Kerala High Court
Dheerendra Kumar Singh vs Inspector Of Police, Central Bureau Of ... on 20 May, 2025
2025:KER:34614
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Crl.R.P.Nos.766 of 2023 and 1140 of 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.REV.PET NO. 1140 OF 2023
AGAINST THE ORDER DATED 13.04.2023 IN CRL.MP 653 OF 2017
AND 740 OF 2017 IN CC NO.42 OF 2014 OF ADDITIONAL SPECIAL
SESSIONS COURT (SPE/CBI CASES)-III, ERNAKULAM
REVISION PETITIONER/PETITIONER/ACCUSED NO.6:
DHEERENDRA KUMAR SINGH
AGED 50 YEARS
S/O. YUDHAVEER SINGH, 1075 SECTOR,
ASHIYANA,LUCKNOW, U.P, PIN - 226012.
BY ADVS.
GEO PAUL
NAVEEN T.U.
SOHAIL AHAMMED HARRIS P.P.
S.ASHOK KUMAR.
JACOB GEORGE PALLATH
C.R.PRAMOD
HARIKRISHNAN A.S.
AKSHAI.K.R.
RESPONDENT/RESPONDENT/COMPLAINANT:
INSPECTOR OF POLICE, CENTRAL BUREAU OF
INVESTIGATION (CBI)
REPRESENTED BY STANDING COUNSEL, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031.
2025:KER:34614
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Crl.R.P.Nos.766 of 2023 and 1140 of 2023
BY ADV SREELAL WARRIAR, SC, CBI
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 02.04.2025, ALONG WITH
Crl.Rev.Pet.766/2023, THE COURT ON 20.05.2025 DELIVERED
THE FOLLOWING:
2025:KER:34614
3
Crl.R.P.Nos.766 of 2023 and 1140 of 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
CRL.REV.PET NO. 766 OF 2023
AGAINST THE ORDER DATED 13.04.2023 IN CRL.MP 653 OF 2017
AND 740 OF 2017 IN CC NO.42 OF 2014 OF ADDITIONAL SPECIAL
SESSIONS COURT (SPE/CBI CASES)-III, ERNAKULAM
REVISION PETITIONER/PETITIONER/ACCUSED NO.4:
BALDEV RAJ ARORA
AGED 72 YEARS
144, GOLF LINK, NEW DELHI, PIN - 110003.
BY ADVS.
P.SREEKUMAR
SADER E.REAZ
HELEN P.A.
ATHUL ROY
STEPHANIE SHARON
RESPONDENT/RESPONDENT/COMPLAINANT:
CENTRAL BUREAU OF INVESTIGATION (CBI)
REPRESENTED BY INSPECTOR OF POLICE,
CBI/ACB/COCHIN., PIN - 682017
BY ADV SREELAL WARRIAR, SC, CBI
2025:KER:34614
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Crl.R.P.Nos.766 of 2023 and 1140 of 2023
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 02.04.2025, ALONG WITH
Crl.Rev.Pet.1140/2023, THE COURT ON 20.05.2025 DELIVERED
THE FOLLOWING:
2025:KER:34614
5
Crl.R.P.Nos.766 of 2023 and 1140 of 2023
P.G. AJITHKUMAR, J.
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Crl.R.P.Nos.766 of 2023 and 1140 of 2023
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Dated this the 20th day of May, 2025
ORDER
Accused Nos.4 and 6 in C.C.No.42 of 2014 pending before the Special Court (SPE/CBI)-III, Ernakulam, respectively, filed Crl.R.P.Nos.766 and 1140 of 2023. They claimed discharge under Section 239 of the Code of Criminal Procedure, 1973 (Code). The Special Court as per common order dated 13.04.2023 dismissed the petitions. Hence, they filed these revision petitions invoking the provisions of Section 397 read with Section 401 of the Code.
2. The respondent filed a final report alleging that the petitioners and their co-accused committed offences punishable under Sections 7, 12 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) and Section 120B read with Sections 420, 467, 468, 471 and 201 of the Indian Penal Code, 1860 (IPC).
3. The case of the prosecution, in brief, is as follows:
2025:KER:34614 6 Crl.R.P.Nos.766 of 2023 and 1140 of 2023 The Airports Authority of India(AAI) floated a tender concerning the work "resurfacing of the runway and associated works" in Calicut International Airport. The 3rd accused, M/s B.R.Arora and Associates, New Delhi was the successful bidder.
Accused Nos.4 and 5 were its Directors. Accused Nos.1 and 2 were the public servants at the Airports Authority of India and in charge of the said work. They hatched a conspiracy along with Sri.Binubabu K., Sri.Raman Sharma, Sri.Jayakumar and Sri.Santhosh, who since turned approvers, during November, 2007 to March, 2009 to cheat the Airports Authority of India and obtain money by corrupt and illegal means by submitting forged invoices as genuine regarding purchase of bitumen and cement. Thus they obtained a huge amount for unused bitumen and cement.
