Karnataka High Court
Mr. Sandeep Dash vs State Of Karnataka on 2 August, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.2449 OF 2022
BETWEEN
MR.SANDEEP DASH
S/O JAGANNATH DASH
AGED 57 YEARS
R/AT M-12, GROUND FLOOR,
KAILASH COLONY,
NEW DELHI -110 048
PREVIOUSLY AT:
CONTROLLER OF ACCOUNTS
IN GAF NE REGION,
NO.3/4, C BLOCK, ALL INDIA
OFFICERS, RESIDENCE COMPLEX,
AIZWAL,
MIZORAM -796009
....PETITIONER
(BY SRI.VISWAJIT SINGH, SENIOR COUNSEL ALONG WITH
SRI.SABARISH GANDHI, ADVOCATE)
AND
1. STATE OF KARNATAKA BY
C.I.D POLICE (WILSON GARDEN PS)
CID ANNEXE BUILDING,
CARLTON HOUSE, 1, PALACE ROAD,
BANGALORE,
INDIA -560 001
REP. BY SPP
HIGH COURT OF KARNATAKA
2
AMBEDKAR VEEDHI
BENGALURU -560 001
2. BANGALORE METRO RAIL
CORPORATION LTD.,
BMTC COMPLEX, 3RD FLOOR,
KH ROAD, SHANTINAGAR,
BENGALURU-560 027
...RESPONDENTS
(BY SRI. SHANKAR H.S., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., BY THE ADVOCATE FOR THE PETITIONER PRAYING
TO QUASH THE ENTIRE CHARGE SHEET FILED BY THE CID
POLICE FINAL REPORT NO.42/2017 DATED 04.05.2017
AGAINST THE PETITIONER (ACCUSED NO.1) IN
SPL.C.C.NO.317/2017 ARISING OUT OF CR.NO.323/2014
(WILSON GARDEN POLICE) FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 409, 120B OF IPC AND SECTION 13(1)(C)
R/W 13(2) OF THE P.C. ACT WHICH IS NOW PENDING TRIAL
BEFORE THE HON'BLE XXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE FOR PREVENTION OF
CORRUPTION ACT AT BENGALURU CITY.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED ON 24.05.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioner is before this Court seeking the following prayer:
"Wherefore, the petitioner most humbly prays this Hon'ble Court be pleased to:-3
(a) Quash the entire charge sheet filed by the CID Police Final Report No.42/2017 dated 04-05-
2017 against the petitioner (Accused No.1) in Spl.C.C.No.317/2017 arising out of Cr.No.323/2014 (Wilson Garden Police) for the offences punishable under Sections 409 and 120B of IPC and Section 13(1)(c) r/w 13(2) of the Prevention of Corruption Act, 1988, which is now pending trial before the Hon'ble XXIII Additional City Civil and Sessions Judge and Special Judge for Prevention of Corruption Act (CCH-24) at Bengaluru City.
(b) Pass any such other relief(s) as deems fit in the facts and circumstances of the case."
2. Heard Sri Viswajit Singh, learned senior counsel appearing for the petitioner and Sri H.S.Shankar, learned High Court Government Pleader appearing for the respondent-State.
3. Brief facts that led the petitioner to this Court with the aforesaid prayer are as follows:-
The petitioner is an Indian Civil Accounts Service Officer having joined the service on 16-09-1991. The petitioner from time to time was promoted to higher echelons of office and at the relevant point in time was 4 working on deputation in the Government of Karnataka.
While on deputation, he was appointed as a Finance Member of the Bangalore Development Authority (for short 'the BDA') in terms of Section 3(3)(b) of the Bangalore Development Authority Act, 1976. The petitioner held the said position from 12-05-1997 to 10-05-2005. Later, the petitioner was appointed as an Executive Director (Finance) of the Bangalore Metro Rail Corporation Limited (for short 'BMRCL'), a joint venture of Government of India and Government of Karnataka in terms of Section 25 of the Companies Act, 1965. Thereafter, the petitioner was posted to work as Special Commissioner of the Bruhat Bangalore Mahanagara Palike (for short 'the BBMP'), where he functioned from May 2007 to August 2008 and later, leaves the State of Karnataka to be deputed to the State of Orissa as Additional Secretary, Housing and Urban Development Department. The issue in the case at hand concerns functioning of the petitioner in the State of Karnataka.5
4. One Sri K.N.Gangadhar registered a complaint on 28.11.2014 for offences punishable under Sections 406, 408, 409, 468, 471, 420 r/w. 34 of the IPC and Sections 13(1)(c), 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 ('PC Act' for short). The petitioner is arrayed as accused No.1; Sri M.N. Seshappa, as accused No.2; Sri C. Vasanth Kumar as accused No.3 among others in the said crime. The said crime in Crime No.230 of 2014 related to the functioning of the petitioner while he was working as Finance Member in the BDA between 12-05-1997 and 10-05-2005. The other accused i.e., accused Nos.2 and 3 named hereinabove were also alleged of the same offences when they were functioning in the BDA. The issue in the case at hand is not with regard to merits of the matter in Crime No.230 of 2014, which concerns the functioning of the petitioner as Finance Member in the BDA. The issue concerns the subsequent act.
6
5. As noted hereinabove, the petitioner is appointed as Executive Director of the Bangalore Metro Rail Corporation Limited after his stint at the BDA. A crime comes to be registered on 17-10-2014 in Crime No.323 of 2014, where the petitioner is accused No.1 along with others namely, Sri Manjith - accused No.2, Sri M.N.Seshappa - accused No.3, Sri C. Vasanth Kumar - accused No.4 and Sri R.K.Ravishankar - accused No.5 were arrayed as accused in the said crime. The crime was registered for offences punishable under Sections 409, 465, 417, 420 and 120B r/w. 34 of the IPC. After registration of the crime in both the cases where the accused were common, the CID Police to whom the investigation had been entrusted drops the names of accused No.3 - M.N.Seshappa and accused No.4 - C. Vasanthkumar from the array of accused in the subject charge sheet in Crime No.323 of 2014 on the ground that they were arrayed as accused Nos.2 and 3 in Crime No.230 of 2014, for the same offences, and under Article 20(2) of the Constitution of India, an accused cannot be 7 tried for the same offence twice. It is this deletion of those accused that drives the petitioner to this Court in the subject petition seeking parity in treatment insofar as non- deletion or dropping of his name from the charge sheet like those two accused.
6. The learned senior counsel representing the petitioner would contend with vehemence that if Article 20(2) of the Constitution of India has been made applicable to accused Nos.3 and 4, the petitioner being accused No.1 in the same crime and for the same offences alleged against all others ought to be extended the same benefit. This is his limited prayer in the petition. The learned counsel would submit that if double jeopardy under Article 20(2) of the Constitution of India is applicable to accused Nos.3 and 4, the same should be applicable to the petitioner as well.
7. On other hand, the learned counsel representing the respondent-State would vehemently refute the submissions to contend that the concept of double 8 jeopardy under Article 20(2) of the Constitution of India cannot be read in isolation. If the offences are emanating from different transactions or different offences or arising out of the same transaction, the said concept would not become applicable. Though other accused were also accused in the BDA case, the case of the petitioner is entirely different and there are elaborate reasons recorded in writing for continuing the proceedings against the petitioner in both these crimes. He would thus seek dismissal of the petition.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the only issue that falls for my consideration is, whether the proceedings being continued against the petitioner as an accused in Special C.C.No.317 of 2017, which arose out of Crime No.323 of 2014 are valid?
9. The afore-narrated facts are not in dispute. Accused No.1 - the petitioner; accused No.3 - 9 Sri M.N.Seshappa and accused No.4 - Sri C. Vasanth Kumar were all accused in Crime No.230 of 2014 for offences punishable both under the provisions of the IPC and the PC Act. They were again hauled in a different complaint registered in Crime No.323 of 2014. Crime No.323 of 2014 concerns functioning of the petitioner in the BMRCL where he had a different role in the allegations so made. Therefore, it becomes germane to notice the charge sheet insofar as it drops the names of accused Nos.3 and 4 and the reasons rendered for continuing accused No.1 in Crime No.323 of 2014 i.e., the petitioner, it runs as follows:
"13. Particulars of accused persons not charge sheeted (suspected). Use separate sheet for each suspect:
i. Name : (A-3) M.N.Seshappa
ii. Father/
Husband's Name : Late Narasimaiah
Date/Year of Birth : 67 years
iii. Sex : Male
iv. Nationality : Indian
v. Passport No. ..............
Date, Place of Issue
and Valid upto. : .............
vi. Religion : Hindu
10
vii. Whether SC/ST. ..............
viii. Occupation :Former Finance Member
(BDA)
ix. (a) Permanent Address : No.145, 10th Main
Road, 6th Sector,
HSR Layout,
Bangalore-102
(e) Whether particulars
Verified : Yes
x. Criminal No. (if Known) : .........
Provisional Criminal No. : ....
xi.Suspicion Confirmed : Yes
xii.Status of the accused : Bailed by Police
/Under Police custody /
Bailed by Court/In
judicial Custody/
absconding/ Proclaimed
Offender/Not Arrested.
xiii.Under Acts and Sections: ..............
xiv. Any Special remarks
including reasons for
not charge sheeting : In relation to the
offences committed
by the said accused
in this crime number
the Seshadripuram
Police Station have
registered Cr.No.230
of 2014 and have
filed charge sheet for
the same offences
against this accused.
Under Article 20(2)
an accused cannot be
tried for the same
offence twice hence
is not arrayed as
11
accused in this
charge sheet.
13. Particulars of accused persons not charge sheeted (suspected). Use separate sheet for each suspect:
i. Name :(A-4) C.Vasanthkumar
ii. Father/
Husband's Name : Late Chandran
Date/Year of Birth : 57 years
iii. Sex : Male
iv. Nationality : Indian
v. Passport No. ..............
Date, Place of Issue
and Valid upto. : .............
vi. Religion : Hindu
vii. Whether SC/ST. : ..............
viii. Occupation : Former Treasury
Officer, (BDA)
ix. (a) Permanent Address : No.15, 4th Cross,
Muniyappa Lay-out,
Subbaiyanapalya,
Bangalore-33
(e) Whether particulars
Verified : Yes
x. Criminal No. (if Known) .........
