Delhi District Court
Cbi vs . D.K.Tyagi & Ors. ( Order On Charge) on 18 December, 2013
CBI Vs. D.K.Tyagi & Ors. ( Order on Charge)
Dated : 18th December 2013.
IN THE COURT OF : SH. KANWALJEET ARORA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
FIR NO. : RC - AC.3 / 2004 / A0002 /
SPE /CBI/ ACUIII /New Delhi
dated 04.05.2004.
Under sec. : 120B r/w section 420, 468, 471
IPC and 13 (2) r/w sec.13(1)(d)
of Prevention of Corruption Act
IN THE MATTER OF:
CBI VS. D.K.TYAGI & ORS.
C.C.NO.: 12 / 2011.
Dated: 18.12.2013.
ORDER ON CHARGE:
1.Democratic polity of ours working through an 'elected government' lays down various policies with object to achieve the prosperity of the nation as a whole. These policies and plans are meant for upliftment of the country by giving an upward impetus to the export, earning foreign exchange on one hand and by raising the name of the nation as a global exporter, on the other. C.C.No.: 12 / 2011 Page No.1 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
2. Public servants in whatever capacities they are holding their offices, are supposed to give effect to these plans and policies, so that the benefits arising out of them should percolate down to the ones who are associated with implementation of these policies. To achieve the object for which these policies and plans are put in place, all the public servants are expected to discharge their functions with utmost propriety and all fairness. Experience however has revealed that many public servants, instead of using their good offices for the public good, misuse the same for their personal benefits or for the benefit of their favoured ones by indulging into corrupt and improper practices.
3. Legislature in its wisdom in order to curb such corrupt and improper practices had brought "Prevention of Corruption Act, 1988" on the Statute Book for not only, punishing those who had violated the very oath of honesty and sincerity with which they had assumed their offices and indulged in 'corrupt practices', but also to deter the others from treading the path of dishonesty. C.C.No.: 12 / 2011 Page No.2 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
4. Central Bureau of Investigations had received one such source information that some officers of National Cooperative Consumer Federation of India (NCCF), being public servants had misused their official positions and entered into a criminal conspiracy with others. It is alleged that in furtherance of this criminal conspiracy, the public servants, by giving effect to their respective roles had caused wrongful loss to NCCF and corresponding wrongful gain to themselves and other conspirators.
5. ACUIII Branch of Central Bureau of Investigations thereafter on the basis of this source information had registered an FIR bearing RC AC.3/2004 A0002 on 24.05.2004 under section 120B r/w section 420, 468 and 471 IPC and 13 (2) r/w section 13(1)(d) of Prevention of Corruption Act,1988.
6. After registration of the FIR, CBI had investigated the matter and on conclusion of investigations, C.C.No.: 12 / 2011 Page No.3 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
a charge sheet was submitted against (i) D.K.Tyagi, Branch Manager, National Cooperative Consumer Federation of India (NCCF), New Delhi, (ii) R.C.Puri, Deputy Manager (Import and Export), National Co operative Consumer Federation of India (NCCF), New Delhi, (iii) Narender Singh Batra, Proprietor of M/s City Shoes, (iv) Tirupati Balaji Pandhi @ Jagdamba Prasad ;
(v) Mahesh Chander Amlani, for offences punishable under section 120B r/w section 420, 468 and 471 IPC and 13 (2) r/w section 13(1)(d) of Prevention of Corruption Act,1988.
7. It is alleged in the charge sheet so filed by CBI against these five accused persons, that they were party to a criminal conspiracy hatched amongst themselves at Delhi, Gurgaon, Ludhiana and Sabarmati in the year 2002. It is alleged that the object of this conspiracy was to defraud NCCF by abuse of the official position by accused D.K.Tyagi and R.C.Puri, who were the public servants C.C.No.: 12 / 2011 Page No.4 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
along with the others and getting the rice issued from FCI on behalf of NCCF as "associate shipper" at subsidized rates in the guise of export and selling it in the open market without actually exporting the same. It was further the object of the conspiracy to use forged transport and export documents before NCCF and FCI, knowing that the documents are forged, in order to claim that the rice has been exported in terms of the agreement.
8. It is alleged in the charge sheet that accused D.K.Tyagi and R.C.Puri being public servants, abused their official positions and got M/s City Shoes of which Narender Singh Batra was the proprietor, registered as "associate exporter", though the said firm did not have the necessary credentials to meet the eligibility criterion. It is alleged that they in furtherance of the conspiracy recommended and got approval for the proposal of Narender Singh Batra to export 12,500 metric tonnes of rice and then got this quantity issued to Narender Singh Batra and his representatives from FCI Godowns at Sahnewal, Khanna, C.C.No.: 12 / 2011 Page No.5 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
located in District Ludhiana and from Sabarmati, Ahmedabad at concessional rates and accepted fake transport and export documents submitted by Narender Singh Batra, without proper verification.
9. It is alleged that Narender Singh Batra, by making false representations got his firm registered with NCCF as "associate shipper / exporter". He further dishonestly and fraudulently induced NCCF to get rice issued to him and / or his representatives at concessional rates from the FCI Godowns. It is alleged that he in connivance with accused T.B.Padhi @ Jagdamba Prasad and Mahesh Chander Amlani, dishonestly sold the rice in open market, which was issued to him for export purposes. Further, he along with other accused persons forged and fabricated transport and export documents to claim that he exported the rice to Oman and used these forged documents as genuine to claim export. As the rice was sold in open market by these accused persons, they made huge wrongful profit to themselves thereby causing C.C.No.: 12 / 2011 Page No.6 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
wrongful loss to NCCF. FCI in terms of the indemnity bond demanded NCCF to make payment of Rs.1,67,00,000/ as differential cost which was infact paid by NCCF to FCI.
10. Pursuant to filing of the charge sheet, Ld.Predecessor of this court, took cognizance of offence and summoned all the five accused named in the charge sheet.
11. In compliance with provisions of Section 207 Cr.P.C copies of the charge sheet along with annexures and documents were supplied to the accused persons.
12. In voyage of the criminal proceedings when the matter reached at the stage of charge, I have heard the arguments advanced on behalf of the parties to the proceedings. During the course of arguments on point of charge, an application has been filed on behalf of accused no.3 Narender Singh Batra, by Ld.Defence Counsel seeking his discharge. Copy of the same was supplied to Ld.Public C.C.No.: 12 / 2011 Page No.7 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
Prosecutor who did not wish to file any reply to the present application, but orally objected to the same.
13. I, by virtue of this order, shall also be considering this application filed on behalf of accused no.3 Narender Singh Batra, besides considering the present case filed by the CBI on point of charge qua the accused persons.
