Trading and Shipping Private Limited approached M/s.SYR Infrastructure to form a partnership and to pay Rs.10,18,53,867/-. Petitioner accepted the proposal and M/s.Eastern Bulk Trading and Shipping Private Limited paid a sum of Rs.3,00,00,000/- on 23.01.2017 and a sum of Rs.7,18,53,867/- on 24.01.2017. They had no malevolent intention to cheat or commit forgery on M/s.Chennai Port Trust and the transaction was done in a transparent manner. The payment was also confirmed by 8/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
the Chairman, M/s.Chennai Port Trust. M/s.MSTC confirmed the payment and gave delivery order to M/s.SYR Infrastructure. M/s.SYR Infrastructure commenced the work of excavating and moving iron ore complying with the rules and regulations of tender. On 29.03.2017 M/s.Chennai Port Trust officials orally instructed to stop the work of excavating the iron ore. Subsequently on the basis of the complaint by the Viligance Officer, this case came to be registered.
6. Learned counsel for the petitioner in Crl.R.C.No.202 of 2022/second accused submitted that he is only a Senior Deputy Materials Manager. He has no role in approval of reserve price, deciding the bid amount and closing the e-auction. A4 is the independent Government approved valuer. A4 assessed the iron ore quality and quantity to be auctioned and fixed the reserve price at Rs.400/- and sent it in a sealed cover to the Chairman. The Chairman approved it and sent it for further process. The e-auction was advertised in newspapers and in web portals. Nobody would know the name of the bidders on the display boards, 9/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
except seeing the bid quoted amount. The auction was conducted by Government of India undertaking M/s.MSTC Limited. Everything was done through online. A1 to A3 are the 6th and 7th lower level officers from the post of Chairman of M/s.Chennai Port Trust. There was no role played by A2 in approving the extension of time and acceptance of RTGS payment made on behalf of A5. All these letters and transactions were handled only by higher officials. Since 2014, M/s.Chennai Port Trust has been in the habit of opening a web portal of auctioneer one day prior to the auction date. Therefore, the allegations that the web portal was opened a day before the auction on 30.12.2006 is not out of ordinary. It was a routine procedure followed from 2014. There is no whisper in anywhere in the charge sheet that A1 to A3 led A4 in fixing reserve price by A4 and made unlawful gain. There is absolutely no material that the petitioner, A1 and A3 had conspired with other accused in the matter of conducting e-auction. Petitioner is unnecessarily and unjustly prosecuted for no fault committed by him. If really, there is anything illegal, that can be attributed only to higher officials starting from Chairman, 10/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
M/s.Chennai Port Trust. But they are let off and not shown as accused.
7. Learned counsel for the petitioner in Crl.O.P.No.1084 of 2021/5th accused submitted that the tender was for the sale of iron ore consisting of sand, lumps, mud and clay and on “as is where is” basis. On the basis of nature of iron ore and its quality and other incidental expenses, M/s.M.C Jain and associates had fixed the reserve price of Rs.400/- per Metric Ton. There is no material to show that there was a conspiracy between A5 and A4 M/s.M.C Jain and associates with regard to the fixation of reserve price. The Chairman of Port Trust has power to refer the valuation for three members panel, if he feels that the reserve price fixed by the valuer is less. That was not done in this case. But the Chairman of M/s.Chennai Port Trust approved the reserve price. The Investigating Agency has not conducted any enquiry with the Chairman, M/s.Chennai Port Trust in this matter. There is a huge difference in the valuation of the material, when it was inside the soil and after taking out of the soil. If at all some offences had been committed, it would not have 11/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
been possible to commit the offence without the knowledge of Chairman, M/s.Chennai Port Trust, Deputy Chairman, M/s.Chennai Port Trust, Chief Accountant Officer, Chief Mechanical Engineer of M/s.Chennai Port Trust. Except the Chief Mechanical Engineer, none of the above hand been enquired by the Investigating Agency. Fifth accused was the highest bidder quoting reserve price at Rs.681/- per Metric Ton. The bid amount with other charges were paid by the sixth accused on behalf of the fifth accused and it was intimated to the Chairman, M/s.Chennai Port Trust, MSTC and the Chief Mechanical Engineer. They neither refused to receive the payment nor issued any notice in this regard to the fifth and sixth accused. The payment was made well within the terms of contract. The SES report obtained by the vigilance department is totally different from the valuation done by A4. The agreement between A5 and A6 namely H1 and H3 bidders was after the tender process had been completed. There is nothing illegal in it. Even if there is any procedural violation, it could only result in civil consequences. Certainly not a criminal prosecution. Fifth accused filed the Writ Petition in 12/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
