Gujarat High Court
Dilip Mulani S/O Ajitsinh Gopaldas ... vs Central Bureau Of Investigation & on 29 November, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.RA/846/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 846 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DILIP MULANI S/O AJITSINH GOPALDAS MULANI....Applicant(s)
Versus
CENTRAL BUREAU OF INVESTIGATION & 1....Respondent(s)
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Appearance:
MR. BHADRISH S RAJU, ADVOCATE for the Applicant(s) No. 1
SAIRICA S RAJU, ADVOCATE for the Applicant(s) No. 1
MR RC KODEKAR, ADVOCATE for the Respondent(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 29/11/2017
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R/CR.RA/846/2016 CAV JUDGMENT
CAV JUDGMENT
1. By way of the present Revision Application, the original accused no.5 - present applicant has preferred the present application under the provision of Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973 for quashing and setting aside the order dated 8th July, 2016 passed below Exh.27 by the learned Special Judge, Court No.4, Mirzapur, Ahmedabad in the Special C.B.I. Case No.15 of 2012 arising out of the F.I.R. being RC No.00292011A003.
2. The facts of the present Revision Application are that the Applicant is a citizen of India and is the Managing Director of M/s.Khimji Poonja Freight Forwarders / Pvt.Ltd. carrying on business as Freight Forwarders and Customs House Agents (Customs Brokers) functioning out of all major Ports in India including Port of Ahmedabad.
3. An FIR was registered on 7th March, 2011, by CBI, Gandhinagar against officers of the Applicant's Company. The name of the Applicant was not mentioned in the FIR. However, after a period of nine months, Page 2 of 20 HC-NIC Page 2 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT when the C.B.I. filed the Charge-Sheet, the name of the applicant was included therein as accused no.5.
4. As per the allegation made in the charge-sheet as well as the reply to the discharge application preferred by the present applicant that along with public servants and private persons, the present applicant hatched criminal conspiracy to execute the acts of bribery.
5. The present applicant preferred an Application for Discharge before the Special Court, C.B.I., Mirzapur, Ahmedabad. The prosecution also filed the reply against the same. Arguments were also canvased by the learned advocates for both the parties. Written submissions were also filed on behalf of both the parties. Thereafter, on 8th July, 2016, the Ld. Special Sessions Judge dismissed the Discharge Application.
6. Being aggrieved and dissatisfied by the impugned Order dated 8th July. 2016, the present applicant has preferred the Revision Application. The prosecution also filed the affidavit-in-reply against the same. Page 3 of 20 HC-NIC Page 3 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT
7. Mr.S.V.Raju, learned counsel for the applicant contended that the learned Judge failed to appreciate the law laid down by the Supreme Court in the Judgments cited by the applicant. The entire approach of the learned Special Judge was erroneous and illegal. He further contended that learned Sessions Judge failed to appreciate that the Applicant was not named in the FIR but later on, his name was added as an accused at the event of filing of the Charge-Sheet. Learned counsel further submitted that there was no evidence or instance where the applicant was caught in the exchange and/or transfer of alleged gratification and therefore, no offence under the Prevention of Corruption Act, 1888 is made out. He further submitted that the prosecution failed to prove the involvement of the applicant in the Charge-Sheet and no offence is made out against the present applicant. He further submitted that even though the entire case of the Prosecution is based on presumptions, assumptions. surmises and conjectures, the learned Judge has rejected the discharge application preferred by the present applicant. He further submitted that the said order passed by the learned Special Judge is required to be quash and set-aside.
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8. It is further contended that in the FIR and as per the contents of the charge-sheet that on 19th July, 2010, upon the instructions of Mr.Mehul Jhaveri, the accused no.1 - Mr.Tushar Vaghela, the accused no.3 had paid Rs.58,000/- to Mr.Chandubhai Kalal, - accused no.2, which was 1.25% of the total amount of duty refund claims i.e. Rs.46,87,000/- for clearing three pending files. With respect to the said allegation, no role has been attributed to the applicant.