14. It is contended by Ld.PP for CBI that on the basis of material placed on record in form of charge sheet and statement of witnesses recorded during the course of investigations, coupled with the documents, primafacie case is made out against all the accused persons that they hatched a criminal conspiracy and performed their specified roles in furtherance of the object of this conspiracy and caused wrongful loss to NCCF and corresponding wrongful gain to themselves. C.C.No.: 12 / 2011 Page No.8 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
15. Countering the contentions of Ld.PP for CBI, multifaceted arguments were advanced by Ld.Defence Counsels appearing on behalf of the accused persons. It was contended by Ld.Defence Counsels appearing on behalf of accused D.K.Tyagi and R.C.Puri that they never abused their official position and none of their act can be termed as "criminal". It has been contended by Ld.Defence Counsels that the investigating agency had not conducted the investigations in a fair and impartial manner and have left the main culprits who made huge wrongful profits from these transactions and were part of the conspiracy and they have wrongly and falsely implicated them in the present case making them scapegoats.
16. It is further submitted by Sh.Nareshwar Pandey, Advocate, appearing on behalf of accused no.1 D.K.Tyagi and Sh.Aseem Naeem, on behalf of accused no.2 R.C.Puri, that there is no allegation in the entire charge sheet against these two accused persons of their obtaining any valuable thing or pecuniary advantage for themselves. C.C.No.: 12 / 2011 Page No.9 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
It is further contended on behalf of these 2 accused persons that they had strictly followed the guidelines and acted in discharge of their official duties. Another contention raised on behalf of these two accused persons is that there was no meeting of mind between them and the other accused persons, who have been chargesheeted. It is contended that the acts of the accused persons cannot fall in the category of 'criminal misconduct', so as to invoke the provisions of Prevention of Corruption Act against them. It is submitted that no sanction either under section 19 of P.C.Act 1988 or under section 197 Cr.P.C, which are the prerequisites, has been taken, therefore, the accused persons be discharged.
17. On behalf of accused no.3 Narender Singh Batra,it is contended by Sh.M.S.Ahluwalia, Advocate, that there is no allegation against this accused of any offence, with which he has been chargesheeted. It is contended that accused no.3 with the intention to have the rice exported, send it to the rice mills for upgradation, but C.C.No.: 12 / 2011 Page No.10 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
those rice mills misappropriated the same and failed to give back the rice to Narender Singh Batra, as a result of which he could not make the export. It is contended that for invocation of Section 420 IPC, dishonest intention should have been there from the very inception which is absent in the present case. It is further contended that this accused has neither forged any document nor has used any such documents, therefore no case is made out against him.
18. On behalf of accused no.4, it is contended by Ms.Parminder Khatara, Advocate that no wrongful gain was caused to this accused at any point of time. Nor is he related to receipt or sale of the rice in question. It is contended that there is no meeting of minds, between accused no.4 and rest of the accused persons, therefore this accused be discharged.
19. Sh.Vikas Manchanda, Advocate, Counsel for accused no.5, contended that this accused has been made a C.C.No.: 12 / 2011 Page No.11 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
scapegoat by CBI who had adopted 'pick & choose' policy. It is contended that this accused was an employee of one Jayeshbhai, who is made a prosecution witness. He contended that whatever he has done, the same is at instance of his employer . He contended that from the entire record, it is apparent that there is no direct interaction or meeting of mind between this accused and other coaccused persons, therefore he cannot be charged for any offence of conspiracy. He further contended that no other substantive offence is made out against this accused as he has not gained anything out of this transaction, nor has been alleged by the prosecution.
20. Ld.Defence Counsels in support of their contentions had relied upon certain precedents.
21. Before adverting to deal with the rival contentions advanced, a brief description of relevant facts as emanating from the material on record in the form of charge sheet, statement of witnesses recorded during C.C.No.: 12 / 2011 Page No.12 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
investigations and documentary evidence on record, necessary to be discussed and gone into at this stage, are delineated hereunder:
22. National Cooperative Consumer Federation of India (NCCF) is a cooperative organization under Ministry of Consumer Affairs (Food and Public Distribution Department), Government of India. National Cooperative Consumer Federation of India (NCCF) is registered under MultiState Cooperative Societies Act and is authorized by Government of India to undertake export and import. NCCF along with STC, MMTC and MarkFed etc. is one of the channelized agency authorized by Government of India for export of food grains. National Co operative Consumer Federation of India (NCCF) which is a public sector undertaking, exports rice purchased by it, from Food Corporation of India (FCI) on predetermined prices at subsidized rates fixed by Government of India. C.C.No.: 12 / 2011 Page No.13 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
23. During the year 2002, Food Corporation of India (FCI) on approval of Government of India had released rice to National Cooperative Consumer Federation of India (NCCF) and other channelized agencies for export at a uniform rate of Rs.950 per quintal.
24. National Cooperative Consumer Federation of India (NCCF) had issued its revised guidelines on conducting commercial operations, whereby requisite directions were issued to Branch Managers of NCCF for registration of reputed and established exporters with NCCF as "Associate Shippers / Exporters". Those associate shippers / exporters who were interested in export of the rice were thereafter supposed to deposit
(i) Cost of rice @ Rs.565 per quintal ; and (ii) Bank Guarantee @ Rs.385 per quintal with Food Corporation of India (FCI).
25. The agreed stock of rice was then released by FCI on production of : C.C.No.: 12 / 2011 Page No.14 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
(i) Agreement with foreign buyers ;
(ii) Letters of Credit ;
(iii) Permission from APEDA ;
26. After completion of the export, the associated shippers / exporters were required to submit :
(i) Bill of Lading ;
(ii) Bank Realization Certificates along with HForm from Sales Tax Department to FCI within 30 days of realization of exports proceeds for getting Bank Guarantees released ;
27. For National Cooperative Consumer Federation of India (NCCF), the clause regarding furnishing of Bank Guarantee was waived. However, National Cooperative Consumer Federation of India (NCCF) was required to furnish "indemnity bond" in favor of Food Corporation of India, thereby giving an undertaking that rice shall be exported, failing which National Cooperative Consumer Federation of India (NCCF) will be liable to pay the differential cost. C.C.No.: 12 / 2011 Page No.15 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
28. Pursuant to the guidelines issued by National Cooperative Consumer Federation of India (NCCF) on 05.09.2001 and 02.01.2002 for registration of the reputed exporters as "associate shippers / exporters", M/s City Shoes applied for registration with National Cooperative Consumer Federation of India (NCCF) on 09.01.2002. D.K.Tyagi and R.C.Puri despite the fact that the application of M/s City Shoes was not fulfilling the requisite eligibility criteria, got the same approved and name of M/s City Shoes figured in the list of "associate exporters" published by NCCF.