W.P.No.13934 of 2017 against the order restraining the fifth accused from removing the iron ore and that petition was dismissed on the ground that the criminal case is pending. Fifth accused filed Writ Appeal in W.A.No.965 of 2018. This Court in W.A.No.965 of 2018 directed the fifth accused to furnish the bank guarantee of Rs.7,10,45,100/- to the credit of M/s.Chennai Port Trust and allowed the petitioner to remove the balance iron ore from the allotted plots. Appeal filed by the M/s.Chennai Port Trust before the Hon'ble Supreme Court was dismissed during the admission.
8. Learned counsel appearing for the petitioner in Crl.R.C.No.225 of 2022/A6 and A7 submitted that A6 was a new entrant in the iron ore e-auction held on 30.07.2016 and it is third highest bidder. It quoted Rs.676/- per Metric Ton, but fifth accused had quoted Rs.681/- per Metric Ton and was awarded the contract. Then A5 and A6 formed an unregistered firm in the name of M/s.EB Trading Company on 20.01.2016. A sale and purchase agreement was entered into between A5 13/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
and M/s.EB Trading Company on 20.01.2017. A6 remitted the amount to M/s.Chennai Port Trust on behalf of the fifth accused and it was approved by the M/s.Chennai Port Trust officials. There is no suppression of any facts. All the transactions had taken place in transparent manner through bank payment. There is absolutely no material to show that A6 had conspired with A5 or A4 or for that matter with any other accused in this case. Second highest bidder, who claimed to have shared the same portal with the fifth accused, namely M/s.Sri Laxmi Glass Plywoods has not been included as accused, but was shown as a witness. It is perplexing absolutely. Fifth accused and sixth accused had participated in the auction for buying the iron ore and selling at higher price, namely at a profit to the prospective buyers. Whatever transaction that had taken place between fifth accused and sixth accused are only purely a business/commercial transaction. Sixth accused had no role in fixing the reserve price in conducting e-auction and finalising e- auction. There is no law prohibiting a tie-up with the successful bidder for advancing business interest. There is no criminal intention of 14/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
cheating, conspiracy to cheat among the accused.
9. Thus, the counsel appearing for the parties submitted that the learned trial Judge, without considering the scope of the case in the light of factual and legal background, had wrongly dismissed the discharge petitions. Thus, they prayed for setting aside the orders passed in the discharge petitions and for allowing the Criminal Revision Cases.
10. Respondent filed separate counters in these Revision Cases. It is seen from the counters filed that the second accused as an Executive officer in the rank of Senior Deputy Material Manager, M/s.Chennai Port Trust has a right and responsibility of cancelling the e-auction. His role in criminal conspiracy is clearly seen in the aspect of putting up a note to the Chief Mechanical Engineer by falsely mentioning that bidder M/s.SYR Infrastructure had paid the bid amount, whereas the bid amount was actually paid by its competitor M/s.Eastern Bulk Trading and Shipping Private Limited. He knew the reserve price prior to forwarding 15/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
the same to the Chairman, M/s.Chennai Port Trust. He knew well that the report was prepared without following the stipulated scientific standard method by analysing the ferrous content, quality of the ore, details with reserve price. Deliberately uploaded the reserve price in the portal. It shows that he conspired with other accused in this case. As per Port Trust circulars, the reserve price has to be uploaded in MSTC portal only on the date of auction, whereas the second accused, in collusion with other accused, violated this procedure. He had right to cancel the e- auction, but did not done so, in order to unduly favour the fifth accused. The highest bidder fifth accused and second highest bidder M/s. Sri Laxmi Glass Plywoods fed the bid amount from the same IP address. It amounts to cheating. He also failed to take steps to cancel e-auction, when the bid amount was paid by sixth accused on behalf of fifth accused.