9. It is further submitted that the learned Special Judge has rightly observed that "so far as the alleged bribe of Rs.58,000/- is concerned, no any incriminating material has been recovered which shows the involvement of the present applicant in the said alleged exchange of illegal gratification." It is further contended that as per the investigation, one Mr.R.C.Pagaria (witness no.40), who was in charge of the Delhi office of the said Company had received Rs.5,00,000/- on 28th August, 2010, through M/s. Poornima Angadia from the Company's Head Office at Mumbai and as per the direction of Mr.Mehul Jhaveri, Mr.R.C.Pagaria had paid Rs.3,50,000/- to Mr.Kishan Page 5 of 20 HC-NIC Page 5 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT Rajwar whose telephone number was given by Mr.Anand Singh Mall during conversation. The learned Special Judge grossly failed to appreciate that the statement of Mr.Kishan Rajwar has not been recorded. Moreover, neither has he been charged with any offence nor has been made a witness, for the reasons best known to the prosecution. The learned Special Judge ought to have considered that there is no involvement of the applicant in the said transfer and/or exchange of the alleged illegal gratification of Rs.3,50,000/-. He further argued that there is no evidence on record to show that the amount of Rs.3,50,000/- was handed over to Mr.Kishan Rajwar under the directions of the applicant and further there is no evidence to show that money was received by Mr.Kishan Rajwar at Delhi. Attention was also drawn by the learned counsel for the applicant that the case of the prosecution that they have recovered the diary in which Mr.R.C.Pagaria had written about the receipt of Rs.5,00,000/- from Mumbai Office and delivery of Rs.3,50,000/- to Mr.Kishan Rajwar. Learned counsel for the applicant has read contents of the diary entry of Mr.R.C.Pagaria and argued that there is not a single evidence on record to show that the money was transferred from Page 6 of 20 HC-NIC Page 6 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT Company's Head Office at Mumbai to Delhi. The learned Special Judge ignored the statement of Mr.Pitaram Otaji Prajapati (Witness of M/s.Poornima Angadiya) and the documents produced by him regarding the transfer of money. Assuming whilst of admitting that the same were true, the statement and documents clearly shows that money were always sent from Mumbai to Ahmedabad and from the statement and documents produced by Pitaram Otaji Prajapati and argued that in absence of any evidence with regards to the transfer from Mumbai to Delhi, the prosecution cannot simply rely upon the entry made by Mr.R.C.Pagaria in his diary. Learned Counsel for the applicant has further contended that as per the case of the prosecution, during search at the office of the accused no.1 - Mr.Mehul Jhaveri at Ahmedabad, one expenditure notebook was seized in which entry dated 29th July, 2010 addressed to Mr.Dilipbhai Mulani shows "A-Mall-Adhoc as per the list attach show to DM-Rs.3,50,000/-" is addressed to the present applicant. He has read the contents and argued that the learned Judge failed to appreciate that a preliminary examination of the said entry would make it clear that the money was not sent by accused no.1, but the same was received by him, as it is shown Page 7 of 20 HC-NIC Page 7 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT under the caption "Receipts". The learned Special Judge failed to appreciate that the prosecution has not given any explanation to the fact that the money was not sent but received by the accused no.1. It is further contended that the learned Special Judge has wrongly mentioned in para 13 of the impugned order that the entry dated 29th July, 2010 has been addressed to "Shri Dilipbhai Mulani". Nowhere in the said entry the name "Shri Dilipbhai Mulani" has been mentioned. The said entry is referred to one, Mr.Dilipbhai. However, there is not a single statement / evidence on record to show that the name of Dilipbhai / DM mentioned in the entry dated 29th July, 2010 is confirmed as the applicant. Furthermore, there are no statements of any witnesses whereby "A-Mall" mentioned in the entry dated 29th July, 2010 