Provisional Criminal No. : ....
xi.Suspicion Confirmed : Yes
xii.Status of the accused : Bailed by Police
/Under Police custody /
Bailed by Court /In
judicial Custody/
absconding/Proclaimed
Offender/Not Arrested.
xiii.Under Acts and Sections : ..............
xiv. Any Special remarks
12
including reasons for
not charge sheeting: In relation to the offences committed by the said accused in this crime number the Seshadripuram Police Station have registered Cr.No.230 of 2014 and have filed charge sheet for the same offences against this accused.
Under Article 20(2) an accused cannot be tried for the same offence twice hence is not arrayed as accused in this charge sheet."
(Emphasis added) The petitioner, as could be gathered from the narration in the charge sheet is arrayed accused No.1, working as Finance Member in the BDA, accused No.3 - M.N.Seshappa was also a Finance Member in the BDA and accused No.4 - C. Vasanthkumar was former Treasury Officer in the BDA.
10. The reasons rendered while continuing proceedings against the petitioner are as follows: 13
"The Accused No.1 Shri Sandeep Dash, ICAS, between the years 2005 to 2007 while he was posted as Executive Director of Finance in BMRCL, without bringing it to the knowledge of his superior officers and in violation of the KSBPE Rules transferred Rs.30 crores belonging to the BMRCL through Accused No.2 Manjeet, a broker, invested the money in PNB Asset Management a private company thereby cheating and causing a loss of Rs.3.19 crores loss to BMRCL. Thereafter A-1 through A-2 has got transferred Rs.3 crores to the BMRCL thereby cheating the company and by giving false information and documents to the company he has cheated the company.
BMRTL is a company floated by the Government of Karnataka especially for the purpose of providing metro rail transport and the company was registered under the Companies Act 1956 vide registration No.08/16286 of 1994. Thereafter the said BMRTCL was changed into BMRCL on 02.09.2005 after the State Government and the Central Government entered into a joint development agreement as result of which the company is presently owned jointly by both the State Government and the Central Government.
Between the time period 20.05.2005 to 04.04.2007 A-1 Sandeep Dash an IACS officer was posted as Executive Director of Finance (EDF) of BMRCL and during the same period A-5 Ravishankar was the Company Secretary and General Manager (Finance) of BMRCL.
In the meeting held by the Board of Directors of BMRCL on 29.01.2005, it had come to the board's knowledge that surplus funds which are 14 more than 50% invested in Mutual Funds should not be invested and the remaining 50% funds shall be deposited in banks as Fixed Deposit. As per the directions issued under the KSBPE (1997) any decision to transfer or investment of money shall be made by the MD after discussing about it with the other members and he is the only authorized person in this respect. But the Accused No.1 Sandeep Dash who was the Executive Director of Finance (EDF) and A-5 Ravishankar who was the Company Secretary and General Manager (Finance) of BMRCL colluded and conspired to invest the BMRCL money by violating the KSBPE (1997) rules and the decisions taken by the Board of Directors, without obtaining prior approval or sanction and for enriching themselves by violating the law have on various dates transferred and invested money in private PNB mutual funds through the broker. The details of the transfers are as follows:
i. On 19.01.2006 SBI Shivaji Nagar Branch Cheque No.698258 for Rs.2 crores ii. On 19.01.2006 Vijaya Bank, Indira Nagar Branch, Cheque No.308348 for Rs.8 crores.
iii. 17.04.2006 SBI Shivaji Nagar Branch, Cheque No.708240 for Rs.20 crores (Total Rs.30 crores) Between 2006 to 2007 the Accused, to make illegal gains and with mala fide intention have resorted to switch in and switch out method repeatedly for 36 times to make brokerage commission and by violating the rules invested money in equity funds have caused a loss of 15 Rs.3.19 crores to BMRCL by misusing the powers vested with them by the company. To cover up their illegal activities the A-1 and A-2 conspired with A-3 M.N.Seshappa and A-4- C.Vasanth Kumar and transferred Rs.3 crores belonging to BDA illegally in violation of law and rules generated pay order in the name of PNB by misleading to make believe that the pay order was given by the broker to cover up the losses caused by him and the same was deposited by A-5 Ravishankar in the account of BMRCL.
The A-1 Sandeep Dash, Executive Director of Finance, BMRCL and A-5 Ravishankar, Company Secretary and General Manager (Finance), BMRCL by transferring and investing Rs.30 crores of money belonging to the BMRCL a joint company owned by the State Government and the Central Government have caused a loss of Rs.3.19 crores to BMRCL and apart from this it has also been revealed that the above mentioned accused have misused the money for their personal use. As the Accused persons have misused the money in violation of the law, rules and regulations and by not following the departmental rules and conduct they have committed the offence of criminal misconduct as such they have committed the offences under the Prevention of Corruption Act.
Since the A-3 Seshappa and A-4 Vasanth Kumar have already been chargesheeted by the Seshadripuram Police Station in Cr.No.230/2014 for the offences committed in relation to transfer of Rs.3 crores of BDA money through pay order. Under Article 20(2) an accused cannot be tried for the same offences twice hence he is not arrayed as accused in this chargesheet. Due to insufficient evidence 16 against the broker A-2 Manjeet for having given the pay order of Rs.3 crores he is dropped from the chargesheet. This chargesheet is submitted against A-1 Sandeep Dash and A-5 Ravishankar for the offences punishable under Sections 409, 120-B IPC and Sections 13(C) and 13(2) of Prevention of Corruption Act. As both A-1 and A-2 have been terminated from their service from 14.03.2016 sanction has not been obtained."
(emphasis added) The economic offence wing of the CID, which files the charge sheet narrates that the petitioner between 2005 and 2007, when he was working as Executive Director (Finance) BMRCL without bringing it to the knowledge of his superiors, in violation of Rules, transferred Rs.30/-
crores belonging to BMRCL through accused No.2, a broker and had invested the money in Punjab National Bank Asset Management, a private company thereby causing loss of Rs.3.19/- crores to BMRCL, which amounted to cheating.
Thereafter, both accused Nos.1 and 2, the petitioner and Manjith, the broker had transferred Rs.3/- crores to BMRCL by giving false information about PNB Asset Management.
He does not stop at this. There are several allegations, 17 which could be gathered from the charge sheet extracted hereinabove.
11. What drives continuation of proceedings against the petitioner is that, by misusing the powers vested in the Company and to cover up the illegal activity, accused Nos.1 and 2 conspired with others and transferred Rs.3/- crores belonging to the BDA in violation of the Rules and generated a pay order in the name of PNB Asset Management by making it believe that it was a pay order given by the broker to cover up the losses in the account of BMRCL. Therefore, the acts of the petitioner and accused No.2 ran through both the streams of accusations, while functioning in the BDA and BMRCL. It is on this score the continuation of proceedings against the petitioner proceeded. The further finding in the charge sheet is that, accused Nos.3 and 4 have been charge sheeted by the Police in Crime No.230 of 2014 for the offences committed in relation to transfer of Rs.3/- crores of BDA money through the aforesaid pay order and due to 18 insufficient evidence against the broker, accused No.2 - Manjith for having given the pay order, he is dropped from the charge sheet. Therefore, the charge sheet submitted against accused No.1 and accused No.5 for offences punishable under Sections 409, 120B of the IPC and 13(1)(c) and 13(2) of the PC Act are sought to be continued.
12. It is germane to notice the background of registration of complaint against the petitioner as to why charges against the petitioner in Crime No.323 of 2014 is not dropped. The complaint so registered against the petitioner reads as follows:
"Bangalore Metro Rail Corporation Limited. (A Joint Venture of Government of Karnataka & Government of India.
BMTC Complex, 3rd Floor, K.H.Road, Shanthinagar, Bangalore-560 027, India.
17-10-2014 Bangalore.
To The Station House Officer, Wilson Garden Police Station, Bangalore.19
Dear Sir, Sub: Complaint regarding mismanagement of funds of BMRCL and consequent loss in furtherance of Criminal Conspiracy, Breach of Trust making false document and Cheating by Sri Sandeep Dash, Shri Manjit, G.R.Financial Services and others.
--
Bangalore Metro Rail Corporation Limited (BMRCL) was incorporated on 21-09-1994 under the provisions of Companies Act, 1956, by an order of Government of Karnataka bearing No.UDD 19 BMR 94 dated 20-09-1994 as Bangalore Mass Rapid Transport Limited. Subsequently its name was changed as Bangalore Metro Rail Corporation Limited on 2nd September 2005. BMRCL is a joint venture of Government of Karnataka and Government of India for the purpose of implementation of metro rail project in the city of Bangalore.
BMRCL carries on business by senior management consisting of Managing Director, Director (Finance), Director (Planning & Project), Director (RSE), Company Secretary and General Manager, etc. For effective governance, BMRCL has constituted various Committees, namely Investment Committee, Finance Committee, Audit Committee etc. Various Committees so constituted are authorized to take decisions regarding governance and also investment of funds and to make recommendations to Board of Directors.
Shri Sandeep Dash, the accused in the case, was appointed as Executive Director (Finance) in the erstwhile Bangalore Mass Rapid Transport Limited (BMRTL) vide Government order No.UDD 62 BMR 2005 dated 19.05.2005 He reported to duty on 20-05-2005 20 and worked as Executive Director (Finance) at BMRCL up to 04-04-2007.
While implementing metro rail project, BMRCL deals with various funds including surplus funds. BMRCL invests surplus funds in various fund options. While making such investments BMRCL is bound to adhere to the guidelines for investment issued by Karnataka State Bureau of Public Enterprises (KSBPE). KSBPE has also issued a circular dated 25-04- 1997 stipulating the guidelines for investment of surplus funds by State public sector enterprises. KSBPE guidelines prohibit investment in equity funds.
Shri Sandeep dash, the accused while working as Executive Director (Finance) at BMRCL was responsible for ensuring that surplus funds of BMRCL are invested in compliance with the provisions of Companies Act, 1956, the guidelines on investment issued by KSBPE vide Circular dated 25-04-1997 and also in accordance with the decision of Board of Directors of BMRCL taken in their 29th meeting an 30th meeting held on 29-01-2005 and 2-08- 2005 respectively.
Sri Sandeep Dash in furtherance of common intention, hatched a criminal conspiracy with Shri Manjit representing a financial services brokerage agency known as M/s G.R.Financial Services. On 19-01-2006 a sum of Rs.10/- crore was invested in Principal Cash Management Fund - Liquid Option. On 17- 04-2006 again a sum of Rs.20/- crores was invested in the same Principal Cash Management Fund - Liquid Option. These investments were made with Principal PNB 21 Asset Management Company Private Limited. These investments were debt-based funds.
The investment of Rs.10/- crores was made through an application No.14155511 signed by Shri Sandeep Dash, the accused, through Broker (Code ARN-3290 relating to M/s G.R.Financial Services). Normal procedure for investment was "Direct" and the then Company Secretary and General Manager (Admn.) Sri R.K.Ravishankar had signed and given Shri Sandeep Dash, the accused, an Application No.14789993 bearing "Direct" which indicates Direct Investment. Shri Sandeep Dash replaced this application by another application mentioned above bearing No.14155511 under his signature for investment through broker. This replacement of application was manipulated and BMRCL was kept in dark. Shri Sandeep Das, the accused neither obtained approval of the then Managing Director Sri V.Madhu nor informed the then Company Secretary and General Manager Sri R.K.Ravishankar for departure in the procedure from "Direct Investment"
to "Investment through Broker". No record was maintained in this regard and no noting was also effected in the file. This is a material suppression of fact with an intention to mislead the higher authorities and also subordinates with sole object of defrauding BMRCL. This decision for making investment through broker was taken unilaterally by Shri Sandeep Dash, the accused. The said investment of Rs.10/- crores and Rs.20/- crores required the approval of Managing Director. Executive Director (Finance) was not competent to take decision in the matter on his own. In spite of this, Shri Sandeep Dash, the accused invested the said amounts without the approval of Managing Director and thus acted beyond his powers.22
Investment of Rs.10/- crores referred to above was in Principal Cash Management Fund - Liquid Option Growth Plan. Shri Sandeep Dash, the accused, on 6-02-2006 switched out this amount from Principal Cash Management Fund - Liquid Option Growth Plan to Principal Focused Advantage Fund which is an equity based fund. On 17.02.2006 Shri Sandeep Dash, the accused, switched out from Principal Focused Advantage Fund to Principal Infrastructure and Services Industries Growth Plan Fund, New Fund Officer (NFO). The application for this transaction was also signed by Shri Sandeep Dash, the accused. Managing Director was the competent authority to take decision on investments and Shri Sandeep Dash, the accused, effected these transactions without the approval of Managing Director. Both the transactions were effected through the broker (Code ARN-3290 relating to M/s G.R.Financial Services). This investment was again in violation of the guidelines dated 25-04-1997 and the decision of Board of Directors taken in its 29th meeting held on 29-01-2005.
The investments made in Principal Cash Management Fund - Liquid Option was transferred to other equity funds by a method styled Switch-in and Switch out. Shri Sandeep Dash, the accused has allowed the switch-in and switch-out from Principal Cash Management Fund - Liquid Option Growth Plan to 4 equity based funds, namely (1) Principal Focused Advantage Fund Growth Plan, (2) Principal Growth Fund Growth Plan (3) Principal Infrastructure and Services Industries Fund Growth Plan and Principal Large Capital Fund Growth Plan. In all, as many as 36 times switch-in and switch out of the investment has been effected by Shri Sandeep Dash, the accused, through common transaction forms 23 signed by him. The said investments in equity based funds is in violation of guidelines dated 25-04-1997 and also the decision of the Board taken in its 29th meeting held on 29-01-2005. This act of switch-in and switch-out was effected clandestinely by Shri Sandeep Dash without disclosing the same to higher authorities and also keeping the subordinates in dark. Neither the approval of the higher authorities was obtained nor the records were maintained in the concerned file through notings. Copies of signed common transaction forms were also not placed in the concerned file for having effected switch-in and switch- out. This willful suppression of fact, misuse of power and dishonest concealment amounts to criminal breach of trust with a common intention to cause wrongful loss to BMRCL and also consequently to have wrongful gain for himself and others involved in the said transactions.
Shri Sandeep Dash has caused wrongful loss to a tune of Rs.3.19 crores to the company through aforesaid unauthorized and deliberate actions and the same is detailed below:
Total investment made Rs.30.00
crores
Total expected return
on Investment of
Rs.30/- crores Rs. 1.55 crores
Total Rs.31.55 crores
Actual total realization
on the Investment
made Rs.28.36 crores
24
Loss Rs. 3.19 crores
On verification it was noticed that Shri Manjit was not a representative of Principal PNB Asset Management Committee (PNBAMC) but a representative of M/s G.R. Financial Services which had brokered and engineered to deal between BMRCL and Principal PNBAMC. Shri Sandeep Dash in collusion with Shri Manjit, hatched this criminal conspiracy and was instrumental in effecting the transactions. Shri Sandeep Dash had unauthorisedly given instructions for moving funds into equity funds.
Shri Sandeep Dash, the accused, having committed serious lapses in dealing with the funds of BMRCL and after having resorted to criminal breach of trust and conspiracy, anticipated legal action and consequently instructed Shri Manjit to immediately cause refund of the loss. Shri Manjit handed over to BMRCL a Banker's cheque dated 14-06-2007 for a sum of Rs.3.00 crores which was placed in Principal PNB Liquid plan on the same day.
Audit Committee after having noticed the serious illegal acts, the irregularities, submitted a report on 21-05-2008 and recommended for initiation of appropriate action against the concerned responsible for causing loss to BMRCL by violating stipulated policy, prescribed guidelines and much against the decision of the Board of Directors. M/s G.R.Financial Services has made good the loss of Rs.3.00 crores to BMRCL.
Shri Sandeep Dash, the accused, has exercised powers which were not delegated to him and has suppressed the material facts willfully with dishonest 25 intention to mislead the BMRCL authorities. Shri Sandeep Dash has made unathorised investments by engaging the services of a broker without authorization from competent authority in violation of guidelines issued by KSBPE, contrary to the provisions of Companies Act, 1956 and decision of the Board in its 29th meeting dated 29-01-2005.
Shri Sandeep Dash, the accused, who was entrusted with the funds of BMRCL and having control of the funds of BMRCL, with sinister object and selfish motive, has invested the amounts illegally in furtherance of criminal conspiracy, in violation of norms prescribed and thus ahs committed the offences of criminal conspiracy, criminal breach of trust and cheating. He has also committed the offence of falsification of records.
A detailed study of the facts and records would indicate that in furtherance of common intention, Sri Sandeep Dash entered into criminal conspiracy with Shri Manjit of G.R.Financial Services to invest the funds of BMRCL with PNBAMC through G.R. Financial Services with the object of paying heavy brokerage commission to G.R. Financial Services. All the accused Shri Sandeep Dash, Shri Manjit, G.R. Financial Services and PNBAMC are guilty of offences punishable under Indian Penal Code.
Thus, Shri Sandeep Dash, Shri Manjit, G.R. Financial Services and PNBAMC in furtherance of common intention have committed the offences punishable under Sections 120B, 417, 420, 409, 465 r/w 34 of Indian Penal Code, besides causing wrongful loss to the Company and wrongful gain for themselves and other persons involved in the transactions.26
Necessary details pertaining to the financial mis-management referred to above will be furnished at the time of investigation.
Hence, it is requested to investigate into the above matter and to take appropriate action against Shri Sandeep Dash, Shri Manjit, G.R. Financial Services and others for having committed the above said offences as per law. Delay caused is due to decision to file complaint by the Board of BMRCL.
Sd/-
U.Jagadish Nayak, Company Secretary, Bangalore Metro Rail Corporation Ltd."
(Emphasis added) The allegations were against the petitioner and Mr. Manjith of G.R.Financial Services. Charge sheet is filed pursuant to registration of the crime and conduct of investigation by the Police and summary of the charge sheet reads:
"©.JA.Dgï.n.J¯ï ¸ÀA¸ÉÜAiÀÄÄ MAzÀÄ PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÁªÀÄåzÀ ¸ÀA¸ÉÜAiÀiÁVzÀÄÝ, ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀzÀ ¸ÁjUÉ ªÀåªÀ¸ÉÜAiÀÄ£ÀÄß GvÀÛªÀÄUÉƽ¸ÀĪÀ zsÉåÃAiÉÆÃzÉÝñÀ¢AzÀ PÀA¥À¤ DPïÖ 1956 gÀ ¤AiÀĪÀÄUÀ¼À£ÀÄß DzsÀj¹ £ÉÆÃAzÁªÀt ¸ÀASÉå:08/16286 JAzÀÄ 1994 gÀ°è gÀa¸À®ànÖgÀĪÀÅzÀÄ, £ÀAvÀgÀ ¸ÀzÀj ©.JA.Dgï.n.J¯ï ¸ÀA¸ÉÜAiÀÄÄ ¨ÉAUÀ¼ÀÆgÀÄ ªÉÄmÉÆæà PÁ¥ÉÆÃðgÉõÀ£ï °«ÄmÉqï (©.JA.Dgï.¹.J¯ï) ¸ÀA¸ÉÜAiÀÄÄ DV ¢£ÁAPÀ:2/9/2005 gÀ°è ¥ÀjªÀvÀð£É DVgÀĪÀÅzÀÄ, ªÀÄÄAzÉ gÁdå ªÀÄvÀÄÛ PÉÃAzÀæ ¸ÀgÀPÁgÀUÀ¼ÀÄ ¸ÉÃj, ¢£ÁAPÀ:12/9/2005 gÀAzÀÄ MAzÀÄ dAn M¥ÀàAzÀ ªÀiÁrPÉÆArgÀĪÀzÀjAzÀ ¸ÀzÀj ¸ÀA¸ÉÜAiÀÄÄ gÁdå ªÀÄvÀÄÛ PÉÃAzÀæ ¸ÀPÁðgÀzÀ dAn ¸ÀA¸ÉÜAiÀiÁVgÀĪÀÅzÀÄ zÁR¯ÉUÀ¼À°è ªÀÄÆr §A¢gÀÄvÀÛzÉ.27
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(Emphasis added) 29 It is the findings in column No.17 against the petitioner and several others that were taken into consideration for filing the charge sheet and cognizance was taken by the Special Court against accused Nos.1 and 5, the petitioner and Mr. R.K.Ravishankar, and others as observed hereinabove were dropped. The charge against the petitioner insofar as it concerns Crime No.230 of 2014, which is the subject matter of Special Case No.628 of 2017 is also required to be noticed and it reads as follows:
"C H A R G E I, Gopalakrishna Rai,T.B.A. (Law) LL.B., LXXVIII Additional City Civil & Sessions Judge at Bengaluru, do hereby charge you as follows:
That you, an officer of Indian Civil Accounts Service were working as Finance Member of BDA, Bengaluru during 12-05-1997 to 10-05-2005 and entrusted with Financial activities of BDA, Bengaluru as per the approval given by the Commissioner, BDA and Board of Directors. As per Government Circular it is for you to deposit surplus amount of BDA in Nationalised Banks as Fixed deposits and not to invest the same in Equity based Mutual Funds and for all investments and to open new account prior permission of the Commissioner, BDA was very much required as provided under Section 13(2)(e) and (f) of BDA Act. You by entering into criminal conspiracy with the accused Nos. 2 30 to 7 with intent to make wrongful gain and by violating said circular of the Government and the provisions of BDA Act in connivance with the aforesaid conspiracy, during 1999 Rs.5.00 crores, during 2000 Rs.59.05 crores, during 2001 Rs.90.00 crores, during 2002 Rs.523.5 crores, during 2003 Rs.1057.05 crores, during 2004 Rs.299.00 crores during 2005 Rs.105.00 crores were invested by you in HDFC, Alliance Capital, ING Vysya, Jurit, JM Birla Principle, Taurus, Chola, Sundaram, HSBC and SBI Mutual Funds. Further, instead of the regular bank accounts of BDA available in Indian Overseas Bank, Kumara Park West Branch current A/c No.239, 1549, 1562 and Canara Bank, Kumara Park Branch current A/c 2001,2108 without permission of the Commissioner you have opened Current A/c No.1518 and through this account made investment in Mutual Funds by forging the documents and also fraudulently invested the surplus amount of BDA in mutual equity funds through agent and you knew that the said amount is not belongs to you and in order to cheat the BDA and Government, withdrew the amount and obtained the pay order No.47974 on 25-11-2002 for Rs.1.04 crores from BDA Indian Overseas Bank Account NO.239 and invested the said amount in Churit Indian Mutual Fund on behalf of Coffee Board wherein your wife Sharada Subramanyam/accused No.8 was working and also on 28-03-2002 you fraudulently transferred Rs.4.05 crores from the aforesaid bank to Coffee Board Indian Overseas Bank Account No.5968 in order to make wrongful gain to your wife and caused loss to the BDA; further, after your transfer from BDA to Bengaluru Metro Corporation Limited as Finance Director, you fraudulently obtained Rs.3.00 crores by way of 31 pay order No.297664 on 14-07-2007 from BDA Overseas Bank Account NO.1660 and invested the said amount in the name of BMRCL in Principal (PNB) Mutual Fund and made wrongful gain and further you also in order to cheat the BDA Commissioner and auditors you entered in the accounts as Term Deposit also by violating Government Order and thereby committed an offence of Criminal Breach of Trust which is punishable under Section 409 read with Section 120B of IPC and within my cognizance.
2. Secondly, you, an Officer of Indian Civil Accounts Service were working as Finance Member of BDA, Bengaluru during 12-05-1997 to 10-05-2005 and entrusted with Financial activities of BDA, Bengaluru as per the approval given by the Commissioner, BDA and Board of Directors. As per Government Circular it is for you to deposit surplus amount of BDA in nationalized banks as fixed deposits and not to invest the same in equity based Mutual Funds and for all investments and to pen new account prior permission of the Commissioner, BDA was very much required and in furtherance of criminal conspiracy and with an intention to make legal profit you accused No.1 cheated the BDA and Government by violating Circular of the Government and the provisions of BDA Act and invested the huge surplus amount of BDA in a equity based Mutual Fund without informing the higher authorities and had BDA amount was deposited in Fixed Deposit, it could have received higher profit but by making such deposits in mutual funds, you caused loss to the tune of Rs.15.55 crores to BDA and cheated the BDA as well as Government and thereby, you have committed an offence punishable under 32 Section 420 read with Section 120B of IPC and within my cognizance.
3. Thirdly, you, an Officer of Indian Civil Accounts Service were working as Finance Member of BDA, Bengaluru during 12-05-1997 to 10-05-2005 and entrusted with financial activities of BDA, Bangaluru as per the approval given by the Commissioner, BDA and Board of Directors. As per Government circular it is for you to deposit surplus amount of BDA in nationalized Banks as Fixed Deposits and not to invest the same in equity based Mutual Funds and for all investments and to open new account prior permission of the Commissioner, BDA was very much required as provided under Section 13(2)(e) and (f) of BDA Act and in furtherance of criminal conspiracy with accused No.3 and with an intention to make illegal profit you accused No.1 by violating Circular of the Government and the provisions of BDA Act committed forgery by creating false documents and maintaining investment register and cash book without bringing to the knowledge of the higher officers and Accounts Officer of BDA and further made false entries in the cash register by entering cash deposit though invested in equity based Mutual Funds without informing the higher authorities, and thereby you have committed an act of forgery by cheating the BDA which is punishable under Section 468 read with Section 120B of IPC and within my cognizance.
4. Fourthly, you, an Officer of Indian Civil Accounts Service were working as Finance Member of BDA, Bengaluru during 12-05-1997 to 10-05-2005 and entrusted with financial activities of BDA, Bangaluru as per the approval given by the Commissioner, BDA and Board of 33 Directors and in such capacity you by violating circular of the Government and the provisions of BDA Act and fraudulently invested the surplus amount of BDA in mutual equity funds through agent by creating the false accounts in the bank and in order to cheat the BDA and Government withdrew the amount and obtained the pay order No.47974 on 25-11-2002 for Rs.1.04 crores from BDA Indian Overseas Bank Account No.239 and invested the said amount in Churit Indian Mutual Fund on behalf of Coffee Board wherein your wife Sharada Subramanyam/accused No.8 was working and also on 28-03-2002 you fraudulently transferred Rs.4.05 crores from the aforesaid bank to Coffee Board Indian Overseas Bank Account NO.5968 in order to make wrongful gain to your wife and caused loss to the BDA; further, after your transfer from BDA to Bengaluru Metro Corporation Limited as Finance Director, you fraudulently obtained Rs.3.00 crores by way of pay order No.297664 on 14-07-2007 from BDA Overseas Bank Account No.1660 and invested the said amount in the name of BMRCL in Principal (PNB) Mutual Fund and made wrongful gain and further you also in order to cheat the BDA Commissioner and auditors you fraudulently and dishonestly made false entries as term deposit and thereby you have committed an offence punishable under Section 471 read with Section 120B of IPC and within my cognizance.
5. Fifthly, you being a public servant working as an Officer of Indian Civil Accounts Service and Finance Member of BDA, Bengaluru during 12-05-1997 to 10-05-2005, in furtherance of your criminal conspiracy, you influenced accused Nos. 2, 3, 4 and 8 to invest 34 the funds of BDA in Mutual Funds by violating rules, and for such an investment, you accused No.1 received commission of Rs.10.00 crores and on your influence and directions, the accused No.3 made entries in the cash book and investment Register as the amount is invested in Fixed Deposit and thereby you have committed an offence punishable under Section 9 of Prevention of Corruption Act, 1988 within the cognizance of this Court and within my cognizance.
6. Sixthly, you being an officer of Indian Civil Accounts Service were working as Finance Member of BDA, Bengaluru during 12-05-1997 to 10-05-2005 and entrusted with Financial activities of BDA, Bengaluru as per the approval given by the Commissioner, BDA and Board of Directors, being a public servant received illegal gratification of Rs.10.00 crores by investing funds of BDA in Mutual Funds by violating rules and you misappropriated the funds of the BDA and caused loss of Rs.15.55 crores to BDA and further you invested Rs.1.04 crores and Rs.4.50 crores in Coffee Board through your wife accused No.8 and invested Rs.3.00 crores in the name of BMRCL with a mala fide intention to make wrongful gain and misappropriated the said amount of BMRCL and caused loss to the BMRCL, made wrong entry both in the Cash Book and Investment Register without the joint signature of other officers and without the permission of the Commissioner opened the account in the name of Finance Member of BDA and thereby you have committed the offence of criminal misconduct punishable under 35 Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act, 1988 and within my cognizance.
7. Seventhly, you, an Officer of Indian Civil Accounts Service were working as Finance Member of BDA, Bengaluru during 12-05-1997 to 10-05-2005 and entrusted with financial activities of BDA, Bengaluru as per the approval given by the Commissioner, BDA and Board of Directors, being a public servant by violating rules, invested the funds of BDA I Mutual Funds have not obtained pay order or bankers cheque so as to suppress illegal act and without maintaining any record you A1 and A3 have spent money as if your personal money and made a false entry in Cash Register as if amount was deposited as cash deposit and thereby kept Account Officers of BDA in dark, thereby destroyed the evidence committed an act of cheating, misappropriate the funds and position.
Further, you have not obtained required permission from the Commissioner or joint signatures of concerned officers so as to see that information shall not be disclosed to Auditors and Accountant General Audit Committee, thereby you have committed an offence of misconduct punishable under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and within my cognizance.
And I hereby direct that you, the above named accused No.1, be tried on the above said charges before this Court.
Dated: 18th Day of September, 2021."
(Emphasis added) 36 If the allegations in the charge sheet that are quoted hereinabove are noted in tandem, it would unmistakably demonstrate the role of the petitioner being glaring in both these charges and cannot claim parity with accused Nos.3 and 4. Mere dropping of accused Nos.3 and 4 from the array of accused would not mean that the petitioner has to be dropped in the same manner of accused Nos.3 and 4.
13. The allegations, as could be gathered from what is observed hereinabove against the petitioner, are intertwined covering his tenure at both the places i.e., BDA and BMRCL. The dropping of the names of accused Nos.3 and 4 from the charge sheet is not under challenge. Therefore, the reason for dropping of accused Nos.3 and 4 need not be gone into. The continuation of proceedings in Crime No.323 of 2014, which is Special C.C.No.317 of 2017 cannot be interjected. The concept of double jeopardy under Article 20(2) of the Constitution of India would become applicable only if the offences are the same 37 in the two proceedings as the expression 'same offence' appearing in Section 300 of the Cr.P.C. or Article 20(2) of the Constitution of India would mean that the offence must be same.
14. In the case at hand, the facts that led to the offences are different and the offences by themselves are different, in both the cases. Merely because accused Nos.3 and 4 are dropped from the charges, it cannot be said that the petitioner has also necessarily to be dropped from the charges notwithstanding the afore-quoted glaring circumstances. The submission of parity of the learned senior counsel for the petitioner is unacceptable, so is the petition which is filed on the sole ground seeking parity in treatment.
15. In the result, the petition lacking in merits, stands dismissed.
It is made clear that the observation made in the course of this order is only for the purpose of consideration of the case of the petitioner under Section 482 of the 38 Cr.P.C. and it shall not bind or influence any other proceedings against the petitioner or any other accused, before the trial Court or any other fora.
Sd/-
JUDGE SBN/nvj