11. It is further submitted by the learned Special Public Prosecutor for CBI that the market price for iron ore was Rs.1,218/- per 16/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
Metric Ton at the relevant point of time, whereas the reserve price was fixed at Rs.400/- per Metric Ton. Fifth accused purchased the iron ore, which was undervalued by the fourth accused, in pursuance of criminal conspiracy. The fact that the iron ore consists of sand, lumps, mud and clay does not mean that iron ore was of poor quality. It was mentioned as 'fair quality ore' by the fourth accused. The price quoted by fifth accused at Rs.681/- per Metric Ton is very low and loss was caused to M/s.Chennai Port Trust. Instead of paying the bid amount, fifth accused allowed the sixth accused to pay the bid amount against the terms of the contract. Later, the iron ore was sold at a higher price. If the bidder withdraws or fails to deposit the share value, its offer is liable to be cancelled, as per clause 20 of the auction catalogue for tender. However, in connivance with Port Trust officials, fifth accused and sixth accused got the payment made by the sixth accused on behalf of the fifth accused.
12. It is further submitted by the learned Special Public Prosecutor that sixth accused is a private limited company represented by 17/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
its Director, seventh accused. Having lost the bid, sixth accused made the payment on behalf of fifth accused, without any prior approval. It was made possible with the help of Port Trust officials. Port Trust officials and the accused had conspired to regularise the payment made by the sixth accused on behalf of fifth accused. The payment made by sixth accused on behalf of fifth accused is against the terms of the tender clause. Thus the learned Special Public Prosecutor submitted that starting from fixing base price, participation in e-auction, allowing fifth accused to be the successful bidder and then fifth accused and sixth accused joining hands in flouting a company for the sale of iron ore at higher price and in the process causing loss to the M/s.Chennai Port Trust are all result of criminal conspiracy among the accused, with an intention of cheating M/s.Chennai Port Trust. There are materials available to support the allegations made against the accused in this case. Therefore, the trial Court had rightly dismissed the discharge petitions. Thus, the learned Special Public Prosecutor prayed for confirming the order of learned trial Judge and for dismissal of this Criminal Revision Cases. 18/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
13. Considered the rival submissions and perused the records.
14. It is seen from the submissions of the learned counsel appearing for the parties and the records produced, that the Ministry of Finance and Department of Revenue, Government of India through the office of Commissioner of Customs, Chennai issued a Facility circular No.18/2016 dated 31.08.2016 wherein the subject of disposal of iron ore brought into M/s.Chennai Port Trust area, Customs area for export, but not exported and not obtained was considered. It was observed that abandoned export goods are lying in M/s.Chennai Port Trust and it led to congestion within M/s.Chennai Port Trust area/CFS. Various logistic problems arose out of space constraint and it was decided to dispose of such goods from time to time. It was decided that M/s.Chennai Port Trust/CFS will dispose such unclaimed/uncleared export cargo by following the similar procedure for disposal of unclaimed/uncleared import cargo. The process of disposal should be completed not later than 19/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
31st December 2016 by the respective custodians. Valuation of the goods taken up for disposal shall be done by custodians through the approved valuers appointed by them. In case of doubt, the same may be referred to a panel of three valuers. The sale price shall be shared between the custodians and Customs with 50:50 basis. On the basis Chairman, M/s.Chennai Port Trust sanction dated 3.11.2016, a letter dated 09.11.2016 was addressed for the disposal of iron ore through e-auction. On 17.11.2016, the Chief Mechanical Engineer, M/s.Chennai Port Trust, wrote to M/s.M.C Jain and associates for assessment of quality and for value of the residual iron ore. On 25.11.2016 M/s.M.C Jain and associates sent a valuation report along with a covering letter. It is seen from this letter that it surveyed top layer of iron ore consisting of sand, lumps, mud and clay in heaps located at stocking yard. The density of iron ore in one cubic meter varies from 1.5 MT to 2 MT Ton. It enquired Haldia Port and Sponge iron factories about the density of iron ore and taken average of 1.8 MT for one cubic metre for calculating the iron ore in the location mentioned. Valuation report was sent in a separate and 20/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
confidential envelop.