is confirmed as Anand Singh Mall - accused no.4. It is further contended that the learned Special Judge has failed to consider that the prosecution has failed to establish that money was sent. It is further contended that as per the Apex Court's judgments on diary entries, it is made clear that the entries are an admission against the person who makes the entries and not against any third party. The entire case of the prosecution is Page 8 of 20 HC-NIC Page 8 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT based upon the entries made by Mr.R.C.Pagaria and Mr.Mehul Jhaveri. The learned Judge ought to have considered that the applicant's involvement in the exchange of the alleged illegal gratification cannot be drawn by the references / entries made by Mr.Pagaria and Mr.Mehul in their diary/expenditure book. It is further contended that as per the prosecution case, Mr.Mehul Jhaveri had sent Rs.3,50,000/- to his Mumbai Office for effecting the payment to Mr.Anand Singh Mall at Mumbai but as Mr.Mall wanted the delivery at Delhi while discussing with Mr.Mehul Jhaveri on 18th August, 2010, Mr.Mehul Jhaveri made the arrangement of Rs.3,50,000/- through Mr.R.C.Pagaria. A transcript of the conversation dated 18th August, 2010 annexed charge-sheet, even though the learned Special Judge failed to appreciate that there is no evidence on record to show the amount of Rs.3,50,000/- was sent to Mumbai Office. Further, the telephonic conversation dated 18th August, 2010 was between Mr.Mehul Jhaveri and Mr.Mall. The applicant was not a party to the said conversation nor was his name taken in the same. No reference was made against the applicant in the said conversation. Further, there is no reference of Rs.3,50,000/-in the said Page 9 of 20 HC-NIC Page 9 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT conversation. The said conversation refers to a parking of money, apparently of Mr.Mall but does not indicate as payment made to Mr.Mall. Thus, the case of the prosecution that Mr.Mall wanted the delivery of the amount at Delhi as per the conversation dated 18th August, 2010 is totally false and frivolous.
10. Mr.S.V.Raju, learned advocate for the applicant has read the contents of the charge-sheet regarding the allegation in which, the prosecution has relied upon the telephonic conversation dated 21st October, 2010 and argued that even the prosecution or Investigating Agency has never bothered to investigate specific voice as per the system establish in Forensic Science Laboratory i.e. Spectrography Test. It is further submitted that as per the case of the prosecution that in the telephonic conversation dated 21st October, 2010, Mr.Mehul Jhaveri intimated Mr.Dushyat Mulani - accused no.6 that he had sent Rs.1,50,000/- to Mr.Dilipbhai which is to be handed over to Mr.Mall. Mr.Mehul Jhaveri further told that he had already been given Rs.3,50,000/- at Delhi which was sent by Mr.Dilip Mulani from Mumbai. He further told that he want to clear dues regularly and told Page 10 of 20 HC-NIC Page 10 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT about making parking as required by Mr.Mall. As per the prosecution , the conversation in entirety show that the conversation was for alleged delivery of Rs.1,50,000/- and Rs.3,50,000/- to Mr.Mall which was not his legitimate dues. The learned Special Judge has grossly failed to appreciate that the applicant is not even a part of that conversation. The said conversation refers to make parking, apparently making parking of money of Mr.Mall but does not indicate as payment made to Mr.Mall. It is also contended that as per the prosecution case that there was a payment of illegal gratification of Rs.1,50,000/- to Mr.Mall at Mumbai. To corroborate the same, the prosecution has based its case on the 'receipt entry' dated 19th October, 2010 available in the expenditure notebook maintained by accused no.1 which shows 'Anand Mangal - Trans to DM @ APO-Rs.1,50,000/-. It is further contended that the learned Special Judge however failed to appreciate that after careful examination of the said entry, it reveals that the money was not sent by Mr.Mehul Jhaveri but the same was received by him, as it is shown under the caption 'Receipts".
11. Learned Counsel for the applicant has read the Page 11 of 20 HC-NIC Page 11 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT impugned order and contended that the learned Judge has rightly observed that the entry dated 19th October, 2010 of Rs.1,50,000/- as the 'receipt entry' however, the learned Judge further has wrongly observed that the above entry transpires that the present applicant in conspiracy with Mr.Mehul Zaveri had abated the offence of bribery and had arranged for the payment of illegal gratification of Rs.3,50,000/- and Rs.1,50,000/- to Mr.Mall.
12. It is also contended that there is not a single statement / evidence on record to show that the name of Dilipbhai / DM mentioned in the entry dated 19th October, 2010 is confirmed as the applicant. Furthermore, there are no statements of any witnesses whereby 'Anand Mangal' mentioned in the same dated 19th October, 2010, respectively are confirmed as Anand Singh Mall - accused no.4. Further, there is no evidence on record to show that the amount of Rs.1,50,000/- was handed over by Mr.Jadhav to Mr.Anand Singh Mall and further there is no evidence to show that money was received by Mr.Anand Singh Mall at Mumbai.
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13. It is further contended that the learned Special Judge failed to appreciate that there is no evidence of movement of any funds from Ahmedabad to Mumbai nor is there any evidence of the payment made by any person to Mall or on his behalf to any person. It is further contended that no evidence was produced by the prosecution to prove that mother-in-law of Mr.Mall was actually sick to corroborate that there was actually an exchange of alleged illegal gratification of Rs.1,50,000/- for the said purpose.
14. Learned Counsel for the applicant has argued that it has been wrongly observed by the learned Special Judge in his impugned order without appreciating the facts mentioned above that from the entry in expenditure notebook and telephonic conversation dated 21st October, 2010, it transpires that the present applicant in conspiracy with MR.Mehul Jhaveri had abated the offence of the bribery and had arranged for the payment of illegal gratification of Rs.3,50,000/- to Mr.Mall at Delhi through his nephew Mr.Kishan Rajwar and also Mr.Mehul Jhaveri in conspiracy with the present applicant had arraigned for the payment of illegal gratification of Page 13 of 20 HC-NIC Page 13 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT Rs.1,50,000/- to Mr.Mall at Mumbai. The learned Special Judge has come to said conclusion only on the basis of assumptions, presumptions, surmises and conjectures. There is no evidence on record to show the involvement of the applicant in the present matter. It is argued that even as per the main ingredients of the definition of the criminal conspiracy, agreement or meeting of mind, the learned Judge has wrongfully held that the present applicant is involved in the said so-called offence. It is further contended that the prosecution has tapped the mobile phone conversation of Mr.Mehul Jhaveri - accused no.1 for a period of six months; thereafter they have annexed the transcripts of allegedly applicable conversations. It is the prosecution's case that the accused no.1 was acting on the instructions of the applicant. The learned Special Judge has failed to appreciate that in the six months of the tapping not even one single conversation is recorded between the accused no.1 and applicant whereby evidence of any such discussions with reference to the alleged illegal exchange of gratification is discussed. The learned Special Judge failed to appreciate that in the six months of the tapping not even one single conversation Page 14 of 20 HC-NIC Page 14 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT is recorded between the accused no.1 and the applicant whereby evidence of any such discussions with reference to the alleged illegal exchange of gratification is discussed.
15. Learned counsel for the applicant further argued that it is the sole duty of the prosecution to establish prima-facie case against the present applicant to prove main ingredients of the criminal conspiracy as well as the allegations of the offence punishable under the Prevention of Corruption Act.
16. Mr.S.V.Raju, learned Counsel for the applicant further contended that in the present case, the prosecution submitted the charge-sheet before the learned Special Court, wherein the prosecution could not produce any evidence to establish the direct evidence or circumstantial evidence so that the present applicant can be clubbed as an accused in criminal conspiracy as well as bribery.
17. In this way, learned counsel for the applicant has prayed to quash and set-aside the order dated 8th July, 2016 passed below Exh.27 by the learned Special Page 15 of 20 HC-NIC Page 15 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT Judge, C.B.I., Mirzapur Court, Ahmedabad in the Special C.B.I. Case No.15 of 2012.
18. Mr.R.C.Kodekar, learned Special Public Prosecutor for the C.B.I. has vehemently opposed the present Revision Application and argued that as per the statements of the witnesses and the documents attached with the charge-sheet, prima-facie case is made out against the present applicant. He has further argued that the present applicant has filed the present application on false and frivolous grounds and further submitted that the transaction regarding the bribe amount is within knowledge of the present applicant
-accused and from the contents of the receipt of "Poormina Carriers', the name of the present applicant
- accused is disclosed, which indicates involvement of the present applicant - accused and also it is established that the present applicant had arranged for the delivery of illegal gratification for custom officials. He further submitted that from the telephonic conversation, the same amount was given and therefore, presumption is also required to be drawn against the present applicant. He has further drawn attention towards the receipt and other documents and Page 16 of 20 HC-NIC Page 16 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT contended that role of the present applicant is prima- facie established. He has further drawn attention towards the diary and conversation and argued that even from the circumstantial evidence, the involvement of the present applicant is prima-facie established. He further argued that there is sufficient evidence to frame charge against the present applicant - accused. Learned Special Public Prosecutor has further submitted that the learned Special Judge has rightly dismissed the discharge application and the present application also deserves to be rejected.
19. I have minutely gone through the entire charge- sheet papers as well as the reply filed by the C.B.I. and the contents of the impugned order. As per the arguments made by the learned advocates for both the parties, the question as to whether the sufficient evidence with regards criminal conspiracy by the present applicant is produced on record by prosecution or not to show that there was meeting of minds and agreement between the accused to commit the said offence in so called conspiracy. So far as the main ingredient of the criminal conspiracy is concerned, it is a base of the law to have an agreement and meeting Page 17 of 20 HC-NIC Page 17 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT of minds. I have minutely perused the telephonic conversation as well as the reply and documents, statements of the witnesses and at which place that agreement was made by the present applicant which is not prima-facie disclosed in charge-sheet papers. So far as abetment regarding illegal gratification and bribery are concerned, I have also perused the ingredients of Sections - 107 and 108 of the Indian Penal Code. So far as the main ingredients of both the provisions of law are concerned, it is the duty of the prosecution to establish real evidence to show that under which circumstances the present applicant has abetted. It is true that originally in the FIR, name of the accused is not mentioned as alleged by the applicant but it is established law that when the name of the accused is not mentioned in the FIR, even though the case of the prosecution cannot be resulted in fatal. But, it is required to be considered that it is the duty of the prosecution to produce sufficient and cogent evidence regarding involvement of the accused. In the present case, the prosecution has relied upon the statements of the witnesses and so called name which is disclosed whose statement is not recorded to show that the investigation is defective Page 18 of 20 HC-NIC Page 18 of 20 Created On Wed Nov 29 23:55:43 IST 2017 R/CR.RA/846/2016 CAV JUDGMENT and even from the documents produced on record i.e. receipt, conversation etc. could not connect the present applicant - accused in the alleged offence cited by the prosecution in the charge-sheet.
20. In the result, from the perusal of the order passed by the learned Special Judge, it appears that the learned Judge has not applied his mind and only on the issue of presumption, the discharge application was rejected. The learned Judge could not explain cogent reasons regarding prima-facie involvement of the present applicant in the said offence.
21. As per the above observation, I am of the opinion that the learned Judge has committed grave error in rejecting the discharge application and for the foregoing reasons, the present Revision Application deserves to be allowed and the order dated 8th July, 2016 passed below Exh.27 by the learned Special Judge, Court No.4, Mirzapur, Ahmedabad in the Special C.B.I. Case No.15 of 2012 is hereby quashed and set-aside. Rule is made absolute.
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