29. It is alleged that D.K.Tyagi and R.C.Puri thereafter recommended the proposal for export of rice submitted by M/s City Shoes and got the same approved for export of 12,500 metric tonnes of rice. It is alleged that before the proposal was approved, agreement was signed by D.K.Tyagi on behalf of NCCF with M/s City Shoes mentioning the name of foreign buyer as M/s Discovery Company LLC, Sultanate of Oman.
C.C.No.: 12 / 2011 Page No.16 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
30. It has been alleged in the charge sheet that NCCF had permitted M/s City Shoes to lift 12,500 metric tonnes of rice from FCI Godowns as per the following details : S.No. Release Order No. Date Quantity FCI Office
1. 2 15.03.02 2200 MT Gurgaon
2. 3 12.04.02 2000 MT Karnal
3. 16 03.05.02 2300 MT Karnal
4. 1 03.05.02 2000 MT Sabarmati
5. 33 07.06.02 2000 MT Ludhiana
6. 14 25.07.02 1992 MT Gurgaon
7. 17 30.07.02 8 MT Gurgaon
31. It has been alleged in the charge sheet that with respect to release order bearing no.1, 2, 3 and 16 for 6500 metric tonnes of rice, separate cases were registered by Haryana Police ie. with respect to the rice lifted from FCI Godowns at Gurgaon and Karnal.
32. The present charge sheet has been filed with respect to the remaining 6,000 metric tonnes of rice lifted C.C.No.: 12 / 2011 Page No.17 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
from FCI Godowns at (a) Gurgaon ; (b) Ludhiana ; and
(c) Sabarmati ; vide release order bearing no.1, 33, 14 and
17.
33. It has been alleged in the charge sheet that accused D.K.Tyagi vide letter dated 16.07.2002 had requested Regional Manager, FCI Haryana, Chandigarh to allot 2,000 metric tonnes of rice for the purposes of export to foreign buyers. Pursuant thereto, release order bearing number 14 for 1992 metric tonnes and release order bearing number 17 for 8 metric tonnes of rice was issued in favor of M/s City Shoes. The rice which was lifted from FCI, was sent to M/s Bindal Rice and Oil Mills, M/s Jai Guru Dev Rice Mills situated at Hodal, by accused Narender Singh Batra for grading, polishing and repacking. NCCF pursuant to receipt of information that rice lifted from FCI was not exported by Narender Singh Batra, took into their possession 1825 metric tonnes of rice released from FCI Gurgaon vide release order bearing no.14 & 17 and got it exported to Dubai through another C.C.No.: 12 / 2011 Page No.18 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
associated shipper / exporter and submitted the requisite documents with FCI. On submission of these export documents, the differential cost of Rs.74,80,000/ which was required to be paid by NCCF to FCI was condoned.
34. It has been alleged in the charge sheet that on request letter of D.K.Tyagi dated 02.04.2002, Regional Office FCI Chandigarh allocated 2,000 metric tonnes of rice, to be handed over to M/s City Shoes. Along with the allocation order, a letter was sent furnishing authorization to lift the rice in favor of one Sh.Jagdamba Prasad. Accused T.B.Padhi impersonated as Jagdamba Prasad for lifting the rice from FCI. On request, these 2,000 metric tonnes of rice were released from FCI Godown of Sahnewal and Khanna. It is alleged in the charge sheet that Narender Singh Batra had informed NCCF that he would get the rice upgraded from M/s Grain Tec India Limited and after upgradation, the same will be sent to Mumbai and from there, it will be exported to the foreign buyers. C.C.No.: 12 / 2011 Page No.19 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
35. It is mentioned in the charge sheet that Narender Singh Batra, then with assistance and connivance of one Sanjay Kumar Gupta and Vinod Kumar had sold the rice to M/s Grain Tec India Limited, against cash. It is alleged that the funds came from one Nand Lal and was paid to FCI by Sh.Satbir Singh from Guruji Trading Company.
36. It is further alleged that remaining rice was sold to M/s Shri Ganesh Rice and General Mills, Karnal and M/s Navetiya Trading Company, Delhi. It is mentioned in the charge sheet that the rice which was sought to be exported, was not infact exported by accused Narender Singh Batra and was sold in the open market with active assistance of Sanjay Kumar Gupta, Satbir Sharma and Nand Lal, in violation of the agreement between NCCF and FCI.
37. Therefore NCCF in terms of the indemnity bond had to pay a sum of Rs.92.20 lacs to FCI, thereby C.C.No.: 12 / 2011 Page No.20 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
suffering wrongful loss.
38. It is further alleged that on request of NCCF, FCI Ahmedabad had allotted 2,000 metric tonnes of rice, which was to be released from FCI Godown, Sabarmati, Ahmedabad. For lifting of rice, R.C.Puri, Deputy Manager (Import and Export) had issued a letter to FCI, authorizing Mahesh Chander Amlani, who inturn authorized (a) Sh.M.V.Shah, (b) V.H.Shah and (c) N.B.Patel, for lifting of the rice. It is alleged that investigations revealed that this rice, so lifted was infact sold in the open market, instead of exporting the rice, which was the actual purpose for which it was allocated / released by FCI.
39. It is stated in the charge sheet that Narender Singh Batra, for the purposes of lifting of rice from FCI Godown of Sabarmati had hired one (i) Prem Manchanda of M/s P.K.Enterprises, who inturn engaged Sh.Jayesh Bhai for lifting of the rice from the godown of FCI, which was meant to be exported and sold the same in open C.C.No.: 12 / 2011 Page No.21 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
market. It is stated in the charge sheet that Jayesh Bhai utilized the services of Mahesh Chander Amlani, who was his employee.
40. It is further stated that Narender Singh Batra for showing the transportation of rice from Sabarmati to Mumbai had asked Prem Manchanda and Jayesh Bhai for preparation of forged and fabricated documents ie. GRs, showing transportation of this rice from Ahmedabad to Mumbai. It has come up on record that Jayesh Bhai arranged for bogus GR Books from the transporters, who were not in existences and got the forged GRs prepared from his employees namely (i) Mahesh Chander Amlani ; and (ii) Manish Chand Parekh.
41. It has been further alleged that Narender Singh Batra had filed forged bill of lading and other export documents knowing or having reasons to believe the same to be forged documents as genuine, as a result of which NCCF had to pay the differential cost of Rs.74,80,000/ C.C.No.: 12 / 2011 Page No.22 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
(Seventy Four lacs and eighty thousands only) to FCI in terms of the indemnity bond.
42. It is alleged that NCCF incurred a total wrongful loss of Rs.1,67,00,000/ (One crore and sixty seven lacs only).
43. I have considered the submissions advanced on behalf of the parties in the light of facts alleged in the charge sheet. I have also considered the written submissions filed on behalf of the accused persons. I have also gone through the statement of witnesses recorded by CBI u/s 161 Cr.P.C during the course of investigations on the aspect of the alleged criminal conspiracy hatched amongst the accused persons, who have been charge sheeted and others, the object of which was to cause wrongful gain to the conspirators and corresponding wrongful loss to NCCF. I had also gone through the precedents relied upon by Ld.Defence Counsels. C.C.No.: 12 / 2011 Page No.23 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
44. Every criminal proceedings is a voyage of discovery, of which the truth is the ultimate quest. The primary object of any criminal proceedings which is initiated on commission of offence after passing through the stages of registration of FIR and investigations, it lands up in a court of law, for trial of the accused persons, so chargesheeted.
45. Filing of charge sheet against the accused persons in the court of law, sets the Criminal Justice System rolling. Once the charge sheet is filed, the same has to reach its culmination, after passing through different stages of the trial, leading to conviction or acquittal of the accused persons, so chargesheeted.
46. The stage of framing of charge is the most important stage in Criminal Justice System. Charge is the very foundation of a criminal trial. This stage has been incorporated in the Code by the Legislature by way of a precious safeguard, so to express, a prebattle protection to C.C.No.: 12 / 2011 Page No.24 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
the accused. It is at this stage that an accused, who has been charge sheeted by CBI for trial is afforded, liberty to bring forth that material on record is not sufficient to warrant a full fledged trial. This provision of law is calculated to eliminate further harassment to the accused when evidentiary material gathered after a prolonged investigation, falls short of the material requirements.
47. At the stage of framing of charge, an onerous duty has been cast on the court to balance the twin interest of prosecution on one hand and that of the personal liberty of the accused on the other hand. Wrongful discharge may discourage the investigating agency and may propagate further corruption and criminality in the society, whereas wrongful framing of charge without sufficient material on record to proceed, may lead to compromising with the personal liberty of a person, which as been considered supreme in the Constitution.
C.C.No.: 12 / 2011 Page No.25 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
48. A responsibility has been cast on the court to judicially consider the material on record. No doubt that at this stage, the court is not to meticulously see the evidence of the prosecution, but it is supposed to make a roving inquiry into the pros & cons of the matter and to find out as to whether material on record is prima facie sufficient to proceed with the trial.
49. The test to determine a primafacie case depends on the facts of each case and it is difficult to lay down the rules of universal application. However, Hon'ble Apex Court in case titled "Union of India vs. Prafulla Kumar Samal & Another" reported as (1979) 3 Supreme Court Cases 4, while taking into consideration the previous precedents on the point of charge has laid down certain guiding principles to be followed at this stage of any criminal proceeding:
10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
C.C.No.: 12 / 2011 Page No.26 of 66
CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
(i) 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.
(ii) Whether the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court, will be fully justified in framing a charge and proceeding with the trial.
(iii) 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.
(iv) That in exercising his jurisdiction under section 227 of the Code of the Judge, which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents C.C.No.: 12 / 2011 Page No.27 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry in the pros and cons of the matter and weigh the evidence, as if he was conducting a trial.
50. The legal proposition which emerges on the matter of framing of a charge and / or of discharging an accused under Section 227 & 228 of the Criminal Prosedure Code is that the test to determine as to whether the accused persons are to be charged or discharged rests on the fact that a prima facie case or a grave and a strong suspicion backed by a judicial mind and which has not been properly explained, can be said to have been made on the basis of the evidence available on record.
51. In the backdrop of the above mentioned proposition of law laid down by Hon'ble Supreme Court at the "point of charge", the material collected by the investigating agency, which has been filed along with the charge sheet is required to be considered viz.a.viz the arguments advanced on behalf of the accused persons.C.C.No.: 12 / 2011 Page No.28 of 66
CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
52. Before I delve upon to consider the factual aspects as alleged in the charge sheet, I deem it appropriate to consider the legal proposition raised by Ld.Defence Counsels, appearing on behalf of Public Servants, that as no sanction either u/s 19 of P. C.Act 1988 or under section 197 Cr.P.C has been granted by the competent authority, nor the same was sought by CBI, therefore no cognizance could have been taken.
53. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act, which is reproduced as under: SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :
(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;C.C.No.: 12 / 2011 Page No.29 of 66
CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;
(c) in the case of any other person, of the authority competent to remove him from his office. (2) ...
(3) ...
(4) ...
54. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such offence, except with the previous sanction". Use of words "No" and "shall" makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of an offence is absolute and complete. As per Black's Law Dictionary, the word "cognizance" means jurisdiction or the exercise of jurisdiction. In common parlance, it means "taking notice of". In view thereof, in C.C.No.: 12 / 2011 Page No.30 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
absence of the sanction, the court is precluded from even taking notice of the offence or exercising its jurisdiction, in respect of a public servant.
55. Thus, the provision has been imparted a mandatory character and has been held so by various authoritative pronouncements by Hon'ble Apex Court. While holding grant of sanction to be a prerequisite or sinequanon for taking cognizance, regard is to be had to the fact that it can be a shield to discourage vexatious prosecution of innocent public servant, but it should not be permitted to be used as a weapon against the prosecution by the guilty.
56. The importance of this provision and the obligation of the sanctioning authority was stated by Hon'ble Apex Court in case titled "R.S.Nayak Vs. A.R.Antulay" reported as AIR 1984 SC 684, wherein it was held that :
C.C.No.: 12 / 2011 Page No.31 of 66
CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
"... In catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality, but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecution and the aforesaid requirement must, therefore, be strictly complied with before any prosecution could be launched against public servant."
57. In view of the aforementioned observations made by Hon'ble Apex Court, it is evident that any trial without a sanction renders the proceedings voidab initio. However "terminusaquo" with respect to a valid sanction is the time when the court is called upon to take cognizance of the offence, and not the time when the alleged offence has been committed by the public servant.
58. The protection given by the Legislature is to be extended to the extent provided therein and it cannot and should not be stretched elastically to cover those, who are not intended by the Legislature to be under the C.C.No.: 12 / 2011 Page No.32 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
protective umbrella. As to my mind the Legislature by enacting any provision in the Act, which prohibits the taking of cognizance of offence by a Court, unless certain conditions are complied with, did not purport to condone the offence. Thus, such provision is to be construed on the basis of words used therein, without importing the words, which are not there.
59. Consequently, even if the offence is alleged to have been committed by the accused who was a public servant, but at the time when court is called upon to take cognizance of the offence committed by him, he has ceased to be a public servant then, "no sanction" would be necessary for taking cognizance under this provision.
60. This is the approach adopted by Hon'ble Apex Court and various High Courts, as the same is in accordance with the policy and object to achieve which, Section19 was brought on the Statute Book, ie. a public servant should not be exposed to harassment of frivolous C.C.No.: 12 / 2011 Page No.33 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
and vexatious prosecution. Meaning thereby, that if he at the time when court is called upon to take cognizance has ceased to be a public servant, then this vital consideration ceases to exist, qua him.
61. This is an admitted position on record that at the time of filing of the charge sheet, accused no.1 and accused no.2 were no longer in service and thus were not public servants.
62. It has however been stressed by Ld.Defence Counsel that whatever accused no.1 and 2 did in the present case, the same was in discharge of their official duties, therefore, provisions of section 197 Cr.P.C are attracted.
63. Although perusal of section 197 Cr.P.C makes it evident that the necessity for previous sanction is made applicable to the former public servants also as, Legislature has used the words "when any person, who C.C.No.: 12 / 2011 Page No.34 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
is or was, a public servant". However, the sole question which requires consideration is that, whether section 197 Cr.P.C at all is attracted in the present case or not ??.
64. To my mind, the protection under section 197 Cr.P.C is available only when the alleged offence, complained of, against the accused is done by him in discharge of his official functions. However, the use of expression "official duty" implies that the act of omission must have been done by the public servant in the course of his service and that, it should have been in discharge of his duty. This section 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 act or omissions, which are done by a public servant in discharge of his official duty.
65. Section 197 Cr.P.C and Section 19 of Prevention of Corruption Act 1988, operate in conceptually C.C.No.: 12 / 2011 Page No.35 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
different fields. In all the cases covered under Prevention of Corruption Act, in respect of the public servant who still is in service, the necessity of sanction is automatic, irrespective of the factual aspects which are of no consequence which inversely opposite to the case under section 197 Cr.P.C, as there the basic substratum of the facts have to be considered to find out the nexus of the alleged act, with the discharge of official duties of the public servant.
66. I am fortified to arrive at this conclusion in view of the observations made by Hon'ble Apex Court in case titled "Kalicharan Mahapatra Vs. State of Orissa" reported as 1998(2) GLH 622, wherein Hon'ble Apex Court has held as under:
13. ... It must be remembered that in spite of bringing such a significant change to Section 197 of the Code in 1973, the Parliament was circumspect enough not to change the wording in Section 19 of the Act, which deals with sanction. The reason is obvious. The sanction contemplated in Section 197 of the Code concerns a public servant who "is C.C.No.: 12 / 2011 Page No.36 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", whereas the offences contemplated in the P.C.Act are those which cannot be treated as act either directly or even purportedly done in the discharge of his official duties.
Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former P.C.Act was materially imported in the new P.C.Act 1988 without any change in spite of the change made in the Section 197 of the Code.
14. .... The result of the above discussion is thus : A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act, if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of offence, without any such sanction. In other words, the public servant who committed the offence while he was a public servant, is liable to be prosecuted whether he continues in office or not at the time of trial or during the pendency of the prosecution.
67. Having regards to the observations made by Hon'ble Apex Court in the above referred case mentioned above and applying the principles laid down to the facts of the present case, it is apparent that as per the allegations in C.C.No.: 12 / 2011 Page No.37 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
the charge sheet and the charge for which accused has been facing trial, it cannot be said that they are the offences of the nature mentioned in section 197 Cr.P.C. It is no part of the duty of the public servant while discharging his official duty to enter into a criminal conspiracy or to indulge in criminal misconduct.
68. On the basis of the facts alleged in the charge sheet (as we are at the stage of charge only), the offences relatable to criminal misconduct coupled with the other offences under IPC by no stretch of imagination, can be regarded that the same were committed by accused no.1 and 2 while acting or purporting to act, in discharge of their official duties.
69. The "official status" of accused no.1 and 2, only provided them a platform and opportunity for commission of these offences.
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70. The question regarding availability of the protection under section 197 Cr.P.C in such like cases, cropped up before Hon'ble Apex Court in a recent case titled "Ajoy Acharya vs. State Bureau of Investigation against economic offences" bearing Crl.Appeal No. 1454/2013 and Crl.Appeal No.1455/2013 arising out of SLP No.61/2012 and 400/2012; decided on 17.09.2013. In the said case, Hon'ble Apex Court had taken into consideration all the previous laws on this subject, including the case relied upon by Ld.Defence Counsel as well as the law laid down in case titled "Prakash Singh Badal vs. State of Punjab" reported as (2007) SCC 1 and in case titled "C.K.Jaffer Sharief Vs. State (through CBI)" reported as (2013) 1 SCC 205. It was held that for the purposes of considering the protection to a public servant under section 197 Cr.P.C, in case the alleged act raises mixed question of fact & law, then the same cannot be considered at the stage of charge. C.C.No.: 12 / 2011 Page No.39 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
71. The ratio in the precedent relied upon by Ld.Defence Counsel in case titled "State of Madhya Pradesh vs. Sheetla Sahai & Ors." ; reported as (2009) 8 SCC 617, does not have applicability to the facts of the present case. In the present case, the alleged facts on the part of accused no.1 and accused no.2 are so intrinsically interwoven which discerns mixed questions of fact and law. Therefore, at this stage of considering the matter at the point of charge, it cannot be said that the alleged acts against accused no.1 and accused no.2 ; of having the firm of accused no.3 ie. M/s Citi Shoes, registered with NCCF as "associate shipper" and processing of their subsequent proposals for release of rice for export purposes were done by them, in discharge of their official duties.
72. Consequently, to my mind protection under section 197 Cr.P.C does not have any application in the facts of the present case at this stage and want of sanction under section 197 Cr.P.C, is therefore no bar for proceeding further in the present matter. C.C.No.: 12 / 2011 Page No.40 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
73. This has led me to the next contentions advanced by Ld.Defence Counsels on factual aspects.
74. The first and foremost contention advanced by Sh.Nareshwar Pandey, Advocate, Ld.Counsel for accused no.1 and Sh.Aseem Naeem, Advocate, Ld.Counsel for accused no.2, is that the charge sheet filed by the prosecution is silent, so far as the third ingredient of offence under section 13(1) (d) of Prevention of Corruption Act is concerned. They had contended that there are no allegations to the effect that accused no.1 and 2 at any point of time had obtained any pecuniary advantage for themselves.
75. Before adverting to deliberate upon the contentions advanced by Ld.Defence Counsels, it is pertinent to peruse section 13(1) (d) of Prevention of Corruption Act, 1988, which is reproduced as under : C.C.No.: 12 / 2011 Page No.41 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
Section 13: Criminal misconduct by a public servant : (1) A public servant is said to commit the offence of criminal misconduct,
(a) . . .
(b) . . .
(c) . . .
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or
(ii)by abusing his positioning as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest ; or
(e) . . .
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years an shall also be liable to fine ;
76. The primary and foremost task of a court in interpreting a Statute is to ascertain the intention of the Legislature, actual or imputed. Where the words of Statute are in themselves precise and unambiguous, in that case, C.C.No.: 12 / 2011 Page No.42 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
nothing more is required, than to expound those words in their natural and ordinary sense, as they very nearly express the thoughts and intention of the Legislature. On the other hand, when different interpretations are likely, then that alternative is to be chosen which is consistent with the smooth working of the system and promotes the object of the Statute under interpretation. The alternative which introduces an element of bewildering uncertainity, friction or confusion into the working of an institution, is to be eschewed.
77. It is apparent on perusal of section 13(1) (d) of Prevention of Corruption Act that Legislature has deliberately used the word "or" in between its three clauses instead of using the word "and", further in each of the three clauses of section 13(1) (d), Legislature has used the word "or" instead of using the word "and". Both these words are conjunctions. The word "and" where ever used is conjunctive and joins the words which is prefixed to it with the one, which is suffix to it. Whereas, the word "or" C.C.No.: 12 / 2011 Page No.43 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
is disjunctive, which is used as a tool to link two alternatives prefixed and suffixed to it.
78. Legislature in its wisdom by using the word "or" makes it clear that if any public servant by corrupt or illegal means or by abusing his position as public servant, obtains for himself or for any other person, any valuable thing or pecuniary advantage, then the same is sufficient for the purposes of his trial for criminal misconduct under this section.
79. As per the arguments advanced by Ld.Defence Counsels, the public servants cannot be roped in, to undergo trial, in case the allegations against him are only to the extent that he by abusing his official position as public servant has obtained a valuable thing for any other person. It is contended that there should be some material with the prosecution that he, in addition, to that has also obtained pecuniary advantage for himself. C.C.No.: 12 / 2011 Page No.44 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
80. I do not find any merits in this contention of Ld.Defence Counsels in view of the words used by the Legislature in the Section. Either of the two ingredients is sufficient for invocation of this section and nowhere the Legislature through the language used in the Section, requires that both these ingredients should be present, for the purposes of invocation of the same.
81. Had that been the intention of the Legislature then they would have used the word "and" instead of "or" in between the three clauses of Section 13(1)(d) and also in each of these three clauses. But that is not to be.
82. It is apparent on perusal of the allegations levelled in the charge sheet coupled with the statement of witnesses recorded under section 161 Cr.P.C that accused no.1 D.K.Tyagi being Branch Manager, NCCF and accused no.2 R.C.Puri, being Deputy Manager had abused their official position as "public servants" and have the firm of accused no.3 registered with NCCF as "associate shipper". C.C.No.: 12 / 2011 Page No.45 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
The facts alleged on record against these two accused persons suggests that they by abusing their official position had processed the proposal submitted by accused no.3 to have 6000 MT of rice released from different godowns of FCI at concessional rates, for the purposes of export. The allegations levelled against the accused persons are that they subsequently had accepted forged documents from accused no.3 allegedly showing that the rice so released by him has been exported, whereas, it was sold by him in the local market thereby obtaining a pecuniary advantage for himself and causing a corresponding wrongful loss to NCCF, as a result of which NCCF was forced to pay the differential cost to FCI.
83. Another facet to the arguments advanced on behalf of accused no.1 and 2 by Ld.Defence Counsel was that the act done by them at best, can be described as "professional misconduct" for which, they cannot be charged for the alleged offences under Prevention of Corruption Act.
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84. I do not find any merits in this contention advanced on behalf of the accused persons considering the facts alleged against accused no.1 and 2 which have come up on record, on the basis of material collected by the investigating officer, in the form of oral and documentary evidence. It is alleged that accused no.1 and 2 were instrumental in having the firm of accused no.3 registered as an "associate shipper" with NCCF, despite the fact that accused no.1 himself had pointed out deficiencies and suggested for having a legal opinion. Further, when after getting the legal opinion, the matter was put up before accused no.1 for approval, the same was not signed by him, despite which name of firm of accused no.3 appeared in the final list. Had there been no involvement of accused no.1 and 2 in the same, then they should have raised an objection at that very point of time. But the same was not done.
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85. Rather, accused no.1 and 2 became instrumental in processing the subsequent proposal put up by accused no.3 as associate shipper, seeking release of the rice for export purposes at consessional rates. Had there been no interest of accused no.1 and 2, then they could have raised an objection on this proposal of accused no.3. But, instead of doing so, it was processed by them and recommended to the Headquarters.
86. The icing on the cake was done by accused no.1 and 2 by signing an agreement on behalf of NCCF with accused no.3 on 04.03.2002 mentioning the name of the foreign buyer, whereas, the approval of the proposal of accused no.3 was given by headquarters only on 04.04.2002. Apart from that, in order to facilitate accused no.3 to have the rice released from FCI Godowns at Sahnewal, Khanna and Sabarmati, accused no.1 and 2 at his instance, had issued letters and attorneys in favor of accused no.4 and accused no.5, despite the fact that the agreement was made between NCCF and M/s Citi Shoes, C.C.No.: 12 / 2011 Page No.48 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
for which accused no.4 & 5, were not a party.
87. These alleged acts on the part of accused no.1 and 2 cannot be termed as professional slackness or misconduct as has been claimed by Ld.Defence Counsels. Rather from a prima facie point of view, it appears that these public servants, being party to the conspiracy were acting in furtherance of the same, to achieve the object thereof, which was to cause wrongful loss to NCCF and corresponding pecuniary gain to the coaccused persons.
88. In view of the material collected and placed on record by the prosecution qua accused no.1 and 2, the public servants, I am of the considered opinion that the role ascribed to them discernible through their conduct, cannot be termed as "professional misconduct" only. The same to my mind transgresses the limits of slackness of their official duties and enters the contours of criminal misconduct, as they despite being aware of the C.C.No.: 12 / 2011 Page No.49 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
deficiencies in the application submitted by accused no.3, facilitated the name of his firm to be listed as "associate shippers". Further they turned a blind eye to the proposal submitted by accused no.3 for release of rice for export purposes, which he never intended to do, to the detriment of NCCF and consequential gain to their coaccused persons.
89. Thus, from a prima facie point of view, it is clear that they had criminally misconducted themselves and thus required to be tried for substantive charge under section 13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988.
90. Next contention of Sh.Nareshwar Pandey, Advocate, which has also been urged by Ld.Defence Counsels for almost all the accused persons is that the allegations in the charge sheet, no where suggests that there was any meeting of mind amongst the accused persons. It is contended by Ld.Defence Counsels that in C.C.No.: 12 / 2011 Page No.50 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
absence of any specific allegations of conspiracy, the accused persons cannot be asked to undergo the trial and are entitled to discharge.
91. It is urged by Ld.Counsels for all the accused persons that the prosecution case is silent with respect to the alleged offence of conspiracy. It is contended that there is no material on record, from which it can be inferred even from primafacie point of view that there was any meeting of minds of the accused persons to do any illegal act or a legal act by illegal means.
92. Section 120A IPC defines "criminal conspiracy". According to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or
(ii) an act which is not illegal, by illegal means such an agreement is designated as "criminal conspiracy".
93. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an C.C.No.: 12 / 2011 Page No.51 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
agreement are guilty of criminal conspiracy, though the illegal act agreed upon by them to be done, has not or could not be done. It is not necessary that all the parties to such an agreement should agree to do a single illegal act. It may comprise of commission of a number of acts. It is not necessary that all the conspirators must know each and every detail of the conspiracy.
94. As conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances of the case and conduct of the accused, who are party to such conspiracy.
95. As Conspiracy has to be and can only be inferred from the physical manifestation of conduct of the conspirators / accused. Thus, to deduce actual meeting of minds amongst the accused person to find out transmission of thoughts from a primafacie point of view, the actual words used by them during communication, are to be considered. Apart from that the transmission of thoughts C.C.No.: 12 / 2011 Page No.52 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
has to be inferred from the acts and conduct of the accused persons during the course of their interse transactions amongst themselves.
96. It is also a settled proposition of law, as laid down in a number of judgements by Hon'ble Apex Court that all the conspirators need not enter into the conspiracy at one and same point of time. Some of them can join the umbrella of the conspiracy and after performing the peculiar part in furtherance of achieving the object of the conspiracy, they are not required to be and remain active, till the ultimate goal of the conspiracy is achieved.
97. In the backdrop of above, it is apparent on conjoint perusal of the charge sheet coupled with the statement of witnesses recorded during the course of investigations and the documentary evidence collected by the investigating officer from NCCF and FCI, that the accused persons had conducted themselves, in such a manner which leads to the inference that they sought the C.C.No.: 12 / 2011 Page No.53 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
object for which they had entered into the conspiracy and executed their defined roles leading to the ultimate goal, which was to defraud NCCF and to obtain a valuable advantage for accused no.3 N.S.Batra.
98. It has been alleged in the charge sheet on the basis of the statement of witnesses recorded during the course of investigations coupled with the documentary evidence collected, that accused no.1 and 2 being public servants, facilitated the registration of the firm of accused no.3 to be an "associate shipper" with NCCF, despite the deficiencies and shortcomings. Further, accused no.1 and 2 processed the proposal submitted by accused no.3 for getting the rice released from FCI on consessional rates for export purposes. It is apparent from the facts alleged on record that accused no.1 and 2, had signed the agreement with accused no.3, a month prior to the actual approval of the proposal by the headquarters. This in itself reveals that accused no.1 and 2, were acting in concert and in connivance with accused no.3.
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99. Apart from that, it is alleged that accused no.1 and accused no.2 had issued authorities in favor of accused no.4 and 5, so as to facilitate them to lift the rice from FCI Godowns situated at Sahnewal, Khanna, located in District Ludhiana and from Sabarmati, Ahmedabad. It is also apparent from the statement of witnesses ie. PW83 ; PW76 and PW77 ie. Sanjay Kumar, Naveen Bhai and Mukesh Gopal ; that accused no.4 and 5 after getting the rice released from godowns of FCI had sold the same in the open market for and at instance of accused no.3. Accused no.1 and 2 had thereafter accepted forged and fabricated documents from accused no.3 stating that he had exported the rice whereas it was sold in the open market.
100. Material on record suggests from a prima facie point of view that the public servants abused their position as officers of the NCCF, in order to achieve the principal object of the conspiracy and thus were the active conspirators.
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101. Besides the public servants, accused no.3 being the main conspirator, had performed his part of the conspiracy and accused no.4 and 5, acting in concert with accused no.3, did get the rice released from FCI Sahnewal, Khanna, located in District Ludhiana and from Sabarmati, Ahmedabad and sold the same in open market, instead of having the same exported and thus made huge profits, at the detriment and loss of NCCF.
102. On the basis of facts alleged by the prosecution, it is apparent that authorization for getting the rice released from FCI Khanna and Sahnewal was sent by accused no.1 and 2 in favor of one Jagdamba Prasad. However, accused no.4 impersonated himself as Jagdamba Prasad and got the rice released. The facts alleged on record suggests that signatures of so called Jagdamba Prasad were also attested by accused no.2 R.C.Puri and on the basis of these very signatures, accused no.4 got the rice released. These facts also speaks volume about the active connivance and conspiracy amongst the accused persons. C.C.No.: 12 / 2011 Page No.56 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
Accused no.2 had thus attested signatures of accused no.4 knowing fully well that accused no.4 is not Jagdamba Prasad. Accused no.4 acting as Jagdamba Prasad, used the said authority letter and got the rice released and later sold the same in open market. In view of these facts alleged against accused no.4, the arguments advanced on his behalf that no case is made out against him from a prima facie point of view, becomes meritless.
103. The material collected by the investigating agency during the course of investigations and placed on record suggests, that accused no.5 at instance of accused no.3 had forged GRs, so as to show the transportation of rice from Ahmedabad to Mumbai; knowing fully well that no such rice was transported and was in fact sold in the open market. Further, accused no.3 submitted the forged documents with NCCF, knowing the same to be forged ones and used them as genuine documents.
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104. Having regards to these facts which although are required to be proved by the prosecution at appropriate stage, I am of the opinion that prima facie the same is sufficient to form an opinion that all the accused persons had entered into a conspiracy and performed their specified roles to achieve the ultimate object, which was to defraud and cheat NCCF, thereby causing wrongful loss to NCCF and corresponding gain to themselves.
105. This has brought me down to the contentions advanced by Sh.M.S.Ahluwalia, Advocate, appearing on behalf of accused no.3 Narender Singh Batra that there is nothing on record against him even from prima facie point of view, so far as substantive offences of cheating and forgery of documents is concerned. It is further submitted by Ld.Defence Counsel that his client has not submitted any forged documents, using them as genuine. He further contended that dishonest intention for cheating should have been there at the very first instance which is not established by the prosecution even from a prima facie C.C.No.: 12 / 2011 Page No.58 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
point of view.
106. I do not find any merits in the contentions advanced by Ld.Defence Counsel. It has to be borne in mind that we are at the stage of charge where the case is to be seen, only from a prima facie point of view.
107. Intention being a nontangible thing and a state of mind is to be inferred on the basis of acts and conduct of the accused against whom it is alleged. It is apparent on the basis of material collected by the investigating agency during the course of investigations and placed on record by the prosecution, that accused Narender Singh Batra had applied for becoming associate shipper for NCCF. Despite the fact that his application was found deficient, he made his way through, in the final list of associate shippers. Apart from that, when the proposal moved by him for release of rice, was pending approval with the headquarters, he got the agreement signed with accused no.1 and 2, a month prior to the date C.C.No.: 12 / 2011 Page No.59 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
of actual approval of his proposal by the headquarters. These facts in itself speaks about the real intentions of accused no.3 from the very inception. As per the agreement and undertaking given by accused no.3, he misrepresented NCCF that he shall export the rice, on the basis of which he got the same released, but instead of exporting it, he sold it in the open market to cheat NCCF.
108. Further, for the purposes of getting the rice released from FCI Godown, accused no.3 associated accused no.4 and accused no.5 with him only for the purposes of diverting the funds and got the rice released through them and instead of exporting the same as was required as per the agreement, he sold the same in the open market making huge profit. These facts which have been alleged by the prosecution cannot be brushed aside at this stage, without giving opportunity to the prosecution to prove them. The investigating agency during the course of investigations had recorded statement of number of witnesses to establish these facts on record. C.C.No.: 12 / 2011 Page No.60 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
109. Thus, in my considered opinion prima facie case so far as substantive offence under section 420 IPC is concerned, is made out against accused no.3.
110. So far as offence under section 468 IPC which has been alleged by the prosecution against accused no.3 is concerned, I am of the considered opinion that material on record is devoid of any evidence either oral or documentary against accused no.3, even from prima facie point of view. There is nothing on record whereby it was alleged that it was accused no.3, who had forged the goods receipts showing transportation of rice from Punjab to Mumbai, or from Sabarmati to Mumabi. There is also nothing on record to show that accused no.3 had forged the bill of lading and other documents to show that rice was thereafter exported from India. Thus, in my considered opinion no case even from prima facie point of view for offence under section 468 IPC is made out against accused no.3.
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111. However, accused no.3 had used the forged goods receipts showing false transportation of rice from Punjab to Mumbai and from Ahmedabad to Mumbai, whereas these goods were never transported and infact the rice was sold by accused no.3 in collusion and connivance with accused no.4 and 5 in the open market. Accused no.3 was aware of the fact that goods receipts which were being used by him as genuine and submitted with NCCF were infact the forged ones. Apart from that, material on record suggest that accused no.3 had further submitted 'bill of lading' with NCCF to show that rice was exported, knowing fully well that the rice was sold by him in the open market.
112. In view thereof,the material on record is sufficient to proceed against him for substantive offence under section 471 IPC as he had used the forged documents, knowing or having reasons to believe the same to be forged ones as genuine.
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113. It has been contended by Sh.Vikas Manchanda, Advocate appearing on behalf of accused no.5 Mahesh Ramesh Chander Amlani that his client has been made a scapegoat and whatever has been alleged against him on the basis of statement of PW89 Jayesh Bhai is false. He contended that accused no.5 had only acted on directions of his employer. It is submitted by him that the goods receipts showing transportation of goods from Ahmedabad to Mumbai, purportedly executed by his client were done so, on directions of his employer. He contended that accused no.5 was not aware of the fact that for what purposes these receipts were to be used. He contended that in view thereof, no substantive offence is made out against accused no.5.
114. I do not find any merits in the contentions advanced by Ld.Defence Counsel appearing on behalf of accused no.5.
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115. From the material on record as well as from the arguments advanced on behalf of accused no.5, it is apparent that accused no.5 was working with a broker, dealing in foodgrains and was not employed with any transporter. Thus, the scope and nature of his work did not include preparation of any goods receipts showing transportation of goods. Further, from the material placed on record coupled with the statement of witnesses recorded, it is apparent that accused no.5 did forge the goods receipts knowing that the transport company of which the goods receipts, he is preparing is non existant. Further accused no.5 himself was aware of the fact that rice for which he was preparing the goods receipts showing its transportation from Sabarmati to Mumbai were infact sold in the open market and were not being so transported. Meaning thereby that he was aware of the fact that receipts which he was preparing are forged and bogus. In view thereof, I am of the considered opinion that material on record from prima facie point of view is sufficient to proceed against accused no.5 for substantive offence under section 468 IPC.
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116. In the conspectus of aforementioned discussion and on the basis of material placed on record :
(a) Prima facie case for offences punishable under section 120B IPC r/w section 420, 468 and 471 IPC and 13(2) read with 13(1) (d) of Prevention of Corruption Act 1988, is made out against all the accused persons viz.:
(i) D.K.Tyagi ;
(ii) R.C.Puri;
(iii) Narender Singh Batra;
(iv)T.B.Pandhi;
(v) Mahesh Ramesh Chander Amlani ;
(b) Prima facie case for substantive offences under section section 13 (2) r/w section 13(1)
(d) of Prevention of Corruption Act, 1988 is made out against accused (i) D.K.Tyagi ; and
(ii) R.C.Puri.
(c) Prima facie case for substantive offence under section 420 and 471 IPC is made out against accused no.3 Narender Singh Batra.
(d) Prima facie case for substantive offence under section 468 IPC is made out against accused Mahesh Ramesh Chander Amlani. C.C.No.: 12 / 2011 Page No.65 of 66 CBI Vs. D.K.Tyagi & Ors. ( Order on Charge) Dated : 18th December 2013.
117. Before parting with this order, I would hasten to add that the observations made hereinabove shall not tantamount to any expression on the merits of the case as prosecution is yet to lead evidence and the accused, if they so desire, can also put forth their evidence to substantiate their respective defences.
118. It is ordered accordingly.
119. Matter be now listed for framing of formal charges on 21.12.2013.
Announced in open court on 18 day of December, 2013.
th (KANWAL JEET ARORA) SPECIAL JUDGE : CBI (PC ACT), DWARKA COURTS : NEW DELHI.
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