4. Accused No.4 being the Director of M/s B.R.Arora & Associates and also the person allegedly taking the lead role in submitting forged invoices and obtaining unjust enrichment on behalf of the company was arraigned as the accused. The specific allegation against accused No.6 is that he obtained 2025:KER:34614 7 Crl.R.P.Nos.766 of 2023 and 1140 of 2023 blank invoices relating to purchase of bitumen from Indian Oil Corporation Limited (IOCL) through witnesses No.82 and 99 and gave the same to accused No.5, who forged them and used as genuine.
5. Accused Nos.4 and 6 in their respective petitions raised the contention that they were not involved in the alleged crime and the respondent implicated them without producing any material to establish their complicity. Accused No.4 maintained that he never had come to Calicut and only because he happened to be a Director of the company, he was implicated in the case. Accused No.6 took up the contention that even accepting the entire case of the prosecution as true, he would not be guilty of any of the offences alleged. They would contend that the Special Court without considering their pleas and submissions dismissed the applications for discharge in a cursory manner.
6. Heard the learned Senior Counsel appeared on instructions for accused No.4, the learned counsel for accused No.6 and the learned Standing Counsel for the CBI.
2025:KER:34614 8 Crl.R.P.Nos.766 of 2023 and 1140 of 2023
7. The work in question was during the period 2007-
09. Accused No.3 was the contractor. Indisputably, the work was completed and its defect curing period was over. Much thereafter, this crime was registered. The project was resurfacing of the runway in the Calicut International Airport and its allied works. It involved laying of multiple layers of runway using Bituminous Macadam, Semi Dense Asphaltic and Dense Asphaltic Concrete. The essential ingredients of different layers were bitumen and cement. The prosecution alleges that sufficient bitumen and cement were not used to undertake the work, thereby compromising the quality of the runway. Accused No.3, the contractor submitted forged invoices supporting their false claim of purchasing bitumen and cement. It is also alleged that by claiming amounts based on such forged invoices AAI sustained a loss of Rs.2,11,07,764/- and corresponding advantage to the company and the other accused. Accused Nos.1 and 2 were bribed in order to effect payment against the bills supported for such forged invoices.
2025:KER:34614 9 Crl.R.P.Nos.766 of 2023 and 1140 of 2023
8. The learned Senior Counsel for accused No.4 would submit that going by the technical specifications attached to the contract documents, there was no insistence on the quantity of bitumen or cement to be used for the work whereas, the insistence was on the quality alone, which was duly satisfied and therefore there was absolutely no basis for the allegation that forged invoices were submitted. The contention is that the contractor was not obliged to account for the quantity of the materials used, but to satisfy the authorities only the quality of the work. Accordingly, it is contended that the very substratum of the prosecution allegation is baseless. The further contention is that accused No.5, who was another director of accused No.3 company, was in charge of the work in question and absolutely no material is produced to prove personal involvement of accused No.4 in the case. It is also urged that the alter ego principle even cannot be employed to implicate accused No.4.
9. The Special Court held that the materials produced by the prosecution made out a case to presume that all the 2025:KER:34614 10 Crl.R.P.Nos.766 of 2023 and 1140 of 2023 accused committed the offences. But the consideration was in a cursory manner. Of course, it has been observed that on the instructions of accused No.4, the computers and documents at the site were destroyed and the evidence of witness No.34 is available to prove the personal involvement of accused No.4. The learned Standing Counsel for the CBI supported the said view taken by the Special Court and it is submitted that forgery of invoices and disbursal of funds on the basis of such invoices are quite evident from the materials collected by the prosecution. It is also submitted that sufficient materials are brought on record to prove the involvement of accused No.4.
10. From the statements of witnesses No.82 and 99, obtaining of blank invoices from the IOCL office at Ulberidya and reaching the same in the custody of accused No.5 is established. From the statements of Sri.Raman Sharma and other approvers, use of such blank invoices to create false invoices for purchase of bitumen from Kochi and other Depots of IOCL has also been established. The materials produced by the prosecution, if believed, also will prove payment of funds 2025:KER:34614 11 Crl.R.P.Nos.766 of 2023 and 1140 of 2023 on accepting such forged invoices and bribing of officials for facilitating such deceitful payment. The question, still, is whether the materials are enough to charge accused No.4 in his personal capacity for the alleged offences.
11. Insofar as accused No.6 is concerned, it is to be considered whether there are sufficient materials to prove that he was also a conspirator and privy to the forgery and submission of forged documents before the authorities for getting unjust enrichment.
12. As stated, accused Nos.4 and 5 were the Directors of M/s B.R.Arora and Associates. The specific allegation in the charge is that blank invoices were obtained, and using the same, false invoices were prepared on the initiative of accused No.5. He was in charge of the work in question on behalf of the company. The approvers, Sri.Binubabu K., Sri.Raman Sharma, Sri.Jayakumar and Sri.Santhosh gave statements under Section 164 of the Code. From their statements and also from the other materials, it is evident that on the instructions of accused No.5 forged invoices were created making use of 2025:KER:34614 12 Crl.R.P.Nos.766 of 2023 and 1140 of 2023 computers and printers gathered for that specific purpose. Of course, there are stray statements that accused No.4 also gave instructions for submitting the invoices in question and in the matter of destroying computers and records.