15. Material Management Division, Mechanical and Chemical Engineering Department, M/s.Chennai Port Trust issued an auction catelogue incorporating the terms and conditions of e-auction to be held on 27.12.2016. M/s.MSTC was requested through letter dated 08.12.2016 for the display of auction catalogue in their website for wide publicity. Dr.P.Tamilvanan was appointed as Independent External Monitor for monitoring the e-auction process. On 23.12.2016, a corrigendum was issued postponing the auction to 30.12.2016 with other details. On 27.12.2016, a letter was sent to Traffic Manager, Marmagoa Port Trust seeking to furnish list of exporters of iron ore of Marmagoa Port Trust to give publicity to them. The bid history shows that e-auction was closed on 19.17.46 hours on 30.12.2016. Highest bidder being fifth accused – M/s.SYR Infrastructure for Rs.681/- followed by M/s. Sri Laxmi Glass Plywoods at Rs.680/- and M/s.Eastern Bulk Trading and Shipping Private Limited at Rs.676/-. Then on 06.01.2017, fifth accused 21/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
sent a letter seeking time for paying bid amount. Through the letter dated 12.01.2017 M/s.Chennai Port Trust extended the time for payment till 19.01.2017. Again on 17.01.2017, fifth accused sought extension of time stating various reasons. On the basis of this request, the time was extended till 24.01.2017.
16. On 24.01.2017, M/s.SYR Infrastructure and M/s.Eastern Bulk Trading and Shipping Private Limited namely, fifth accused and sixth accused, through separate letters informed M/s.MSTC, Chennai and the Chairman, M/s.Chennai Port Trust that a sum of Rs.10,86,53,867/- was paid by sixth accused on behalf of fifth accused. Similar letter was sent to the Chief Mechanical Engineer, M/s.Chennai Port Trust by the fifth accused on 25.01.2017. It is seen from the note dated 25.01.2017 prepared by Mr.R.Arunachalam, Deputy Chief Accounts Officer that the sale value of Rs.10,86,53,867/- was remitted by M/s.Eastern Bulk Trading and Shipping Private Limited on behalf of M/s.SYR Infrastructure. Acceptance letter was issued by M/s.Chennai Port Trust 22/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
and delivery order was issued by M/s.MSTC to the fifth accused. Then there was a communication dated 30.03.2017 from M/s.Chennai Port Trust informing the evacuation of ore mines to be temporarily suspended. It was responded through a letter dated 05.04.2017 by the fifth accused, with a request to permit them to resume the iron ore excavation and its movement.
17. At the behest of Vigilance Department, samples were tested by M/s.SES India Private Limited with regard to Fe content. On the basis of report of M/s.SES India Private Limited, the Chief Vigilance Officer, through his letter dated 07.04.2017 requested the Regional Manager, M/s.MSTC Limited for the market price of iron ore during December 2016. In response to this letter, M/s.MSTC Limited through their letter dated 18.04.2017 furnished the iron ore prices based on various auctions conducted on behalf of the Monitoring Committee, Bangalore for iron ore mines of Karnataka during November 2016 and December 2016. As per this report, the price range of iron ore with Fe 23/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
content ranging from 60 to 64% during 2016 was Rs.1,960/- to Rs.2,286/- averaging at Rs.2,101/-. The reserve price price was fixed at Rs.400/-, taking into consideration the labour cost, transportation cost, JCP for digging and loading cost at 7% each + storage and handling loss charge + poor quality at 20%. After including the aforesaid cost, the market price for iron ore comes to Rs.1,218/-. If calculated at Rs.1,218/- per Metric Ton, the price for 1,32,300 Metric Ton will be Rs.16,11,41,400/-. But the sale price fixed was at Rs.9,96,00,300/-. Thus it resulted in loss of Rs.7,10,45,100/- to the Port Trust.
18. It is submitted by the learned counsel appearing for the parties that they have no role at all in fixing the base price and conducting e-auction sale. Anybody can participate in the e-auction sale subject to satisfying the eligibility criteria. Nobody can see, who are all parties bidding the price, except the bid amount. They had no opportunity of manipulating e-auction sale. There is absolutely no material produced before the Court with regard to the allegations of 24/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
conspiracy among the accused. In the absence of any material to establish the meeting of minds to engage in conspiracy, there is absolutely no case made out for the prosecution to prosecute the petitioners for the offences alleged against them. In support of their submission that the base price was used to be uploaded on the previous date of auction, petitioners produced records to show that sealed cover containing the base price was opened one day prior to the date of auction. They also submitted the following judgments with regard to the essentials required for establishing the charges of criminal conspiracy and cheating and framing the charges.
(i) (2000) 4 SCC 168 – Hridaya Ranja Prasad Verma & Others ..vs.. State of Bihar, it is held that, “14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. in the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do 25/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention 26/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
right at the beginning, that is, when he made the promise cannot be presumed.”
(ii) (2005) 10 SCC 336 – Uma Shankar Gopalika ..vs.. State of Bihar and another, wherein it is held as follows:-
“6. Now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under Sections 420/120-B IPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs 4,20,000, they would pay a sum of Rs 2,60,000 to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the Consumer Forum in relation to the claim of Rs 4,20,000. It is well settled that every breach of contract would not give rise to an 27/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating, hi the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.
7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120-B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 CrPC which it has erroneously refused.” 28/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
(iii) (2012) 3 SCC (Cri.) 1183 – CBI ..vs.. K.Narayana Rao, the relevant portion reads as follows:-
“24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved 29/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence. ”
(iv) (1979) 3 SCC 4 – Union of India ..vs.. Prafulla Kumar Samal and others. It is held that, “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 30/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
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 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 Judge cannot act merely as a Post office or a mouth-piece 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 31/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
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.”
19. There is no dispute with regard to the decision taken by M/s.Chennai Port Trust for selling the iron ore stocked in M/s.Chennai Port Trust by the exporters and not removed. The prime issue in this case is that M/s.M.C Jain and associates, fourth accused was requested to assess the quality and valuation of the residual top layer iron ore. The case of the prosecution is that the reserve price quoted by fourth accused at Rs.400/- per Metric Ton is very low, for the reason that M/s.M.C Jain and associates had fixed higher reserve price even during 2016 for different consignments. The details are as follows:-
(1) on 01.09.2013 for 20596 MT of iron ore, reserve price was fixed at Rs.3,000/- per Metric Ton. The quality was classified as 'good'.
(2) on 25.08.2015 for 7666 MT of iron ore, reserve price at Rs.2,500/- per Metric Ton was fixed, though the quality was classified as 32/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
'fair'.
(3) on 30.01.2016 for 7655 MT of iron ore, reserve price was fixed at Rs.750/- per Metric Ton. The quality was classified as 'poor'.
(4) on 09.05.2016, the reserve price was fixed at Rs.700/- per Metric Ton, for 4763 MT iron ore. The quality was classified as 'fair'.
(5) on 06.08.2016, for 3563 MT of iron ore, reserve price was fixed at Rs.950/- per Metric Ton. The quality was classified as 'fair'.
However, in the case concerned in this case, reserve price for 1,32,300 MT of iron ore was fixed at Rs.400/- per Metric Ton, for quality classified as 'fair'.
20. Obviously, fixation of reserve price from 2013-2016, especially in the year 2016 shows that on 30.01.2016, for poor quality iron ore, the reserve price was fixed at Rs.750/- per Metric Ton. In other cases, reserve price was fixed at Rs.700/- per Metric Ton on 09.05.2016 and at Rs.950/- per Metric Ton on 06.08.2016 for the iron ore classified as 'fair'. It is not known on what basis, the reserve price for 1,32,300 MT 33/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
of iron ore for a 'fair' quality, was fixed as low as Rs.400/- per Metric Ton. The charge against the fourth accused is that before fixing the reserve price at Rs.400/- per Metric Ton, no scientific analysis was done and no price verification was done from other sources. It was primarily because there was a conspiracy among the accused to fix the reserve price at a low price, so that the accused get benefitted. Considering the huge difference in the reserve price for 'fair' quality iron ore even during 2016, this Court is of the considered view that there is an element of strong suspicion with regard to low reserve price fixed by the fourth accused, obviously because of enriching itself with the other accused.
21. There is yet another allegation that no sufficient time was given to facilitate other iron ore exporters to participate in the e-auction. It is seen from the letter dated 27.12.2016 from the Chief Mechanical Engineer to the Traffic Manager, Marmagoa Port Trust that the list of exporters of iron ore was intimated only on 27.12.2016, for the e-auction fixed on 30.12.2006. It prima facie shows that no sufficient time was 34/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
given to the exporters of Marmagoa Port Trust to furnish the list of exporters of iron ore for extensive participation of prospective buyers in the e-auction sale.
22. It is alleged in the final report that fifth accused and second highest bidder M/s. Sri Laxmi Glass Plywoods formed a portal and both the bidders fed the bid amount in the e-auction through the same IP address. However, it is seen that M/s. Sri Laxmi Glass Plywoods is not arrayed as an accused, but only shown as a witness. Grievance of the petitioners is that when the second highest bidder is not shown as accused, theory of conspiracy falls to the ground.
23. It is the admitted fact that fifth accused became the successful bidder. But fifth accused did not make the payment of bid amount with other charges, despite giving two extension of time. Payment was made by sixth accused on behalf of fifth accused. This is, according to the prosecution, is contrary to the terms of the tender 35/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
conditions.
24. The condition of e-auction sale, with regard to “confirmed lots” in clause-a reads as follows:-
“ 8(a) For confirmed lots, 100% of the sale value with applicable taxes, levies and 5% Clearance Security Deposit shall be remitted by way of Demand Draft/Bank Cheque in favour of the Chairman, Chennai Port Trust, payable at Chennai within five (5) Trust working days from the next date of closing of e-auction to the Trust's Finance Department through M/s.MSTC Ltd., The auctioneer will issue Delivery Order on receipt of 100% sale value along with taxes and levies and 5% Clearance Security Deposit, otherwise interest shall be payable to the Trust on the sale value beyond free time.” 36/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
It is clear from this clause that the successful bidder should pay 100% of the share value within 5 working days of closing of e-auction sale.
25. Clause-20 reads as follows:-
“If the bidder withdraws or fails to deposit the amount of sale value, the offer will be cancelled besides recording his unsatisfactory performance and also forfeit of EMD or action taken as deemed fit. Further, Trust reserves the right to take legal action to compensate the loss due to resale.”
26. As per clause-20, if the bidder fails to deposit the amount of sale value, the offer will be cancelled ie., the sale offer will be cancelled, besides recording 'unsatisfactory performance' of the bidder apart from his losing the EMD. It was also made clear that M/s.Chennai Port Trust has right to take legal action to compensate the loss due to resale. Clause-20 makes it clear that the course open to M/s.Chennai Port Trust 37/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
is to resale the consignment, if the bidder fails to deposit the sale amount. There is no provision made in the condition of sale that a person other than the successful bidder can pay the sale amount on behalf of the successful bidder, even if it meant to be the third highest bidder.
27. It is seen from the records that the sixth accused had not sought any permission from M/s.Chennai Port Trust authorities to make payment on behalf of the fifth accused. Sixth accused just made the payment on behalf of fifth accused and sought only ratification. The ratification/ approval was possible, according to the case of the prosecution, when M/s.Chennai Port Trust officials, especially accused 1 to 3, prepared a wrong note to get the approval of payment. It is also revealed during the course of investigation that fifth accused Company purchased the iron ore from M/S.EB Trading Company floated by fifth accused and sixth accused at Rs.2,120/- per Metric Ton during March 2017 and sold it at Rs.2,200/- per Metric Ton to M/s.JSW Steel. The fixation of reserve price at Rs.400/- per Metric Ton, when it ought to 38/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
have been much higher, payment of sale price by the sixth accused on behalf of fifth accused contrary to the tender conditions, prima facie establish the allegation of cheating, allegation of conspiracy for the purpose of cheating M/s.Chennai Port Trust. The 'proforma of integrity fact clause-9' provides that bidder will not collude with other parties interested in the contract, not only prior to the tender process, but also after the tender process during contract and implementation of contract. Admittedly A5 and A6 had participated in the e-tender; sixth accused paid the sale price on behalf of fifth accused against tender conditions; they flouted M/s.EB Trading Company and sold the iron ore at a much higher price. Whether this is only purely a business/commercial transaction or an action to cheat M/s.Chennai Port Trust in conspiracy with other accused, could be known only if trial is conducted, witnesses examined and documents marked. Conspiracy can be proved either by direct evidence or by circumstances. If the complicity of any other person comes to light, it is always open to add them as accused under Section 319 of Criminal Procedure Code.
39/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
28. It is observed in 'Amit Kapoor ..vs.. Ramesh Chander and another' reported in (2012) 9 SCC 460 that,
17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the ‘record of the case’ and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It 40/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.
18. ........
19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well settled law laid down by this Court in the case of State of Bihar v. Ramesh Singh (1977) 4 SCC 39:
41/48
https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
“4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If “the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined by Section 227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has 42/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
committed an offence which— … (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused”, as provided in Section 228.
Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter 43/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or 44/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example.
If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one 45/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
under Section 228 and not under Section
227.”
29. A same cause of action may give rise to a civil and criminal consequences. Merely because a civil remedy is possible, criminal prosecution cannot be subverted. At the time of framing of charges, the probative value of the materials on record cannot be gone into and the materials by the prosecution have to be accepted as true. If there is sufficient ground to proceed, then charges can be framed. When applied this principle, this Court is of the considered view that there are materials available sufficient enough to frame charges against the petitioners for the offences alleged against them. Thus, this Court finds that the trial Court had rightly dismissed the discharge petitions and this finding requires no interference.
30. In this view of the matter, all the above Criminal Revision Cases are dismissed by confirming the order passed by the trial Court. 46/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
The trial Court is directed to dispose the case as early as possible, preferably within a period of four months, without being influenced by any of the observations made in this order. Consequently, connected Miscellaneous Petitions are closed.
Mra 26.05.2022
Index : Yes
Internet : Yes
Speaking/Non-speaking order
To:
1. The XIV Additional Special Judge for CBI Cases, City Civil Court, Chennai.
2. Inspector of Police Central Bureau of Investigation Anti-Corruption Bureau Chennai.
3. The Inspector of Police Central Bureau of Investigation Anti-Corruption Branch Madurai, (Camp at Chennai) Chennai – 600 006.
RC MA1 2017 A 0011 G.CHANDRASEKHARAN, J., 47/48 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
mra
4. The Public Prosecutor High Court Madras.
Common Order in Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022 and connected C.M.Ps.
26.05.2022 48/48 https://www.mhc.tn.gov.in/judis