13. It may be noted that the computers and records were destroyed much after completion of the work; even after the defect warranty period and termination of the arbitration proceedings. Even the records in the custody of the AAI concerning the work were destroyed. First of all, there is no evidence to show that accused No.4 gave instructions in that regard. Secondly, it was done much later. None of the witnesses gave statements based on their personal information that accused No.4 had a direct involvement in forging the invoices and submitting the same before the authorities. Being a director of the company, he also was a beneficiary of receiving ineligible money. However, unless there is enough material to create a strong suspicion that he had committed the offence, no charge can be framed against him.
2025:KER:34614 13 Crl.R.P.Nos.766 of 2023 and 1140 of 2023
14. The Apex Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat [(2019) 16 SCC 547] held:
"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence." (emphasis supplied) 2025:KER:34614 14 Crl.R.P.Nos.766 of 2023 and 1140 of 2023
15. The said principle was reiterated by the Apex Court in Kanchan Kumar v. State of Bihar [(2022) 9 SCC 577]. Before deciding whether, on the basis of the aforementioned materials, accused No.4 can be charged, it is necessary to look into the possibility of making him vicariously responsible for the offences.
16. The Apex Court in Iridium India Telecom Ltd. v. Motorola Incorporated and others [(2011) 1 SCC 74] considered in what circumstance mens rea can be attributed to a corporation applying the principle 'alter ego'. It was held that criminal liability of a corporation would arise when an offence is committed in relation to the business of the company by a person or body of persons in control of its affairs. Hence, the degree and control of the person or body of persons on the affairs of the company is a necessary concomitant while attributing criminal liability of the company. The ancillary question of vicarious liability was considered by the Apex Court in Sunil Bharti Mittal v. Central Bureau of Investigation [(2015) 4 SCC 609]. It was held that it was the cardinal 2025:KER:34614 15 Crl.R.P.Nos.766 of 2023 and 1140 of 2023 principle of criminal jurisprudence that there was no vicarious liability unless the statutes specifically provided so. If an individual has perpetrated the commission of an offence on behalf of a company, he can be made an accused along with the company. It was further observed that there must be sufficient evidence to prove his active role coupled with criminal intent for being prosecuted in his individual capacity. This principle was reiterated by the Apex Court in Religare Finvest Ltd. v. State of NCT of Delhi [AIR 2023 SC 4537].
17. If the materials produced by the prosecution in this case in order to establish the personal involvement of accused No.4 in the matters of creating forged invoices, submission of the same, obtaining money based on such forged invoices and destruction of evidence are considered in the light of the aforesaid principles of law, the conclusion can only be in the negative. If accused No.4 is tried in his personal capacity based on the available materials, the charge would only be groundless. Therefore, the view taken by the Special Court that 2025:KER:34614 16 Crl.R.P.Nos.766 of 2023 and 1140 of 2023 a charge was liable to be framed against accused No.4 in his individual capacity cannot be sustained.
18. Witness No.99 gave a statement that on the request of witness No.82, he obtained about 50 blank invoices from IOCL Depot, Ulberidya. He gave it to witness No.82 and a reward of Rs.5,000/- was received. Witness No.82 stated that he in turn gave the invoices to accused No.6. The case of the prosecution is that those invoices were handed over to accused No.5 and were used to create false invoices regarding purchase of bitumen. From the materials on record, it is not able to find whether accused No.6 was aware of the purpose for which accused No.5 obtained the invoices from him. Besides conspiracy, creation of false documents for the purpose of cheating, using the same as genuine and cheating are the offences, which accused No.6 has to answer. The aforementioned evidence will help to prove that accused No.6 obtained blank invoices and handed over the same to accused No.5. Beyond that, his participation in conspiracy or creation of forged documents or using the same as genuine are not 2025:KER:34614 17 Crl.R.P.Nos.766 of 2023 and 1140 of 2023 supported by any evidence. Therefore, his prosecution for any of the offences alleged against him will only be a futile exercise. Hence, the Special Court ought to have allowed his plea for discharge.
19. In the light of the findings entered into above, which enable accused Nos.4 and 6 to get discharge, there is no need for considering their remaining contentions on the further factual aspects. I refrain from venturing that exercise for one more reason that the case against other accused is pending before the Special Court. I also make it clear that the observations hereinbefore are only to appreciate the plea of accused Nos.4 and 6 and have no bearing on the allegations against other accused. I make it further clear that prosecution of accused No. 4 in his individual capacity alone is held illegal and I said nothing about his liability or not to be prosecuted for and on behalf of accused No.3 company in the light of the provisions of Section 305 of the Code.
Accordingly, these revision petitions are allowed. On setting aside the impugned common order, Crl.M.P.Nos.653 of 2025:KER:34614 18 Crl.R.P.Nos.766 of 2023 and 1140 of 2023 2017 and 740 of 2017 are allowed. The petitioners/accused Nos.4 and 6 in C.C.No.42 of 2014 pending before the Special Court (SPE/CBI)-III, Ernakulam are discharged.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr