Delhi District Court
Cbi vs . M/S Vini Iron & Steel Udyog Ltd. & Ors. on 13 December, 2017
IN THE COURT OF SH. BHARAT PARASHAR, SPECIAL JUDGE
(PC ACT) (CBI)-7, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CC No. 79/16 (OLD CC No. 07/14)
RC No. 0219 2012 (E) 0012
Branch : CBI/EOU-II/DLI
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors.
U/s. 120-B, 120-B r/w Sec. 409/420 IPC,
Sec. 13 (1) (c)/13 (1) (d) P.C. Act &
Sec. 13 (1) (c)/13 (1) (d) P.C. Act, Sec. 409/420 IPC
Date of order on cognizance : 20.01.2015
Date of framing of charge : 31.07.2015
Date of final arguments : 27.07.2017
Date of judgment : 13.12.2017
In re:
Central Bureau of Investigation (CBI)
Vs.
(1) M/s Vini Iron and Steel Udyog Ltd. (A-1),
R/o Suite No. 706, Shanti Niketan,
8, Camac Street, Kolkata-1 &
30, C.R. Avenue, 4th Floor,
Kolkata.
(Through its AR Sh. Vijay Joshi) (Convicted)
(2) Sh. Vaibhav Tulsyan (A-2),
S/o Sh. Vimal Kumar Tulsiayan,
R/o 4, Chanchani Colony, Dhaiya,
Dhanbad, Jharkhand. (Acquitted)
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 1 of 429
(3) Sh. Harish Chandra Gupta (A-3),
S/o Sh. K L Gupta,
R/o 273, Sector 15-A, NOIDA, GB Nagar. (Convicted)
(4) Sh. Basant Kumar Bhattachrya (A-4),
S/o Sh. A.K. Bhattachrya,
R/o 303-C, Road No. 1A, Ashok Nagar,
Ranchi, Jharkhand.
Village & Post - Banta, PS - Silli,
Ranchi, Jharkhand. (Acquitted)
(5) Sh. Bipin Bihari Singh (A-5),
S/o Late Sh. Tilak Raj Singh,
R/o E-47, Sector-2, HEC Durwa, Ranchi.
Village - Khudraon, Post - Baraun
Tala, District Rohtash, Bihar. (Acquitted)
(6) Sh. Ashok Kumar Basu (A-6),
S/o Sh. Anil Chandra Basu,
R/o 1A, P 384-B, Keyatala Lane, Kolkata. (Convicted)
(7) Sh. Madhu Koda (A-7),
S/o Sh. Rasika Kora,
R/o Deen Dayal Nagar, Booti Road,
Ranchi.
20, Mother Teresa Cresent,
New Delhi. (Convicted)
(8) Sh. Vijay Joshi (A-8),
S/o Late Sri Niwas Joshi,
R/o 5-D, Neel Kanth Appartment,
26-B, Camac Street, Kolkata. (Convicted)
(9) Sh. Navin Kumar Tulsyan (A-9),
S/o Sh. Jagdish Prasad Tulsyan,
R/o Sonavathi, Jariya, Dhandbad. (Acquitted)
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 2 of 429
APPEARANCES
Present : Ld. Senior Advocate, Sh. R.S. Cheema, Special P.P.
along with Ld. DLA, Sh. V. K. Sharma, Ld. Senior P.P.
Sh. A.P. Singh, Ld. Senior P.P. Sh. Sanjay Kumar and
Advocate Ms. Tarannum Cheema for CBI along with
IO Dy. SP Vijay Chettiar.
Ld. Counsel Sh. Harsh Kumar Sharma for A-1 M/s Vini
Iron & Steel Udyog Ltd. (VISUL) and A-8 Vijay Joshi.
Ld. Senior Advocate Sh. N. Hariharan along with Ld.
Counsel Sh. Shadaab Anwar for A-2 Vaibhav Tulsyan.
Ld. Senior Advocate Sh. Mohit Mathur along with Ld.
Counsels Sh. B.S. Mathur and Sh. Rajat Mathur for
accused no. 3 H.C. Gupta.
Ld. Senior Advocate Ms. Sonia Mathur along with Ld.
Counsel Sh. Sushil Kumar Dubey for A-4 B.K.
Bhattacharya.
Ld. Counsels Sh. Siddharth Aggarwal and Sh. Akhand
Pratap Singh for A-5 Bipin Bihari Singh.
Ld. Senior Advocate Sh. Sukumar Pattjoshi along with
Ld. Counsel Sh. K.K. Patra for A-6 A.K. Basu.
Ld. Counsels Sh. Anshuman Sinha and Sh. Vijay
Kumar Pandey for A-7 Madhu Koda.
Ld. Senior Advocate Sh. N. Hariharan along with Ld.
Counsel Sh. Narendra Singh Bisht for A-9 Navin
Kumar Tulsyan.
JUDGEMENT
1. The present case pertains to allocation of "Rajhara North (Central and Eastern) Coal Block", Jharkhand, to M/s Vini Iron & Steel Udyog Ltd. (hereinafter referred to as "M/s VISUL") by Ministry of Coal, Government of India.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 3 of 429
2. Briefly stated the necessary facts of the prosecution case are as under:
Ministry of Coal (MOC) vide advertisement dated 13.11.06 invited applications from private parties for allocation of various Coal Blocks including for "Rajhara (North Central and Eastern) Coal Block"
(hereinafter referred to as "Rajhara coal block"). Five copies of the applications were to be submitted by all applicant companies. A-1 M/s VISUL thus also applied to MOC for allocation of "Rajhara Coal Block"
and also for "Macherkunda Coal Block", both situated in the State of Jharkhand on 08.01.07. [Since the present case pertains to allocation of Rajhara coal block only so further discussion shall primarily remain confined to application of M/s VISUL for allocation of Rajhara Coal Block only]. One of its director namely A-2 Vaibhav Tulsyan signed the application form. In the application the company beside mentioning its own turnover and profit for the past two years i.e. for the year 2004-05 and 2005-06 and its net-worth as on 31.03.2006 also mentioned the group turnover and group profit of the last three years i.e. for the year 2003-04, 2004-05 and 2005-06. Group net worth as on 31.03.2006 was also accordingly mentioned. However, in order to mention the said figures of group concerns the company added certain additional columns in the application form as was prescribed and uploaded on its website by MOC while inviting applications.
3. For a ready reference the relevant columns of the application under the heading "TRACK RECORD OF THE APPLICANT" Ex. P-60 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 4 of 429 (Colly) (D-7) of company M/s VISUL read as under:
II TRACK RECORD OF THE
APPLICANT
5 DATE OF INCORPORATION AS A 06.09.2004
COMPANY UNDER THE
COMPANIES ACT
6 CORE BUSINESS Upcoming Integrated Steel Plant
7 THE APPLICANT COMPANY IS END USER
8 TURNOVER IN THE LAST 3 YEARS 03-04 04-05 05-06
(Rs. In Crore) - 0.09 0.15
9 PROFIT IN LAST 3 YEARS (Rs. In Crore) - 0.070 0.04
10 NET WROTH (as on 31.03.06) (Rs. In Crore) - - 2.9
GROUP CORE BUSINESS Investment, Coal, Diamond & Bullion
03-04 04-05 05-06
GROUP TURNOVER IN LAST 3 (Rs. In Crore) 121.98 199.67 767.73
YEARS
GROUP PROFIT IN LAST 3 YEARS (Rs. In Crore) 1.06 1.48 1.63
GROUP NET WORTH (as on (Rs. In Crore) - - 85.79
31.03.06)
4. Alongwith the application the company had also annexed a certificate from one Chartered Accountant A-9, Naveen Tulsyan who in the said certificate had certified the following fifteen (15) concerns as group concern/associate concern of M/s VISUL.
I. ACM Fuels Pvt. Limited. II. Auroma Coke Manufactures Pvt. Ltd. III. SRS Hotel Pvt. Ltd. IV. Auroma Coke Limited. V. Smart Dealers Pvt. Ltd. VI. ACM Finvest Pvt. Ltd. VII. Vikas Viniyog Pvt. Ltd. VIII. SK Fintex Pvt. Ltd. IX. Madhushri Finvest Pvt. Ltd. CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 5 of 429 X. Burlington Barter Pvt. Ltd. XI. Krittika Jewellers XII. Ram Pratap Katta Jewellers XIII. Naman Bullion Corporation XIV. Naman Vinayak Industries XV. Naman Gold Corporation
5. The proposed end use project was stated to be an integrated steel plant to be set up in Jharkhand itself with a proposed capacity of 0.21 MTPA in phase-I and another 0.21 MTPA capacity in phase-II. As per the guidelines issued by Ministry of Coal for processing all such applications one copy of the application of M/s VISUL so received was thus sent to the State Government of Jharkhand where the impugned Coal Block and the end use project was proposed to be established for its comments/views. Another copy of the application was sent to the concerned Administrative Ministry i.e. Ministry of Steel (MOS) beside also sending one copy of the application to Central Mine Planning & Design Institute Limited (CMPDIL) for their views/comments. Ministry of Steel had however laid down its own criteria for making its recommendations qua various applicant companies to MOC for allotment of Coal Blocks. It categorized the applicant companies under different categories depending upon their existing production capacity and proposed production capacity to be achieved by a given date i.e. achieving a proposed production capacity of 0.3 MTPA by December 2010. Accordingly, the companies not proposing to achieve the given production capacity by the said date were not placed under any category and were thus not CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 6 of 429 recommended for allocation of any coal block to MOC. Thus as the capacity of the proposed end use project to be established by M/s VISUL was stated to be only 0.21 MTPA upto December 2010 so as per the criteria laid down by MOS the company was found to be ineligible to be placed in any of the seven categories and thereby to be recommended for allotment of any Coal Block. Thus the case of M/s VISUL was not recommended by MOS for allocation of any coal block.
6. M/s VISUL was however also unsuccessful with State of Jharkhand as the requirement of coal of the company was found to be less so as to be recommended for allocation of a coal block. Thus State of Jharkhand also did not recommend the case of M/s VISUL for allotment of any coal block much less for "Rajhara Coal Block". It was rather opined by the officers of State of Jharkhand in their internal office notings that keeping in view the small requirement of coal by M/s VISUL, coal linkage may be provided to it by the State Government, if the company chooses to apply for it. State of Jharkhand however recommended the names of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. to MOC for allocation of "Rajhara Coal Block". On the other hand, keeping in view the techno-economic financial feasibility of the two companies i.e. M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd., Ministry of Steel also placed them in category VI and II (a) respectively. All the applications so received were finally considered by 36th Screening Committee in its meetings held on 07/08.12.2007, 07/08.02.2008 and on 03.07.2008. The final CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 7 of 429 recommendations were however made by 36th Screening Committee in its meeting held on 03.07.2008 only. The Screening Committee was headed by A-3 H.C. Gupta who was Secretary, Coal, Government of India.
7. As a representative of State of Jharkhand A-6 A.K. Basu, the then Chief Secretary of the State attended the said final meeting of 36th Screening Committee as was held on 03.07.2008. In the said meeting M/s VISUL alongwith M/s Mukund Ltd. were jointly recommended for allocation of "Rajhara Coal Block". However, M/s Zoom Vallabh Steel Ltd. was not recommended for allocation of any coal block much less for "Rajhara Coal Block".
8. Subsequently when allegations of wrongdoing and illegalities in the allocation of various Coal Blocks by MOC came to be levied, then all the files relating to the allocation of Coal Blocks were examined by Central Vigilance Commission (CVC). Accordingly, upon finding prima facie evidence of wrong doing in the Coal Block allocation process, CVC made a reference to CBI to investigate all such coal block allocation matters. The CBI accordingly registered number of preliminary enquiries in this regard and when during the course of any preliminary enquiry sufficient incriminating evidence came on record qua allocation of any coal block to a company or to more than one company warranting further investigation then a regular case was registered. It was in these circumstances only that the present case was registered against M/s VISUL and its directors and other persons relating to allocation of "Rajhara Coal Block".
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 8 of 429
9. During the course of investigation the share holding pattern of said 15 group concern/associate concern of M/s VISUL as were mentioned in the certificate issued by A-9, Naveen Kumar Tulsyan and with the application of M/s VISUL was examined and it was found that only six (6) out of fifteen (15) concerns so mentioned i.e. ACM Fuels Pvt. Limited; Auroma Coke Manufactures Pvt. Ltd.; SRS Hotel Pvt. Ltd.; Auroma Coke Limited; Smart Dealers Pvt. Ltd. and ACM Finvest Pvt. Ltd., could be termed as group concerns of M/s VISUL. The other nine (9) concerns i.e. Vikas Viniyog Pvt. Ltd.; SK Fintex Pvt. Ltd.; Madhushri Finvest Pvt. Ltd.; Burlington Barter Pvt. Ltd.; Krittika Jewellers; Ram Pratap Katta Jewellers; Naman Bullion Corporation; Naman Vinayak Industries and Naman Gold Corporation could in no way be termed as group concerns/associate concerns of M/s VISUL. It was found that in the first six (6) business entities as mentioned above members of the "Tulsyan family" which had promoted M/s VISUL were the directors and share holders but in the other nine (9) entities they had no stake of any nature whatsoever. It was also found that neither on the date of application nor even subsequently till the matter regarding allocation of Coal Block in question was decided by the Screening Committee there was any agreement between M/s VISUL and other remaining nine (9) concerns on the basis of which it could be stated that they were group or associate concerns of M/s VISUL. Thus it was found that the mentioning of highly inflated group turnover, group profit and group net-worth was per-se wrong. It was also found that even though the Screening Committee had laid down its own criteria for deciding the interse priority of the applicant CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 9 of 429 companies but in order to accommodate M/s VISUL in the allocation of the impugned Coal Block no such guidelines were at all followed.
10. It was also found that even though comments/views from the State Governments or the Administrative Ministries were being sought by MOC primarily with a view to have the techno-economic feasibility status of the applicant companies and despite the fact that neither Ministry of Steel nor State of Jharkhand had recommended the case of M/s VISUL for allocation of any coal block, the Screening Committee headed by A-3 H.C. Gupta, Secretary Coal paid no heed to the said recommendations and proceeded to recommend M/s VISUL for allocation of "Rajhara Coal Block". It was also found that A- 6 A.K. Basu, Chief Secretary, Government of Jharkhand despite being fully aware that the case of M/s VISUL has not been recommended by the State of Jharkhand still chose to insist in the Screening Committee for M/s VISUL to be recommended for allocation of "Rajhara Coal Block". A-6 A.K. Basu, thus proposed the case of M/s VISUL before the Screening Committee in contravention of the recommendations of State of Jharkhand stating that the company has made substantial progress in terms of land, power and water etc. It was also found that A-6 A.K. Basu was neither having any record, basis or reason to state so in the Screening Committee meeting in support of M/s VISUL.
11. It was also found during the course of investigation that there was a concerted effort on the part of authorities in the State of Jharkhand to manipulate the earlier recommendations made by the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 10 of 429 State in favour of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd.. so as to favour M/s VISUL. It was found that in the month of May 2008 the ownership of M/s VISUL changed hands from the "Tulsyan family"
who were the initial owners/promoters, to M/s Saturn Iron Ore and Mining Ltd. A-8 Vijay Joshi who was a close associate of the then Chief Minister of State of Jharkhand, i.e. A-7 Madhu Koda was found to be instrumental in this regard. While 1,84,500 shares worth Rs. 4.35 crores of M/s VISUL were purchased by M/s Saturn Iron Ore and Mining Ltd., the remaining 5000 shares for a sum of Rs. 11, 50,000/- were however bought by one Amit Sharma who was an employee of A-8, Vijay Joshi. Subsequently, in September 2008 the shares of M/s VISUL which were purchased by M/s Saturn Iron Ore and Mining Ltd. were transferred in favour of A-8 Vijay Joshi and his acquaintances. It was thus found that the change in stand of officers of Jharkhand so as to favour M/s VISUL for allotment of a coal block and in the process discarding the earlier recommendations of the State which were in favour of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. was primarily the result of change of ownership of M/s VISUL from "Tulsyan family" to A-8 Vijay Joshi, who was a close associate of A-7 Madhu Koda, the then Chief Minister of State of Jharkhand.
12. It was also found during the course of investigation that on 02.07.08 i.e. a day prior to the final meeting of Screening Committee meeting held on 03.07.08, A-4 B.K. Bhattacharya who was Section Officer in the Department of Mines, State of Jharkhand prepared a note observing that the performance of M/s Zoom Vallabh Steel Ltd.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 11 of 429 has not been satisfactory while that of M/s VISUL has been satisfactory and thus a decision can be taken for sending the recommendation of the State Government, accordingly to Central Government. However on the said note it was observed by Sh. Subodh Kishore Sorang, Dy. Secretary Mines, State of Jharkhand that as the recommendations earlier approved by the Chief Minister in favour of other companies have already been sent to the Central Government so can new recommendation be now sent.
13. Subsequently, after the recommendations of 36th Screening Committee were made in favour of M/s VISUL and M/s Mukund Ltd. in the meeting held on 03.07.08, then a note dated 28.07.08 was prepared by A-5 Sh. Bipin Bihari Singh, Director Mines, State of Jharkhand stating that the Screening Committee, Government of India has decided to allot "Rajhara Coal Block" jointly in favour of M/s Mukund Ltd. and M/s VISUL but the performance of M/s Mukund Ltd. has not been upto the mark. On the other hand the performance of M/s VISUL was stated to be satisfactory and with respect to iron ore mine it was further stated that recommendation of State Government have already been made in favour of M/s VISUL to Central Government. On the said note dated 28.07.08 the file is stated to have moved at a fast pace and after routing through the desk of various officers, it came to be put up before Chief Minister, Madhu Koda by the orders of Chief Secretary, Ashok Kumar Basu on 28.07.08 itself. Upon this the Chief Minister however made an endorsement in the file on 28.07.2008 itself that recommendations for allotment of "Rajhara CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 12 of 429 Coal Block" in favour of M/s VISUL only be sent to the Central Government. As a result A-6 A.K. Basu sent a letter dated 28.07.2008 itself to A-3 H.C. Gupta that "Rajhara Coal Block" be allotted in favour of M/s VISUL only and that M/s Mukund Ltd. be allotted some other coal block. However the said letter could not be acted upon in MOC as by that time the recommendations of 36th Screening Committee were already approved by the competent authority i.e. Prime Minister as Minister of Coal.
14. It was however found during the curse of investigation that all this exercise of changing the recommendations of State Government in favour of M/s VISUL was undertaken only after the ownership of M/s VISUL changed hands from the "Tulsyan family" to A-8 Vijay Joshi who was a close associate of Chief Minister, A-7 Madhu Koda. As regard A-8 Vijay Joshi it was also found that he even attended a meeting in MOC on behalf of M/s VISUL in the month of August 2008 when a review meeting was held with Minister of State for coal. A-8 Vijay Joshi was also found to have actively participated even in the discussions which took place with M/s Mukund Ltd. subsequent to joint allocation of "Rajhara Coal Block" leading to formation of a joint venture company namely M/s Mukund Vini Minerals Pvt. Ltd.
15. Thus it was concluded by the investigating agency that A-3 H.C. Gupta who was Secretary Coal and Chairman, Screening Committee conspired with A-6, A.K. Basu, Chief Secretary, State of Jharkhand, A-8, Vijay Joshi, A-7, Madhu Koda, Chief Minister, State of Jharkhand, A-4 B.K. Bhattacharya, Section Officer, Department of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 13 of 429 Mines, Government of Jharkhand, A-5 B.B. Singh, Director (Mines), Government of Jharkhand, A-2, Vaibhav Tulsyan and other officers of State of Jharkhand in unduly favouring M/s VISUL in the allotment of "Rajhara Coal Block" to it. Their aforesaid actions thus resulted in wrongful gain to the company M/s VISUL (A-1) while causing wrongful loss to M/s Zoom Vallabh Steel Ltd. whose case was even recommended by the State of Jharkhand initially and even Ministry of Steel had placed it in Category II (a). Wrongful loss was also thus found to have been caused to Government of India as important nationalised natural resources of the country i.e. coal came to be allotted to a company which was not found eligible either by the State of Jharkhand or by the Administrative Ministry i.e. MOS. It was also found that alongwith the initial application form signed by Vaibhav Tulsyan the balance sheet of M/s VISUL for only last two years was annexed. [However as per the requirement stated in the advertisement issued by MOC, the audited annual accounts for the last three years were to be annexed.]. Further, as already mentioned alongwith the application one certificate issued by Navin Tulsyan, Chartered Accountant was also annexed wherein it was found that he had wrongly certified nine out of fifteen concerns mentioned over there to be group concern/associate concern of M/s VISUL.
16. However, as the certificate dated 04.08.2006 issued by Naveen Kumar Tulsyan was allegedly issued prior to issuance of advertisement by MOC inviting applications for captive coal blocks in November 2006 so in the final report u/s 173 Cr.PC, the CBI did not CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 14 of 429 array him as an accused stating him to be not a part of any conspiracy with the other accused persons. Thus, except A-9 Navin Kumar Tulsyan, the remaining eight accused persons i.e. A-1 M/s VISUL, A-2 Vaibhav Tulsyan, A-3, Harish Chandra Gupta, A-4, Basant Kumar Bhattacharya, A-5, Bipin Bihari Singh, A-6, Ashok Kumar Basu, A-7, Madhu Koda and A-8, Vijay Joshi were charge-sheeted for the offences u/s 120-B/420 IPC and 13 (2) r/w 13 (1) (d) PC Act, 1988 and for the substantive offences thereof.
17. Alongwith the final report sanction u/s 19 PC Act and u/s 197 Cr.PC to prosecute A-4, Basant Kumar Bhattacharya and A-5, Bipin Bihari Singh for the offences u/s 13 (1) (d) r/w 13 (2) PC Act and for the offences u/s 120-B r.w. Section 420 IPC and substantive offences thereof as was granted by the Government of Jharkhand was also filed.
18. Upon filing of report u/s 173 Cr.PC as above this Court considered the same at length and vide a detailed order dated 20.01.2015 chose to summon not only the eight charge-sheeted accused persons but also summoned Navin Kumar Tulsyan, the Chartered Accountant as an accused. All the nine (9) accused persons were thus summoned for the offences u/s 120-B/420/409 IPC and Section 13 (1) (c) and 13 (1) (d) r/w 13 (2) P.C. Act. Accused A-1 M/s VISUL, A-2 Vaibhav Tulsyan and A-8 Vijay Joshi were also summoned for the offence u/s 420 IPC. A-4 B.K. Bhattacharya , A-5 B.B. Singh, A-6 A.K. Basu and A-7 Madhu Koda were also summoned for the offence u/s 13 (1) (d) P.C and A-3 H.C. Gupta was also CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 15 of 429 summoned for the offence u/s 409 IPC and S. 13 (1) (c)/13 (1) (d) P.C. Act
19. Subsequently, when all the nine accused persons put in their appearance copies of the charge sheet were supplied to them. After due compliance of Section 207 Cr.PC. extensive arguments on the point of charge were heard. Subsequently, vide a detailed order dated 14.07.2015 charge for the various offences as are mentioned in the table below were framed against the accused persons on 31.07.2015.
CHARGES FRAMED
S.No Name of accused (I) (II)
Charges Common to all Charges
separately
framed
1 M/s Vini Iron & (i) 120-B IPC
Steel Udyog Ltd.
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC
and Section 13 (1) (c) and 13 (1) (d)
P.C. Act, 1988
2 Vaibhav Tulsyan (i) 120-B IPC
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC
and Section 13 (1) (c) and 13 (1) (d)
P.C. Act, 1988
3 H.C. Gupta (i)120-B IPC
(i) Sec. 409 IPC
(ii) 13 (1) (c) /
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC
13 (1) (d) P.C. Act,
and Section 13 (1) (c) and 13 (1) (d)
1988
P.C. Act, 1988
4 Basant Kumar (i) 120-B IPC
Bhattacharya
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC
13 (1) (d) P.C. Act,
and Section 13 (1) (c) and 13 (1) (d)
1988
P.C. Act, 1988
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 16 of 429 5 Bipin Bihari Singh (i) 120-B IPC 13 (1) (d) P.C. Act,
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 1988 and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 6 Ashok Kumar Basu (i) 120-B IPC 13 (1) (d) P.C. Act,
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 1988 and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 7 Madhu Koda (i) 120-B IPC 13 (1) (d) P.C. Act,
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 1988 and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 8 Vijay Joshi (i) 120-B IPC
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 9 Navin Kumar (i) 120-B IPC
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC ---
and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 All the accused persons however pleaded not guilty to the charges so framed against them and claimed trial. Admission/denial of documents was however also got conducted u/s 294 Cr.PC.
20. Prosecution thereafter in order to prove its case examined 46 witnesses. (Examination-in-chief of eight witnesses namely DSP Brij Mohan Pandit, DSP S.P. Rana, Sh. Ram Naresh, Sh. Sanjeev Shrivastav, Sh. Ved Prakash Sharma, Sh. Ravi Chandra, Sh. Sanjay Lohiya and Insp. Raja Chatterjee was however led by way of affidavit u/s 296 Cr.PC as their evidence was of formal character. Though all CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 17 of 429 the said eight witnesses were also tendered for cross-examination to the accused persons but they chose to examine only two of them namely DSP Brij Mohan Pandit and DSP SP Rana. The deposition of other six witnesses namely Sh. Ram Naresh, Sh. Sanjeev Shrivastav, Sh. Ved Prakash Sharma, Sh. Ravi Chandra, Sh. Sanjay Lohiya and Sh. Raja Chatterjee thus remained completely unimpeached at the altar of cross-examination.). Statement of accused persons were thereafter recorded u/s 313 Cr.PC. Liberty was also given to all the accused persons to file their written statements u/s 313 (5) Cr.PC. However, A-1 M/s VISUL, A-4 Basant Kumar Bhattacharya, A-5 Bipin Bihari Singh, A-7 Madhu Koda, and A-8 Vijay Joshi only chose to submit their written statements u/s 313 (5) Cr.PC. The other four accused i.e. A-2 Vaibhav Tulsyan, A-3 H.C. Gupta, A-6 A.K. Basu and A-9 Navin Kumar Tulsyan did not file any such written statements u/s 313 (5) Cr.PC. A-3 H.C. Gupta and A-5 B.B. Singh thereafter examined five (5) witnesses and two (2) witnesses respectively in their defence. The other accused persons however did not lead any evidence in their defence.
21. Detailed final arguments in the matter were thereafter heard as were addressed by Ld. DLA Sh. V.K. Sharma on behalf of prosecution and by Ld. Counsel Sh. Harsh Kumar Sharma for A-1 M/s VISUL and A-8 Vijay Joshi, Ld. Sr. Advocate Sh. N. Hariharan for A-2 Vaibhav Tulsyan and A-9 Navin Tulsyan, Ld. Sr. Advocate Sh. Mohit Mathur for A-3 H.C. Gupta, Ld. Sr. Advocate Ms. Sonia Mathur for A-4 Basant Kumar Bhattacharya, Ld. Counsel Sh. Siddharth Aggarwal for A-5 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 18 of 429 Bipin Bihari Singh, Ld. Sr. Advocate Sh. Sukumar Pattjoshi and Ld. Counsel Sh. K.K. Patra for A-6 A.K. Basu, Ld. Counsels Sh. Anshuman Sinha and Sh. Vijay Kumar Pandey for A-7 Madhu Koda.
Written submissions in support of their arguments were however also filed on behalf of all the accused persons.
22. Thus in the aforesaid factual matrix before adverting further it will be worthwhile to give a brief reference of the deposition of various prosecution witnesses and defence witnesses so examined in the present trial. Their deposition shall be however dealt with at length in the subsequent part of present judgment as and when required.
PROSECUTION WITNESSES (PWs) PW Name and Deposition/Role of the witness in the present case.
No. designation of the
Witness
1 BB Mangalmurti, He proved the order of sanction of A-4 Basant Kumar
Principal Secretary,
Bhattacharya and A-5 Bipin Bihari Singh as was granted by Law-cum-LR, Govt of Jharkhand the Competent Authority in Govt of Jharkhand u/s 197 Cr.PC and also u/s 19 P.C. Act 1988.
2 Dilip Kumar Sharma, In September 2013 he was posted as Deputy Director, GM, District Industries, Ranchi, Government of Jharkhand. On 27.09.2013 Industries Centre, Jharkhand he had handed over various files of Department of Industries to IO Insp. Vijai Chettiar during the investigation of the present case.
3 Ashok Kumar In October 2010 he was posted as Dy. Director Mines, Mandal, Dy. Director, Government of Jharkand, Head Quarters, Ranchi. On Mines Govt of Jharkhand 07.10.2010 he had handed over two files Ex. PW 3/A (D-9) and Ex. PW 3/B (D-140) to Additional SP CBI Sh. P.K. Panigrahi at Camp Office, CBI in Ranchi.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 19 of 429
4 Nand Deo Baitha, In November 2012 he was posted as Assistant Mining Officer
Assistant Mining
in District Mines office, Chaibasa. On 09.11.2012 he had officer, Khunti, Jharkhand handed over two files Ex. PW 4/B (colly) (D-54) and Ex. PW 4/C (colly) (D-55) of Department of Mines, Government of Jharkhand to Insp. Vijai Chettiar at CBI office, New Delhi.
5 Mukul Prasad, In September 2012 he was posted as Deputy Director Mines, Dy. Director, Mines Ranchi. On 10.09.2012 he had handed over files Ex. PW 5/B (HQ), Ranchi (colly) (D-5), Ex. PW 5/C (colly) (D-7) and Ex. PW 5/D (colly) (D-141/A) to IO Insp. Vijai Chettiar at CBI office, New Delhi.
6 Jai Shankar Tiwary, He was Secretary Mines and Geology, Government of Secretary, Jharkhand. He deposed about the procedure adopted in Department of Mines and Geology, Ranchi processing of applications of various applicant companies seeking allocation of captive coal blocks in Jharkhand, after all such applications were received by Government of Jharkhand from MOC. He also deposed about recommendations as were initially made by Government of Jharkhand to MOC qua various coal blocks including Rajhara coal block as being in favour of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. He also deposed about having attended the initial meetings of 36th Screening Committee but stated that on 30.06.2008 i.e. 3 days prior to the final Screening Committee meeting held on 03.07.2008 he superannuated from the services of Government of Jharkhand. He also deposed about processing of applications of various applicant companies including that of M/s VISUL for allocation of iron ore mines and about allocation of an iron ore mine to M/s VISUL.
7 Sukhdeo Singh, He was the Principal Secretary to A-7 Madhu Koda, the then Principal Secretary, Chief Minister, Govt. of Jharkhand. He deposed about having Department of Water Resources, Ranchi obtained telephonic directions from A-7 Madhu Koda about the names of companies which were to be recommended to MOC for allocation of various coal blocks situated in the state of Jharkhand. He also deposed having reproduced the said verbal directions of the Chief Minister in the relevant file and also having subsequently obtained confirmation of the said verbal directions from A-7 Madhu Koda. He also deposed that CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 20 of 429 at the time of confirmation A-7 Madhu Koda added the name of one additional company to be recommended qua Macharkunda coal block.
8 Dipak Murarka, He was director in M/s Vikas Viniyog Pvt. Ltd. and M/s Director, Madhushree Finvests Pvt. Ltd. He stated having expressed M/s Vikas Viniyog Pvt. interest in equity participation with M/s VISUL towards Ltd. and establishing of a sponge iron plant. He also stated having M/s Madhushree Finvests Pvt. Ltd. come to know about the said proposal through one Anubhav Kumar Kanodia (PW-10) and also admitted having given undated letters in writing in this regard on behalf of the two companies beside also providing certificates of registration of the companies. He however deposed that as the said proposal did not materialize and he did not hear anything for 3-4 months from Anubhav Kumar Kanodia (PW-10) so the proposal stood closed.
9 Manoj Jha, Director, He was director of M/s S.K. Fintex Pvt. Ltd. He also deposed M/s S.K. Fintex Pvt.
about having supplied a copy of balance sheet of his company Ltd.
alongwith a net-worth certificate to Anubhav Kumar Kanodia (PW-10) towards investing in a sponge iron plant proposed to be established by M/s VISUL alongwith letters to this effect. He also stated that as the said proposal did not materialize so nothing was invested by him in M/s VISUL.
10 Anbhav Kanodia, He was director in M/s Burlington Barter Pvt. Ltd. He deposed
Director, M/s
having known A-2 Vaibhav Tulsyan being an old friend of his. Burlington Barter Pvt.
Ltd. He also deposed having submitted a letter dated 30.05.2005 to M/s VISUL giving his consent to invest Rs. 250 lacs as equity in M/s VISUL towards the establishment of their proposed iron and steel plant. He also deposed having given a net-worth certificate of the company alongwith the said letter beside copy of certificate of incorporation of the company. He also deposed having told about the said proposal of M/s VISUL towards establishing sponge iron plant to his other acquaintances and having obtained similar letters of consent to invest in the equity of M/s VISUL towards establishing the sponge iron plant from Dipak Murarka (PW-8) and Manoj Jha CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 21 of 429 (PW-9). He also deposed about having given copy of audited balance sheet of various companies to M/s VISUL. He further stated that as he did not get any further communication from M/s VISUL in this regard so nothing materialized from out of the said proposals to invest.
11 Abhishek Lohia, He was director of M/s S.B. Projects Consultant Pvt. Ltd.
Director, M/s S. B. (name of the company was subsequently changed to M/s Projects Consultant Pvt. PIOUS Advisors P. Ltd.).He stated himself to be a Financial Ltd.
Consultant and deposed about having prepared project reports for M/s ACM Fuels P. Ltd. and M/s Aroma Coke Ltd. i.e. two companies of Tulsyans'. He also deposed about having prepared a project report for a proposed steel plant to be established by M/s VISUL in Jharkhand so as to facilitate bank finance for the same. He also stated that while preparing any such project report the data as required is provided by the client only and in the present case the same was supplied by Prashant Tulsyan. He deposed having supplied the said project report to Tulsyans' but after seeing the project report as available in the MOC files in the Court stated that the contents thereof has been changed from the one as was prepared by him. At the time of his deposition in Court he also produced copy of the project report as was prepared by him in in order to point out that the report available in the MOC files was different from the one as was prepared by him.
12 Amit Sharma, He was an employee of A-8 Vijay Joshi. He claimed to have Director, M/s Vini Iron been inducted as a Director in M/s VISUL on the asking of and Steel Udyog Ltd.
Vijay Joshi on 08.07.2008. He also deposed that 5000 shares of M/s VISUL were allotted in his name but he never paid any amount towards purchase of said shares. He though admitted having signed various letters and other documents on behalf of M/s VISUL but stated that he merely used to sign all such letters/documents at the asking of Vijay Joshi without paying any attention to the contents thereof. He also deposed that whenever any communication used to be received at the registered office of M/s VISUL then he used to supply the same to Vijay Joshi and thereafter used to comply all such CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 22 of 429 orders/directions as used to be given by him.
13 Gaurav Aggarwal, He was engaged in mining business. He deposed that in the
Director, M/s
year 2008 he alongwith Bastimal Shah had become a
Manmohan Mineral
Industries Pvt. Ltd director of M/s VISUL but they were not receiving any
remuneration from the company. He also deposed having resigned from the Directorship of M/s VISUL in the year 2010. He also deposed that he had neither attended any board meeting of M/s VISUL since June 2008 i.e. from the time when he became a Director of the company and was also not involved in any manner in the working of the company.
As regard the circumstances in which he and Bastimal Shah became Directors in M/s VISUL he stated that somewhere around May 2008 one Binod Sinha who was well known to be close to the then Chief Minister Madhu Koda visited his project site and thereafter a number of enquiries were received by him about the project including mining associated with it and subsequently Binod Sinha called him and Bastimal Shah to Ranchi. He further stated that subsequently Binod Sinha introduced him and Bastimal Shah to A-8 Vijay Joshi as a person interested in setting up a steel plant. He further stated that subsequently at the asking of Vijay Joshi he and Bastimal Saha were though reluctant to become Directors but became Directors of M/s VISUL as Vijay Joshi stated that they wanted some persons having mining experience on the board of the said company. He also deposed that they agreed to become directors as they could not afford to annoy Vijay Joshi and Binod Sinha as they were well known to be close to the power quarters in the State and especially Madhu Kodha, the Chief Minister. He also deposed that after some time M/s VISUL alongwith M/s Mukund Ltd. was jointly allocated a coal block by MOC and he accordingly signed a joint venture agreement subsequent thereto on behalf of M/s VISUL with M/s Mukund Ltd.
14 Prabhash Mittal, He was a Chartered Accountant and was an independent Chartered Director of M/s Indo Asahi Glass Ltd. a company owned by A- Accountant CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 23 of 429 8 Vijay Joshi. He deposed having carried out due diligence of M/s VISUL in and around May 2008 at the asking of A-8 Vijay Joshi and having met Sanjeev Tulsyan and Hemant Aggarwal at Dhanbad in this regard. He deposed that Vijay Joshi wanted to purchase the said company. He further deposed that subsequently Vijay Joshi asked him to collect documents pertaining to M/s VISUL from Tulsyans but the person at M/s VISUL stated that they will deliver the documents upon receipt of necessary payment only. He further deposed that subsequently one Arvind Vyas (PW-23) came and handed over certain cheques to Shyamji and Hemant Aggarwal of M/s VISUL but they again refused to hand over the documents as they first wanted actual payment to be received by them. He further deposed that thereafter Vijay Joshi told him to wait for one more day and subsequently when the necessary payment was transmitted to the concerned officers of M/s VISUL that 10-15 files were handed over to him and upon returning back to Ranchi, he delivered them to A-8 Vijay Joshi.
He also deposed about a MOU having been signed between PW-23 and officers of M/s VISUL at Dhanbad and having signed it as a witness thereof. He also deposed having collected other relevant record of M/s VISUL from Dhanbad on a subsequent visit.
15 AK Khandelwal, He was a partner of three firms namely M/s Ram Pratap Katta
Proprietor, M/s
Jewellers, M/s Naman Bullion Corporation and M/s Naman Kritikka Jewellers, Jaipur Gold Corporation and was a director in M/s Naman Vinayak Industries. He deposed having agreed to invest in the steel plant of M/s VISUL at the asking of Hemant Aggarwal and admitted having handed over to him audit reports of all three firms of which he was a partner and that of a company of which he was a director, in this regard. He also deposed that in the year 2011-12 at the asking of Hemant Aggarwal he had given an affidavit Ex. PW 15/A mentioning therein the names of the firms of which he was a partner and of the company of which he was a director during the year 2003-07. He further CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 24 of 429 deposed that the said affidavit was signed by him at Tis Hazari Courts but before signing the said affidavit which was written in English language he did not try to understand as to what was written over there as it was got typed by Hemant Aggarwal and he had told him that only information about firms and companies he was associated was mentioned over there.
16 D.N. Chaudhury He was Deputy Registrar, ROC, Kolkata. Vide letter dated Asst. Registrar, ROC 29.10.2012 he provided various documents such as Form-23 office, Kolkata, West Bengal AC (regarding annual balance sheets), Form DIR-12 (regarding information about directors) and Form 20-B (regarding the annual returns) of following 10 different companies to Insp. Vijai Chettiar:
1) M/s ACM Fules Private Limited. (page No. 1 to 31)
2) M/s Auroma Coke Manufactures. (page No. 32 to 57)
3) M/s Auroma Coke Limited. (page No. 58 to 141)
4) M/s Smart Dealers Private Limited. (page No. 142 to
233)
5) M/s ACM finvests Limited. (from page No. 234 to 272)
6) M/s Vikash Viniyog Private Limited. (page No. 273 to
301)
7) M/s S.K. Fintex Private Limited. (page No. 302 to 342)
8) M/s Madhushree Finvest Pvt. Ltd. (page No. 343 to
368)
9) M/s Burlington Barter Pvt. Ltd. (page No. 369 to 409)
10) M/s Vini Iron and Steel Udyog Limited. (page No. 410 to 514) 17 Y.K. Tulsyan He proved the signing of Memorandum of Understanding dated 14.09.2006 Ex. PW 14/A executed between M/s VISUL and Government of Jharkhand as he had signed the same as a witness thereof.
18 KK Khandelwal, He was Secretary (Industries) in Government of Jharkhand.
Divisional However on superannuation of PW 6 Jai Shanker Tiwary, the Commissioner, South Chhota then Secretary (Mines), Government of Jharkhand, he was Nagpur, Jharkhand given additional charge of Secretary (Mines) also. Accordingly, he had gone along with A-6 A.K. Basu to attend 36 th Screening Committee Meeting held on 03.07.2008. He however deposed that he left the meeting in between to attend to some other work. He thus stated that in his presence CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 25 of 429 no discussion took place in the meeting regarding coal blocks situated in the State of Jharkhand. He thus claimed complete ignorance as to what discussion took place in the meeting regarding coal blocks situated in the State of Jharkhand or as to the circumstances in which M/s VISUL came to be recommended for allocation of Rajhara Coal Block. He also deposed that thereafter on the directions of A-6 A.K. Basu he had attended another meeting on 04.07.2008 in MOC held under the Chairmanship of Joint Secretary (Coal) Sh. K.S. Kropha to discuss the share of coal to be allotted to various joint allocattee companies. He also deposed that subsequently on 28.07.2008 i.e. subsequent to Screening Committee Meeting held on 03.07.2008, A-6 A.K. Basu called for the file relating to Rajhara Coal Block stating that A-5 B.B. Singh knows the purpose. He also deposed that when A-5 B.B. Singh brought the file to him then he had already recorded a note dated 28.07.2008 over there observing that progress made by M/s Mukund Ltd. towards establishing its industry in the State was not satisfactory whereas that made by M/s VISUL was satisfactory and thus Government may take appropriate decision qua Rajhara Coal Block. This witness further stated that he merely forwarded the said file to Chief Secretary A.K. Basu. He also deposed that subsequently vide letter dated 28.07.2008 sent by A-6 A.K. Basu to A-3 H.C. Gupta Secretary (Coal) it was requested that Rajhara Coal Block be allocated only in favour of M/s VISUL and that M/s Mukand Limited be considered for some other coal block.
19 Balram Mahto, He was posted as a Clerk in District Mining Office, Chaibasa.
Clerk, District Mining He deposed about having dealt with applications Ex. PW 19/A Office, Chaibasa (colly) and Ex. PW 19/E (colly) of M/s VISUL as were submitted to Department of Mines by the company for seeking allocation of Iron Ore and Manganese mining lease. He stated that the said applications were dealt with in files Ex. PW 4/B (colly) (D-54) and Ex. PW 4/C (colly) (D-55). He also claimed CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 26 of 429 himself as having been associated with the processing of said applications of M/s VISUL in District Mining Office, Chaibasa.
20 Suketu V Shah, He was Joint Managing Director M/s Mukand Ltd. He deposed Joint MD, that after M/s Mukand Limited and M/s VISUL were jointly M/s Mukand Ltd.
allocated Rajhara Coal Block by 36 th Screening Committee then he on behalf of M/s Mukand Ltd. had meetings with the representative of M/s VISUL i.e. A-8 Vijay Joshi and pursuant to which a Joint Venture Agreement was entered into between M/s Mukand Limited and M/s VISUL and same was duly communicated to MOC. He thus deposed that thereafter MOC issued joint allocation letter to the two companies qua Rajhara Coal Block. He also deposed that in all these proceedings A-8 Vijay Joshi was primarily representing M/s VISUL.
This witness also deposed about MOU entered into by M/s Mukand Ltd. with Government of Jharkhand in September 2006 wherein Government of Jharkhand had agreed to recommend the company for allocation of a coal block. He also deposed that subsequently M/s Mukand Ltd. was recommended by Government of Jharkhand to MOC for allocation of Rajhara Coal Block.
21 Swapan De He was a consultant of Tulsyan Family with respect to their Chaudhary, various business concerns including M/s VISUL. He deposed Consultant, M/s. VISUL about presentation made by him before Screening Committee Meeting on 07.12.2007 with respect to M/s. Aroma Coke Ltd., i.e. yet another company of Tulsyans as the said company had also applied for allocation of one other coal block. He also deposed that subsequently on his visit to MOC he came to know that M/s VISUL is not going to be allocated any coal block so he accordingly told Tulsyans in this regard and it was decided that no presentation thus need to be made before Screening Committee Meeting on behalf of M/s VISUL. Similarly, he also deposed that M/s VISUL had applied for Iron Ore Mine also but from Department of Industries, Government of Jharkhand he got to know that no Iron Ore Mine is even going to be allotted to M/s VISUL.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 27 of 429 22 Virendra K Mital He was Business Development Director in M/s Mukand Ltd.
He signed as a witness on the MOU which was entered into between M/s Mukand Limited and M/s VISUL. He also appeared before 36th Screening Meeting to make presentation on behalf of M/s Mukand Limited and had also submitted the necessary feedback form. He also deposed that subsequent to joint allocation of Rajhara Coal Block in favour of M/s Mukand Limited and M/s VISUL, a joint venture company i.e. M/s Mukand VINI Mineral Private Limited was incorporated and in which PW 12 Amit Sharma Director VISUL had authorized PW 23 Sh. Arvind Vyas and A-8 Vijay Joshi to sign documents on behalf of M/s VISUL.
23 Arvind Vyas He deposed that in the year 2008 a company namely M/s Saturn Iron Ore and Mining Limited was incorporated at Mumbai and of which he was a director. He also deposed that as he was interested in diversifying his business so one Chartered Accountant Mr. Rishabh Jain introduced him to A-8 Vijay Joshi in the year 2008. He also deposed that Rishabh Jain told him that it will be good to invest in steel sector and also told him about the company M/s VISUL. He further deposed that thereafter A-8 Vijay Joshi helped him in carrying out due diligence of M/s VISUL through his CA Prabhash Kumar Mittal (PW-14). He also deposed about the talks which he along with Prashant Mittal had with Tulsyan's the then owners/promoters of M/s VISUL and also as regard the circumstances in which the shares of M/s VISUL came to be purchased by M/s Saturn Iron Ore and Mining ltd. He however deposed that at that time 5000 shares of M/s VISUL were also transferred in the name of Amit Sharma, who was an employee of Vijay Joshi.
This witness also deposed that subsequently he came to know that M/s VISUL has been recommended for allocation of a coal block by MOC along with M/s Mukand Ltd. and a joint venture agreement was to be entered into between the two companies. He thus deposed that on account of various such technicalities he decided to opt out of M/s VISUL and CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 28 of 429 finally the shares of M/s VISUL as were held by M/s Saturn Iron Ore & Mining Ltd. were transferred to A-8 Vijay Joshi, his wife and other persons as were suggested by him. He however deposed that he had till date not received any consideration amount from A-8 Vijay Joshi as he stated that market has crashed and thus he has not been able to sell the shares. This witness also deposed that in the year 2010 he was arrested by Enforcement Directorate after a raid was conducted at his office in Mumbai. He stated that he remained inside the jail for about two years and where besides him Madhu Koda, Binod Sinha, Vijay Joshi and Vikas Sinha who all were also arrested in the said case were also lodged.
24 AP Singh, Secretary, He was Secretary, Department of Industries, Government of Industries, Ranchi.
Jharkhand during the period 15.04.2010 till 19.08.2013. He deposed that whenever the issue of extension of MOU is entered into by Government of Jharkhand with any company is considered then, the progress made by the company is evaluated and the MOU is extended only qua those companies whose performance is found satisfactory. He deposed that during his period as Secretary (Industries) he had reviewed the working of M/s VISUL and vide a detailed note as is available at page 48-50 in file Ex. PW 2/B (colly) (D-
82) he had proposed cancellation of original MOU entered into by Government of Jharkhand with M/s VISUL. He also observed in his note that in the MOU entered into with the company by Government of Jharkhand it was mentioned that the company was to be made available only linkage from State PSUs. He also mentioned in his note about the unsatisfactory progress of the company and there being no financial closure of the project beside also mentioning that the project has been under valued and the same was a non-viable project. He also stated that his recommendations for cancellation of MOU came to be finally approved by Chief Minister Sh. Arjun Munda and the MOU entered into with M/s VISUL was cancelled vide order Ex.PW24/D. CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 29 of 429 25 A Khamaru He alongwith three other officials of the Office of Coal Controller, Kolkata were deputed to MOC office, New Delhi on a request made by MOC for assisting in the processing of applications. He further stated that except for segregating various applications coal block wise they were not asked to do any other work much less to check the applications for their completeness and eligibility.
26 NR Dash, Director, He was posted as Director Ministry of Steel from October Ministry of Steel 2006 till October 2011 and was Incharge of ID Wing i.e. Industrial Development Wing. He was associated with the processing of applications of various applicant companies including that of M/s VISUL as were received in Ministry of Steel from Ministry of Coal for obtaining their views/ comments regarding allotment of captive coal blocks and under his signatures the comments of Ministry of Steel placing various applicant companies under different categories as were devised by Ministry of Steel were communicated to Ministry of Coal. He also deposed that during the course of meeting held on 03.07.2008 Sh. U.P. Singh, Joint Secretary (Steel) informed Secretary (Coal) H.C. Gupta that Ministry of Steel has not placed M/s VISUL in any of the categories so as to be recommended for allocation of a coal block. He also deposed that no comparative statement detailing the inter-se priority of various applicant companies was provided by MOC to the members of the Screening Committee in the meeting held on 03.07.2008. He also deposed that during the discussion qua Rajhara Coal Block A-6 A.K. Basu beside insisting for its allocation in favour of M/s VISUL also stated that he has the directions of Chief Minister of Jharkhand in this regard and that if the said coal block is not allocated in favour of M/s VISUL then he will not be able to participate in the meeting or co-operate. He also deposed that finally after M/s VISUL was recommended for allocation of Rajhara Coal Block then A-3 H.C. Gupta made a general statement to all present that with respect to all such companies for whom recommendation for allotment of a coal block has been made CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 30 of 429 by the Screening Committee but the names of said companies do not find mention in the recommendations already received from the state governments then all such members shall ensure that supplementary recommendation in favour of the said allocatee companies is duly sent to MOC and that thererafter only the recommendations of Screening Committee shall be finalized.
27 VS Rana, He was posted as Under Secretary, Ministry of Coal from
Under Secretary,
August 2005 till December 2013. He was associated with the Ministry of Coal.
processing of applications of various private companies received by Ministry of Coal seeking allocation of coal blocks including that of A-1 M/s VISUL He accordingly proved various files/ notings/ documents as were prepared in Ministry of Coal either by him or by other officers/ officials of Ministry of Coal during that period.
28 Vini Mahajan, She was initially posted as Director and thereafter as Joint Joint Secretary, PMO Secretary in PMO from 2006 to 2008. She was also associated with the processing of various files in PMO regarding Coal Block Allocation matters and accordingly proved the same. She also deposed that after th recommendation of 36 Screening Committee meeting was received in PMO from MOC then Principal Secretary to the PM had discussed the matter with Secretary (Coal) and Secretary (Steel) on 16.07.2008 and in which meeting it was confirmed that the proposals were based strictly on merits of the applicants, including the recommendations of the state governments where the blocks are located. She had accordingly put up a note dated 16.07.2008 in file Ex. PW 28/C (colly) (D-120) and pursuant to which Hon'ble Prime Minister Dr. Manmohan Singh as Minister (Coal) approved the recommendations of 36th Screening Committee on 17.07.2008 subject to consideration of certain issues relating to Urtan, Behraband (North) Extension and Vijay Central coal block and also as regard Moira-Madhujore coal block and Kudari coal block.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 31 of 429 She further deposed that the fact as to whether proposals were based on merit or not were however not got verified in PMO.
29 UP Singh, He was Joint Secretary, Ministry of Steel, who was present in Joint Secretary, the meeting held on 03.07.2008 of 36 th Screening Committee Ministry of Steel as a representative of Ministry of Steel. He deposed that in the said meeting during the course of discussion of Rajhara (North) coal block he had informed A-3 H.C. Gupta that Ministry of Steel has not found company M/s VISUL eligible to qualify for allotment of a coal block. However A-6 A.K. Basu Joint Secretary, Government of Jharkhand stated that he and his Government including Chief Minister feel that M/s VISUL is a good company and as it proposes to have its end use plant also in their State, where the coal block is situated so the company M/s VISUL should be recommended for allocation. He also deposed that A-3 H.C. Gupta stated to A-6 A.K. Basu that Government of Jharkhand has not made any recommendation in favour of A-1 M/s VISUL but Sh. Basu stated that Chief Minister of the State also desires that M/s VISUL should be allocated the said coal block. He also deposed that A-3 H.C. Gupta thereafter asked Sh. Basu to send the revised recommendations in this regard, to which Sh. Basu assured to send from Government of Jharkhand to MOC. He thus stated that on such an assurance of A-6 A.K. Basu, it was stated by A-3 H.C. Gupta that he is recording the recommendation qua Rajhara Coal Block in favour of M/s VISUL. PW 29 U.P. Singh further stated that thereafter he signed the recommendation sheets prepared in the meeting.
30 Dy. S.P. BM Pandit He was Inspector CBI and was assisting IO Dy. SP. S.P. Rana during the course of PE no. 219 2012 E0002. He deposed [Examination-in-chief of this witness was that during course of said inquiry proceedings, he had led by prosecution by collected various files/documents from Sh. Ravi Chander, way of affidavit u/s 296 Cr.PC. He Section Officer, Ministry of Steel.
though entered the
witness box on the
request of Ld.
Counsels for the
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 32 of 429
accused persons for
the purposes of
cross-examination
but no question or
suggestion was put
to him in his cross-
examination on
behalf of any
accused.]
31 Dy S.P. SP Rana He was the CBI officer who was initially entrusted with the
preliminary enquiry No. 219 2012 E 0002 registered by CBI [Examination-in-chief of this witness was with respect to coal block allocation matters. He collected led by prosecution by various files/documents from MOC during the course of PE way of affidavit u/s 296 Cr.PC. He and deposited them in Malkhana EO-I, CBI.
though entered the
witness box on the
request of Ld.
Counsels for the
accused persons for
the purposes of
cross-examination
but no question or
suggestion was put
to him in his cross-
examination on
behalf of any
accused.]
32 P.K. Panigrahi He was SP CBI who was the investigating officer of another
SP, CBI, ACB,
case R.C. No. 5 (A)/2010 AHD, Ranchi. During the course of Kolkata investigation of the said case he had collected file Ex. PW 3/B (colly) (D-140) and Ex. PW 3/C (colly) (D-141/1 to D-141/5) vide memo Ex. PW 3/A from Department of Mines, Government of Jharkhand and had deposited the files in the Malkhana EOW, CBI, Ranchi.
33 S.S. Yadav, Insp, He was Inspector CBI. He deposed that during the course of CBI EOU-I PE no. 219 2012 E0004, CBI, he at the asking of Dy. SP SP Rana had collected various files/documents from Sh. Ram Naresh, Section Officer, CA-I (A) Ministry of Coal and he thus deposed about the said proceedings so carried out by him.
34 Sudhanshu Dubey He was an independent witness who along with PW 37 Bijay Modi accompanied the CBI team headed by Inspector Bodh Raj Hans in September 2012 during the course of search operation carried out at the office of M/s VISUL. He thus CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 33 of 429 deposed about various documents/files collected by CBI during the said search operation.
35 Ramesh Kashyap, He was posed in Malkhana, CBI, EOW, Ranchi. On the Constable, directions of Ld. Special Judge, Ranchi he had handed over CBI EOW, Ranchi.
two files Ex. PW 3/B (colly) (D-140) and Ex. PW 3/C (colly) (D-141/1 to D-141/5) as were deposited in the Malkhana in case RC No. 5(A)/2010 AHD, Ranchi and gave them to SI Dharambir Rana vide invoice Ex. PW 35/A. 36 K.P. Singh, He was Incharge Malkhana, EO-1, CBI, New Delhi. He proved I/c Malkhana, the relevant entries of register maintained in the malkhana by CBI, EO-I him vide which various files/ documents were deposited with him by various CBI officers initially during the course of preliminary enquiry and subsequently during the course of investigation.
37 Bijay Modi He was accompanying PW 34 Sudhanshu Dubey during the search operation carried out by CBI initially at the residence of Tulsyans and thereafter at the office of M/s VISUL at Ranchi.
38 IO Insp. Vijay He was the investigating Officer of the present case. He Chettiar deposed extensively about the investigation carried out by him and also about the collection of various documents from different authorities by him during the course of investigation.
39 Inspr Bodh Raj He had led the CBI team during the investigation of the present case to carry out search operation at the office premises of M/s VISUL at Chanchani Colony, Ranchi and proved the search list so prepared by him mentioning therein the various documents/files as were collected by him from over there.
40 Dr. Rajeshwar Singh, He was the Assistant Director, Enforcement Directorate. He Dy. Director, ED.
was assisting Sh. D.N. Poddar Assistant Director Patna in the investigation of a case registered by Enforcement Directorate against Madhu Koda and others. He stated that in the said case he had examined and recorded the statements u/s 50 PMLA of Vijay Joshi beside that of other accused persons. He also deposed that at that time Vijay Joshi was also lodged in jail.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 34 of 429 WITNESSES WHOSE EXAMINATION-IN-CHIEF WAS LED BY PROSECUTION BY WAY OF AFFIDAVIT U/S 296 CR.PC BUT ACCUSED PERSONS CHOSE NOT TO CROSS-EXAMINE THEM.
PW Name and Deposition/Role of the witness in the present
No. designation of the
case.
Witness
1 Ram Naresh, He was Under Secretary, MOC during the period
Under Secretary,
June 2009 till October 2014. He had handed over
Ministry of
Agriculture, Govt of various documents/files relating to coal block India, New Delhi allocation matters to PW 1 Dy.SP S.P. Rana during the course of preliminary inquiry registered by CBI vide receipt memos dated 14.06.2012 and 06.07.2012.
2 Sanjeev In April 2010 he was posted as Section Officer in Shrivastav, RM-I Section, Ministry of Steel, Udyog Bhawan, Under Secretary, Ministry of HRD, New Delhi. During the course of investigation he Shastri Bhawan, handed over certain files/documents as mentioned New Delhi in para 2 and 3 of letter No. 14(2)/2010-RM.I dated 23.04.2010 to Insp. Raja Chatterji.
3 Ved Prakash He was also working as Section Officer CA-1 Sharma, Retired section, Ministry of Coal from October 2007 to Section Officer, CA-1, Section, May, 2008 and from February 2011 till 30.06.2013.
Ministry of Coal He was however dealing with matters relating to allocation of coal blocks to Government companies. In the year 2012 he had handed over various files/ documents of MOC to PW 31 Dy. SP S.P. Rana CBI and who seized them vide various production-cum-receipt memos during the course of preliminary inquiry registered by CBI.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 35 of 429 4 Ravi Chandra, In July 2012, he was posted as Section Officer, Under Secretary, RM-I Section, Ministry of Steel, Udyog Bhawan, Ministry of Minority Affairs, New Delhi. He handed over file No. 21(96)/2005-
Government of
IDW containing note sheet pages 1 to 6, 6A, 7 to
India, CGO
Complex, New 26 and correspondence pages 1 to 241 to Insp.
Delhi
B.M. Pandit vide production-cum-receipt Memo
dated 30.07.2012 to Insp. B.M. Pandit.
5 Sanjay Lohiya, He was posted as Director, PMO in August
Director, PMO
2012.Upon receipt of request from CBI seeking
copies of a file regarding coal block allocation he delivered photocopies of the relevant record to CBI vide his letter dated 17.08.2012.
6 Insp. Raja In the year 2010 he was posted as Inspector in Chatterji, CBI, ACU-II, New Delhi. During the course of CBI, ACU-II investigation certain files and documents were collected by him from RM-I Section of Ministry of Steel and CA-I Section, MOC vide letter No. 14(2)/2010-RM.I dated 23.04.2010 and No. 13016/23/2010-CA-I dated 27.07.2010 respectively.
DEFENCE WITNESSES (DWs)
DW Name and Deposition/Role of the witness in the present
No. designation of the case.
Witness
DW-1 Pawan Verma, He was the Assistant Ahlmad of this Court who
Asstt. Ahlmad,
produced file bearing no. 38011/1/2007-CA-I i.e. Patiala House Courts, New Delhi. D-17 as was available in case titled "CBI vs M/s JSPL & Ors" pending trial in this Court and from CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 36 of 429 the said file certified copy of the minutes of 35 th Screening Committee meeting Ex. DW 1/A (colly) as were produced by A-3 H.C. Gupta were compared and placed on record.
DW-2 Laxminarayan, He produced the original file of the office of Constable, CBI Department of Advisor (Industries), Government of West Bengal from Malkhana, EO-I branch, CBI, New Delhi for comparison with the certified copy of letter dated 03.08.2007 Ex. DW 2/A and letter dated 13.09.2007 Ex. PW 2/B of Sh. Bhaskar Kulbey the then Advisor (Industries), Government of West Bengal as were placed on record by A-3 H.C. Gupta.
DW-3 R. S. Pandey, He was the then Secretary (Steel), Government of Retired IAS Officer India. He deposed that PW 29 Sh. U.P. Singh the then Joint Secretary, Ministry of Steel used to attend Screening Committee Meetings beside other officers of Ministry of Steel. He however claimed ignorance as to whether Sh. U.P. Singh ever put any note before him or even orally briefed him regarding the proceedings of Screening Committee meeting, which were attended by him.
He also claimed ignorance about having attended any meeting in PMO with Secretary (Coal) on 16.07.2008. [Meeting qua which PW 28 Ms. Vini Mahajan has prepared note dated 16.07.2008 in file Ex. PW 2/C (colly) (D-120)].
DW-4 Pradeep Kumar, He produced various records of office of Under Secretary in Department of Mines, Ranchi, Government of Directorate of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 37 of 429 Mines, Ranchi, Jharkhand. The same shall be discussed at Jharkhand appropriate stage whenever required.
DW-5 Rakesh Sharma, He was Under Secretary Department of Law, Under Secretary in Ranchi, Government of Jharkhand. He had Department of Law, Ranchi, Govt. of produced file movement register for the period Jharkhand September 2014 to December 2014 maintained in the office of the then Secretary, Department of Law, Ranchi, Government of Jharkhand.
DW-6 A-3 H.C. Gupta A-3 H.C. Gupta examined himself in the present (u/s 315 Cr.PC) case as a defence witness u/s 315 Cr.PC. In his deposition he extensively deposed about the manner in which the applications received by MOC were dealt with either in MOC or by the Screening Committee. He also deposed extensively about his role and responsibility both as Secretary Coal and also as Chairman, Screening Committee. He also deposed about his unblemished career throughout his long service of 37 years. He also deposed that in the Screening Committee meeting held on 03.07.2008 the Representative of Jharkhand State had proposed the name of M/s VISUL stating that as per the ground situation M/s VISUL was best prepared in terms of land, power, water etc. He also deposed that in the meeting it was also stated that small units should also be encouraged and that in the advertisement it was nowhere mentioned that applicant companies with less than 0.3 MT per annum capacity will not be considered.
He also stated that even though the State Government might have sent a different proposal CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 38 of 429 earlier but it was now their revised proposal.
He also deposed that the representative of Ministry of Steel had pointed out that since the minimum proposed production capacity of M/s VISUL was less than 0.3 MTPA up to the cut of date i.e. 31.12.2010 so Ministry of Steel has not supported the proposal. However, A-3 H.C. Gupta further stated that a detailed discussion thereafter took place and finally it was unanimously decided to recommend M/s Mukund Ltd. and M/s VISUL jointly for Rajhara Coal Block. He thus deposed that towards confirmation of the said recommendation every member signed the recommendation sheets. He also deposed that the minutes of 36th Screening Committee were subsequently prepared in the spirit of the provisions of Central Secretariat Manual of Office Procedure.
DW-7 Shiv Raj Singh, He was an IAS officer of Chattisgarh Cadre. He Retired IAS Officer deposed that as Chief Secretary, Government of Chattisgarh he had attended two meetings of 36th Screening committee i.e. on 08.02.2008 and 03.07.2008 as a representative of Govt. of Chattisgarh. He extensively deposed about the manner in which the meeting of screening committee was held on 03.07.2008 and also stated that in the meeting all the members present were free to air their views. He further stated that whenever qua any coal block there used to be consensus amongst the members, then A-3 H.C. CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 39 of 429 Gupta, Chairman used to announce the final decision but in other cases where there used to be no such unanimity then after hearing the views of all concerned A-3 H.C. Gupta used to announce the recommendation of Screening Committee for allotment of a given coal block in favour of one or more applicant companies in accordance with the consensus which may have developed during the course of discussion. He also stated that in certain cases, some of the representatives used to request that their views be specifically recorded in the proceedings. He further stated that the decision thus used to be taken by way of broad consensus. However, he stated that when the coal block situated in the State of Jharkhand were taken up for discussion in the Screening Committee Meeting then at that time he was not present in the meeting hall as he had gone out to have some tea/snacks.
Arguments on behalf of Prosecution
23. It was submitted by Ld. DLA Sh. V.K. Sharma that the facts and circumstances of the present case speak volumes about the arbitrary and malafide nature of functioning of the officers and the Chief Minister of State of Jharkhand. It was submitted that from a bare perusal of the records of the present case, it is clearly apparent that a large conspiracy was hatched by the officers of Government of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 40 of 429 Jharkhand along with the private parties involved and subsequently A- 3 H.C. Gupta, Secretary Coal and Chairman Screening Committee also joined the said criminal conspiracy in order to illegally extend undue benefit to M/s VISUL by getting a coal block allotted in its favour. It was submitted by Ld. DLA that admittedly Secretary Mines, PW 6 Jai Shankar Tiwary, Government of Jharkhand had recommended names of certain companies for being recommended to MOC for allocation of coal blocks situated in the State of Jharkhand. However A-7 Madhu Koda conveyed his telephonic approval qua only some of the companies and there is nothing on record as to why he did not agree to the names of other companies as were recommended by PW 6 Jai Shankar Tiwary. It was further submitted that subsequently when the file was put up for written confirmation of the aforesaid verbal orders than A-7 Madhu Koda again changed the earlier recommendations by adding the name of M/s Bihar Sponge Iron and Steel Limited qua Macher Kunda Coal Block. It was however submitted that the files of Government of Jharkhand were completely silent as to why A-7 Madhu Koda initially chose to approve the names of few companies only for being recommended to MOC for allocation of coal blocks and omitted the names of other companies which were either recommended by PW-6 Jai Shankar Tiwary or why A-7 Madhu Koda chose to recommend the name of a company for Macharkunda coal block whose name was even not proposed by PW-6 Jai Shankar Tiwary . It was also submitted that even subsequent thereto there is nothing on record which could show as to what prompted A-7 Madhu Koda to make addition to the earlier recommendations by adding the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 41 of 429 name of one more company.
24. It was also submitted that subsequently from the month of May 2008, the fate of A-1 M/s VISUL suddenly started changing in as much as the company despite having been not earlier recommended by State Government of Jharkhand started to be favoured by the officers of Government of Jharkhand at different levels by recording various notings regarding its performance as compared to other companies. It was further submitted that the aforesaid development was followed by recommendation of A-1 M/s VISUL by A-6 A.K. Basu, Chief Secretary of the State of Jharkhand in the Screening Committee Meeting held on 03.07.2008 and wherein he also stated that in recommending the name of M/s VISUL for allocation of a coal block he also has the directions of A-7 Madhu Koda the then Chief Minister, Government of Jharkhand. It was thus submitted by Ld. DLA, Sh. V.K. Sharma that irrespective of the earlier exercise carried out in the Government of Jharkhand regarding recommendation of different companies for allocation of various coal blocks, A-6 A.K. Basu without any authority and also without any reasonable basis or information/record available to him chose to strongly recommend A-1 M/s VISUL for allocation of "Rajhara Coal Block". It was also submitted by Ld. DLA that from the records of the case it is also clear that though in the year 2006 a MOU was entered into between Government of Jharkhand and M/s VISUL but the validity of the said MOU came to an end in September 2007. It was thus submitted that as on the date of Screening Committee Meeting i.e. on 03.07.2008 no MOU with M/s VISUL was in existence.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 42 of 429 It was thus submitted that the primary condition for a company to be recommended to MOC, Government of India for allocation of a coal block by Government of Jharkhand was execution of a valid MOU by the company with State of Jharkhand. It was thus submitted that as on the date of Screening Committee Meeting held on 03.07.2008 when A-6 A.K. Basu the Chief Secretary of State of Jharkhand recommended the name of M/s VISUL for allocation of a coal block, no such MOU was in existence between M/s VISUL and Government of Jharkhand. It was also pointed out that subsequent to Screening Committee Meeting held on 03.07.2008 the MOU earlier executed by M/s VISUL and which had got expired in September 2007 was extended by a period of two years with retrospective effect i.e. from September 2007 to September 2009. It was submitted that such an extension of MOU was carried out with retrospective effect simply in order to meet the condition that as on the date of Screening Committee Meeting held on 03.07.2008 there was a MOU in existence between the State of Jharkhand and M/s VISUL.
25. It was thus submitted that the aforesaid acts speak volumes about the clandestine manner in which the officers of Government of Jharkhand including Chief Minister acted so as to extend undue benefit to M/s VISUL. It was also submitted by Ld. DLA that even in the said MOU as was initially executed with M/s VISUL by Government of Jharkhand or as was subsequently extended by a period of two years, it was only stated that Government of Jharkhand shall provide all necessary assistance to M/s VISUL towards obtaining CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 43 of 429 linkages for minerals from State PSUs but there was no agreement that Government of Jhrakhand shall recommend the name of M/s VISUL for allotment of a coal block. The aforesaid condition of MOU was sought to be contrasted from the terms and conditions mentioned in the MOU executed by State Government of Jharkhand with M/s Mukund Ltd. (The company which was jointly recommended with M/s VISUL for allocation of Rajhara Coal Block by 36 th Screening Committee in its meeting held on 03.07.2008). In the MOU Ex. PW 20/D executed with M/s Mukund Ltd., it was specifically mentioned that State Government of Jharkhand shall recommend company M/s Mukund Ltd. towards allocation of a coal block. It was thus submitted that even in terms of the MOU so executed by State Government of Jharkhand, M/s VISUL could not have been recommended for allocation of a coal block. It was also pointed out by Ld. DLA that in fact after the execution of initial MOU dated 14.09.2006, a request was made by M/s VISUL to Government of Jharkhand for incorporation of a condition in the MOU that the company M/s VISUL shall be recommended for allocation of a coal block but the said request of the company was rejected by the State Government.
26. As regard the role played by A-3 H.C. Gupta Secretary (Coal) and Chairman Screening Committee it was submitted that A-1 M/s VISUL was neither recommended by State Government of Jharkhand in the recommendations as were earlier sent to MOC by the State Government nor the Administrative Ministry i.e. Ministry of Steel placed the company in any of the category as were devised by it so as CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 44 of 429 to be considered for allocation of a coal block primarily on account of its small proposed production capacity. It was submitted that still A-3 H.C. Gupta despite having knowledge of the aforesaid circumstances chose to recommend M/s VISUL for allocation of a coal block merely because A-6 A.K. Basu in the Screening Committee Meeting strongly insisted for it. It was thus submitted that the entire procedure or guidelines as were devised by MOC and Screening Committee governing allocation of coal blocks were put aside while extending undue favour to M/s VISUL. It was also submitted that A-3 H.C. Gupta thereafter neither while approving the minutes of the said meeting nor while sending them to Prime Minister as Minister of Coal for approval disclosed all these facts purely with a view to facilitate M/s VISUL in procuring allocation of a coal block in its favour. It was thus submitted that A-3 H.C. Gupta also joined the criminal conspiracy with officers of Government of Jharkhand in order to extend undue benefit to A-1 M/s VISUL in allocation of a coal block.
27. It was also submitted by Ld. DLA that two other officers of Government of Jharkhand namely A-4 B.K. Bhattacharya and A-5 B.B. Singh had also actively assisted the other co-accused persons in ensuring that M/s VISUL get recommended for allocation of a coal block. Various notings recorded by them at different point of time were pointed out in this regard. It was also pointed out that M/s VISUL was even favoured by Government of Jharkhand Officers so as to ensure allocation of an Iron Ore Mine in its favour and which again was contrary to the terms of MOU entered into by Government of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 45 of 429 Jharkhand with M/s VISUL.
It was thus submitted by Ld. DLA that the change of fortune of M/s VISUL needs to be looked into in the light of aforesaid facts and circumstances.
28. It was also submitted by Ld. DLA that in the initial application submitted on behalf of M/s VISUL under the signatures of A-2 Vaibhav Tulsyan, a certificate issued by A-9 Naveen Tulsyan was annexed wherein 15 companies were wrongly shown as group companies of A- 1 M/s VISUL. It was however submitted that though in the six companies mentioned at serial no. 1 to 6 i.e. ACM Fuels Pvt. Limited, Auroma Coke Manufactures Pvt. Ltd, SRS Hotel Pvt. Ltd, Auroma Coke Limited, Smart Dealers Pvt. Ltd and ACM Finvest Pvt. Ltd., the directors were common as being from Tulsyan family only but as regard the other nine companies it was submitted that there was nothing on record to show that they could in any manner be termed as group or associate concerns of M/s VISUL. It was thus submitted that M/s VISUL chose to misrepresent about its group annual turnover, group profit and group net worth to MOC so as to present a higher status/stage of preparation towards establishing its end use project. It was also submitted that it has come on record from the deposition of PW 21 Swapan De Choudhary that no presentation was made on behalf of M/s VISUL before the Screening Committee as they had come to know that it will not be recommended for allocation of any coal block. It was thus submitted that when M/s VISUL was neither recommended by State Government of Jharkhand nor the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 46 of 429 Administrative Ministry i.e. Ministry of Steel had placed it in any category so the matter was never pursued further by Tulsyan family till the time A-8 Vijay Joshi in association with A-7 Madhu Koda conspired with A-2 Vaibhav Tulsyan so as to procure allocation of a coal block in favour of A-1 M/s VISUL. It was submitted that the over all facts and circumstances of the case clearly indicates that in and around the month of May 2008 the company M/s VISUL came to be acquired by A-8 Vijay Joshi who was a close aid of A-7 Madhu Koda and thereafter the fortunes of M/s VISUL suddenly turned around as is evident from various notings recorded by different officers of Government of Jharkhand in the files. It was also submitted that from the evidence led it has come on record that A-8 Vijay Joshi and A-7 Madhu Koda beside PW 23 Arvind Vyas all remained in Jail together for about two years in Ranchi in a case registered by Enforcement of Directorate (ED) and thus were known to each other well. It was also submitted that on account of interest generated in the company by A-7 Madhu Koda the then Chief Minister of Government of Jharkhand through his close aid A-8 Vijay Joshi the company M/s VISUL started to be favoured by officers of State Government of Jharkhand. Strong reliance in this regard was placed on the deposition of PW 12 Amit Sharma coupled with the various documents executed by him on behalf of M/s VISUL. It was also submitted by Ld. DLA that despite the alleged sale of company by Tulsyan family to M/s Saturn Iron Ore and Oil Ltd the factum of sale was never communicated either to Ministry of Coal or to State Government of Jharkhand. It was submitted that even though there was no such requirement as claimed by the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 47 of 429 accused persons under the rules to inform MOC about the change of shareholding by any applicant company but the very fact that even the subsequent correspondence leading to final allocation of a coal block by MOC came to be entertained at the earlier registered office of M/s VISUL i.e. the address when the company was owned by Tulsyans and all such correspondence came to be still communicated to A-8 Vijay Joshi by Tulsyans who thereafter continued to follow up with necessary action on all such correspondence clearly show that despite alleged sale of company A-2 Vaibhav Tulsyan and A-8 Vijay Joshi were all part of a criminal conspiracy. It was also submitted that even otherwise the 15 companies as were stated to be group or associate companies of M/s VISUL could not have continued to be so at least after the change of ownership of the company from Tulsyan's to A-8 Vijay Joshi. It was thus submitted that misrepresentation regarding turnover, annual profit and net-worth continued with MOC, Government of Jharkhand on behalf of M/s VISUL even after the alleged sale of equity holding in M/s VISUL to A-8 Vijay Joshi.
29. As regard A-9 Naveen Tulsyan it was submitted that he despite being a qualified Chartered Accountant prepared a false certificate showing 15 companies as group concern / associate concern of M/s VISUL while knowing fully well that the business entities mentioned from serial no. 9 to 15 in the certificate issued by him could in no way be stated to be group concern / associate concern of M/s VISUL. It was also submitted that from the facts and circumstances of the case coupled with the evidence led by prosecution, it is also clear that A-9 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 48 of 429 Naveen Tulsyan had ante-dated the certificate knowing fully well that the said certificate shall be used by M/s VISUL in seeking allocation of a coal block in its favour.
30. Ld. DLA Sh. V.K. Sharma further placed reliance upon the following case law in support of his submissions:
S.No. Case Title Citation 1 K. Satwant Singh V. State of Punjab (1960) 2 SCR 89 2 C.I.T, Andhra Pradesh V. M/s Taj Mahal 1971 (3) SCC 550 Hotel, Secundrabad 3 Delhi Judicial Service Association, Tis Hazari (1991) 4 SCC 406 Court, Delhi V. State of Gujarat 4 Chief Education Officer V. K.S. Palanichamy 2012 (2) MWN (Cr.) 354 5 REG V. Hanmanta (1877) ILR 1 BOM 610 6 Common Cause, a Registered Society V. (1999) 6 SCC 667 Union of India & Ors. 7 Krishnan & Anr. Vs. Krishnaveni & Anr. 1997 (4) SCC 241
8 State through Superintendent of Police, 1999 (5) SCC 235 CBI/SIT Vs. Nalini
31. The prosecution was thus stated to have been successful in proving its case against all the accused persons for the offences for which they all were charged. All the accused persons were thus prayed to be convicted.
Arguments on behalf of company A-1 M/s VISUL
32. As regard company A-1 M/s VISUL, it was submitted by Ld. CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 49 of 429 Counsel Sh. Harsh Sharma that on account of non-compliance with mandatory provisions of Section 5 & 6 Delhi Special Police Establishment Act, 1946 (DSPE Act), the entire investigation conducted prior to issuance of necessary notification by State Government of Jharkhand and by Central Government becomes bad in law. Accordingly trial so conducted in pursuance thereto also becomes bad in law and is in express violation of Articles 14 and 21 of Constitution of India. It was submitted that as per the case of CBI itself such a sanction from Government of Jharkhand was obtained only on 10.09.2013 and thus any investigation carried out prior to the said date including collection of any documents was bad in law.
33. As regard recovery of certain documents relating to company M/s VISUL during the course of search operation conducted during investigation, it was submitted that the same are stated to have been recovered from Prashant Tulsyan but he has neither been arrayed as an accused nor has been examined as a witness. It was also submitted that mere prosecution of company M/s VISUL without arraying its directors as accused thereof is certainly contrary to the well settled provisions of law. It was submitted that a share-holder A-8 Vijay Joshi of a company can not be held liable for the acts of the company as the company can be imputed with criminal intent as "alter ego" only of the persons who are in control of the affairs of the company and not otherwise. It was also submitted that PW-12 Amit Sharma who claimed himself to be a director of the company M/s VISUL admitted having signed the documents on behalf of M/s VISUL CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 50 of 429 but he did not state anything as regard the role of A-8 Vijay Joshi in controlling the day to day affairs of M/s VISUL. It was also submitted that in the absence of the directors/officers of the company being not prosecuted the prosecution has clearly failed in proving on record any mensrea on the part of company M/s VISUL to commit a crime. It was submitted that company being a juristic person can not have any mensrea of its own to commit a crime and thus the prosecution ought to have proved that on or before the day when the alleged conspiracy was hatched or crime was committed, either all or one of the director/officer of the company acted in a particular way so that the company gets benefited.
34. It was also submitted that though prosecution has tried to prove a case that the name of M/s VISUL for allocation of a coal block came into contention only after A-8 Vijay Joshi came into picture but the evidence led on record and the documents as have been placed on record by the prosecution clearly show that M/s VISUL was being considered for allocation of a coal block since 16.11.2007. It was also submitted that A-8 Vijay Joshi was not the alter ego of company M/s VISUL.
35. As regard sanction u/s 19 P.C. Act and also sanction u/s 197 Cr.PC granted by the competent authority to prosecute A-4 B.K. Bhattacharya and A-5 B.B. Singh, it was submitted that the same was also defective in nature as not only the two orders are not speaking orders but even otherwise complete facts and circumstances were not placed before the Competent authority.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 51 of 429
36. As regard the charge of criminal conspiracy u/s 120-B IPC, it was submitted that prosecution has failed to bring on record any evidence which could show that there was meeting of mind, formulation and joining of thoughts between the accused persons i.e. A-1 M/s VISUL, A-3 H.C. Gupta and A-7 Madhu Koda. It was thus submitted that as the prosecution has failed to place or prove on record any act which may prove existence of any such criminal intent so the malice or malafides in the acts of an accused can not be presumed. Even as regard the offence of cheating, it was submitted that the prosecution has failed to prove on record any fact which could reflect that any act committed by accused company M/s VISUL constituted any ingredient of the offence of cheating. It was also submitted that though the prosecution has placed on record a number of documents and has also exhibited them but the same can not be considered as proved as per the provisions of Indian Evidence Act, 1872. Various documents in this regard were thus highlighted in the written submissions as having been not proved by the prosecution even though exhibited during the course of deposition of various prosecution witnesses. It was also submitted that after the time A-8 Vijay Joshi acquired majority shares in A-1 M/s VISUL there has been no allegation of prosecution that any act committed by the directors subsequent to the said date constituted any offence or was illegal.
A-1 M/s VISUL was thus prayed to be acquitted.
37. In support of his submissions for A-1 M/s VISUL Ld. Counsel Sh. Harsh Sharma placed reliance upon the following case law:
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 52 of 429 S. Case Title Citation No. 1 H.N. Rishbud vs State of Delhi 1995(1) SCR 1150 2 SMS Pharmaceuticals Ltd vs Neeta Bhalla & (2005)8 SCC 89 Anr.
3 Iridium India Telecom Ltd. Vs Motorola (2011)1 SCC 74 Incorporated & Ors 4 Sunil Bharti Mittal Vs CBI 2015(1) AD (SC) 269 5 Jaswant Singh vs State of Punjab AIR 1958 SC 12 6 Mohd. Iqbal Ahmed vs State of A.P. AIR 1979 SC 677 7 State of Bihar vs P.P. Sharma 1991 Cri.L.J 1438 8 Virender Pratap Singh vs State of UP 1991 Cril.L.J. 1964 9 Mansukhlal Vithaldas Chauhan vs State of AIR 1997 SC 3400 Gujrat 10 State of Goa vs Babu Thomas 2005(8) SCC 130 11 Ram Krishan Prajapati vs State of UP 2000(10) SCC 43 12 K. Narsimhachari vs State, Inspr. of Police, 2003 Cri.L.J. 3315 ACB, Cuddapha District.
13 Manohar Lal Sharma vs Principal Secretary (2014)9 SCC 516 14 Kehar Singh vs State AIR 1983 SC 1883 15 Ram Narain Popli vs CBI AIR 2003 SC 2784 16 Sonu @ Amar vs State of Haryana Crl.A.No.1418/2013 D.O.D. 18.07.17 Arguments on behalf of A-2 Vaibhav Tulsyan
38. As regard A-2 Vaibhav Tulsyan, it was submitted by Ld. Senior Advocate Sh. N. Hariharan that though prosecution has tried to project that in the application moved on behalf of M/s VISUL false claims were made as regard the turnover, profit and net-worth of group CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 53 of 429 companies in as much as out of the 15 concerns which were stated to be the group concerns/associate concerns, 9 entities could in no way be termed as group or associate concerns of M/s VISUL but in fact prosecution has miserably failed to prove so by any cogent or plausible evidence. It was submitted that neither the guidelines issued by MOC nor any circular or office memorandum issued by MOC defined the term "Group" or "Associate". It was also submitted that even the advertisement dated 13.11.2006 also did not explain any such term. It was also pointed out that even in the application form issued by MOC there was no column requiring details of the turnover, profit and net-worth of the group companies and the relevant column only required details of the applicant company. Reference in this regard was made to the deposition of PW 6 Jai Shankar Tiwary, PW 26 N R Dash, PW 27 V S Rana, PW 29 Udai Pratap Singh and PW 38 IO Inspector Vijai Chettiar. It was also submitted that from the evidence brought on record by prosecution it was clear that in the 36th Screening Committee meeting the interse priority of the applicant companies was never analyzed which could have only demonstrated as to on what basis a particular company is more eligible than others for allocation of a coal block. It was thus submitted that when the interse priority of the companies was never discussed and their merits were not taken into account then the prosecution cannot claim that MOC was induced by inflated net-worth and turnover or profit of M/s VISUL group of companies. It was also submitted that even the net- worth of M/s Zoom Vallabh Steel Ltd. or that of its group companies was much higher than the net-worth of M/s VISUL or its CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 54 of 429 group/associate companies and thus it cannot be stated that high net- worth of M/s VISUL or its group companies in any manner induced Screening Committee to allot a coal block in favour of M/s VISUL.
39. It was also submitted that the allegations of prosecution that A-2 Vaibhav Tulsyan replaced page 70 and 71 of techno-economic report prepared by PW 11 Abhishek Lohia was also false. It was submitted that admittedly the said project report was prepared by PW 11 Abhishek Lohia on the basis of information provided by Tulsyan's for otherwise there was no other source to PW 11 Abhishek Lohia to know the financial, technical and other details of the company. It was thus submitted that had there been any malafide intention of Tulsyan's then they could have easily told PW 11 to mention the names of said 15 companies as group companies of M/s VISUL in the initial report itself as was prepared by him. It was further submitted that apart from page 70 and 71 there were number of other differences also between the project report as was produced by PW 11 Abhishek Lohia during the course of his deposition viz-a-viz the project report filed along with application Ex. P-60 by A-2 Vaibhav Tulsyan.
40. As regard sale of company M/s VISUL to M/s Saturn Iron Ore and Mining Ltd on 29.05.2008 it was submitted that neither the MOC guidelines nor any circulars/orders required that in case of change of share holding pattern of a company in any manner, MOC has to be informed. Reference in this regard was made to the deposition of PW 18 K K Khandelwal, PW 26 N R Dash and PW 38 IO Inspector Vijai Chettiar. It was thus submitted that A-2 Vaibhav Tulsyan was CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 55 of 429 representing M/s VISUL i.e. the applicant company only till 29.05.2008 and thereafter he ceased to be associated with it in any manner. After 29.05.2008 the company M/s VISUL was stated to have been sold to M/s Saturn Iron Ore and Mining Ltd. Prosecution was thus stated to have miserably failed in proving its case against A-2 Vaibhav Tulsyan.
Accused Vaibhav Tulsyan was thus prayed to be acquitted.
41. In support of his submissions for A-2 Vaibhav Tulsyan, Ld. Sr. Advocate Sh. N. Hariharan placed reliance upon the following case law:
S. Case Title Citation No. 1 Hanumant Govind Nargundkar vs State of MP 1952 SCR 1091 2 Palvinder Kaur vs State of Punjab 1953 SCR 94 3 Charan Singh vs State of UP AIR 1967 SC 52 Arguments on behalf of A-3 H.C. Gupta
42. As regard A-3 H.C. Gupta, Secretary Coal and Chairman Screening Committee, it was submitted by Ld. Sr. Advocate Sh. Mohit Mathur that the prosecution has miserably failed to bring on record any cogent, convincing or legally admissible evidence in order to bring home the charges as farmed against A-3 H.C. Gupta. It was submitted that prosecution was merely trying to place reliance on certain tits and bits, here and there in the prosecution evidence so as to prove the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 56 of 429 charges against the accused but the said course of action was not clearly permissible in law. It was submitted that neither any presumption nor any inference as are sought to be drawn by the prosecution against A-3 H.C. Gupta are borne-out from the facts and circumstances of the case, much less from the evidence led on record by the prosecution. It was also submitted that in order to appreciate the role of public servants involved in functioning of a Ministry under Central Government or even in any State Government the functions of Secretary of a Ministry in Government of India or that of its officers needs to be seen and understood in the light of provisions of Central Secretariat Manual of Office Procedure (herein-after referred to as "Manual of Office Procedure"). The procedure as to how meeting of an inter-ministerial body or that of an inter-state body is to be conducted and the manner of recording of minutes thereof as provided in the Manual of Office Procedure, also needs to be seen and understood before any conclusion could be drawn as regard the role played by the public servants in the present matter and especially that of A-3 H.C. Gupta.
43. It was also submitted that as all the acts were done by A-3 H.C. Gupta in the routine course of discharge of his official duties of the Ministry and that of the Screening Committee, so a presumption as to the correctness of the official acts needs to be drawn in favour of the accused under illustration (e) and (f) of Section 114 of Indian Evidence Act, 1872. It was also submitted that the oral deposition of the witnesses which is clearly contrary to the written records prepared CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 57 of 429 at the relevant time can not be given any credence. The testimony of all such witnesses was thus prayed to be discarded being contrary to the written records. It was also submitted that correctness of the official records should be presumed to be in favour of accused by the Court.
44. It was submitted by Ld. Sr. Advocate Sh. Mohit Mathur that it was not open to this Court to review the decision taken by the Screening Committee which was duly constituted by the Government to recommend allocation of various coal blocks to different companies. Judicial review of such an action was stated to be not permissible under law.
45. It was also submitted that as admittedly all the facts in question were performed in discharge of his official duties by A-3 H.C. Gupta so cognizance of none of the offences under IPC could have been taken without prior sanction u/s 197 Cr.PC.
46. As regard charge of criminal conspiracy, it was submitted that the very basic essential ingredient of meeting of minds between accused persons has not been proved by the prosecution. It has not been proved that accused had any knowledge of the acts committed by the other accused persons much less that of the private parties involved. It was also submitted that though prosecution has sought to prove the charge of criminal conspiracy i.e. u/s 120-B IPC by way of circumstantial evidence but not only the said circumstances have not been individually proved by the prosecution beyond shadows of all CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 58 of 429 reasonable doubts but even the said circumstances also do not form a complete chain pointing to the guilt of accused only. It was submitted by Ld. Sr. Advocate that in order to arrive at a decision as to whether the said circumstances have been individually proved by the prosecution or not much less whether the complete chain of circumstances has been proved or not, only such evidence led by prosecution can be considered which has been legally proved as per the provisions of Indian Evidence Act, 1872.
47. It was also submitted by Ld. Sr. Advocate that as per the procedure laid down in MOC, four copies from out of five copies received in MOC of all applications were sent to concerned Administrative Ministries, State Governments and to Central Mine Planning & Design Institute Limited, (CMPDIL) for their views and comments. It was also submitted that even during the course of Screening Committee meeting applicant companies were called upon to make presentation before the Screening Committee and they also used to submit feedback form containing updated information of the project, if any. It was thus submitted that all the proceedings of the Screening Committee were conducted in a fair and transparent manner and extensive discussion and deliberations took place while assessing and evaluating various applications in terms of clause 9 of the guidelines which talk of interse-merit amongst applicant companies. It was also submitted that in the last meeting of 36th Screening Committee meeting, recommendation sheets containing the final decision of the Screening Committee were prepared and all the members duly signed the said recommendation sheets without expressing any dissent or CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 59 of 429 contrary opinion and which fact clearly show that all the decisions of the Screening Committee were unanimous in nature. It was also submitted that even subsequently when the minutes of 36th Screening Committee were sent to all members then also no written objections were raised by any member and which again goes to show that the recommendations of Screening Committee were unanimous in nature.
48. It was also submitted by Ld. Sr. Advocate Sh. Mohit Mathur that though charge against A-3, H.C. Gupta has not been framed on the ground that the applications were not checked for their eligibility and completeness in MOC before they were sent to different entities for their views and comments but even otherwise in terms of the guidelines issued by MOC it was the sole duty of CA-I Section officials to check the applications for their eligibility and completeness. It was also submitted that there is no noting on record which could show that the factum of applications having been not checked for their eligibility and completeness was ever brought to the notice of A-3, H.C. Gupta. It was thus reiterated that oral deposition of any witness contrary to the written record cannot be given any credence. It was submitted that it was the responsibility of CA-I Section only to check as to whether balance sheets of 15 group companies for the past three years or that of applicant company itself were there with the application or not. It was also submitted that in fact detailed scrutiny of the applications was the job of Administrative Ministries and State Governments while carrying out detailed evaluation and due diligence. It was however also submitted that it was not the case of prosecution CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 60 of 429 that any of the applications were differently dealt with by A-3, H.C. Gupta even if no checking of the applications was carried out for their eligibility and completeness.
49. It was also submitted by Ld. Sr. Advocate Sh. Mohit Mathur that Manual of Office Procedure admittedly governs the working in Ministries under Central Government. It was thus the bounden duty of each and every officer to follow the provisions thereof in letter and spirit. It was also pointed out that as per the provisions of Manual of Office Procedure, the directions of the officer superior ordinarily are to be in writing. However when oral directions becomes unavoidable then officer superior is required to confirm it in writing immediately thereof. At the same time a Government servant who has received oral directions from his officer superior is required to seek confirmation of the same in writing as early as possible from the officer superior. It was also submitted that as per para 30 of the Manual of Office Procedure, in case of any deviation from the normal procedure or rules the decision making authority is required to ensure that reasons are recorded in writing justifying such a deviation from the rules and procedures.
50. It was also submitted by Ld. Sr. Advocate Sh. Mohit Mathur that the issue of non-checking of applications for their eligibility and completeness even after approval of recommendation of Screening Committee by the competent authority i.e. Minister for Coal was clearly beyond the scope of guidelines issued by MOC governing allocation of captive coal blocks. It was also submitted that even CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 61 of 429 otherwise it was never brought to the knowledge of A-3, H.C. Gupta that applications have not been checked for their eligibility and completeness.
51. As regard the functioning of Screening Committee, it was submitted by Ld. Sr. Advocate that the whole objective of constituting the Screening Committee was to cut short the time taken by various stake holders in processing and granting coal mining leases. It was thus intended to facilitate simultaneous discussion amongst all concerned stake holders at one place so that decisions were taken with the consent of all, unanimously and expeditiously.
52. It was also submitted that in the Screening Committee meeting the decision used to be taken by way of consensus and not by any single person. It was also submitted that every member was free to record his/her views and to also record his dissent, if any. The Chairman of the Committee was also thus stated to be having no overriding powers or no power of overruling decision of any other member. Each member was stated to be sovereign as other members and none was subordinate to anyone else. It was also submitted that as the practice and procedure followed by Screening Committee was not provided anywhere so it had evolved over a period of time and the same was duly followed on this occasion also.
53. In the aforesaid circumstances, it was submitted that the statement of PW-18 K.K. Khandelwal that he left the Screening Committee meeting immediately after the discussion qua the coal block situated in Madhya Pradesh was over is clearly false in as much as it CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 62 of 429 has come on record by way of deposition of other prosecution witnesses that the recommendation sheets were prepared at the end of the meeting when discussion qua all the coal blocks under consideration was over. Reference was also made to the deposition of DW-6 H.C. Gupta who stated that Screening Committee was a body away from MOC and to that extent the discretion of MOC was reduced. It was also stated that the Screening Committee reduced arbitrariness in the sense that all stake holders were present in the Screening Committee meeting and it provided a forum for consultation with all stake holders to get their input and then making recommendations in an objective manner in the shortest possible time.
54. It was also pointed out that DW-7, Shivraj Singh stated in his examination-in-chief that there was no restriction on anyone in the meeting to not record his/her dissenting view on the recommendation sheets. He also stated that people also used to send their views even after the meeting was over. He however stated that he did not see any dissent in the meeting of 36th Screening Committee.
55. It was also submitted that as regard various factors for deciding interse priority amongst different applicant companies, the guidelines did not provide any specific weightage to be assigned to any given factor. There was also no requirement for preparation of any interse priority or interse merit chart and all the factors as were mentioned in Clause 9 of the guidelines were discussed during the course of Screening Committee meeting amongst members and the final decision was thereafter arrived with the consent of all present. The deposition of PW- 26 N.R. Dash, PW-27 V.S. Rana, PW-29, Udai Pratap Singh and PW-38 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 63 of 429 IO Insp. Vijai Chettiar were accordingly referred to in this regard.
56. In order to buttress the argument that all the decisions were taken after due discussion and deliberation in the Screening Committee, reference was also made to the deposition of A-3 H.C. Gupta himself when he entered the witness box as DW-6 in his defence u/s 315 Cr.PC. In his deposition he stated that his role as Chairman was to ensure that the meeting is conducted in an orderly manner and to ensure that every member is able to express his views freely and to also ensure that the discussion takes place on the basis of the prescribed guidelines. It was also submitted that if after the discussion there was a consensus on a particular recommendation in respect of a coal block then he as Chairman used to formally announce the same as recommendation of the Screening Committee. Similarly in this process if the Administrative Ministry or the concerned State Government had made a recommendation earlier but in the meeting their representative agreed to some other view then the view expressed in the meeting was considered as their revised recommendation. Thus all the recommendations of 36th Screening Committee were stated to be unanimous in nature and as a token of confirmation of the same all the members present in the meeting signed the recommendation sheets.
57. It was also submitted by Ld. Sr. Advocate that A-3 H.C. Gupta was even conscious of dealing with such large number of applications (approximately 1400 applications) and as to whether it would be feasible to have presentation from all the applicant companies.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 64 of 429 However in the meeting held on 11.05.2007 when some members of the Screening Committee expressed their views that all applicant companies should be called upon to make presentation so keeping in view the reasons expressed by them their views were accepted. It was thus submitted that from the aforesaid fact, it was clear that the Chairman of the Screening Committee had no overriding powers.
58. It was also submitted by Ld. Sr. Advocate that as in the Screening Committee meeting held on 03.07.2008, the representative of Government of Jharkhand had made revised recommendation in favour of M/s VISUL based on changed material orally placed so there was no reason for A-3 H.C. Gupta to doubt the correctness of statement of A-6 A.K. Basu or the veracity of the material relied upon by him. It was thus submitted that the final decision of the Screening Committee thus can not be faulted as it was unanimous in nature. It was in these circumstances only that there was no requirement of having any revised recommendation from Government of Jharkhand subsequent to the meeting and was accordingly not asked for.
59. As regard preparation of minutes, it was submitted that since the decision in the Screening Committee was unanimous so final decision was only recorded in the minutes and not the gist of discussion. The minutes were stated to have been prepared in the true letter and spirit of Manual of Office Procedure. It was also submitted that had there been any dissent or contrary view/opinion in arriving at its final decision by the Screening Committee then the minutes would have mentioned the same. It was thus pointed out that since the final recommendation of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 65 of 429 the Screening Committee were unanimous so in the minutes no contrary views or opinion find mention.
60. As regard the alleged meeting which T.K.A. Nair, Principal Secretary to Prime Minister had with A-3 H.C. Gupta, Secretary Coal and Sh. R.S. Pandey, Secretary Steel on 16.07.2008, as has been deposed to by PW-28 Ms. Vini Mahajan, it was submitted that DW-3, Sh. R.S. Pandey has also claimed ignorance about any such meeting, if any, having taken place and even A-3 H.C. Gupta does not remember about any such meeting having taken place. It was submitted that no minutes of the said meeting have been prepared and even there is nothing on record to show either by way of an agenda or notice that the two officers i.e. Secretary Coal and Secretary, Steel were called upon to attend any such meeting chaired by Sh. T.K.A. Nair. It was however submitted that even if it is presumed for the sake of arguments that such a meeting ever took place then also it is clear from the circumstances that Ministry of Steel duly consented to the decision taken in the Screening Committee meeting in favour of M/s VISUL for "Rajhara North Coal Block". It was submitted that Sh. R.S. Pandey, Secretary Steel was admittedly not present in the Screening Committee meeting held on 03.07.2008 and his Joint Secretary Sh. U.P. Singh was only present who admitted to have generally briefed Sh. R.S. Pandey about the proceedings of the Screening Committee meeting. Thus it was submitted that had there been any dissent on the part of Ministry of Steel qua any of the recommendation much less as regard that of M/s VISUL then the same would have been pointed out by Sh. R.S. Pandey in the meeting held with Sh. T.K.A. Nair.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 66 of 429
61. It was also submitted that prosecution also did not choose to examine Sh. T.K.A. Nair and thus an adverse inference ought to be taken against the case of prosecution. It was thus submitted by Ld. Sr. Advocate that ingredients of none of the offences be that of criminal conspiracy or that of criminal breach of trust or of criminal misconduct under P.C. Act were made out against A-3 H.C. Gupta.
62. Ld. Sr. Advocate Sh. Mohit Mathur also referred extensively to the various factors as were mentioned in clause 9 of the guidelines governing allocation of coal blocks stating that they primarily pertained to Administrative Ministries, concerned State Governments and to CMPDIL. MOC on the other hand was stated to be having no information or expertise to assess the said factors. It was thus submitted that the views and comments of Administrative Ministries and State Governments accordingly carried weightage in arriving at a final decision by the Screening Committee.
63. As regard the fact that certain companies including M/s VISUL did not make presentation before the Screening Committee, it was submitted that admittedly opportunity was given to M/s VISUL to make a presentation before the Screening Committee but it has also been recorded in the minutes of 36th Screening Committee itself that all those companies which did not make any presentation, were also considered by the Screening Committee as the guidelines issued governing allocation of coal blocks did not provide for making of presentation by the applicant companies. It was thus submitted that irrespective of the fact as to whether any applicant company made a CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 67 of 429 presentation before the Screening Committee or not, their applications were considered by the Screening Committee.
64. As regard the use of word "engaged" in the guidelines, it was submitted by Ld. Sr. Advocate Sh. Mohit Mathur that the same has been mis-understood by the prosecution in as much as the word "engaged" was understood by the Screening Committee and MOC as companies who were not only already engaged in generation of power, iron and steel and production of cement etc but also companies who were proposing to engage in any such field.
65. As regard data-base prepared by CMPDIL and having been not circulated to Screening Committee members, it was submitted that PW-26 N.R. Dash, Ministry of Steel has stated that in the initial meetings of 36th Screening Committee the members were supplied a folder containing compilation/chart after picking up data from the applications of different applicant companies. It was also submitted that Director, MOC, K.C. Samria and Joint Secretary, Coal, K.S. Kropha were two important witnesses of MOC who ought to have been examined by the prosecution in order to prove this fact but their non-examination by the prosecution is certainly a material circumstance and an adverse inference needs to be drawn against the prosecution in this regard.
66. As regard the guidelines issued governing captive coal blocks, it was submitted that the said guidelines superseded the earlier guidelines issued in this regard including additional guidelines issued CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 68 of 429 in the year 2003.
67. It was further submitted that prosecution has also miserably failed to prove that A-3 H.C. Gupta was in any manner a trustee of the coal blocks so allotted or was in any manner entrusted with any control or dominion over the said coal blocks. Prosecution was also stated to have miserably failed in proving existence of any mens rea on the part of A-3 H.C. Gupta or any pecuniary advantage having been obtained by them in the entire process so as to constitute the offence of criminal misconduct as defined under section 13 (1) (d) P.C. Act, 1988. It was also submitted that prosecution was required to prove that the acts of A- 3 H.C. Gupta were with "Zero Public Interest" and which it has clearly failed to prove.
68. It was also submitted that in view of the judgment pronounced by this Court in the case CBI Vs. M/s KSSPL wherein also the present accused A-3 H.C. Gupta arrayed as A-4 was held guilty on similar facts so the accused claims the protection of Double Jeopardy u/s 300 Cr.PC.
A-3 H.C. Gupta was thus prayed to be acquitted.
69. In support of his submissions for A-3 H.C. Gupta, Ld. Sr. Advocate Sh. Mohit Mathur placed reliance upon the following case law:
S. Case Title Citation No. 1. UOI Vs. Major J.S. Khanna 1972 (3) SCC 873 2. S.P. Bhatnagar Vs. State of Maharashtra 1979 (10 SCC 535) CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 69 of 429 3. S.K. Kale Vs. State of Maharashtra 1977(2) SCC 394 4. State of Maharashtra Vs. S.N. Thapa 1996 (4) SCC 659 5. C. Chenga Reddy and Ors. Vs. State of AP 1996 (10) SCC 193 6. R. Sai Bharathi Vs. J. Jayaalalitha & Ors. 2004 (2) SCC 9 7. Indira Dalal Vs State of Haryana (2015) 11 SCC 31 8. John Pandian Vs. State 2010 (14) SCC 129 9. State Vs. Nalini & Ors. (1999) 5 SCC 253 10 State of Kerala Vs. P. Sugathan (2000) 8 SCC 203 11 L.K. Gupta 2014 SCC Online Del 4036 Delhi High Court 12 Vinay Jain Vs. State 2015 (2) JCC 1427 13 Anil Maheshwari (2013) 136 DRJ 249 Delhi High court 14 K.R. Purshottaman Vs State of Kerela (2005) 12 SCC 631 15 Velji Raghavi Patel Vs. State of Maharashtra AIR 1965 SC 1433 16 S.W. Palaniktar Vs. State of Bihar 2002 (1) SCC 241 17 Alagiri and Anr. Vs. State 1996 CrLJ 2978 18 Jiwan Dass Vs. State of Haryana 1999(2) SCC 530 19 L. Chandraiah Vs. State of A.P 2003 (12) SCC 670 20 R. Balakrishna Pillai Vs. State of Kerala 2003 (9) SCC 700 21 Radha Pisharassiar Amma Vs. State of Kerala 2007 (13) SCC 410 22 Shreekantia Ramayya Munipalli Vs. State of AIR 1955 SC 287 Bombay 23 Amrik Singh Vs. State of Pepsu AIR 1955 SC 309 24 Matajog Dobey Vs. H.C. Bhari 1955(2) SCR 925 25 State of Madhya Pradesh Vs. Sheetla Sahai & 2009 (8) SCC 617 Ors. 26 Prof. N.K. Ganguly Vs. CBI 2016 (2) SCC 143 27 Runu Ghosh Vs. CBI 2011 SCC Online (Delhi) 5501
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 70 of 429 28 J. Jayalalitha Vs. State MANU/TN/1423/2 001:
2002-1-LW (Crl.) 37
29 Common Cause Vs. UOI AIR 1999 SC 2979 30 A. Subair Vs. State of Kerala 2009 (6) SCC 587 31 B. Jayaraj Vs. State of Andhra Pradesh 2014 (13) SCC 55 32 P. Satyanarayana Murthy V. District Inspector of 2015 (10) SCC 152 Police, State of Andhra Pradesh 33 N. Sunkanna Vs. State of Andhra Pradesh 2016 (1) SCC 713 34 C.K. Jaffer Sharief Vs. State through CBI (2013) 1 SCC 205 35 UOI Vs. J. Ahmed (1979) 2 SCC 286 36 Abdulla Mohd. Pagarkar Vs. State (1980) 3 SCC 110 37 Surinder Kaur Vs. State of Haryana (2014) 15 SCC 109 38 C.K. Damodaran Nair Vs. Govt of India 1997 (9) SCC 477 39 A. Sivaprakash Vs State of Kerala 2016 SCC online SC 482 40 Subhash Prabat Sonvane Vs State of Gujrat (2002) 5 SCC 86 41 Narender Singh Vs. State of MP 2004 (10) SCC 699 42 Kanhai Mishra Vs. State of Bihar 2001 (3) SCC 451 43 Bipin Shanilal Panchal Vs. State of Gujrat & Anr. (2001) 3 SCC 1 44 Rakesh Mohindra Vs. Anita Beri 2015 SCALE (12) 412 45 Ramji Dayawala & Sons (P) Ltd. VS. Invest 1981 AIR 2085 SC :
Import (1981) 1 SCC 80
46 Jamal Uddin Ahmed Vs. Abu Saleh Najmuddin 2003 (4) SCC 257
and Anr.,
47 Sarwan Singh Vs. State of Punjab AIR 1957 SC 637
48 Narender Singh and Anr. Vs. State of MP 2004 (10) SCC 699
49 Bhagirath Vs.State of Madhya Pradesh 1976 (1) SCC 233
50 Ravindra Kumar Dey Vs. State of Orissa (1976) 4 SCC 233
51 TSR Subramanian & Ors. Vs. UOI & Ors. (2013) 15 SCC 732
52 Commissioner of Police Vs. Gorhandas Bhanji AIR 1952 SC 16
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 71 of 429 53 Mohinder Singh Gill Vs. The Chief Election AIR 1978 SC 851, Commissioner New Delhi and Ors. (1978) 1 SCC 405 54 Villianur Iyarkkai Padukappu Maiyam Vs. Union (2009) 7 SCC 561 of India 55 Jugraj Singh and Anrs. Vs. Jaswant Singh and AIR 1971 SC 761, Ors. (1970) 2 SCC 386 56 Twarku Vs. Surti AIR 1997 H.P 76 57 Kartar Singh Vs. DDA and Anr. AIR 2000 Delhi 184 58 Ashok Kumar Aggarwal Vs. CBI (2016) 227 DLT (CN B) 12 59 Hori Ram Singh vs The Crown AIR 1939 FC 43 60 Ronald Wood Mathams vs State of West Bengal (1995) 1 SCR 216 61 Om Prakash Gupta vs State of U.P. 1957 SCR 423.
62 K. Satwant Singh vs State of Punjab 1960 (2) SCR 89 63 Baijnath Gupta vs The State of Madhya (1965) SCR 210 Pradesh 64 Harihar Prasad Etc vs State of Bihar (1972) 3 SCC 89 65 B. Saha & Ors vs M.S. Kochar (1979) 4 SCC 177 66 P.K. Pradhan vs State of Sikkim (2001) SCC (Cri) 1234 67 State of H.P. vs M.P. Gupta (2004) 2 SCC 349 68 Parkash Singh Badal vs State of Punjab & Ors (2007) 1 SCC 1 69 State of U.P. vs Paras Nath Singh (2006) 6 SCC 372 70 Rajib Ranjan & Ors vs R. Vijay Kumar (2015) 1 SCC 513 71 Inspector of Police & Anr. Vs Battenapatla 2015 SCC Online SC Venkata Ratnam &Anr. 339 72 Harchand Singh and Another vs State of (1974) 3 SCC 397 Haryana 73 Paramjit Singh vs IOCL & Ors WP(C) No. 823/12 D.O.D. 31.07.2017 74 Rajeev Kumar Goyal & Ors Vs State Through 2014 SCC Online Del CBI 4036 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 72 of 429 75 National Institute of Mental Health and Neur 1992 (Suppl) 2 SCC Sciences vs K Kalyana Raman 481 76 Dalpat Abasaheb & Ors vs Dr. B.S. Mahajan & (1990) 1 SCC 305 Ors 77 Chellor Mankkal Narayan Ittiravi Nambudiri vs AIR 1953 SC 478 State of Travancorecochin 78 Aligiri & Anr. Vs State by Inspector of Police, E- 1996 Cri.L.J 2978 1 P.S. Madurai 79 Halsbury's Laws of England, 2nd Edition, (1988) 3 SCC 467 Volume-9 80 Municipal Board, Bareilly vs Bharat Oil (1990) 1 SCC 311 Company and Others 81 Sanjay vs State of Maharashtra CA(Apl) No. 716 of 2016 Arguments on behalf of A-4 Basant Kumar Bhattacharya
70. As regard A-4 Basant Kumar Bhattacharya, it was submitted by Ld. Senior Advocate Ms. Sonia Mathur that prosecution has miserably failed to prove its case against him. It was submitted that A-4 Basant Kumar Bhattacharya has been arrayed as an accused by prosecution primarily on the basis of his noting dated 02.07.2008 while stating that the same was made by accused as part of a larger conspiracy so as to facilitate M/s VISUL in procuring allotment of a coal block from Ministry of Coal, Government of India. It was submitted that the said noting as per the admitted case of prosecution itself did not proceed further beyond the desk of Dy. Secretary (Mines) Sh. S.K. Sorang. It was thus submitted that when the said noting was not at all acted upon thereafter so it cannot be argued that the same was made by A-
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 73 of 429 4, Basant Kumar Bhattacharya as a part of any conspiracy. It was also submitted that the said noting commenced with the words "Aap se Yatha Vimarshit" and when the said noting was put up before Dy. Director (Mines) Sh. R.N. Prasad then he simply forwarded it without any objection. It was thus submitted that this act of forwarding the note by Sh. R.N. Prasad Dy. Director (Mines) clearly shows that the noting in question was made by A-4, Basant Kumar Bhattacharya after discussion with him. It was thus submitted that in these circumstances picking up of A-4, Basant Kumar Bhattacharya as one of the conspirator clearly speak volumes about the malafide nature of investigation carried out by CBI in the present matter.
71. Various notings in the files of Government of Jharkhand were also pointed out to show that not only PW 6 Sh. Jai Shankar Tiwary shortlisted various companies on the basis of certain parameters chosen by him only for being recommended for allocation of coal blocks but even otherwise the said recommendations were also subsequently changed by the Chief Minister. It was also submitted that even after the recommendations of Government of Jharkhand were sent to MOC, the name of one more company i.e. M/s Bihar Sponge Iron Ltd. was added pursuant to orders of Chief Minister. It was submitted that subsequently when the request of M/s Sarthak Industries, Bihar Caustics and M/s Kalyanpur Cement Limited were received in Department of Mines for consideration then despite the fact that Dy. Secretary (Mines) Sh. S.K. Sorang observed that there is no requirement of considering the applications now as the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 74 of 429 recommendations of Government of Jharkhand have already been sent but still the then Secretary (Mines) PW-6, Sh. Jai Shankar Tiwary observed vide his note dated 31.01.2008 that as to why there is no requirement. It was subsequent to the said observation of PW-6, Jai Shankar Tiwary that when the file again reached the desk of Sh. S.K. Sorang Dy. Secretary (Mines) then he vide his note dated 04.04.2008 stated that before making any recommendation approval of Chief Minister can be obtained and thereafter PW-6, Jai Shankar Tiwary vide his note dated 07.04.2008 observed as to what will be the criteria for removing or deleting the name(s) of the companies already recommended. Thereafter when on 17.05.2008 Dy. Secretary Sh. S.K. Sorang while processing the file qua M/s Bihar Caustic observed that for sending recommendations of other companies prior approval of State Government is necessary then Secretary PW 6 Jai Shankar Tiwary noted that there is no requirement.
72. In the light of the aforesaid notings recorded by various officers it was submitted by Ld. Senior Advocate that when no illegality or criminality was found in the notings of other officers then there was no reason to pick and choose A-4, Basant Kumar Bhattacharya as being a co-conspirator and that too on the basis of his note dated 02.07.2008. It was also submitted that said note dated 02.07.2008 was initiated by A-4 Basant Kumar Bhattacharya on the directions of Dy. Director (Mines) and the reasons for which Dy. Director (Mines) directed A-4, Basant Kumar Bhattacharya to initiate the note was that on 27.06.2008 M/s VISUL was recommended for allotment of Kurta CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 75 of 429 Iron Ore Mine by Department of Mines. It was again reiterated that even otherwise as the said note dated 02.07.2008 of A-4, Basant Kumar Bhattacharya did not proceed beyond the desk of Dy. Secretary Sh. S.K. Sorang so no illegality or criminality can be read into the said note as against A-4 Basant Kumar Bhattacharya.
73. It was also submitted that prosecution has sought to allege that A-4, Basant Kumar Bhattacharya concealed material information in his note dated 02.07.2008 since he did not disclose that a committee comprising of three secretary level officers was constituted for making recommendation qua coal block and that it had recommended that M/s VISUL could be considered only for coal linkage. It was however submitted that the aforesaid allegation was not factually correct as no such committee was in existence when the said note was prepared and even otherwise the recommendation of Government of Jharkhand was not made by the said committee but was made only under the signatures of Secretary and Dy. Secretary, Government of Jharkhand.
74. As regard the allegation that there is nothing on record which could show as to how A-4, Basant Kumar Bhattacharya got knowledge about the current status of M/s Zoom Vallabh Steel Ltd., it was submitted that M/s Zoom Vallabh Steel Ltd. had not entered into any MOU with State Government and thus the question of any progress being made by it towards setting up of industry did not arise as signing of MOU with the State Government was a pre-condition for making / taking any steps towards setting up of industry in the State. It was also submitted that before putting up note dated 02.07.2008, A-4 Basant CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 76 of 429 Kumar Bhattacharya had prima facie satisfied himself from the record about correctness of the facts mentioned in the comparative chart prepared with respect to 34 applications for "Rajhara Coal Block". It was also submitted that no official of the department had even otherwise raised any objection as to the contents of the said two charts.
75. It was also submitted that the sanction accorded by State Government u/s 19 of Prevention of Corruption Act, 1988 and also sanction u/s 197 Cr.Pc to prosecute A-4 Basant Kumar Bhattacharya was also defective in nature in as much as correct facts were not presented before the competent authority. It was submitted that the relevant notings stated to have been made by the accused were not placed before the competent authority. On account of defective sanction A-4, Basant Kumar Bhattacharya was in fact prayed to be discharged.
76. It was also submitted that the present case of alleged conspiracy is based on circumstantial evidence and prosecution has miserably failed to prove each of the said circumstance so conclusively that the only inference arising from the said chain of circumstances is towards the guilt of the accused only or that the said circumstances are inconsistent with the innocence of the accused.
A-4, Basant Kumar Bhattacharya was thus prayed to be acquitted.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 77 of 429
77. In support of her submissions Ld. Senior Advocate Ms. Sonia Mathur for A-4 B.K. Bhattacharya placed reliance upon the following case law:
S. Case Title Citation No. 1 L. Narayana Swamy vs State of Karnataka & (2016 ) 9 SCC 598 Ors 2 Parkash Singh Badal vs State of Punjab & Ors (2007) 1 SCC 1 3 Abhay Singh Chautala vs CBI (2011) 7 SCC 141 4 Haryana Financial Corp. & Anr vs M/s 2002 (3) SCC 496 Jagdamba Oil Mils & Anr 5 Deepak Bhandari vs Himachal Pradesh State 2015(5) SCC 518 Industrial Development Corporation Ltd 6 MCD vs Gurnam Kaur 1989 (1) SCC 101 7 State of UP & Anr vs Synthetics & Chemicals 1991(4) SCC 139 Ltd & Anr 8 Arnit Das vs State of Bihar 2000 (5) SCC 488 9 R.S. Nayak vs A.R. Antulay. (1984) 2 SCC 183 10 Bramha Swaroop Saini vs State of M.P. 2011 (3) MPLJ 144 11 Mansukhlal Vithaldas Chauhan vs State of 1997 (7) SCC 622 Gujarat 12 Gokuldas Dwarkadas Morarka vs King AIR 1948 PC (82) 13 State of Karnataka vs Ameerjan (2007) 11 SCC 273 14 Mohd. Iqbal Ahmed vs State of Andhara 1979 AIR (SC) 677 Pradesh 15 Tirath Prakash (Deceased through L.R.) vs 2001 CrlJ 4028 State 16 K.C. Singh vs CBI Crl. Appeal No. 976/2010 17 Ashok Kumar Aggarwal Vs. CBI (2016) 227 DLT (CN B) 12 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 78 of 429 18 C.Chenga Reddy and Ors vs State of A.P. 1996 (10) SCC 193 19 Sharad Birdhichand Sarda vs State of AIR 1984 SC 1622 Maharashtra 20 Sujit Biswas vs State of Assam 2013 (12) SCC 406. 21 K.R. Purushothaman vs State of Kerala 2005 (12) SCC 631 22 State of M.P. vs Sheetla Sahai 2009 (8) SCC 617. 23 Sawal Das vs State of Bihar 1974 (4) SCC 193. 24 Abdul Sufan vs The State of Tripura 2010 CriLJ 805. 25 Babu vs State of Kerala (2010) 9 SCC 189. 26 Vikramjit Singh @ Vicky vs State of Punjab (2006) 12 SCC 306 27 S.L. Goswami vs State of Madhya Pradesh 1972 (3) SCC 22 28 T. Subramanian vs State of T.N. 2006 1 SCC 401 29 Jose vs The Sub-Inspector of Police, Koyilandy 2016 (9) SCALE 455 and ors 30 Raj Kumar Singh @ Raju @ Batya vs State of (2013) 5 SCC 722 Rajasthan 31 V.D. Jhangan vs State of Uttar Pradesh AIR 1966 SC 1762 32 C.M. GirishBabu vs CBI, Cochin, High Court of 2009 (3) SCC 779 Kerala 33 Runu Ghosh vs CBI Crl. Appeal 482, 509, 536 of 2002 34 A. Siva Prakash vs State of Kerala 2016 (5) SCALE 53. 35 Anil Maheshwari & Ors vs CBI 2013 (136) DRJ 249 36 Inspector Prem Chand vs Govt. of NCT of Delhi 2007 (20 SCC (L&S) 58. & Ors 37 Narayan Govind Gavate vs State of 1977 (1) SCC 133. Maharashtra 38 Francis Hector vs Emperor AIR 1937 (All) 182 39 Narain vs State AIR 1959 SC 484 40 Tomaso Bruno & anr vs State of Uttar Pradesh 2015 (7) SCC 178. 41 State of Himachal Pradesh vs Rajinder Alias 2012 (1) Shim LC 258
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 79 of 429 Raju and Another 42 Noor Agha vs State of Punjab 2008 (16) SCC 417 43 Jasbir Singh Chhabra and Ors vs State of 2010 (4) SCC 192.
Punjab and Ors 44 Sethi Auto Service Station vs Delhi 2009 (1) SCC 180 Development Authority 45 State of M.P. vs Sheetla Sahai 2009 (8) SCC 617 Arguments on behalf of A-5 B.B. Singh, Director Mines, Government of Jharkhand.
78. As regard A-5 B.B. Singh it was submitted by Ld. Counsels Sh. Siddharth Aggarwal and Sh. Akhand Pratap Singh that the prosecution has sought to rope in A-5 B.B. Singh in the alleged criminal conspiracy on the basis of certain official notings made by the accused in due discharge of his official duties. It was submitted that while no illegality much less any criminality could be found in the said notings made by A-5 B.B. Singh but even otherwise prosecution has miserably failed to establish any malice on the part of A-5 B.B. Singh in making the said notings. It was also submitted that A-5 B.B. Singh being Director Mines had no role at all as a decision maker towards the allocation of coal blocks. Various notings made by different officers in the Government of Jharkhand were also highlighted to emphasize that A- 5 B.B. Singh had infact merely processed the notings which were put up before him by his junior officers and since the final decision was to be taken at the level of Secretary and above so there was no reason for A-5 B.B. Singh to not forward any such notings as and when put up before him. Ld. Counsels also referred to various correspondence CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 80 of 429 made by Government of Jharkhand to MOC while recommending one or the other company with respect to coal blocks situated in the State of Jharkhand. The initial letter dated 30.11.2007 written by the then Chief Secretary Government of Jharkhand Sh. P.P. Sharma in favour of Bihar Sponge Iron Ltd. for allocation of Machcharkunda coal block i.e. even prior to the time when Government of Jharkhand sent its first set of recommendation to MOC in December 2007, vide letter dated 08.12.2007 was also pointed out.
79. It was also pointed out that while in the initial recommendations sent to MOC by Government of Jharkhand, the name of Bihar Sponge Iron Ltd. was not recommended for any coal block but subsequently in January 2008, the name of Bihar Sponge Iron Ltd. was again added for Machcharkunda coal block on the directions of Chief Minister, Madhu Koda and revised recommendations were sent to MOC vide letter dated 16.01.2008. It was thus highlighted that the recommendations being made by Government of Jharkhand were being repeatedly revised as there were neither any directions nor guidelines from MOC as to on what basis the recommendations are to be made or that recommendations once sent cannot be changed or revised.
80. It was also submitted that subsequently when the applications of M/s Sarthak Industries Ltd, M/s Kalyanpur Cement Ltd. and M/s Bihar Caustic were being considered in January 2008 then A-5 B.B. Singh in the files observed that as the recommendations have already been sent so the applications of the said companies should CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 81 of 429 not be processed further. However the then Secretary Mines i.e. PW-6 Jai Shankar Tiwary did not approve the said observations of A-5 B.B. Singh and rather raised a query as to why it is not necessary, meaning thereby that if the recommendations have been once sent then it does not mean that other companies could not be considered. It was thus submitted that pursuant to the said observations of Secretary Mines, the file was sent to the Directorate again and it was again observed that as recommendation qua M/s Mukund Ltd. and Zoom Vallabh Steel Ltd. have already been sent to MOC on behalf of Government of Jharkhand so in case of sending recommendation of any other company now the prior approval of State Government was essential. It was thus submitted by Ld. Counsel that on all such occasions the file when came to the desk of A-5 B.B. Singh the same was simply forwarded as all the decisions were to be taken at the level of Secretary or above i.e. at the level of Government.
81. As regard the allegations that the Mines Department could not have knowledge of the progress report of industries as the said matter pertained to Industries Department, it was submitted that after a MOU is entered into by any entity with the State Government with respect to establishing any industry in the State then the progress made towards establishing the industry after the MOU is executed is regularly monitored by the State Government in Department of Industries. In this regard Department of Industries which was authorised to review the progress used to regularly call review meetings and in which Department of Mines was an important stake holder and its officers CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 82 of 429 thus used to regularly attend such meetings. It was also submitted that in fact Department of Mines and Industries were situated in the same building and even had there offices on the same floor and thus they had a free flow of information between them and could call for the files of each other Department even without formal written orders. Reference in this regard was made to the deposition of PW-6 Jai Shankar Tiwary.
82. As regard the fact as to how A-5 B.B. Singh came to know about the final recommendations made by the Screening Committee, it was submitted that when the matter was put up on 28.07.2008 by A- 5 B.B. Singh then it has clearly been established on record that the file was put up at the asking of PW-18 K.K. Khandelwal who was well aware of the recommendations of the Screening Committee. Reference in this regard was made to the deposition of PW-18 K.K. Khandelwal and that of PW-38 Insp. Vijai Chettiar.
83. As regard the occasion for putting up a note regarding the progress made by M/s Mukund Ltd. and M/s VISUL it was submitted that during the course of evidence and from the record produced by prosecution, it has clearly been proved that the notings so made were factually correct as regard the progress made by the two companies.
84. As regard the issue that M/s VISUL was proposed to be recommended only for allotment of coal linkage by PW-6 Jai Shankar Tiwary on account of its small requirement of coal but was finally recommended for the allotment of a coal block, it was submitted that CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 83 of 429 neither A-5 B.B. Singh attended any Screening Committee meeting nor in the Government of Jharkhand he was holding any decision making position and thus it was for Secretary Mines PW-18 K.K. Khandelwal to explain as to in what circumstances M/s VISUL was recommended for allotment of a coal block.
85. It was also submitted by Ld. Counsels that even otherwise the note dated 28.07.2008 was recorded by A-5 B.B. Singh much after the common object of the criminal conspiracy in question was already achieved i.e. recommendation of the Screening Committee were already approved by the Prime Minister as Minister of Coal. It was thus submitted that any act if done by a person after the common intention shared by the conspirators has come to an end can not make the person a conspirator.
86. In the aforesaid circumstances, it was thus submitted that in the present case which is primarily based on circumstantial evidence, the prosecution has miserably failed to prove each of the circumstances beyond shadows of all reasonable doubts much less to prove that the said circumstances form a chain which is consistent with the guilt of accused or the said circumstances are not explainable on a hypothesis consistent with the innocence of A-5 B.B. Singh.
A-5 B.B. Singh was thus prayed to be acquitted.
87. In support of their submissions Ld. Counsels for A-5 B.B. Singh relied upon the following case law:
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 84 of 429 S Case title Citation No CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 85 of 429 1 State vs Nalini & Ors (1999)5 SCC 253 2 Kehar Singh and others vs. State (Delhi (1998)3 SCC 609 Administration) 3 Arun Kumar Agarwal vs. Union of India & Ors (2014) 2 SCC 609 4 Yogesh @ Sachin Jagdish Joshi vs State of (2008) 10 SCC 394 Maharashtra 5 State of Madhya Pradesh vs Sheetla Sahai & Ors (2009) 8 SCC 617 6 P.K. Narayanan vs State of Kerala (1995) 1 SCC 142 7 Saju vs State of Kerala (2001) 1 SCC 378 8 V.C. Shukla vs State (Delhi Administration) (1980) 2 SCC 665 9 Eshar Singh vs State of A.P. (2004) 11 SCC 585 10 State of Kerala vs P. Sugathan & Anr (2000) 8 SCC 203 11 Takhaji Hiraji vs Thakore Kubersing Chamansing & (2001) 6 SCC 145 Ors 12 Administration of Union Territory of Dadar and 2005 SCC Online Nagar Haveli vs Maganbhai Laxmibhai Vartha & Anr Bom 614; 2005 Cri.L.J 3359 [DB] 13 Noor Aga vs State of Punjab & Anr (2008) 16 SCC 417 14 Common Cause, A Registered Society vs Union of (1999) 6 SCC 667 India 15 Nathia vs State (2016) 10 SCC 298 16 Subramaniam Swamy vs A. Raja (2012) 9 SCC 257 17 M/s Doypack Systems Pvt. Ltd. vs Union of India & (1988) 2 SCC 299 Ors 18 Jasbir Singh Chhabra & Ors vs State of Punjab & (2010) 4 SCC 192 Ors 19 Vivek Batra vs Union of India & Ors (2017) 1 SCC 69 20 Bachhittar Singh vs State of Punjab & Anr AIR 1963 SC 395 21 Sethi Auto Service Stations & Anr vs Delhi (2009) 1 SCC 180 Development Authority 22 Harbeer Singh vs Sheeshpal & Ors (2016) 16 SCC 418 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 86 of 429 23 Ashok Vishnu Davare vs State of Maharashtra (2004) 9 SCC 431 24 Baldev Singh vs State of Punjab (2014) 12 SCC 473 25 Sunil Kumar Shambhudayal Gupta (Dr.) & Ors vs (2010) 13 SCC 657 State of Maharashtra 26 Jaswant Singh vs State of Haryana (2000) 4 SCC 484 27 State of West Bengal & Ors vs Shivanand Pathak & (1998) 5 SCC 513 Ors 28 State of Bihar & Anr vs P.P. Sharma, IAS & Anr (1992) Supp. 1 SCC 222 29 State of Maharashtra vs Ishwar Piraji Kalpatri & Ors (1996) 1 SCC 542 30 Mohmad Iqbal vs Deputy Secretary (Govt. of NCT of 2005 (83) DRJ 624 Delhi) Arguments on behalf of A-6 A.K. Basu.
88. As regard A-6 A.K. Basu it was submitted by Ld. Sr. Advocate Sh. Sukumar Pattjoshi and Ld. Counsel Sh. K.K. Patra that from the files of Government of Jharkhand as have been placed on record by the prosecution, it is clear that prime consideration for making recommendation in favour of any company qua any given coal block was execution of Memorandum of Understanding (MOU) by the said company with Government of Jharkhand. It was pointed out that on this account only from out of 34 applicant companies only 8 companies including M/s VISUL was separated out by A-5, B.B. Singh, Director, Department of Mines, Government of Jharkhand vide his note dated 20.09.2007 Ex. P-20. It was submitted that only thereafter the said 8 companies were further considered as to whether they have been already allotted any coal block or on account of any CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 87 of 429 other factor their name ought not to be recommended. It was submitted that while name of M/s VISUL was not considered for allocation of a coal block as its requirement for coal was less but name of M/s Zoom Vallabh Steel Ltd. was considered as the company had entered into a MOU with Government of Jharkhand in the name of M/s Vallabh Steel Limited. Thus it was in these circumstances that the names of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. were proposed to be recommended for allocation of "Rajhara Coal Block"
and after approval of the said recommendation by Chief Minister the same was sent to MOC vide letter dated 07.12.2007 Ex. PW 6/A. Ld. Counsel Sh. K.K. Patra however submitted that name of M/s Zoom Vallabh Steel Limited was wrongly recommended as it had not executed any MOU with Government of Jharkhand since M/s Vallabh Steel Limited was a different legal entity and whose MOU with Government of Jharkhand could not have been taken into consideration qua M/s Zoom Vallabh Steel Limited. It was also pointed out that vide letter dated 07.12.2007 name of M/s Sunflag Iron and Steel company was recommended qua Macharkunda coal block but subsequently vide letter dated 16.01.2008 name of M/s Bihar Sponge Iron Limited was also recommended for Macharkunda coal block. It was however pointed out that even the recommendation of M/s Sunflag Iron and Steel company for Macharkunda coal block was contrary to noting dated 04.12.2007 of PW-6 Jai Shankar Tiwary wherein it was stated that name of said company ought not to be considered in view of negligible progress on ground. Thus from the aforesaid factual record as contained in the files of Government of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 88 of 429 Jharkhand it was sought to be argued that while initial recommendation of Government of Jharkhand as was communicated to MOC vide letter dated 07.12.2007 was without any basis and reason but even the subsequent addition of name of M/s Bihar Sponge Iron Limited vide revised recommendation dated 16.01.2008 was also without any reasons having been recorded in the file. Reference in this regard was made to the deposition of PW 6 Jai Shankar Tiwary.
89. As regard the choice of M/s VISUL over other companies for allocation of a coal block it was submitted that on 26.05.2008 i.e. few days before the Screening Committee meeting held on 03.07.2008 the MOU extension file of M/s VISUL was put up before A-6 A.K. Basu by PW 18 Sh. K.K. Khandelwal vide his note dated 23.05.2008. In the said note PW 18 had strongly recommended for extension of MOU of M/s VISUL on the ground that company had acquired 70 acres of land, already made arrangements with State Electricity Board for supply of power, applied to Jharkhand State Pollution Control Board and supply orders for machines and equipments were already made to different agencies. It was thus submitted that as in the Screening Committee meeting PW 18 Sh. K.K. Khandelwal was duly present along with accused A.K. Basu and as by that time PW 18 Sh. K.K. Khandelwal was holding dual charge of Secretary (Industries) and Secretary (Mines), Government of Jharkhand so he was having knowledge about the progress made and day to day functioning of the applicant companies.
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90. Ld. Counsel Sh. K.K. Patra also submitted that as the parameters for consideration of the applications for making recommendation to MOC were different for Ministry of Steel (MOS) and State Governments so while MOS was in favour of bigger plants and their concern was only as regard the production capacity of the proposed plant but on the other hand, State Governments were in favour of small companies which could generate employment for local people and may lead to socio-economic development of the State. It was also submitted that MOS had admittedly not verified the claims made by applicant companies in their applications and thus had no idea of the ground situation of the progress made by the companies. Reference in this regard was made to the deposition of PW 26 Sh. N R Dash, Director, MOS and that of PW 29 Sh. Udai Pratap Singh, Joint Secretary, MOS.
91. In the aforesaid circumstances, it was submitted that as PW 18 Sh. K.K. Khandelwal was present throughout the meeting having signed the recommendation sheet which was prepared at the end of the meeting so all information regarding progress made by the applicant companies was very much available in the meeting. Accordingly, A-6 A.K. Basu, Chief Secretary, Government of Jharkhand placed the factual position of the applicant companies and policies of Government before the Screening Committee and the reasons for his opinion. Accordingly after detailed deliberations and discussions recommendation of Screening Committee were arrived at unanimously.
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92. It was also submitted that subsequently PW 18 Sh. K.K. Khandelwal admittedly attended the meeting called by Joint Secretary (Coal) on 04.07.2008 regarding sharing of coal reserves amongst joint allocatee companies where issue of sharing of coal between joint allocatee companies was discussed and no objection was raised even at that time by PW-18 K.K. Khandelwal qua allocation of "Rajhara Coal Block" to M/s VISUL.
93. As regard events subsequent to post Screening Committee meeting held on 03.07.2008 it was submitted that when the file Ex. PW 2/B (Colly) (D-82) relating to extension of MOU executed with M/s VISUL was put up before A-6 A. K. Basu on 16.07.2008 i.e. just few days after the Screening Committee meeting held on 03.07.2008 then the said file was forwarded to Chief Minister by him. Thereafter Chief Minister, A-7 Madhu Koda approved the note on 24.07.2008 and the file was sent back to Department of Industries on 26.07.2008. Thereafter the concerned section again put up the file to Secretary, Industries through Additional Director and Director (Industries) on 28.07.2008 itself. However PW-18 K.K. Khandelwal while displaying extra-ordinary urgency approved the file on 28.07.2008 itself and the consequent MOU extension letter was issued to M/s VISUL on 28.07.2008 itself. However on the same day PW-18 K.K. Khandelwal also put up another file i.e. Ex. PW 3/B (Colly) (D-140) regarding recommendation made by Screening Committee for joint allocation of "Rajhara Coal Block" to M/s Mukund Ltd. and M/s VISUL and though he stated in his deposition that the file was put up on the directions of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 91 of 429 Chief Secretary but there was no written or verbal directions noted in the file in this regard. It was thus submitted that such a oral statement contrary to the written record cannot be given any credence. It was also submitted that in fact from a bare perusal of the record, it is clear that PW 18 Sh. K.K. Khandelwal took the file himself right up to Chief Minister by hand and after approval by Chief Minister presented it before Chief Secretary i.e. A-6 A.K. Basu for signing of letter dated 28.07.2008 Ex. P-15. This fact was stated to be clear from the fact that file was not sent to personal staff of Chief Secretary and as a result no diary number for receipt of file of the date 28.07.2008 is mentioned on the file. It was also pointed out that PW 18 K.K. Khandelwal has made material improvements over his earlier statements made to CBI u/s 161 Cr. PC in order to save his own skin.
94. It was thus submitted that from the over all facts and circumstances it was clear that A-6, A.K. Basu had merely placed before the Screening Committee all the true and correct facts as were brought to his knowledge by PW 18 K.K. Khandelwal and the final decision regarding allocation of "Rajhara Coal Block" in favour of M/s Mukund Ltd. and M/s VISUL was arrived at after due deliberations and discussions in the Screening Committee. It was also submitted that as all the aforesaid acts were done by A-6, A.K. Basu in due discharge of his official duty so cognizance of any offence under IPC against him was clearly bad in law for want of sanction u/s 197 Cr. PC. It was also submitted that prosecution has also miserably failed to bring on record any legally admissible evidence against A-6, A.K. Basu to show that CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 92 of 429 he entered into any criminal conspiracy with other co-accused persons. It was thus submitted that prosecution was merely trying to draw certain presumptions on the basis of conjectures and surmises in order to prove the guilt of accused and such a course of action was certainly not permissible in law.
A-6 A.K. Basu was thus prayed to be acquitted.
95. Ld. Sr. Advocate Sh. Sukumar Pattjoshi and Ld. Counsel Sh. K.K. Patra for A-6 A.K. Basu, in support of their submissions relied upon the following case law.
S. Case Title Citation
No.
1 Surinderjit Singh Mand & Anr. Vs. State of V (2016) SLT 279
Punjab & Anr.,
2 Prof. N.K. Ganguly vs CBI, New Delhi VIII (2015) SLT 693
Arguments on behalf of A-7 Madhu Koda, Chief Minister, Government of Jharkhand.
96. As regard A-7, Madhu Koda who was the then Chief Minister of Government of Jharkhand, it was submitted by Ld. Counsel Sh. Anshuman Sinha and Ld. Counsel Sh. Vijay Kumar Pandey that whatever actions were undertaken by him in the present matter were purely done in good-faith and in an honest manner. It was submitted that whenever the relevant files were put up before him then in the absence of there being any adverse noting in the file, there was no CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 93 of 429 reason for him as Chief Minister to disbelieve the opinion expressed by his officers. It was also submitted that prosecution has clearly failed to prove any malice in the action of accused Madhu Koda and thus even if any such act is found to be wrong, the same having been done in good-faith cannot lead to prosecution of accused Madhu Koda for any offence much less for the offence of criminal misconduct.
97. As regard the statement of A-6 A.K. Basu that in the Screening Committee meeting he stated that he had directions of Chief Minister of State of Jharkhand that M/s VISUL should be alloted "Rajhara Coal Block", it was submitted that deposition of PW 26 Sh. N R Dash, Director, Ministry of Steel (MOS) or that of PW 29 Sh. Udai Pratap Singh, Joint Secretary, MOS to this effect was clearly inadmissible in evidence being hear-say evidence as against A-7 Madhu Koda. It was submitted that as per Section 60, Indian Evidence Act 1872, the oral evidence must be direct. It was thus submitted that deposition of both PW-26 N.R. Dash and PW-29 U.P. Singh becomes hear-say when prosecution sought to establish through their deposition that A-7 Madhu Koda had spoken/directed A-6 A.K. Basu to favour M/s VISUL in the Screening Committee Meeting. It was submitted that their evidence will be admissible only to the extent that such a statement was made by A-6 A.K. Basu in the Screening Committee meeting but not as regard the truthfulness of the said statement so made. It was thus submitted that the said statement/evidence of both the witnesses to this effect cannot be read against A-7 Madhu Koda being hear-say in nature but can be read only against A-6 A.K. Basu.
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98. As regard the charge of criminal conspiracy, it was submitted that prosecution has miserably failed to bring on record any legally admissible evidence which could show that there was any meeting of mind between accused persons or that any act was done by A-7 Madhu Koda towards achieving the common object of criminal conspiracy so hatched by the accused persons.
99. As regard the allegation that State of Jharkhand had earlier not recommended the name of M/s VISUL on account of its small requirement of coal it was submitted that as Chief Minister and as Administrative Head of the State A-7 Madhu Koda had got huge responsibilities and he had to thus rely upon the sound advice of his senior Technical and Administrative officers. It was thus submitted that as Chief Minister it was not possible for A-7 Madhu Koda to examine the correctness of each and every noting which used to be put to him and thus in the present case also in the absence of any adverse noting having been not brought to his knowledge either by Chief Secretary of the State or the concerned Secretary so there was no reason for him to seek any clarification from them as regard the small requirement of coal by M/s VISUL.
100. As regard recommending the name of M/s Bihar Sponge Iron Ltd. for Macharkunda coal block, it was submitted that in the absence of relevant record in this regard having been not placed on record by the prosecution it cannot be stated that A-7 Madhu Koda had applied his mind to the recommendations so made and thus no inference can be drawn in this regard against the accused.
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101. As regard relations of A-7 Madhu Koda with M/s VISUL, it was submitted that again no legally admissible evidence has been brought on record by the prosecution to prove the said issue. It was further submitted that only evidence brought on record by the prosecution in this regard is that A-7 Madhu Koda and A-8 Vijay Joshi were co- accused in one other case and were lodged together in jail in the said case. It was however submitted that the trial in the said other case is still going on and in the absence of any other evidence the said circumstance has also not been fully established and accordingly no adverse inference can be drawn against the accused persons. In the aforesaid circumstances, it was submitted that prosecution has miserably failed to prove its case against A-7 Madhu Koda beyond shadows of all reasonable doubts.
A-7 Madhu Koda was thus prayed to be acquitted.
102. In support of his submissions, Ld. Counsel Sh. Anshuman Sinha for A-7 Madhu Koda placed reliance upon the following case law:
S.No. Case Title Citation 1 Sirros vs Moore and Ors (1974) 3 All ER 776 2 Northern Territory vs Mengel (1995) 69 Aust LJR 527 3 Ashby vs White (1703) 2 LdRaym 938 4 Natwarlal Sakarlal Mody vs State of Bombay (1963) 65 Bom LR 660 5 Regina (House of Lords) 1987 LawSuit (UKHL) 35 6 Arthur Mills and Others (Privy Council) 1995 LawSuit (UKPC) 15 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 96 of 429 Arguments on behalf of A-8 Vijay Joshi
103. As regard A-8 Vijay Joshi, it was submitted by Ld. Counsel Sh. Harsh Kumar Sharma that the very investigation carried out in the present matter in violation of mandatory provisions of Section 5 & 6 of DSPE Act, was bad in law and in express violation of Articles 14 and 21 of Constitution of India. It was submitted that as per the case of prosecution itself the necessary sanction from Government of Jharkhand was obtained only on 10.09.2013 and thus any enquiry/investigation carried out prior to the said date or documents, if collected can not be read into evidence.
104. It was also submitted that prosecution has failed to bring on record any evidence which could show that A-8 Vijay Joshi colluded either with the officers of State of Jharkhand i.e. A-4 Basant Kumar Bhattacharya, A-5 Bipin Bihari Singh and A-6 Ashok Kumar Basu or even with the then Chief Minister of Jharkhand i.e. A-7 Madhu Koda at any point of time. Reference in this regard was also made to the deposition of PW-38 IO Insp. Vijai Chettiar that as on 08.01.2007 when M/s VISUL applied for "Rajhara Coal Block" then at that time accused Vijay Joshi had no concern with the company. He also admitted that even at the time of registration of FIR in the present matter i.e. on 30.09.2012, A-8 Vijay Joshi was not a Director of the company M/s VISUL and that the directors of M/s VISUL between the period 22.03.2007 till 03.09.2012 are not accused in the present case.
105. It was also submitted that from the evidence led on record by CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 97 of 429 the prosecution, it is clear that contents of application of any applicant company seeking allocation of a coal block was never a criteria for any Government Agency be it MOC, Ministry of Steel, Screening Committee etc for recommending the name of the said company for allocation of a coal block. Reference in this regard was made to the deposition of PW-25 Amalendu Khamru, PW-26 N.R. Dash, PW-27 V.S. Rana and PW-29 U.P. Singh. It was also submitted that no evidence has been led by the prosecution which could show that there was any collusion between A-8 Vijay Joshi and the officers of Ministry of Steel or that of Government of Jharkhand, or with A-3 H.C. Gupta so as to procure allocation of a coal block in favour of M/s VISUL.
106. As regard the charge of criminal conspiracy u/s 120-B IPC, it was submitted that prosecution has failed to bring on record any evidence which could show that there was meeting of mind, formulation and joining of thoughts between the accused persons i.e. A-1 M/s VISUL, A-2 Vaibhav Tulsyan, A-3 H.C. Gupta, A-4 B.K. Bhattacharya, A-5 B.B. Singh, A-6 A.K. Basu and A-7 Madhu Koda much less with A-9, Naveen Kumar Tulsyan. It was thus submitted that when prosecution has failed to prove on record any such act or circumstance which could denote existence of any such common criminal intention between the accused persons so no presumption can be drawn as regard existence of any malice or malafides in the acts of accused.
107. Even as regard the offence of cheating, it was submitted that the prosecution has failed to prove on record any fact which could CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 98 of 429 reflect that any act committed by A-8 Vijay Joshi constituted any ingredient of the offence of cheating. It was also submitted that though the prosecution has placed on record a number of documents and have also exhibited them but the same can not be considered as proved as per the provisions of Indian Evidence Act, 1872. Various documents in this regard were thus highlighted in the written submissions as having been not proved by the prosecution even though exhibited during the course of deposition of various prosecution witnesses. It was also submitted that after the time A-8 Vijay Joshi acquired majority shares in A-1 M/s VISUL there has been no allegation of prosecution that any act committed by the company or its directors since the said time constituted any offence or was illegal.
108. As regard sanction u/s 19 P.C. Act and also sanction u/s 197 Cr.PC granted by the competent authority to prosecute A-4 B.K. Bhattacharya and A-5 B.B. Singh, it was submitted that the same was defective in nature as not only the two orders are not speaking orders but even otherwise complete facts and circumstances were not placed before the Competent authority.
109. It was thus submitted that prosecution has completely failed to prove on record the ingredients of either the offence of cheating i.e. 420 IPC or that of the offence of criminal conspiracy i.e. u/s 120-B IPC.
A-8 Vijay Joshi was thus prayed to be acquitted.
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110. Ld. Counsel Sh. Harsh Sharma for A-1 M/s VISUL and A-8 Vijay Joshi in support of his submissions relied upon the following case law:
S. Case Title Citation No. 1 H.N. Rishbud Vs. State of Delhi 1955 (1) SCR 1150 2 SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla & (2005) 8 SCC 89 Anr. 3 Iridium India Telecom Ltd. Vs. Motorola (2011) 1 SCC 74 Incorporated & ors. 4 Sunil Bharti Mittal Vs. CBI 2015 (1) AD (SC) 269 5 Jaswant Singh Vs. State of Punjab AIR 1958 SC 12 6 Mohd. Iqbal Ahmed Vs. State of A.P. AIR 1979 SC 677 7 State of Bihar Vs. P.P. Sharma 1991 Cri.L.J. 1438 8 Virender Pratap Singh Vs. State of UP 1991 Cri.L.J. 1964 9 Mansukhlal Vithaldas Chauhan Vs. State of AIR 1997 SC 3400 Gujrat 10 State of Goa Vs. Babu Thomas 2005 (8) SCC 130 11 Ram Krishan Prajapati Vs. State of UP 2000 (10) SCC 43 12 K. Narsimhachari Vs. State, Inspr. Of Police, 2003 Cri.L.J. 3315 ACB, Cuddapha District 13 Manohar Lal Sharma Vs. Principal Secretary (2014) 9 SCC 516 14 Kehar Singh Vs. State AIR 1983 SC 1883 15 Ram Narain Popli Vs. CBI AIR 2003 SC 2748 16 Sonu @ Amar Vs. State of Haryana Crl. A.No. 1418/2013 D.O.D. 18.07.17 (SC) 17 M/s Sethi Auto Service Station & Anr. Vs. DDA AIR 2009 SC 904
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 100 of 429 Arguments on behalf of A-9 Navin Kumar Tulsyan.
111. As regard A-9 Navin Kumar Tulsyan, it was submitted by Ld. Senior Advocate Sh. N. Hariharan that from the deposition of PW 8 Sh. Dipak Murarka, PW 9 Sh. Manoj Jha, PW 10 Sh. Anubhav Kumar Kanodia and PW 15 Sh. Anil Kumar Khandelwal, it has clearly come on record that the balance sheets of the years 2003-04, 2004-05 and 2005-06 of their respective business entities were provided by them only to M/s VISUL. Moreover, all the said witnesses in their deposition have clearly stated that they intended to be associated with M/s VISUL in the proposed Sponge Iron Plant by way of equity participation. It was also submitted that it is not the case of prosecution that A-9 Navin Kumar Tulsyan was in any manner related to any of the directors/promoters of the various business entities as were mentioned from serial no. 7 to 15 in the certificate dated 04.08.2006. It was also submitted that from the deposition of all these witnesses it is also clear that while the directors/promoters of all the said business entities had given their consent to M/s VISUL for being associated by way of equity participation in their Sponge Iron Plant at Chandil but they had also not restricted the use of various letters, undertakings and balance sheets so given. Meaning of words "Associate" and "Group" as given in www.freedictionary.com and law lexicon and other legal dictionaries were also referred to in order to emphasize that in view of the consent so expressed by the directors/promoters of such other companies to be associated with Sponge Iron Plant of M/s VISUL by way of equity participation they CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 101 of 429 could have been rightly termed as group/associate concerns of M/s VISUL. It was also submitted that A-9 Navin Kumar Tulsyan never knew that the said certificate will be used in support of the application to be submitted by M/s VISUL to MOC seeking allocation of a captive coal block. It was also submitted that certificate in question was prepared by A-9 Navin Kumar Tulsyan as per the requirement of M/s VISUL and in the manner required by them on the basis of documents, letters, undertakings and balance sheets given by them of all the 15 companies/firms as mentioned in the certificate. It was also submitted that from a perusal of original application form as was uploaded on the website of Ministry of Coal (MOC) it is clear that there was no column which required any detail of turnover and net- worth of group companies and that the impugned details were additionally furnished by M/s VISUL by way of inserting extra columns in the application. It was also submitted that even otherwise the certificate so issued by A-9 Navin Kumar Tulsyan was never relied upon by MOC during the course of assessment of proposals/applications in the present matter. Reliance in this regard was also made to the deposition of PW 21 Sh. Swapan De Chaudhary, PW-26 N.R. Dash, PW 27 Sh. V S Rana, PW-29 U.P. Singh and that of PW 38 Inspector Vijai Chettiar.
112. It was also submitted by Ld. Senior Advocate Sh. N. Hariharan that A-9 Navin Kumar Tulsyan had no blood relation with A-2 Vaibhav Tulsyan and the certificate in question was purely issued by him in his professional capacity. It was thus submitted that prosecution has CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 102 of 429 miserably failed to prove on record that there was any meeting of mind between A-9 Navin Kumar Tulsyan and other accused persons much less with A-2 Vaibhav Tulsyan.
The charge of criminal conspiracy was thus clearly stated to be not made out against A-9 Navin Kumar Tulsyan and he was accordingly prayed to be acquitted.
113. Ld. Senior Advocate Sh. N. Hariharan for A-9, Navin Kumar Tulsyan in support of his submissions relied upon the following case law:
S. Case Title Citation
No.
1 Commissioner of Wealth Tax, Andhra Pradesh (1976) 3 SCC 864.
Vs. Officer-In-Charge (Court of Wards) Paigah
2 CBI Hyderabad Vs. K. Narayana Rao (2012) 9 SCC 512
3 Union of India Vs. Prafulla Kumar Samal & Anr. (1979) 3, SCC 4.
4 State (NCT of Delhi) Vs. Navjot Sandhu 2005 (110 SCC 600)
5 Regina Vs. Murphy (173 Eng. Reports
508)
6 Hanumant Govind Nargundkar vs State of MP 1952 SCR 1091
7 Palvinder Kaur vs State of Punjab 1953 SCR 94
8 Charan Singh vs State of UP AIR 1967 SC 52
114. I have carefully perused the record.
115. Before I advert on to discuss the case of prosecution in the light CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 103 of 429 of evidence led on record vis-a-vis the submissions of Ld. Counsels for the accused persons, it will be worthwhile to mention that the present case like other coal block allocation matters is also primarily based on circumstantial evidence. However, the said circumstances are sought to be proved by prosecution mainly from the documents be that of MOC, Screening Committee Ministry of Steel, State Government of Jharkhand or that of company M/s VISUL itself. Thus in order to appreciate the conduct of public servants be that of State Government of Jharkhand or of MOC or even that of private parties who have been now arrayed as accused, various notings as have been recorded in the files of Government of Jharkhand or that of the files of MOC or the proceedings of the Screening Committee beside a number of other documents needs to be referred to in extensio. Thereafter only can it be examined and appreciated as to whether various incriminating circumstances stands conclusively proved against the accused persons or not. It will be also required to be seen as to whether the said incriminating circumstances so proved form such a complete chain of evidence which is consistent only with the hypothesis of guilt of the accused persons or not. In other words whether the said incriminating circumstances are explainable on any other hypothesis consistent with the innocence of accused persons or not.
116. Thus while so discussing and appreciating the role played by various accused persons, the record of the files of Government of Jharkhand and that of MOC will have to be repeatedly referred to and CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 104 of 429 thus there is bound to be repetition and overlapping of discussion qua the said record.
117. It is in this background that before proceeding further, it will be appropriate to reiterate the often repeated observations of Hon'ble Supreme Court regarding cases based on circumstantial evidence, Hon'ble Supreme Court in the case Sharad Birdhichand Sarda (Supra) in para 152, 153 and 154 observed as under:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant V. State of Madhya Pradesh1. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to- date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh17 and Ramgopal v. State of Maharashtra 18. It may be useful to extract what Mahajan, J. has laid down in Hanumant case :
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 105 of 429 circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra19 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendancy, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
Thus in the light of aforesaid well settled principles relating to appreciation of evidence in cases based on circumstantial evidence the facts and circumstances of the present case are required to be examined.
118. In the overall facts and circumstances of the case, I first intend to discuss and examine, the role played by officers of Government of Jharkhand i.e. of A-4 Basant Kumar Bhattacharya, the then Section Officer, Department of Mines, A-5 Bipin Bihari Singh, the then Director, Mines, A-6 A.K. Basu, the then Chief Secretary, Government of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 106 of 429 Jharkhand and A-7 Madu Koda, the then Chief Minister, Government of Jharkhand in the impugned coal block allocation process. The manner in which applications of different applicant companies seeking allocation of captive coal blocks situated in the State of Jharkhand were dealt with at different stages by various officers of Government of Jharkhand, needs to be first seen, understood and appreciated. In fact the said processing of applications has been strongly relied upon by Ld. Counsels for the accused persons also in order to support their contention that whatever actions were taken by different officers of Government of Jharkhand including A-7 Madhu Koda, Chief Minister, were bonafide and taken in good faith only and that no criminality can be read in them. On the other hand prosecution has also relied upon the said processing of applications only to show that the same per-se prove existence of malafides in the actions of accused officers of Government of Jharkhand.
119. Thus during the course of my subsequent discussion, I shall be reproducing various relevant notings of different officers of Government of Jharkhand at appropriate places as the same will not only provide a comprehensive view of the manner in which the applications were dealt with in Govt. of Jharkhand but will also present a clear picture of the role played by different officers of Government of Jharkhand at different point of time.
120. At this stage, I may also put a mark of caution that during the course of entire trial including at the time of addressing final arguments it has been repeatedly stated by Ld. Counsels for the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 107 of 429 accused persons that to frame a given policy is the sole discretion of the Government of the day and the Court cannot substitute its decision/discretion over the decision/discretion exercised by the officers of Government of Jharkhand or that of MOC or even that of Screening Committee. Judicial review of the said decisions was thus stated to be not permissible in law.
121. In this regard, I may however state that Ld. Counsels for the accused persons are certainly right in stating that in the present proceedings this Court cannot substitute its decision/discretion over that of the officers of Government of Jharkhand or that of MOC or even of Screening Committee, who were vested with such discretion and power to take a decision by law and also by virtue of their position. However it can not be stated that actions of no such Government servants is subject to judicial review by the Courts in as much as the existence of malice or malafides in the said decisions can not be looked into. In case it is found that the discretion so exercised or the decisions so taken was ultra-vires i.e. was illegal or was beyond jurisdiction in as much as was beyond the scope of discretion so conferred upon them and was also actuated with malice or was exercised for extraneous considerations or their actions were bridled with criminality, then this Court will be well within its rights to examine the circumstances in which such an exercise of discretion or decision was taken by the public servants concerned. Moreover, in the present proceedings there is no issue of substituting the decision of the officers of Government of Jharkhand or that of MOC or even that of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 108 of 429 Screening Committee with that of this Court and it shall be only examined as to whether the discretion so exercised by them or the decision taken by them was actuated with any malice or malafides and thereby reflecting criminality in their actions or not.
122. At this stage, it would be apt to refer to the following passage of Justice Holmes in United States Vs. Wurzbach 1930 (280) US 396.
"Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk."
123. However the important issue to be taken care of is that once a policy has been laid down by the Government with respect to any matter and the executive branch of the Government is directed to implement the same then it can never be claimed that such action of the executive wing can not be subjected to judicial scrutiny. While every action of the executive can be the subject matter of judicial scrutiny unless specifically barred by statute or law framed in this regard but the Court does raise question-mark over any such decision so taken by the executive wing only if it is found that the same is ultra vires to the guidelines or policy as were laid down by the Government. Thus if such a decision is per-se illegal or is dehors the guidelines or policy laid down governing exercise of such discretion then the Courts of law will be well within their jurisdiction to carry out judicial scrutiny of any such decision or the process of arriving at any such decision. It is in fact this very exercise which was undertaken by Hon'ble Supreme CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 109 of 429 Court vide its detailed order dated 25.08.2014 passed in the case Manohar Lal Sharma V. Union of India, (2014) 9 SCC 516, consequently resulting in cancellation of all such coal blocks allocated by all the 36 Screening Committees of MOC. Hon'ble Supreme Court made detailed observations about the working of all 36 Screening Committees and the minutes recorded by them. Similar observations were recorded by Hon'ble Supreme Court as regard the minutes of 36th Screening Committee also. The same read as under:
"149. In the 36th meeting, which was held on 07.12.2007- 08.12.2007, 07.02.2008-08.02.2008 and 03.07.2008, the Screening Committee considered allocation of 23 coal blocks earmarked for non-power sector. For these 23 coal blocks earmarked for non-power sector, 674 applications were submitted by 184 companies for allocation. Some companies had applied for more than one block and some had submitted more than one application for single block for different end use plants located at different locations. The geological reserve of 23 blocks## was noted by the Screening Committee. The minutes of the 36th meeting show that the Committee decided to recommend blocks earmarked for pig iron (coking coal) jointly to two or more than two companies and nineteen blocks earmarked for other end- uses/non-cooking coal were recommended for allocation to single companies as well as jointly to two or more companies. The minutes of 36th meeting do not contain the particulars showing consideration of each application. There is no assessment of comparative merits of the applicants who were selected for recommendation. The minutes do not disclose how and in what manner the selected companies meet the norms fixed for inter se priority. Many of the selected companies were neither recommended by the State Government nor by the Administrative Ministry. Some of them were recommended by the State Government but not recommended by the Administrative Ministry while one of them was not recommended by the State Government but recommended by the Administrative Ministry. For Rajhara North (Central & Eastern) coal block, Vini Iron & Steel Udyog Ltd. had no recommendation by the State Government or by the Administrative Ministry. Similarly, for Thesgora-B/Rudrapuri coal block, Revati Cement P. Ltd. did not CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 110 of 429 have recommendation either from the State Government or from the Administrative Ministry. As regards Tandsi-III and Tandsi-III (Extn.), Mideast Integrated Steels Ltd. did not have recommendation from the State Government. Similarly, as regards Thesgora-B/Rudrapuri, Kamal Sponge Steel & Power Limited had no recommendation from the State Government. As regards Moira Madhujore coal block, Ramswarup Lohh Udyog Ltd. had no recommendation from the Administrative Ministry.
150. From the above discussion, it is clear that 21 coal blocks stood allocated to private companies in pursuance of Screening Committee's recommendations during the period from the 1 st meeting held on 14.07.1993 till the 21 st meeting held on 19.08.2003. For the period from 04.11.2003 (22 nd meeting) to 18.10.2005 (30th meeting) in pursuance of Screening Committee's recommendations, 26 coal blocks stood allocated to private companies. Following 32nd meeting held on 29.06.2006/30.06.2006 till the 34th meeting on 07.09.2006/08.09.2006, in pursuance of the recommendations made by the Screening Committee, two coking coal blocks were allocated to private companies and twelve non-coking coal blocks were allocated to private companies. In pursuance of the recommendations made by the Screening Committee in 35 th and 36th meetings, 33 coal blocks were allocated to private companies. Some of the coal block allocations made to the private companies have been de-allocated from time to time. For consideration of legality and validity of allocations made to such companies, it is not necessary to deal with de-allocation aspect. It needs no emphasis that assuming that the Central Government had power of allocation of coal blocks yet such power should have been exercised in a fair, transparent and non-arbitrary manner. However, the allocation of coal blocks to the private companies pursuant to the recommendations made by the Screening Committee in 36 meetings suffers from diverse infirmities and flaws which may be summarized as follows:
1st Meeting to 21st Meeting
1.. . . . .
. . . . .
2. . . . . .
. . . . .
3. . . . . .
. . . . .
4. . . . . .
. . . . .
5. . . . . .
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 111 of 429 . . . . .
6. . . . . .
. . . . .
7. . . . . .
. . . . .
8. . . . . .
. . . . .
9. . . . . .
. . . . .
22nd Meeting to 30th Meeting
10. . . . . .
. . . . .
11. . . . . .
. . . . .
12. . . . . .
. . . . .
13. . . . . .
. . . . .
14. . . . . .
. . . . .
15. . . . . .
. . . . .
16. . . . . .
. . . . .
17. . . . . .
. . . . .
18. . . . . .
. . . . .
32nd Meeting to 36th Meeting
19. . . . . .
. . . . .
20. . . . . .
. . . . .
21. . . . . .
22. The minutes of the 36th meeting do not contain the particulars showing consideration of each application for allocation of 23 coal blocks earmarked for non-power sector. There is nothing in the minutes to indicate how and in what manner the selected companies meet the norms fixed for inter se priority. Many of the selected companies were neither recommended by the State Government nor by the Administrative Ministry. Some of them were recommended by the State Government but not recommended by the Administrative Ministry while one of them was not recommended by the State Government but CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 112 of 429 recommended by the Administrative Ministry. Many companies which had failed to secure allocations earlier yet they were recommended. The Screening Committee failed to consider capability and capacity of the applicant in implementing the projects.
151. The entire exercise of allocation through Screening Committee route thus appears to suffer from the vice of arbitrariness and not following any objective criteria in determining as to who is to be selected or who is not to be selected. There is no evaluation of merit and no inter se comparison of the applicants. No chart of evaluation was prepared. The determination of the Screening Committee is apparently subjective as the minutes of the Screening Committee meetings do not show that selection was made after proper assessment. The project preparedness, track record etc., of the applicant company were not objectively kept in view."
(Emphasis supplied by me)
124. Though it was argued by Ld. Counsels for the accused persons that the observations made by Hon'ble Supreme court in the said order dated 25.08.2014 can not be referred to by this Court in the present proceedings as Hon'ble Supreme court in the said matter never dealt with the issue of criminality of the persons involved and had only discussed the manner in which various coal blocks were allocated to different applicant companies in contravention of MMDR Act, 1957 and CMN Act, 1973. In this regard it is however clarified at the threshold itself that no conclusion as regard the criminality in the acts of persons involved in the present case is intended to be drawn on the basis of the aforesaid observations of Hon'ble Supreme Court. However, it can not be stated that the aforesaid observations of Hon'ble Supreme Court are not relevant over here. The primary purpose of referring the same was to only show that the actions of officers of Government of Jharkhand, MOC or even that of Screening CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 113 of 429 Committee is subject to judicial scrutiny. Thus in the present proceedings this Court shall be examining only as to whether the acts of all persons arrayed as accused in the present case were actuated with any malice or malafides or not and thereby showing criminality in their actions.
125. Moreover, during the course of present trial while cross- examining various prosecution witnesses and also at the time of final arguments Ld. Counsels for the accused persons themselves tried to point out that the categorization of various applicant companies as was carried out by Ministry of Steel was not in accordance with the parameters on the basis of which said categories were carved out by Ministry of Steel itself. Thus they rather themselves argued that the decision taken by Ministry of Steel or the discretion exercised by the officers thereof was not correct. It was even suggested to those officers in their cross-examination during the course of trial that various companies as mentioned in their recommendation sheets ought to have been placed under different categories from the one in which they were placed by them. Thus Ld. Counsels for the accused persons themselves called upon this Court to appreciate the actions taken by the accused persons in the light of the fact that the companies in question ought to have been placed in different categories from the one in which they were placed by Ministry of Steel officers. Thus Ld. Counsels for the accused persons tried to substitute the said decision of officers of Ministry of Steel with their own assessment of the status of companies.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 114 of 429 Be that as it may, I shall be however dealing with the said issue in detail at a later stage of my present judgment and I intend to begin first with the role played by the officers of Government of Jharkhand in the entire matter leading to allocation of "Rajhara Coal Block" in favour of M/s VISUL.
126. I may also mention that in accordance with the well-settled principles of criminal law various circumstances in the present case shall be examined in the light of evidence led in this case only either by prosecution or by defence. The reiteration of aforesaid principle becomes necessary as during the course of trial including at the time of final arguments repeated attempts were made by Ld. Counsels for the accused persons to refer to evidence led in other coal block allocation matters or to judgments delivered by this Court in other cases beyond the extent as was permissible by law. I shall be referring to such instances in the later part of my present judgment.
Role played by officers of Government of Jharkhand i.e. A-4 B.K. Bhattacharya, A-5 B.B. Singh, A-6 A.K. Basu and A-7 madhu Koda.
127. Before adverting to the individual role played by the officers of Government of Jharkhand, I intend to first discuss certain issues which are in the nature of a common thread in the entire case. The conclusion regarding these issues shall be crucial for discussing and appreciating the role played by all the accused persons individually.
128. As earlier also mentioned, in order to appreciate the role played CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 115 of 429 by the accused officers of Government of Jharkhand, it will be appropriate to first have a glance over various notings as were recorded by them and other officers of Government of Jharkhand while processing the applications of different applicant companies received by Government of Jharkhand from Ministry of Coal, seeking allocation of various coal blocks situated in the State of Jharkhand.
129. All the applications so received for seeking allocation of (1) Macharkunda, (2) "Rajhara North (Central and Eastern), (3) Hurilong and (4) Hutar Sector (C) coal blocks situated in the State of Jharkhand were dealt with in file Ex. PW 3/B (colly) (D-140) of Department of Mines and Geology, Government of Jharkhand. All the said four coal blocks were reserved for iron, steel and cement sectors. The note sheet pages in the said file from pages 1-29 have been proved and exhibited as Ex. PW 6/B (colly). The file starts with a note dated 20.09.2007 of a Dealing Assistant Sh. Sukumar Bhattacharya wherein he mentions about various applications received qua different coal blocks. He also placed on record a list of companies who had executed MOU with the State Government of Jharkhand. The file thereafter went to the desk of A-5 B.B. Singh, Director Mines and who put up a detailed note dated 20.09.2007 in the file.
130. In his detailed note dated 20.09.2007 A-5 B.B. Singh while stating the background in which the applications were received from MOC, also mentioned the names of various companies whose applications were so received for allocation of the said four coal blocks situated in the State of Jharkhand. He also stated in the note CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 116 of 429 as to which of the said companies had already executed a MOU with Government of Jharkhand. The said note dated 20.09.2007 of A-5 B.B. Singh [available at note sheet pages 2-5 in file Ex. PW 3/B (Colly) (D-140)] read as under:
"उप सचचव-I ककपयय पपवर पकष पर कयययरलय कक चटपपणण कय अवललकन चकयय जयय। पकष सस०-13/प० पर भयरत सरकयर कलयलय मसतयलय कय पत एवस सयथ मम ससलग अननलगक कय ककपयय अवललकन करनय चयहमगग। उपयनरक पत मम यह उलगख चकयय गयय हह चक आयरन, सणममट, एवस पयवर सगकटर कग ललए कहपपटव कलल बलयलक उपलबध करययय जयनय हह। भयरत सरकयर कलयलय मसतयलय मम पयवर सगकटर कग ललए कणयरचकत 6 कलयलय पकगत यथय, अमरकनणडय/मनगयरदगस ल/सगरगग ढय/अशलक करकटय/पतयल ईसट/महह आगढण एवस गणगशपनर कग ससबसध मम पनवर मम रयजय सरकयर कक अननशससय भगजण जय चनकक हह तथय इस पर भयरत सरकयर, कलयलय मसतयलय मम बहठक भण ससपन हह यण हह। वतर मयन मम 4 कलयलय पकगत यथय, मकरकनणडय, रयजहरय, हह टयर एवस हह रणलयलग कलयलय पकगत जल सटणल एवस सणममट सगकटर कग ललए कणयरचकत हह, कग आबसटन पर चवचयर चकयय जयनय हह।
भयरत सरकयर कग उपरलक पत मम यह चदशय चनदरश असचकत चकयय गयय हह चक पतयगक आवगदन कग सयथ चनमनयसचकत कयगजयत रहनय चयचहएए-
i. Application from in the prescribed form.
ii. Certificate of registration of the company.
iii. Documents showing the persons/who has/have been authorized
to sign on the behalf of the application company. iv. Certificate copy of the memorandum and Articles of Association of the applicant company.
v. Audited Annual Accounts/reports of the last 3 years. vi. Project report in respect of the end use plant. vii. Detailed schedule of implementation for the proposed end use project and proposed coal mining development projects.
उपयनरक चबसदअ न अ कग आधयर पर आवगदन पत कक जयजच करयई जय रहण हह। ततकयल भवदणय चनदगशयननसयर सटणल एवस सणममट सगकटर कग ललए कणयरचकत कलयलय पकगत कय आवगदनवयर चववरणण कयययरलय दयरय तहययर कर पकष सस०-133-120 /प० पर पसतनत चकयय गयय हह।
उपयनरक चयर कलयलय पकगत कय चववरण कमयननसयर चनमनलललखत रप सग पसतनत चकयय जय रहय हहए-
1. मकरकन णडय कलयलय पकग त ए- इस कलयलय पकगत कग ललए कनल 27 आवगदन पतअ कग ससबसध मम चववरणण पक० सस०-133-130 /प० रचकत हह। 27 आवगदकअ मम सग 14 आवगदक कमपचनयअ दयरय झयरखणड रयजय मम इसपयत उदलग लगययग जयनग हगतन एम०अल०यप० हसतयकररत चकयय गयय हह, लजन 14 कमपचनयअ दयरय झयरखणड रयजय मम इसपयत उदलग सथयचपत करनग कय पसतयव चदयय गयय हह, उनकय नयम चनमन पकयर हहए-
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 117 of 429
1. सवर शण आधनचनक एलयलय एणड पयवर लल०
2. सवर शण जगदमबय चफसकल सचवर सगज पय० लल०
3. सवर शण बणनण आयरन एस ड सटणल उदलग लल०
4. सवर शण सनफलहग आयरन एणड सटणल कस० लल०
5. सवर शण ए०एम०एल० सटणल एणड पयवर लल०
6. सवर शण टट टगल टट गचडसग पय० लल०
7. सवर शण बलनयई इणटसटट णयल कस० लल०
8. सवर शण रसगटय मयइनस लल०सवर शण रसगटय मयइनस लल०
9. सवर शण फक-गगड एणड कस० पय० लल०
10. सवर शण मयज चणडण दगन यर इसपयत पय० लल०
11. सवर शण कयलनटण सटणल लल०
12. सवर शण बयहणण इमपगकस पय० लल०
13. सवर शण कलचहनपर सटणल पय० लल०
14. सवर शण आधनचनक कयलरपलरगशन लल० सभण आवगदकअ कग ससबसध मम उपलबध सपचनयएस ससचचकय पर रचकत चववरणण मम असचकत कर चदयय गयय हह।
2. रयजहरय कलयलय पकग त ए - इस कलयलय पकग त कग ललए कन ल 34 आवग द न पत कग सस बस ध मम चववरणण सस च चकय कग पकष सस ० -129-126/प० पर रचकत हह । कन ल 34 आवग द क कमपनण मम सग 8 आवग द क कमपचनयअ दयरय झयरखणड सरकयर कग सयथ झयरखणड रयजय मम इसपयत उदयगग लगययग जयनग हग त न एम०अल०यप ० हसतयकररत चकयय गयय हह । लजन 8 कमपचनयअ दयरय झयरखणड रयजय मम इसपयत उदलग सथयचपत करनग कय पसतयव चदयय गयय हह , इनकय नयम चनमन पकयर हह ए -
3. सवर शण कयलन टण सटणल लल०
4. सवर शण आधनच नक एलयलय एणड पयवर लल०
5. सवर शण मनकसन द लल०
6. सवर शण मयज चणडण द गन यर पय० लल०
7. सवर शण बयहणण इमपग क स पय० लल०
8. सवर शण जगदमबय चफसकल सचवर सग ज पय० लल०
9. सवर शण सनफलह ग आयरन सटणल कस ० लल०
10. सवर शण बणनण आयरन एणड सटणल उदलग लल०
3. हह टयर कलयलय पकग त ए- इस कलयलय पकगत मम कनल 12 आवगदन पतअ कग ससबसध मम चववरणण ससचचकय कग पक० सस०-125-124 /प० पर रचकत हह। कनल 12 आवगदकअ मम सग 6 आवगदक कमपचनययस एग सण हह, लजनकग दयरय झयरखणड रयजय मम इसपयत उदलग लगययग जयनग हगतन एम०अल०यप० हसतयकररत चकयय गयय हह। लजन 6 कमपचनयअ दयरय झयरखणड रयजय मम इसपयत उदलग लगयनग कय पसतयव चकयय गयय हह, वग चनमन पकयर हहए-
1. सवर शण बयहणण इमपगकस पय० लल०
2. सवर शण सयथर क इणडसटट णज लल०
3. सवर शण पकयश इसपयत लल० CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 118 of 429
4. सवर शण नरलससह इसपयत लल०
5. सवर शण कयलनटण सटणल लल०
6. सवर शण सनफलहग आयरन सटणल कस० लल०
4. हह रणलयजग कलयलय पकग त ए- इस कलयलय पकगत मम कनल 31 आवगदन पतअ कग ससबसध मम चववरणण ससचचकय कग पक० सस०- 123-120 /प० पर रचकत हह। कनल 31 आवगदकअ मम सग आवगदक 17 कमपचनययस एग सण हह, लजनकग दयरय झयरखणड रयजय मम इसपयत उदलग लगययग जयनग हगतन एम०अल०यप० हसतयकररत चकयय गयय हह। लजन 17 कमपचनयअ दयरय झयरखणड रयजय मम इसपयत उदलग लगयनग कय पसतयव चकयय गयय हह, वग चनमन पकयर हहए-
1. सवर शण मनकसन द लल०
2. सवर शण बयहणण इमपगकस पय० लल०
3. सवर शण फक-गगड एणड कस० पय० लल०
4. सवर शण आधनचनक कयलरपलरगशन लल०
5. सवर शण मलनगट इसपयत एणड एनजर लल०
6. सवर शण ए०एम-एल० सटणल एणड पयवर लल०
7. सवर शण सयथर क इणडसटट णज लल०
8. सवर शण रसगटय मयइनस लल०
9. सवर शण मयज चणडण दगन यर इसपयत पय० लल०
10. सवर शण नरलससह इसपयत लल०
11. सवर शण कलचहनपर सटणल पय० लल०
12. सवर शण बलनयई इणटसटट णयल कस० लल०
13. सवर शण जगदमबय चफसकल सचवर सगज पय० लल०
14. सवर शण आधनचनक एलयलय एणड पयवर लल०
15. सवर शण कयलनटण सटणल लल०
16. सवर शण लजनदल सटणल एणड पयवर लल०
17. सवर शण सनफलहग आयरन सटणल कस० लल० ककपयय अगगतर कयरर वयई हगतन ससचचकय सचचव महलदय कल पकषयसचकत करनय चयहमगग।
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20/9/07 (बण०बण० लसस ह )
131. Pursuant to note dated 20.09.2007 of A-5 B.B. Singh the file came to be placed before Dy. Secretary, Sh. Madan Sengupta who also vide his noting dated 20.09.2007 itself forwarded the file to Secretary Mines i.e. PW-6 Jai Shankar Tiwary. However PW-6 Jai Shankar Tiwary, Secretary Mines, referred back the file for discussion. Thereafter the file was again put up by A-5 B.B. Singh on 07.11.2007 before the Dy. Secretary. The noting dated 20.09.2007 of Dy.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 119 of 429 Secretary Sh. Madan Sengupta and that of PW-6 Jai Shankar Tiwary and of A-5 B.B. Singh as referred above, read as under:
"सचचव पकष 18-20/चट० पर पभयरण खयन चनदगशयलय कक चटपपणण कय ककपयय अवललकन चकयय जयय। चयर कलयलय पकगत यथय मचरकसन डय, रयजहरय, हह टयर एवस हह रणलयजग जल सटणल एवस सणममट सगकटर कग ललए कणयरचकत हह, कग आबसटन पर चवचयर चकयय जय रहय हह। कलयलय पकगतवयर आवगदन पतअ कक चववरणण तहययर कर पतयचयर खसड पर रख दण गयण हह।
उक नन कलचकसग कलयलय पकगतअ कग ललए कलयलग कय अननमयचनत भसडयर चनमनवत हहए-
क०सस० कलयलय पकगत कय नयम अडरगयउस ड/अलपन अननमयचनत भसडयर कयसट
1. मचरकसन डय अडरगयउस ड 23.862 चमललयन टन
2. रयजहरय नयलथर समटटल तथय अलपन कयसट 17.09 चमललयन टन ईसटट न
3. हह रणलयजग एवस हह टयर सगकटर अडरगयउस ड 84.33 चमललयन टन सण कलल बलयलक आबसटन पर अननशससय हगतन सरकयर कय आदगश पयप करनय चयहमगग।
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20.9.07 (मदन सग न गनप य ) कक पयय चवमशर करम Sd/-
(जय शस क र चतवयरण ) 7/11 उप सचचव-I चवमशर हगतन ससचचकय ककपयय उपसथयचपत हह।
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07/11/07 (बण०बण० लसस ह )"
132. However in the meantime information was received from Ministry of Coal, Government of India regarding proposed meetings of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 120 of 429 36th Screening Committee to be held on 7/8.12.2007 and 17/18.12.2007. The information in this regard was accordingly conveyed to PW-6 Jai Shankar Tiwary vide noting dated 20.11.2007 by Dy. Secretary Madan Sen Gupta. However PW-6 Jai Shankar Tiwary asked Sh. Madan Sengupta to also accompany him to the Screening Committee meetings and to also have discussion regarding the issue under consideration.
133. Subsequently, vide a detailed note dated 04.12.2007 as is available from note sheet page 7-11 in note sheet pages Ex. PW 6/B (Colly) (D-140), PW-6 Jai Shankar Tiwary , Secretary, Mines put up the matter regarding recommendation to be made to MOC on behalf of Government of Jharkhand qua various applicant companies for consideration of the then Chief Secretary, Sh. P.P. Sharma. In his note PW-6 Jai Shankar Tiwary also proposed names of certain companies which could be recommended to Central Government by State Government of Jaharkhand. The Chief Secretary however simply forwarded the file to Chief Minister. The detailed note dated 04.12.2007 of PW-6 Jai Shankar Tiwary followed by endorsement of Chief Secretary, Sh. P.P. Sharma read as under:
मनख य सचचव कलयलय मसतयलय, भयरत सरकयर दयरय सटणल एवस सणममट सगकटर कग ललए कणयरचकसत कलयलय बलयलकअ कग आबसटन हगत चदनयसक 07-08-12.2007 एवस 17-18.12.2007 कल सककचनसग कचमचट कक बहठक रखण गई हह।
झयरखणड रयजय मम मचरकनणडय, रयजहरय नयलथर सगनटट ल तथय ईसटनर , हह ररलयलग एवस हह टयर सगकटर 'सण' कलल बलयलक इस पकगत हगतन उपलबध हह। कलल बलयलकवयर पयप आवगदनअ कक पसथचत चनमन पकयर हहए
1. मचरकन णडय कलल बलयलक ए CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 121 of 429 इस कलल बलयलक मम कनल 23.862 चमललयन टन कलयलय कल भसडयर हलनग कल अननमयन हह। इसकग ललए कनल 27 आवगदन पत पयप हह ए हह, लजसकक चववरणण पतयचयर भयग पर उपलबध हह। आवगदनवयर पसथचत चनमन पकयर हहए पयप आवगदन पतअ कक सपचण कग कमयसक 2, 3, 5, 7, 15, 17, 18, 20, 21, 24, 26 एवस 27 पर असचकत आवगदकअ दयरय इस रयजय मम एम०अल०यप० नहह चकयय गयय हह। अतए यग चवचयर कक शगणण मम नहह आतग हट।
सपचण कग कमयसक 4 सवर शण जगदमबय चफसकल सचवर सगज पय० लल०, कमयसक 16 सवर शण मयज चसडण दगन यर इसपयत लल०, कमयसक 22 सवर शण बयहमण इमपगकस पय० लल०, कमयसक 25 सवर शण आधनचनक कयलरपलरगशन लल० दयरय सरकयर कग सयथ एम० अल० यप० चकयय गयय हह परनतन इनकग कययर -कलयप कल पपवर मम सरकयर दयरय उचचत नहह मयनय गयय हह। लजसकग चलतग इनहम चवचयर यलगय आवगदकअ कक शगणण मम रखनय उचचत पतणत नहह हलतय हह।
सपचण कग कमयसक 1 सवर शण आधनचनक एलवयलय पयवर लल० कल पपवर मम नयलथर धयधप कलयलय बलयलक आबसचटत हह। अतएव इनकग आवगदन पर चवचयर करनग कक आवशयकतय पतणत नहह हलतण हह।
सपचण कग कमयसक 6 सवर शण चवनण आयरन एस ड सटणल उदलग, कमयसक 7 सवर शण बण०कग० पयवर एस ड सटणल लल०, कमयसक 23 सवर शण कलचहनपर सटणल पय० लल० कल कलयलग कक आवशयकतय इतनण अलधक नहह हह लजसकग ललए इनहम कहपपटव कलल बलयलक कय आबसटन चकयय जयए। अतए इनकग आवगदनअ पर भण चवचयर करनग कक आवशयकतय पतणत नहह हलतण हह। सरकयर इनहम कलल ललसकगज दगनग कग ससबध स मम यचद यग आवगदन करतग हट तल चवचयर कर सकतण हह।
सपचण कग कमयसक 11 सवर शण टट यईगस ल टट गचडसग पय० लल० कय एम० अल० यप० तल हह आ हह परनतन यह कसपनण अभण चववयदयसपद हह। कमयसक 8 पर सवर शण सनफलहग आयरन एस ड सटणल कस० लल० कक सटणल पलयसट लगयनग कक पगचत बहह त हण नगणय हह। अतएव इनकग आवगदन पर भण चवचयर करनय उचचत पतणत नहह हलतय हह।
सपचण कग कमयसक 12, 13 एवस 14 पर असचकत कसपचनययज एक हण गनप सवर शण रसगटय मयईनस लल० कक हह, लजनहम पपवर मम बनणडन कलल बलयलक आबसचटत हह।
सपचण कग कमयसक 5 सवर शण जपचपटर आयरन कसपनण पय० लल० नग झयरखणड रयजय मम सणममट उदलग कग ललए एम० अल० यप० चकयय हह। अतएव इनहम सणममट उदलग कग ललए कलल बलयलक आबसचटत करनग हगतन भयरत सरकयर कल अननशससय भगजण जय सकतण हह।
सपचण कग कमयसक 9 सवर शण ए० एम० एल० सटणल एस ड पयवर लल० दयरय 2 चमललयन टन कय सपयलज आयरन एवस सटणल पलयसट लगयनग हगतन झयरखणड सरकयर कग सयथ एम० अल० यप० चकयय गयय हह। इनहम सरकयर दयरय ललह अयसक कय आबसटन चकयय जय चनकय हह। इनकक आवशयकतय कल दगखतग हह ए इनहम भण उक कलयलय बलयलक कग आबसटन हगतन भयरत सरकयर कल अननशससय भगजण जय सकतण हह।
सपचण कग कमयसक 19 सवर शण कयलनटण सटणल लल० दयरय 1.2 चमललयन टन कमतय कय सपयजज आयरन सटणल एवस ललपकवड सटणल पलयसट कनल 1507 करलड रपयग कक लयगत पर लगयनग हगतन झयरखणड सरकयर कग सयथ एम० अल० यप० चकयय गयय हह। इनकग दयरय 1000 हगकटगयर भपचम कग ललए रकम जमय कर दण गई हह। इनकक कलयलग कक आवशयकतय कल दगखतग हह ए इनकय नयम भण उक कलल बलयलक कग ललए भयरत सरकयर कल अननशसलसत चकयय जय सकतय हह।
सपचण कग कमयसक 20 सवर शण चबहयर सपयजज आयरन लल० कय पलयसट झयरखणड रयजय कग चयपणडल मम चल रहय हह। यह पलयलट रयजय सरकयर कग ससयक न उपकम कग रप मम सथयचपत हह। अतएव इनकक आवशयकतयअअ कल दगखतग हह ए इनकय नयम भण उक कलल बलयलक कग ललए अननशसलसत चकयय जय सकतय हह।
2. रयजहरय नयलथर सग न टट ल एवस ईसटनर कलल बलयलक ए इस कलल बलयलक मम कनल 17.09 चमललयन टन कलयलय उपलबध हलनग कय अननमयन हह।
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 122 of 429 इस कलल बलयलक हगतन कनल 34 आवगदन पत पयप हह। लजनकक सपचण पतयचयर भयग पर दषवय हह।
सपचण कग कमयसक 2, 4, 5, 6, 9, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 24, 25, 26, 27, 28, 31, 32, 33 एवस 34 पर असचकत आवगदकअ दयरय झयरखणड सरकयर सग एम० अल०यप० नहह चकयय गयय हह। अतए यग सभण आवगदन चवचयर यलगय नहह हह।
सपचण कग कमयसक 1 सवर शण कयलनटण सटणल लल० कल मचरकनणडय कलल बलयलक आबसचटत करनग हगतन भयरत सरकयर कल अननशससय भगजनग कय पसतयव चदयय गयय हह। अतए इनकग आवगदन पर पननए अननशससय करनग कक आवशयकतय नहह हह।
सपचण कग कमयसक 3 सवर शण आधनचनक एलवयलय पयवर लल० कल पपवर मम नयलथर धयधप कलयलय बलयलक आबसचटत हह। अतएव इनकग आवगदन पर चवचयर करनग कक आवशयकतय पतणत नहह हलतण हह।
सपचण कग कमयसक 17 सवर शण जगदमबय चफसकल सचवर सगज पय० लल०, कमयसक 8 सवर शण मयज चसडण दगन यर इसपयत लल०, कमयसक 10 सवर शण बयहमण इमपगकस पय० लल०, कमयसक 29 सवर शण आधनचनक कयलरपलरगशन लल० दयरय सरकयर कग सयथ एम० अल० यप० चकयय गयय हह परनतन इनकग कययर -कलयप कल पपवर मम सरकयर दयरय उचचत नहह मयनय गयय हह। लजसकग चलतग इनहम चवचयर यलगय आवगदकअ कक शगणण मम रखनय उचचत पतणत नहह हलतय हह।
सपचण कग कमयसक 23 पर सवर शण सनफलहग आयरन एस ड सटणल कस० लल० कक सटणल पलयसट लगयनग कक पगचत बहह त हण नगणय हह। अतएव इनकग आवगदन पर भण चवचयर करनय उचचत पतणत नहह हलतय हह।
सपच ण कग कमयसक 30 सवर शण चवनण आयरन एस ड सटणल उदलग , कमयसक 32 सवर श ण बण०कग ०पयवर एस ड सटणल लल० , कक कलयलग कक आवशयकय इतनण अलधक नहह हह लजसकग ललए इनहम कह पपटव कलल बलयलक कय आबस ट न चकयय जयय। अतए इनकग आवग द नअ पर भण चवचयर करनग कक आवशयकतय पतणत नहह हलतण हह । सरकयर इनहम कलल ललस कग ज दग नग कग सस बस ध मम यचद यग आवग द न करतग हट तल चवचयर कर सकतण हह ।
सपचण कग कमयसक 7 सवर शण मनकसन द लल० दयरय 2 चमललयन टन कय इसटणगगटगड सटणल पलयसट सथयचपत करनग हगतन झयरखणड सरकयर कग सयथ एम० अल० यप० चकयय गयय हह। इस पररयलजनय पर इनकग दयरय कनल 1802 करलड रपयग खचर करनग कय पसतयव हह। इनकक आवशयकतयआम कग मदगनजर रखतग हह ए उक कलल बलयलक कग ललए इनकग नयम कक अननशससय कलयलय मसतयलय, भयरत सरकयर सग कक जय सकतण हह।
सपचण कग कमयसक 18 सवर शण जपम बलभ सटणल लल० दयरय बलभ सटणल लल० कग नयम सग झयरखणड सरकयर कग सयथ एम० ओ० यप० चकयय गयय हह तथय इनकय सपयजज आयरन पलयसट झयरखणड रयजय मम कययर रत हह। इनकग दयरय उसग चवसतयररत करनग कक पररयलजनय तहययर कक गई हह। इनकक कलयलग कक आवशयकतय कल दगखतग हह ए इनहम भण उक कलल बलयलक कग ललए भयरत सरकयर सग अननशससय कक जय सकतण हह।
3. हह टयर एवस हह र रलयजग कलल बलयलक ए इस कलयलय बलयलक मम कनल 84.33 चमललयन टन कलयलय खचनज कक उपलबधतय कक ससभयवनय हह। इस कलल बलयलक हगतन कनल 43 आवगदन पत पयप हह ए हट। लजसकक सपचण ससचचकय कग पतयचयर भयग पर दषवय हह।
सपचण कग कमयसक 2, 3, 7, 8, 11, 12, 13, 15, 19, 21, 26, 33, 35, 36, 41 एवस 42 पर असचकत आवगदकअ दयरय झयरखणड सरकयर कग सयथ एम० अल० यप० नहह चकयय गयय हह। अतए इन सभण आवगदकअ पर चवचयर करनग यलगय नहह हह।
सपचण कग कमयसक 32 सवर शण जगदमबय चफसकल सचवर सगज पय० लल०, कमयसक 28 सवर शण मयज चसडण दगन यर इसपयत लल०, कमयसक 1 एवस 17 सवर शण बयहमण इमपगकस पय० लल०, कमयसक CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 123 of 429 20 सवर शण आधनचनक कयलरपलरगशन लल० दयरय सरकयर कग सयथ एम० अल० यप० चकयय गयय हह परनतन इनकग कययर -कलयप कल पपवर मम सरकयर दयरय उचचत नहह मयनय गयय हह। लजसकग चलतग इनहम चवचयर यलगय आवगदकअ कक शगणण मम रखनय उचचत पतणत नहह हलतय हह।
सपचण कग कमयसक 4 एवस 24 सवर शण सयथर क इसडसटट णज लल०, कमयसक 5 एवस 25 सवर शण पकयश इसपयत लल०, कमयसक 10 एवस 40 सवर शण सनफलहग आयरन एस ड सटणल लल०, कमयसक 22 सवर शण मयलनगट इसपयत एस ड इनजर लल० कग सयथ एम० अल० यप० तल चकयय गयय हह परनतन इनकक झयरखणड रयजय मम पपजजण चनवगश कक पगचत नगणय हह। अतएव इनकग आवगदन पर भण चवचयर करनय समनचचत पतणत नहह हलतय हह।
सपचण कग कमयसक 3 एवस 34 सवर शण आधनचनक एलवयलय पयवर लल० कल पपवर मम नयलथर धयधप कलयलय बलयलक आबसचटत हह। अतएव इनकग आवगदन पर भण चवचयर करनग कक अयवशयकतय पतणत नहह हलतण हह।
सपचण कग कमयसक 21 सवर शण बण०कग० पयवर एस ड सटणल लल०, कमयसक 30 सवर शण कलचहनपर सटणल पय० लल० कल कलयलग कक आवशयकतय इतनण अलधक नहह हह लजसकग ललए इनहम कहपपटव कलल बलयलक कय आबसटन चकयय जयए। अतए इनकग आवगदनअ पर भण चवचयर करनग कक आवशयकतय पतणत नहह हलतण हह। सरकयर इनहम कलल ललसकगज दगनग कग ससबध स मम यचद यग आवगदन करतग हट तल चवचयर कर सकतण हह।
सपचण कग कमयसक 18, 27 एवस 31 पर असचकत कसपचनययज एक हण गनप सवर शण रसगटय मयईनस लल० कक हह, लजनहम पपवर मम बनणडन कलल बलयलक आबसचटत हह।
सपचण कग कमयसक 9 सवर शण कयलनटण सटणल लल०, कमयसक 23 ए० एम० एल० सटणल एस ड पयवर लल०, कमयसक 16 सवर शण चबहयर सपयजज आयरन लल० कल मचरकनणडय कलल बलयलक एवस कमयसक 14 सवर शण मनकसन द लल० कल रयजहरय कलल बलयलक आबसचटत करनग हगतन भयरत सरकयर कल अननशससय भगजनग कय पसतयव चदयय गयय हह। अतए इनकग आवगदन पर पननए अननशससय करनग कक आवशयकतय नहह हह।
सपचण कग कमयसक 38 सवर शण लजसदल सटणल एस ड पयवर लल० दयरय 2 चमललयन टन कमतय कय सटणल पलयसट लगयनग हगतन झयरखणड सरकयर कग सयथ एम० अल० यप० चकयय गयय हह। इस पररयलजनय पर इनकग दयरय कनल 2877.95 करलड रपयय कय वयय अननमयचनत हह। इनकग दयरय चबहयर एलवयलय लल० जल बसद थय उसग अपनग अधणन लगकर उस कयरखयनग कल चयलप चकयय गयय हह। इनहम पयवर पलयसट हगतन अमरकनणडय मनरगयदसगल कलल बलयलक आबसचटत चकयय गयय हह, परनतन इनकग दयरय पसतयचवत एवस कययर रत सटणल पलयसट हगतन कलई कलल बलयलक आबसचटत नहह हह। इनकक आवशयकतय कल दगखतग हह ए इनहम उक कलल बलयलक कग आबसटन हगतन भयरत सरकयर, कलयलय मसतयलय सग अननशससय कक जय सकतण हह।
सपचण कग कमयसक 6 एवस 29 पर सवर शण नरलससह इसपयत लल० दयरय चमनण सटणल पलयसट हगतन झयरखणड सरकयर कग सयथ एम० अल० यप चकयय गयय हह। इनकग दयरय सरययकगलय मम पलयसट लगयनग कक यलजनय हह। इनकक आवशयकतय कल दगखतग हह ए इनकय नयम भण उक कलल बलयलक कग आबसटन हगतन भयरत सरकयर, कलयलय मसतयलय कल अननशसलसत चकयय जय सकतय हह।
सपचण कग कमयसक 43 सवर शण रसगटय पलजगकट लल० कग 2 सपयलज आयरन पलयसट झयरखणड रयजय मम कययर रत हह। इनहम अभण तक कलई कलल बलयलक आबसचटत नहह हह। अतए इनकक आवशयकतयअअ कल दगखतग हह ए इनकय नयम भण उक कलल बलयलक हगतन भयरत सरकयर, कलयलय मसतयलय कल सग अननशससय कक जय सकतण हह।
इस पकयर चनमन रप सग अननशस स य भग ज नग हग त न सरकयर कय आदग श पयप चकयय जय सकतय हह ए -
Sl.No. Name of Coal Block Name of the Company
1 2 4
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 124 of 429
1. Mecherkunda 1.M/s A.M.L. Steel & Power Ltd.
2. M/s Conti Steel Ltd.
3. M/s Jupiter Iron Co. Pvt. Ltd.
4. M/s Bihar Sponge Iron Ltd.
2. Rajhara North Central & 1. M/s Mukund Ltd.
Eastern 2. M/s Zoom Ballabh Steel Ltd.
3. Hurilong & Hutar Sector (C) 1. M/s Jindal Steel & Power Ltd.
2. M/s Narsingh Ispat Ltd.
3. M/s Rungta Project Ltd.
एतदथर भयरत सरकयर कलयलय मस त यलय कल अननशस स य भग ज नग हग त न पत कय पयरप भण सस च चकय पर अवपसथत हह , लजसगग अननम लचदत करनग कक कक पय कक जय सकतण हह ।
sd/-
(जय शस क र चतवयरण ) सरकयर कग सचचव 4/12/7 मनख य मस त ण कक पयय शमयर 5/12/2007 (Emphasis supplied by me)
134. In his note dated 04.12.2007, PW-6 Jai Shankar Tiwary thus proposed that applications of all such applicant companies who have not executed any MOU with Government of Jharkhand need not be considered. He thereafter proceeded to deal with the applications of other applicant companies who had executed MOU with the State Government. However while dealing with the applications of M/s VISUL and M/s B.K. Power & Steel Ltd. he mentioned that as their requirement of coal was not much for which they may be allotted a coal block so the applications of the said companies need not be considered and Government may grant coal linkage to them if the said CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 125 of 429 companies applies for it. Thus as is evident from the detailed note of PW-6 Jai Shankar Tiwary, while names of four companies were proposed to be recommended for Macharkunda coal block, names of two companies i.e. M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. were proposed to be recommended for " Rajhara coal block" and names of three other companies were proposed to be recommended for Hurilong and Hutar Sector (C) coal block. Thereafter when the said file came to be put up before the then Chief Secretary Sh. P.P. Sharma, he vide his signatures dated 05.12.2007 simply forwarded the file to Chief Minister. However the subsequent noting in the file shows that on 06.12.2007 the Chief Minister (i.e. A-7 Madhu Koda) was not available in the Headquarters and accordingly his Principle Secretary i.e. PW-7 Sukhdeo Singh obtained his consent on telephone with respect to the recommendations to be so made to MOC, Government of India qua various coal blocks. The urgency to obtain such telephonic consent of Chief Minister arose as on 07.12.2007 and 08.12.2007, meetings of 36th Screening Committee were already fixed at New Delhi and for which PW-6 Jai Shankar Tiwary had gone to New Delhi. The recommendations of Government of Jharkhand were thus required to be submitted to Screening Committee MOC before or during the said Screening Committee meeting.
135. PW-6 Jai Shankar Tiwary also deposed that after he reached Delhi to attend Screening Committee meeting and as the recommendations of Government of Jharkhand were to be submitted CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 126 of 429 over there so he rang up PW-7 Sukhdeo Singh to know whether the recommendations of Government of Jharkhand have been finalised or not. PW-7 Sukhdeo Singh thus deposed that it was in these circumstances he after obtaining directions of Chief Minister who was out of Head Quarters on telephone informed about the same to PW-6 Jai Shankar Tiwary. He further deposed that on the request of PW-6 Jai Shankar Tiwary, he sent the file to his office in Ranchi as he stated that someone will be deputed from his office to bring the file to him in New Delhi. In the light of aforesaid facts, it will be now appropriate to reproduce the said noting dated 06.12.2007 of PW-7 Sukhdeo Singh, Principle Secretary to Chief Minister, Government of Jharkhand.
"मयननणय मनखय मसतण मनखययलय सग बयहर हट तथ उनहअनग दरप भयष पर चनमनरपगण अननशससय भगजनग कय चनदरश चदयय हह।
1. मयचगरकनणडय - सनफलहग आयरन एणड सटणल कस०
2. रयजहयरय नयलथर - (i) मनकननद ललचमटगड समटटल एस ड इसटनर - (ii)जपम बलब सटणल ललचमटगड
3. हह रणलअग एणड हह टयर सगकटर-(C) रसगटय पलजगकट ललचमटगड मयननणय मनखय मसतण कग मनखययलय ललटनग पर ससचचकय मम औपचयररक अननमलदन भण पयप कर ललयय जयय।
sd/-
सनख दग व लससह 6/12/07"
The deposition of PW-7 Sukhdeo Singh to this effect has not been controverted at all on behalf of A-7 Madhu Koda.
136. However before proceeding further, it will be now important to CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 127 of 429 reiterate that vide his note dated 04.12.2007, PW-6 Jai Shankar Tiwary, had proposed the names of following companies to be recommended for allocation of various coal blocks situated in the State of Jharkhand.
Sl No Name of Coal Block Name of the Company
1. Macherkunda 1. M/s A.M.L. Steel & Power Ltd.
2. M/s Conti Steel Ltd.
3. M/s Jupiter Iron Co. Pvt. Ltd.
4. M/s Bihar Sponge Iron Ltd.
2. Rajhara North Central & 1. M/s Mukund Ltd.
Eastern 2. M/s Zoom Ballabh Steel Ltd.
3. Hurilong & Hutar Sector 1. M/s Jindal Steel & Power Ltd.
(C) 2. M/s. Narsingh Ispat Ltd.
3. M/s. Rungta Project Ltd.
On the other hand A-7 Madhu Koda telephonically directed PW-7 Sukhdeo Singh to recommend the names of only following companies for the three coal blocks.
1. मयचगरकनणडय सनफलहग आयरन एणड सटणल कस०
2. रयजहयरय मलचर मनकननद ललचमटगड समटटल एस ड इसटनर जपम बलब सटणल ललचमटगड
3. हह रणलअग एणड हह टयर सगकटर रसगटय पलजगकट ललचमटगड
137. It will be also important to point out over here that in the recommendation approved by A-7 Madhu Koda qua Macharkunda coal block, the names of all four (4) companies as were proposed by PW-6 Jai Shankar Tiwary were replaced by the name of "M/s Sunflag Iron and Steel Co." even though in his note dated 04.12.2007, PW-6 Jai Shankar Tiwary had specifically observed that the progress made by "M/s Sunflag Iron and Steel Co." towards establishing its steel plant CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 128 of 429 is almost negligible and thus it does not appear to be proper to consider the application of said company.
(The aforesaid directions of A-7 Madhu Koda shall be again discussed at a later stage of the present judgment when the submissions of Ld. Counsel for A-7 Madhu Koda that accused being Chief Minister of the State used to simply sign the files on the basis of belief and trust upon his officers, shall be considered.)
138. Accordingly, PW-6 Jai Shankar Tiwary vide his letter dated 07.12.2007 Ex. PW 6/A submitted to Secretary Coal, A-3, H.C. Gupta the recommendations of Government of Jharkhand in accordance with the directions of A-7 Madhu Koda. The said letter dated 07.12.2007 Ex. PW 6/A [Available at page 37 in file Ex. PW 3/B (Colly) (D-140)] read as under:
"Letter No. Kh. Bhu. Vi. - 145/07 - 199/M. GOVERNMENT OF JHARKHAND DEPARTMENT OF MINES & GEOLOGY From:
Jai Shankar Tiwary, Secretary to Government.
To:
Shri H.C. Gupta Secretary Ministry of coal block Government of India Shastri Bhawan NEW DELHI - 110001 Ranchi, Dated 07 December, 2007 Sub: Allocation of Captive Coal Blocks in the State of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 129 of 429 Jharkhand for Power Sector.
Ref: Letter No. 13016/65/2006=CA-I (Part), dated 31.10.2007.
Sir, With reference to your letter mentioned above, I am directed to convey, herewith the recommendations of the State Government an allotment of Captive Coal Blocks in the State of Jharkhand for projects mentioned below: -
Sl Name of Coal Coal Name of the Capacit Specific Lead Sharing No Block Reserve Company y Project Project Pattern.
for Partner
Captive
Coal
Block
1 2 3 4 5 6 7 8
1. Macherkunda 23.862 1. M/s Sunflag 2 MTPA Steel
M.T. Iron & Steel Co. Plant
2. Rajhara 17.09 1. M/s Mukund 2 MTPA Steel M/s 60:40%
North Central M.T. Ltd. 1 MTPA Plant Zoom
& Eastern 2. M/s Zoom Steel Ballabh
Ballabh Steel Plant Steel Ltd.
Ltd.
3. Hurilong & 84.33 1. M/s Rungta 1.6 Steel
Hutar Sector M.T. Project Ltd. MTPA Plant
(C)
The Coal Block allotment recommendation is subject to the condition that the coal is to be specifically and fully used for Industry to be established in Jharkhand only and they will abide by all the terms and conditions of MOU signed with Government of Jharkhand.
Yours faithfully, Sd/-
(Jai Shankar Tiwary) Secretary to Government 7.12.7"
(Emphasis supplied by me)
139. However after PW-6 Jai Shankar Tiwary returned to Ranchi subsequent to attending the Screening Committee meetings on CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 130 of 429 07/08.12.2007, he submitted the file Ex. PW 3/B (Colly) (D-140) vide his note dated 10.12.2007 to Chief Secretary for seeking post facto approval of the Chief Minister on the file. He however also drew attention to the recommendations of Government of Jharkhand as were submitted by him to MOC in the Screening Committee meeting. Again the file moved from the desk of the then Chief Secretary Sh. P.P. Sharma to the desk of A-7 Madhu Koda on 06.01.2008. However A-7 Madhu Koda while approving his earlier directions also directed that for Macharkunda coal block, name of M/s Bihar Sponge Iron Ltd. be also recommended. Note dated 10.12.2007 of PW-6 Jai Shankar Tiwary and the subsequent notings of the then Chief Secretary P.P. Sharma and A-7 Madhu Koda in the file read as under:
"मनख य सचचव पपवर पकष पर मयननणय मनखयमसतण कग पधयन सचचव दयरय असचकत मनखयमसतण कग आदगश एवस पकष 37/प० पर मगरग दयरय पगचषत सरकयर कक अननशससय कय ककपयय अवललकन चकयय जयए।
तदननसयर मयननणय मनखयमसतण जण कक घटनलतर सवणककचत पयप कक जय सकतण हह।
sd/-
(जय शस क र चतवयरण) 10.12.07 मनखय मसतण ककपयय शमयर sd/-
पण०पण० शमयर 6/1/2008 उपरलक पसतयव अननम लचदत। मयचग र कन णडय कलल बलयलक कग ललए चबहयर सपयजज आयरन लल० कक भण अननशस स य भग ज ण जयय।
sd/-
मधन कलडय 15/1/2008"
140. Thus pursuant to directions dated 15.01.2008 of Chief Minister CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 131 of 429 Madhu Koda a letter dated 16.01.2008 Ex. P-57 containing revised recommendations of Government of Jharkhand was sent to A-3 H.C. Gupta, Secretary, MOC under the signatures of Sh. Subodh Kishore Sorang, Deputy Secretary, Department of Mines and Geology, Government of Jharkhand. The letter dated 16.01.2008 Ex. P-57 read as under [Available at page 38 in file Ex. PW 3/B (Colly) (D-140)]:
"GOVERNMENT OF JHARKHAND DEPARTMENT OF MINES & GEOLOGY Letter No. Kh. Bhu. Vi. - 145/07 91/M. Ranchi, Date: 16/1/08 From, Subodh Kishor Sorang, Deputy Secretary to Government, To:
Shri H.C. Gupta Secretary, Ministry of coal block, Government of India, Shastri Bhawan, New Delhi - 110001 Sub: Allocation of Captive Coal Blocks in the State of Jharkhand for Power Sector.
Ref: Letter No. 13016/65/2006-CA-I (Part), dated 31.10.2007, Sir, With reference to your letter mentioned above, I am directed to convey, herewith the revised recommendations of the State Government an allotment of Captive Coal Blocks in the State of Jharkhand for projects mentioned below: -
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 132 of 429 Sr. Name of Coal Coal Name of the Capacit Specific Lead Sharin No Block Reserve Company y Project for Project g . Captive Partner Pattern Coal .
Block 1 2 3 4 5 6 7 8
1. Macherkunda 23.862 1. M/s Sunflag 2 MTPA Steel 60:40% M.T. Iron & Steel Co. Plant
2. M/s Bihar Sponge Iron Ltd.
2. Rajhara North 17.09 1. M/s Mukund 2 MTPA Steel M/s 60:40% Central & M.T. Ltd. 1 MTPA Plant Zoom Eastern 2. M/s Zoom Ballabh Ballabh Steel Steel Ltd. Ltd.
3. Hurilong & 84.33 1. M/s Rungta 1.6 Steel Hutar Sector M.T. Project Ltd. MTPA Plant (C) The Coal Block allotment recommendation is subject to the condition that the coal is to be specifically and fully used for Industry to be established in Jharkhand only and they will abide by all the terms and conditions of MOU signed with Government of Jharkhand.
Yours faithfully, Sd/-
16/1/08 Deputy Secretary to Government D:\Cent. Govt\145 - 2007.doc"
(Emphasis supplied by me)
141. What is however important to note in both the aforesaid communications as were sent to A-3 H.C. Gupta, Secretary Coal is that qua Rajhara Coal Block the recommendations of Government of Jharkhand as approved by A-7 Madhu Koda remained consistently in favour of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. as was initially proposed by PW-6 Jai Shankar Tiwary , Secretary, Mines also in his note dated 04.12.2007.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 133 of 429
142. In the meantime the two subsequent meetings of 36th Screening Committee as were earlier proposed to be held on 17/18.12.2007 were cancelled and the same were re-scheduled for 7/8.02.2008 by MOC, Government of India.
143. At this stage, it will be also worthwhile to mention that in the two meetings of 36th Screening Committee, as were held on 7/8.12.2007 and the subsequent meeting held on 07.02.2008 various applicant companies were called upon to make presentation and to submit feed back form titled "Latest Status of End Use Project" However as per PW-21 Swapan De Choudhary who was a Consultant of Tulsyan's family who also owned M/s VISUL, no presentation was made on behalf of company M/s VISUL to the Screening Committee on either of the three date of hearings. He deposed that though in the earlier meetings of 36th Screening Committee i.e. on 07/08.12.07 he did make a presentation on behalf of M/s Aroma Coke Ltd. (A group Company of M/s VISUL) qua their another application for allocation of yet another coal block but stated that on this occasion i.e. on 07.02.2008 he did not go before the Screening Committee for making presentation on behalf of M/s VISUL as prior to it he had come to MOC to enquire about the application of M/s VISUL and was informed that the said company is not going to be allotted any coal block. He further stated that he accordingly informed the directors of the company M/s VISUL in this regard and thus it was not deemed necessary to go again before the Screening Committee to make a presentation on behalf of M/s VISUL.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 134 of 429
144. The accused persons have also not disputed the said claim that in the meeting held on 07.02.08 neither any presentation was made on behalf of M/s VISUL nor any feed back form was submitted to the Screening Committee. In fact A-3 H.C. Gupta in his deposition recorded as DW-6 (u/s 315 Cr.PC) in his defence also stated that at the time of meeting held on 03.07.08 he was aware that M/s VISUL has neither made any presentation before the Screening Committee nor it has submitted any feedback form.
145. Reverting back to file Ex. PW 3/B (colly) (D-140) of Government of Jharkhand where applications of different applicant companies were being processed, it would be pertinent to mention that even subsequent to sending the aforesaid recommendations to MOC by Government of Jharkhand, request of various other companies continued to be received in Government of Jahrkahnd seeking their recommendation to MOC for allotment of Rajhara coal block. However a bare perusal of note sheet pages 12-19 in file Ex. PW 3/B (colly) (D-140) shows that various notings were made in the file by different officers including A-4 B.K. Bhattacharya, Section Officer, Department of Mines and Geology and A-5 B.B. Singh, Director (Mines) endorsing the view that as names of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Limited have already been recommended for Rajhara coal block so it will not be appropriate to recommend any fresh names till a decision qua them is taken by MOC, Government of India. Reference in this regard can be had to two such notings dated 19.02.2008 and 09.05.2008 of A-4 B.K. Bhattacharya in file Ex. PW CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 135 of 429 3/B (Colly) (D-140). In both his notings A-4 B.K. Bhattacharya had questioned the propriety of making recommendation qua any new company for Rajhara coal block. The two notings dated 19.02.2008 and dated 09.05.2008 of A-4 B.K. Bhattacharya read as under:
Noting dated 19.02.2008 (At note sheet pages 14-15) "अपर चनदगशक खयन (मन०) खयन चनदगशक (पभयरण) Bihar Caustic कय पत पक० 75-73/प० एवस 72-70/प० पर दगखय जयय। Mr. S.S Gupta Managing Director, Bihar Caustic नग अपनग पत मम अननरलध चकयय हह चक रयजहरय कलल बलयलक पलयमप (झयरखणड) कल Bihar Caustic कल आबसचटत करनग हगतन कलल मसतयलय, नई चदलण कल रयजय सरकयर कय अननशससय भगजय जयय। इस पससग मम चवषय वसतन चनमन पकयर हहए-
पक० 38/प० पर अवपसथत पत कय अवललकन चकयय जयय। सयथ हण पक० 37 प० पर अवपसथत पत कय अवललकन चकयय जयय।
पक० 37/प० पर सरकयर नग रयजहरय कलल बलयलक कग ललए दल कसपचनयअ कल अननशससय चकयय गयय हहए-
1. M/s Mukund Ltd. 60%
2. M/s Zoom Ballabh steel Ltd. 40% सयथ हण 38/प० पर चनणर य हगतन समयचहत भण चकयय गयय हह:-
अतए उक पररपसथचत मम जबतक भयरत सरकयर कलयलय मसतयलय दयरय असचतम चनणर य नहह लग ललयय जयतय हह तब तक Bihar Caustic कग ससबसध मम चकसण पकयर कय चनणर य लगनय ससभव नहह हह उचचत नहह हलगय।
अवललकनयथर sd/-
बसस त कन मयर भटक टयचययर 19/2/2008"
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 136 of 429 Noting dated 09.05.2008 (At note sheet page 18) "उप चनदग श क खयन (मनख ययलय) पक० 10-11/ चट० पर मयननणय मनखयमसतण महलदय कग आग दश ककपयय दगखय जययग। आदगशयननसयर पक० 37/प० पर Govt. of India कल Rajhara North/ Central एवस Eastern Group कग ललए M/s Mukund Ltd. एवस M/s Zoom Ballabh Steel Ltd. कल अननशससय चकयय जय चनकय हह। अब Bihar Caustic नग उसण सथयन कग ललए आवगदन चकयय हह लजस पर चवचयर करनय कहयस तक उचचत हलगय।
आदगशयथर Sd/-
बसस त 9/5/2008"
146. In fact both the aforesaid notings had also travelled through the desk of A-5 B.B. Singh after having been routed through the desk of Deputy Director and he too forwarded them on both occasions to Senior Officers for consideration. Dy. Secretary (Mines) Sh. Subodh Kishore Sorang however vide his note dated 17.05.2008 while reiterating the earlier recommendations sent to Central Government further observed that in case of any recommendation to be now again sent approval of State Government is required to be obtained.
Thereafter when the file moved to the desk of PW-6 Jai Shankar Tiwary, Secretary (Mines) then he made an observation on 17.05.2008 itself "आवशयकतय नहह हह ".
147. The purpose of mentioning the aforesaid facts at this stage is simply to highlight that while the propriety of sending any new recommendation was questioned by the officers at different levels but with the aforesaid observation of PW-6 Jai Shankar Tiwary, Secretary, CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 137 of 429 Mines the issue relating to considering applications of other companies for recommendation to MOC, Government of India for allocation of coal blocks stood completely closed as no further noting was put up by any official/officer in this regard. [The next noting in the file is dated 02.07.2008 by A-4 B.K. Bhattacharya i.e. after about 45 days. The said note dated 02.07.2008 shall be dealt with by me at a slightly later stage.]
148. At this stage it would be pertinent to mention that in the Screening Committee meeting held on 08.02.2008 on account of difference of opinion among the Committee members with respect to accommodation of prospective allotees in coal blocks based on mining capacity or minable reserves the decision was taken to get the mine capacity and reserves reassessed by CMPDIL. [Reference in this regard may be had to minutes Ex. PW 18/DX-5 (colly) (D-116) of 36th Screening Committee].
149. Accordingly, upon receipt of necessary information in this regard from CMPDIL the same was duly communicated to all the concerned Administrative Ministries and State Governments, who were members of Screening Committee vide letter dated 12.02.2008 Ex. P-9 of PW 26 V.S. Rana Under Secretary, MOC. Again vide another letter dated 19.03.2008 Ex. P-10 of PW-27 V.S. Rana all the members of Screening Committee as above were requested to send their comments/views, if any, with respect to the allocation of various coal blocks in the light of information relating to reserves and mine capacity as was already communicated vide letter dated 12.02.2008.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 138 of 429 The said communications from MOC were processed in Department of Mines, Government of Jharkhand in file Ex. PW 5/B (colly) (D-5). Various notings in this regard were put up by different officers of Government of Jharkhand including A-4 B.K. Bhattacharya, A-5 B.B. Singh and PW 6 Jai Shankar Tiwary. The earlier recommendations qua different coal blocks in favour of various companies as were already sent to MOC on behalf of Government of Jharkhand were again highlighted and finally PW 6 Jai Shankar Tiwary vide his note dated 15.04.2008 observed that on account of reduction in the tentative assessment of reserves in the coal blocks no adverse impact comes on the recommendations already sent. Thus, it was observed that the earlier recommendations of Government of Jharkhand need not be revised. The file accordingly moved to the desk of A-6 A.K. Basu, Chief Secretary, Government of Jharkhand, on 15.04.2008 itself and who appended his signatures below the note of PW 6 Jai Shankar Tiwary and thereby approving the said note. The file thereafter moved downward in the Department of Mines, Government of Jharkhand. Accordingly, pursuant to approval accorded by A-6 A.K. Basu, Chief Secretary, a draft letter to be sent to MOC in this regard was also put up in the file and the same too got routed through the desk of various officers of Government of Jharkhand including A-4 B.K. Bhattacharya and A-5 B.B. Singh. However, when the file reached the desk of PW-6 Jai Shankar Tiwary, than he while forwarding the file to Chief Secretary, vide his note dated 08.05.2008 observed that on earlier occasions the recommendations of Government of Jharkhand were sent with the approval of Chief Minister so it may be appropriate that CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 139 of 429 approval of Chief Minister on this occasion may also be obtained. Accordingly, when the file came to the desk of A-6 A.K. Basu then he forwarded the file to Chief Minister and on 04.06.2008, A-7 Madhu Koda approved the proposal so put up by appending his signatures on the file. Thus, in these circumstances a letter dated 20.06.2008 Ex. PW 6/M (D-5) was sent to V.S. Rana, Under Secretary, MOC by Dy. Secretary, Mines, S.K. Sorang, Department of Mines stating that necessary action be taken in accordance with the recommendations of State Government of Jharkhand as were earlier sent to MOC and that reduction in the tentative coal reserves does not in any manner affect the said earlier recommendations. A copy of the earlier recommendations sent to MOC by Government of Jharkhand was also enclosed with the letter. It was in the same file Ex. PW 5/B (Colly) (D-5) that on 01.07.2008 a noting was put up by the concerned section in Department of Mines, Government of Jharkhand intimating about Screening Committee meeting to be held on 03.07.08. The noting accordingly travelled from the desk of A-4 B.K. Bhattacharya, A-5 B.B. Singh and finally through the desk of Dy. Secretary, S.K. Sorang, it reached the desk of A-6 A.K. Basu on 01.07.2008. (PW-6 Jai Shankar Tiwary, Secretary, Mines had in the meantime superannuated from service on 30.06.2008). The note sheet page 7 in the file shows that thereafter there is another signature of A-6 A.K. Basu on 15.07.2008 marking the file downward to Secretary, Mines and signatures of PW-18 K.K. Khandelwal who had in the meantime taken over the charge of Secretary Mines also appears as dated 15.07.2008. [There is no noting or endorsement in file Ex. PW 5/B CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 140 of 429 (Colly) (D-5) from 01.07.2008 till 15.07.2008.]
150. Be that as it may, from the aforesaid sequence of events, it is thus clear that the earlier recommendations sent to MOC by Government of Jharkhand qua "Rajhara Coal Block" in favour of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Limited were not only reiterated by Government of Jharkhand with the approval of Chief Minister A-7 Madhu Koda but were also to the knowledge of A-6 A.K. Basu well prior to the final meeting of 36 th Screening Committee meeting held on 03.07.08.
151. However, surprisingly thereafter, on 02.07.08 [i.e. after a gap of 45 days from the last note dated 17.05.2008 in file Ex. PW 3/B (colly) (D-140)], A-4 B.K. Bhattacharya, Section Officer, Department of Mines, suddenly put up a strange note in file Ex. PW 3/B (Colly) (D-
140) mentioning therein the current status report of progress made by A-1 M/s VISUL and by M/s Zoom Vallabh Steel Ltd. towards establishing their industry in the State.
152. This noting dated 02.07.08 of A-4 B.K. Bhattacharya followed by that of other officers also assumes importance as on 03.07.08 final meeting of Screening Committee was already scheduled and in which recommendation for allocation of various coal blocks in favour of different applicant companies were to be made.
153. In his note dated 02.07.08, A-4 B.K. Bhattacharya stated that while the progress made by M/s VISUL was satisfactory but in CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 141 of 429 comparison thereto the progress made by M/s Zoom Vallabh Steel Ltd. was not satisfactory. He thus stated that decision may be taken to allocate a part of Rajhara coal block to M/s VISUL and recommendation can be made to Central Government in this regard. The said noting thereafter proceeded till the desk of Dy. Secretary, Subodh Kishore Sorang after having been routed through the desk of Deputy Director, Mines, Sh. R.N. Parsad and Director Mines A-5 B.B. Singh on 02.07.2008 itself. However, Dy. Secretary Mines Sh. Subhod Kishore Sorang raised a query vide his noting dated 07.07.2008 as to whether after the earlier recommendations having been approved by Hon'ble Chief Minister, new recommendations can be sent. The file accordingly was marked downward again to the desk of A-5 B.B. Singh, Director Mines on 07.07.2008 who further marked it down to his subordinate officers.
154. The noting dated 02.07.2008 of A-4 B.K. Bhattacharya followed by notings of senior officers dated 02.07.2008 itself and noting dated 07.07.2008 of Dy. Secretary Mines read as under:
"उपचनदगशक खयन-2 (पन०) आपसग यथय चवमचशर त/इस पससग मम पक० 125/प० पर उपलबध statement कग कम सस०- 22 मम M/s Vini Iron & Steel Udyog Ltd. कग current status कक जयनकयरण दण गई हह। Status report कग अननसयर इनकय अनययनय पगचत ससतलषपद हह। जबचक इसकग तनलनय मम Zoom Ballabh Steel Ltd. कय पगचत ससतलषपपणर नहह हह। इसललए उनकग सथयन पर M/s Vini Iron and Steel Udyog कल Rajhara Coal Block कय एक असश दगनग कग ससबसध मम चनणर य ललयय जय सकतय हह। एवस कगनद सरकयर कल इसकक अननशससय कक जय सकतण हह।
आदगशनयथर sd/-
बसस त कन मयर भटक टयचययर 2/7/2008 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 142 of 429 अपर चनदगशक खयन (मन०) ककपयय sd/-
2.7.08 (आर. एन. पसयद) प० चन० खय० ककपयय sd/-
02/07/08 उप सचचव-II ककपयय sd/-
बण.बण. लसस ह 02/7/08 कयय पक० 10-11/चट० पर मयननणय मनखय मसतण दयरय अननमलचदत पसतयव कग बयद चकसण अनय कमपनण कक अननशससय भगजण जय सकतण हह?
sd/-
(सनब लध चकशलर सलरयसग ) 7/7/08"
[This noting by Dy. Secretary (Mines) Subodh Kishore Sorang also shows that till 07.07.2008 he was not aware as to what recommendations have been made by the Screening Committee in its meeting held on 03.07.2008. In fact officers below including A-5 B.B. Singh also seems to be unaware of the same, even though Secretary (Mines) and Chief Secretary of the State had gone to attend the same.] The file thereafter travelled back to the concerned section CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 143 of 429 through the desk of various officers including A-5 B.B. Singh. The last signatures of concerned dealing hand on the said note sheet page in this regard is 10.07.2008.
155. However a perusal of the file shows that thereafter nothing happened in the file till 28.07.2008. However on 28.07.08, A-5 B.B. Singh, Director, Mines, put up a note mentioning about the progress made by M/s VISUL vis-a-vis that made by M/s Mukund Ltd. It was however also mentioned by him in the note that the Screening Committee has jointly allocated "Rajhara Coal Block" in favour of M/s Mukund Ltd and M/s VISUL. It was also proposed by him that in view of the present position of the current status of progress made by the two companies decision may be taken by the Government qua sending of recommendation for allocation of "Rajhara Coal Block".
156. Interestingly the file Ex. PW 3/B (Colly) (D-140) subsequent to said noting dated 28.07.2008 of A-5 B.B. Singh, Director Mines moved at a very fast pace. The file reached the desk of Dy. Secretary on 28.07.2008 itself and thereafter to the desk of PW-18 K.K. Khandelwal i.e. Secretary Mines also on 28.07.2008 itself. From the desk of PW- 18 K.K. Khandelwal also the file moved to the desk of A-6 A.K. Basu, Chief Secretary, Government of Jharkhand on 28.07.2008 only and he also immediately marked the file to Chief Minister on 28.07.2008 itself. Interestingly A-7 Madhu Koda, Chief Minister also dealt with the file on 28.07.2008 itself observing that in view of the progress made by M/s VISUL recommendation qua "Rajhara Coal Block" may be sent in favour of M/s VISUL only. The file thereafter travelled downward and CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 144 of 429 the signatures of Chief Secretary i.e. A-6 A.K. Basu as appear on note sheet page 21 in the downward movement of file are dated 01.08.2008. The stamp of receiving and sending of files as was put by the office of Chief Secretary also shows the date of receipt of file (in the downward movement) as 01.08.2008 but the date of sending the file out from his office is blank. Similarly signatures of PW-18 K.K. Khandelwal as appear on note sheet page 21 (in the downward movement) are also dated 02.08.08. The aforesaid notings as are available at note sheet pages 21-22 in file Ex. PW 3/B (Colly) (D-140) read as under:
"उप सचचव-II पपवर पकष पर पकचछय।
भयरत सरकयर कक सककनहग कचमचट दयरय रयजहरय नयथर , सगनटट ल एवस इसटट न कलल बलयलक कल ससयकन रप सग मगससर मनकननद लल० एवस मगससर चवनण आयरन एवस सटणल उदलग लल० कग पक मम आबसटन कय चनणर य ललयय गयय हह।
इस ससबध स मम उलगखनणय हह चक मगससर मनकननद लल० दयरय झयरखणड रयजय मम उदलग सथयचपत करनग कक चदशय मम अदतन पगचत ससतलषजनक नहह हह। उनकग दयरय जमणन कय कय नहह चकयय गयय हह। और ऊजयर कग ललए आवगदन नहह चदयय गयय हह। ललह अयसक कग ललए भण अभण तक रयजय सरकयर दयरय कगनद सरकयर कग अननशससय नहह भगजण गई हह, परनतन मगससर चवनण आयरन एणड सटणल उदलग लल० दयरय उदलग सथयचपत करनग हगतन जमणन कय कय चकयय गयय हह और ऊजयर कग ललए आवगदन दयलखल चकयय गयय हह। मगससर चवनण कग पक मम ललह अयसक कग ललए कगनद सरकयर कल अननशससय भण कक गई हह। यह उलगखनणय हह चक रयजहरय नयथर , सगनटट ल एवस ईसटट न कलल बलयलक मम कलयलय खचनज कय चनकगप भण मयत 17.09 चमललयन टन हण हह।
'क' उपयनरक पररपसथचत मम अदतन पगचत कग आललक मम भयरत सरकयर कक सककचनसग कचमचट कग दयरय ललए गए चनणर य कग आललक मम रयजहरय कलल बलयलक कग आबसटन कग ससबध स मम अननशससय हगतन सरकयर दयरय समनचचत चनणर य ललयय जय सकतय हह।
sd/-
(बण०बण० लससह ) 28/7/08 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 145 of 429 सचचव चनदगशक. खयन कक उपयनरकरत चटपपणण मम मनकननदय लल० दयरय झयरखणड रयजय मम उदलग सथयचपत करनग कक चदशय मम कक गई पगचत कक अदतन पसथचत सपष कर दण गई हह. जल ससतलषपद नहह हह।
उपयनरक कग आललक मम चटपपणण असश 'क' पर मयननणय मनखय (चवभयगणय) मसतण कय आदगश पयप चकयय जय सकतय हह।
sd/-
मदन सग न गनप य 28/7/08 मनखय सचचव असश 'क' पर मय. मनखयमसतण कय आदगश पयप करनय चयहमगग।
sd/-
कग कग खस डग ल वयल 28/7/08 मनख यमस त ण sd/-
ऐ. कग . बयसन 28/7/08 अदतन पगचत कग आललक मम रयजहरय नयथर , सगनटट ल एवस इसटनर बलयलक कय आबसटन महससर चवनण आयरन एणड सटणल उदलग कग पक मम हण करनग हगतन अननशससय भगजण जयय।
sd/-
मधन कलडय 28/7/2008 sd/-
1/8/08 ऐ. कग . बयसन"
157. The stamp qua receiving of file in the office of Chief Secretary in the downward movement read as under:
"मनखय सचचव कयययरल य सस च चकय पग० सस ० 2198 सण०एस० पयचप कक चतथण 01/08/08 वयपसण कक चतथण "
158. However in the meantime an interesting development took place in the matter. Pursuant to the aforesaid directions of Chief CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 146 of 429 Minister Madhu Koda dated 28.07.2008 that recommendation for "Rajhara Coal Block", be sent in favour of M/s VISUL only, a letter dated 28.07.2008 itself Ex. P-12 was sent byA-6, A.K. Basu under his own signatures to Secretary Coal requesting for allocation of Rajhara Coal Block to M/s VISUL only and that M/s Mukund Ltd. be considered for some other coal block.
[The prosecution has however alleged that when the file was received in the office of Chief Secretary on 01.08.2008 so there was no occasion for A-6 A.K. Basu, Chief Secretary to have signed the said letter on 28.07.2008 itself and the said act coupled with the fast movement of file on 28.07.2008 itself shows existence of a criminal conspiracy amongst the accused persons so as to favour M/s VISUL.
I shall be however dealing with the aforesaid issue at length at a later stage of my present judgment.]
159. However before adverting further it would be appropriate to first have a glance over the said letter dated 28.07.2008 Ex. P-15 sent by A-6 A.K. Basu, Chief Secretary, Government of Jharkhand to A-3 H.C. Gupta, Secretary Coal. The same read as under: [Available at page 145-146, in file Ex. PW 3/B (Colly) (D-140)].
"To, Secretary to Govt, Ministry of Coal, Shastri Bhawan, New Delhi 110001 Sub: Revised Recommendation in respect of Rajhara North, CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 147 of 429 Central and Eastern Coal Block.
Sir, Pursuant to the decision taken in the meeting of the Screening Committee held on 03/07/2008 with regard to Rajhara North, Central and Eastern Coal Block, the State of Jharkhand accepts the decision of the Screening Committee in so far as it relates to M/s Vinni Iron and Steel Udyog Ltd. It is to be noted that the Screening Committee has taken decision for allocation of Rajhara North, Central and Eastern Coal Block in favour of M/s Vinni Iron and Steel Udyog Ltd and M/s Mukund Steel Ltd. jointly.
The State Government would like to apprise about the present progress of these two companies in so far as setting up of their proposed steel plants in the State of Jharkhand is concerned.
As per records, M/s Mukund Steel Ltd. has not been able to procure any land for its proposed steel plant as yet and has not applied for power. No recommendation has been sent to the GOI for Iron Ore in favour of M/s Mukund Steel Ltd. as yet.
As against that, M/s Vinni Iron and Steel Udyog Ltd has already procured land for its proposed plant and has applied for water to the Water Resources Department, Jharkhand which is under consideration. It has also applied for power. The State of Jharkhand has also sent recommendation in favour of M/s Vinni Iron and Steel Udyog Ltd. for iron ore for its proposed steel plant.
In view of the small quantity of reserve in Rajhara North, Central and Eastern Coal Block and the progress of the two companies as aforementioned and the ground realities, the State Government recommends that Rajahara North, Central and Eastern Coal Block be allocated to M/s Vinni Iron and Steel Udyog Ltd. M/s Mukund Steel Ltd. may kindly be considered for allotment of some other coal block in place of Rajhara.
Yours faithfully, Sd/-
28.07.08 Chief Secretary Jharkhand"
(Emphasis supplied by me)
160. In the said letter it was thus stated by A-6 A.K. Basu that in view CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 148 of 429 of the small quantity of reserve in Rajhara Coal Block and the progress of the two companies as aforementioned and the ground realities, the State Government recommends that "Rajhara Coal Block" be allotted to M/s Vinni Iron and Steel Udyog Ltd. It was further stated that M/s Mukund Steel Ltd. may kindly be allotted some other coal block in place of Rajhara. [However, the said request of Government of Jharkhand could not be accommodated in MOC as by that time the recommendations of 36th Screening Committee were already approved by the Competent Authority i.e. Prime Minister as Minister of Coal] It would be also pertinent to mention that in the said letter it was also stated by A-6 A.K. Basu that State of Jharkhand accepts the decision of the Screening Committee in so far as it relates to M/s VISUL. (This aspect shall be again dealt with by me at a later stage of the present judgment when the proceedings of Screening Committee meeting held on 03.07.08 shall be discussed.)
161. Thus despite stating in the letter dated 28.07.2008 that progress of M/s Mukund Steel Ltd is not satisfactory still the said company was recommended to be allotted some other coal block in place of Rajhara Coal block without any pre-condition related to progress to be first made by it. This stand taken by A-6 A.K. Basu in the said letter becomes important when a similar letter dated 04.08.2008 sent by him to A-3 H.C. Gupta regarding Hutar Hurilong Coal Block highlighting the progress made by two other joint allocattee companies namely M/s Rungta Projects Ltd and M/s Contisteel Ltd. is CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 149 of 429 seen. [I shall be however also discussing separately as to whether there was any reasonable basis to conclude that progress made by M/s Mukund Ltd. was not satisfactory].
162. In the said letter dated 04.08.2008 [available in file Ex. PW 27/N (Colly) (D-94) i.e. file of MOC with office copy in file Ex. PW 3/B (Colly) (D-140) i.e. file of Government of Jharkhand.] A-6 A.K. Basu after mentioning about the progress made by the two companies stated that State Government reiterates its request to MOC to allocate Hutar and Hurilong coal blocks in favour of M/s Rungta Projects Ltd only. As regard M/s Contisteel Ltd it was stated that the company may be allocated suitable coal block as and when it makes significant progress in setting up of the steel plant in the State of Jharkhand.
163. The purpose of referring to the concluding recommendations of State Government of Jharkhand to MOC in the two letters as above is to primarily highlight that as compared to letter dated 04.08.2008 relating to M/s Contisteel Ltd, the letter dated 28.07.2008 despite mentioning about no satisfactory progress having been made by M/s Mukund Steel Ltd in setting up its project, merely stated that the said company may be considered for allotment of some other coal block in place of Rajhara. Unlike M/s Contisteel Ltd no condition was put qua M/s Mukund Steel Ltd that it may be allocated any other coal block only when it makes significant progress in setting up of the steel plant in the State.
164. This fact even otherwise assumes significance as in my CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 150 of 429 later discussion it will be seen as to how A-6 A.K. Basu by sitting over the file relating to extension of MOU of M/s Mukund Steel Ltd ensured that a picture is depicted that the company has not made any satisfactory progress in setting up the steel plant even though State Government had accorded approval for extension of MOU. However, it is the consistent stand of accused persons only that approval for extension of MOU is accorded to a company only when it makes satisfactory progress in setting up the given industry in the State. In the cross-examination of PW-25 Amrendra Pratap Singh, Secretary Industries, Government of Jharkhand, it was put to him on behalf of A- 6 A.K. Basu himself that whenever extension of MOU is considered then the performance of the company is evaluated and that MOU is extended only qua those companies whose performance is found satisfactory.
Thus, it is clear that approval for extension of MOU must have been accorded to company M/s Mukund Ltd. only when it must have made satisfactory progress in setting up the proposed industry in the State. In fact it was for this reason only that no pre-condition regarding progress to be made by the company was put in letter dated 28.07.08 while stating that M/s Mukund Steel Ltd. be considered for some other coal block in place of "Rajhara Coal Block".
165. However the said letter dated 28.07.2008 Ex. P-15 of A-6 A.K. Basu assumes significance for a number of other reasons also and thus shall be repeatedly referred to at different stages of the present judgment.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 151 of 429
166. At this stage it will be now also worthwhile to refer to another important issue i.e. the status of MOUs as were earlier entered into by Government of Jharkhand with M/s VISUL and with M/s Mukund Ltd, as on the day of Screening Committee meeting held on 03.07.2008. In this regard the circumstances in which the MOU executed with M/s VISUL came to be extended for a further period of two years and that too with retrospective effect will also be worth referring to. Similarly, the circumstances in which approval was granted for extension of MOU of M/s Mukund Ltd. will also be worth referring to in order to appreciate the working of officers of Government of Jharkhand. Another important issue to be taken note of is the terms and conditions mentioned in the two MOU.
MOU dated 14.09.2006 executed with M/s VISUL by Government of Jharkhand.
167. With respect to execution of a MOU with M/s VISUL by Government of Jharkhand, the necessary proceedings were carried out in File Ex. PW 2/B (colly) (D-82) [Also file Ex. PW 2/F (Colly) (D- 82-A]. The note sheet pages thereof from pages 1-24 have also been proved and exhibited as Ex PW 18/A (Colly).
[In fact the two files i.e. Ex. PW 2/B (Colly) (D-82) and file Ex. PW 2/F (Colly) (D-82-A) are two mirror images of the same file. The need for creating such a file arose as the main file was initially seized by CBI, Ranchi in some other case so after placing on record photocopies of all the note sheet pages and other documents a new CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 152 of 429 file was started in the department.] A perusal of the aforesaid note sheet pages show that a MOU dated 14.09.2006 was entered into with M/s VISUL by Government of Jharkhand on the request of company that they intend to establish a sponge iron plant in the State. The said MOU dated 14.09.2006 has been proved and exhibited as Ex. PW 2/DX-1 (D-82). In the said MOU, it was stated in Clause (V) under the heading "General Clauses" that the State Government will provide all enabling assistance to the company for linkage of raw material from State PSUs. However subsequent to execution of said MOU M/s VISUL submitted a letter dated 09.11.2006 followed by another letter dated 05.12.2006 to Secretary Department of Industries, Government of Jharkhand requesting that State Government may incorporate a clause in the MOU that it shall recommend the company M/s VISUL to Government of India for allotment of suitable coal blocks for captive coal mining and also that the State Government shall assist in selecting the area for the company for iron ore and other minerals. Reference in this regard was also made by M/s VISUL to similar MOUs executed by State Government with other entrepreneurs wherein such a clause was incorporated. However, the said communications of M/s VISUL were dealt with by at note sheet page 7 in file Ex. PW 2/B (Colly) (D-82) by Dy. Director, Industries Sh. D.P. Vidhyarathi vide his note dated 13.12.2006. In the said note it was stated that as MOU dated 14.09.2006 was executed pursuant to decision of high level Committee so there was no necessity of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 153 of 429 amending the MOU at present. The said noting dated 13.12.2006 was approved not only by Director (Industries) but also by Secretary (Industries) i.e. PW 18 K.K. Khandelwal. Moreover, in the said MOU dated 14.09.2006, it was also mentioned that in the event of no efforts being made by M/s VISUL towards implementation of the project within one year of signing the MOU, support of the State Government indicated in the MOU shall be deemed to be withdrawn. (It may be however pertinent to mention that similar Clause providing one year time for making progress finds mention in all the MOUs as were executed by Government of Jharkhand with different companies intending to establish Industries in the State).
168. The important fact however to be noticed over here is that in the MOU dated 14.09.2006 Ex. PW 2/DX-1 entered into by Government of Jharkhand with M/s VISUL it was only mentioned that the State Government shall provide all enabling assistance to the company for linkage of raw material from state PSUs. At the same time the request of company M/s VISUL to incorporate a Clause in the MOU that the State Government shall assist in selecting the blocks within the State and agrees to recommend to Government of India for allotment of suitable coal blocks or even the Clause that the State Government shall assist in selecting the area for Iron Ore and other minerals was specifically turned down by Department of Industries, Government of Jharkhand.
169. As regard review of progress made by the company M/s VISUL towards establishing the industry in the State within one year, it will be CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 154 of 429 pertinent to mention that though apparently the validity of MOU being only for one year is not specifically mentioned but from the files of Department of Industries, Government of Jharkhand, it is clear that the companies who had entered into any such MOU were required to submit specific request to the Government for extension of their MOU on the basis of positive steps taken by them towards establishing the industry in the State. (This fact will get further highlighted when I shall be discussing the circumstances relating to extension of MOU entered into by M/s Mukund Ltd. with Government of Jharkhand).
170. Be that as it may, the file relating to execution of MOU with M/s VISUL thereafter has a noting dated 11.01.2007 whereby it has been proposed that Member Secretary Jharkhand Pollution Control Board may be requested for issuance of no objection certificate in favour of M/s VISUL. There is however no other noting made in the file Ex. PW 2/B (Colly) (D-82) thereafter for a period of about more than 16 months. However, subsequent thereto vide note dated 22.05.2008 a request of M/s VISUL received vide letter dated 06.05.2008 of PW-12 Amit Sharma for extension of their MOU for a further period of two years, followed by another letter dated 20.05.2008 of PW-21 Swapan De Chaudhary furnishing details of progress made by the company in setting up its industry in the State has been dealt with by Sukumar Bhattacharya, the Dealing Assistant in the Department of Industries. While the manner and circumstances in which the said requests were received on behalf of M/s VISUL shall be dealt with at a later stage but at this stage it will be suffice to state that subsequently pursuant to CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 155 of 429 approval given by A-7 Madhu Koda on 24.07.2008, the MOU dated 14.09.2006 of M/s VISUL was extended for a period of two years and that too with retrospective effect i.e. from 14.09.2007 till 14.09.2009.
171. However as will be evident from my subsequent discussion, it would not be an exaggeration to state that from around the month of May 2008 onwards the fortunes of M/s VISUL in the State of Jharkhand suddenly changed. Various proceedings as were carried out in the files of Government of Jharkhand clearly show that from the month of May 2008 onwards efforts were being made at various levels in Government of Jharkhand to ensure that M/s VISUL is got allocated a captive coal block from MOC, Government of India. In fact, it would not be wrong to state that from May 2008 onwards M/s VISUL became the most favoured child of Government of Jharkhand. The extension of MOU of M/s VISUL for a period of two years and that too with retrospective effect from 14.09.2007 was also a step in this direction only. The primary purpose to do so was to ensure that as on the day of Screening Committee meeting held on 03.07.2008 a valid MOU was in existence in favour of M/s VISUL. (However at a later stage while discussing the role of A-1 M/s VISUL, A-2 Vaibhav Tulsyan and A-8 Vijay Joshi, I shall be referring to the circumstances leading to such sudden change of fortunes of M/s VISUL in detail).
172. A perusal of file Ex. PW 2/B (Colly) (D-82) shows that a letter dated 06.05.2008 Ex. P-98 signed by PW 12 Amit Sharma, admittedly an employee of A-8 Vijay Joshi, was submitted to Secretary, Department of Industries, Government of Jharkhand on behalf of M/s CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 156 of 429 VISUL. The said letter was signed by PW-12 Amit Sharma as Director M/s VISUL. In the letter reference was made to various steps taken by M/s VISUL towards implementation of its project i.e. setting up of an integrated steel plant of 0.6MT and power plant of 60MW in the State. It was thus requested that in view of the aforesaid development of their project their MOU may be renewed for a further period of at least two years. However, from the stamp impression of the office of Secretary Industries as is appearing on the letter it appears that letter was received in his office on 14.05.2008 only and was thereafter marked down in the department. However as already mentioned the said letter was processed only on 22.05.2008. In fact prior thereto another letter dated 20.05.2008 Ex. PW 18/DX-1 written by PW 21 Swapan De Chaudhary and addressed to Special Secretary, Department of Industries, Government of Jharkhand was also received on behalf of M/s VISUL. In the said letter also steps taken by the company towards establishing the project were mentioned. However in the said letter titled "Information necessary in response to updated status of MOU" neither any purpose of submitting the said letter was mentioned nor any request was made of any nature whatsoever much less for extension of MOU. Along with the said letter copy of various documents in support of the claims made in the letter were also annexed by PW-21 Swapan De Chaudhary.
173. It was subsequent to receipt of said letter dated 20.05.2008 of PW-21 Swapan De Chaudhary that vide noting dated 22.05.2008 [available at note sheet page 9-11 in file Ex. PW 2/B (Colly) (D-82)] CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 157 of 429 that the initial letter dated 06.05.2008 of PW-12 Amit Sharma wherein actually the request was made for extension of MOU alongwith subsequent letter dated 20.05.2008 of PW-21 Swapan De Chaudhary and the documents annexed thereto were comprehensively dealt with. It was proposed by the concerned dealing hand that in view of the facts mentioned in the communication received the matter regarding extension of MOU of M/s VISUL for a period of two years can be considered. The said noting dated 22.05.2008 came to be put up before Dy. Director Industries and who also in his note dated 22.05.2008 itself approved the same but also proposed that for extension of MOU of the company for a period of two years, approval of Chief Secretary may be obtained. The file thereafter travelled to the desk of Dy. Secretary, Industries and who too vide his note dated 22.05.2008 itself stated that approval of Chief Secretary for extension of MOU may be obtained. Finally the matter came to the desk of Secretary Industries, PW-18 K.K. Khandelwal on 23.05.2008. He also vide his note available at note sheet pages 12-13 proposed that approval for extension of MOU dated 14.09.2006 for a period of two years may be given. The file was thereafter marked by him to Chief Secretary i.e. A-6, A.K. Basu. However A-6 A.K. Basu put up a note that orders of Minister-in-charge may also be obtained. Though there is no date below the signatures of A-6 A.K. Basu on the said endorsement but the stamp of receipt and dispatch of file of his office as is available at note sheet page 13 itself shows that the file was received in his office on 26.05.2008 and was sent out on 27.05.2008. Subsequent notings in the file further shows that on 04.06.2008, PW-
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 158 of 429 18 K.K. Khandelwal put up the file before Dy. Chief Minister who was the concerned Minister-in-charge for his directions and concerned Minister approved the proposal on 05.07.2008 [i.e. subsequent to Screening Committee meeting held on 03.07.08]. Thereafter on 15.07.2008, PW-18 K.K. Khandelwal again put up the file to Chief Secretary that pursuant to approval of Dy. Chief Minister (Industries) the proposal may be now approved. However the stamp of receipt of file in the office of Chief Secretary as is available again at note sheet page 13 itself shows that the file was received in his office on 15.07.2008 but there is no date of outward movement mentioned in the stamp. The noting recorded over there however show that on 16.07.2008, A-6 A.K. Basu forwarded the file to Chief Minister and on 24.07.2008 A-7 Madhu Koda had put his signatures on the file and thereby signaling the approval of the proposal. The file thereafter moved backward. Again on 28.07.08 file was put up by the concerned dealing hand in Department of Industries for approval of draft letter to be sent to M/s VISUL informing them about extension of their MOU for a period of two years i.e. from 14.09.2007 till 14.09.2009. The file thereafter moved to the desk of Dy. Director Bageshwar Singh on 28.07.08 itself and from him to the desk of PW-18 K.K. Khandelwal who approved the letter to be so sent and in fact signed the said letter dated 28.07.08 himself. [Letter is available at page 118 in file Ex. PW 2/B (Colly) (D-82)].
174. There is however no other noting in the file of the year 2008 and in fact the next noting in the file is dated 04.06.2009 onwards i.e. CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 159 of 429 after a gap of about 11 months. The said noting and other notings following thereafter of the year 2010 shall be referred by me at a later stage as the MOU so extended with M/s VISUL was proposed to be cancelled by Department of Mines, Government of Jharkhand as M/s VISUL was found to have made no progress towards setting up its industry in the State and even it was mentioned that the company has misrepresented facts while seeking extension of MOU earlier.
175. The purpose of referring to the aforesaid notings is manifold. Firstly, from the aforesaid notings it is clear that after M/s VISUL applied for extension of its MOU vide letter dated 06.05.08 followed by letter dated 20.05.2008 than the necessary approval in this regard was accorded by A-7 Madhu Koda, the then Chief Minister only on 24.07.2008. Admittedly the file in this process passed through the desk of A-6 A.K. Basu on two occasions i.e. initially on 26.05.2008 when he directed that approval of Minister-in-charge be obtained and again on 16.07.2008 when he forwarded the file to A-7 Madhu Koda.
176. Thus, from the aforesaid circumstances, it is crystal clear that as on 03.07.08 i.e. when the final meeting of 36th Screening Committee took place in MOC, Government of India wherein recommendation for allocation of Rajhara coal block in favour of M/s VISUL was made there was no valid MOU in existence in favour of the company. It is also clear that this fact was well to the knowledge of A-6 A.K. Basu that the request of M/s VISUL for extension of their MOU has not yet been accorded approval by even the concerned Minister in Charge much less by the competent authority i.e. Chief Minister, A-7 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 160 of 429 Madhu Koda. Even PW-18 K.K. Khandelwal was also well aware of the said fact that no valid MOU was in existence as on 03.07.08 (It is altogether a different matter that PW-18 K.K. Khandelwal has even claimed that he was not present in the Screening Committee meeting held on 03.07.08 at the time when discussion qua the coal blocks situated in the state of Jharkhand took place. This issue however shall be separately dealt with by me at a slightly later stage of the present judgment.).
177. The issue of there being no valid MOU in existence as on 03.07.08 is of immense importance, since the factum of execution of MOU by Government of Jharkhand with companies to be considered for recommendation to MOC for allocation of a coal block was a primary criteria adopted by Government of Jharkhand at all stages. Apart from the aforesaid criteria it will be also important to reiterate that even otherwise in the MOU dated 14.09.2006, Ex. PW 2/DX-1 whose extension was being sought by the company M/s VISUL, the state government had only committed to provide assistance to the company for making available raw material linkage from State PSUs. The specific request of M/s VISUL to incorporate a clause in the MOU that State Government shall recommend the company for allocation of a coal block or for iron ore mine or for other mineral was also specifically rejected.
178. Thus while it shall be discussed subsequently as to the circumstances in which M/s VISUL came to be recommended by 36 th Screening Committee for allocation of a captive coal block, but it is CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 161 of 429 important to note at this stage though at the cost of repetition that not only there was no valid MOU in existence as on 03.07.08 executed by Government of Jharkhand with M/s VISUL but even otherwise Government of Jharkhand had specifically refused to incorporate a clause in the MOU to recommend company M/s VISUL for allocation of a captive coal block. It also clearly stands proved that as on 03.07.2008 when the final meeting of 36th Screening Committee took place then A-6 A.K. Basu was well aware of all these facts. This issue also gains material importance when noting dated 04.12.2007 of PW
-6 Jai Shankar Tiwary in note sheet pages 7 to 11 in file Ex. PW 3/B (Colly) (D-140) is seen. In the said noting as earlier also mentioned, PW-6 Jai Shankar Tiwary had stated that in view of the less requirement of coal of M/s VISUL, there is no necessity of considering their application for allocation of a captive coal block and that the Government may consider for providing coal linkage, in case the company applies for it.
179. Another important point to be taken note of from the aforesaid proceedings carried out in file Ex. PW 2/B (Colly) (D-82) and in file Ex. PW 3/B (Colly) (D-140) is that 28.07.08 was an important date for M/s VISUL in so far as the proceedings conducted in the files of Government of Jharkhand dealing with various issues related to the company is concerned. The note regarding approval of draft letter to be sent to M/s VISUL intimating about extension of MOU pursuant to approval granted by Chief Minister started on 28.07.08 and moved upto the desk of Secretary Industries on 28.07.08 itself. At the same CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 162 of 429 time as already demonstrated, the file Ex. PW 3/B (Colly) (D-140) in Department of Mines and Geology regarding status of progress made by M/s VISUL and M/s Mukund Ltd. also started with note dated 28.07.08 only of A-5 B.B. Singh. The said file also moved at a fast pace on 28.07.08 itself i.e. from the desk of various officers of Department of Mines including PW-18 K.K. Khandelwal who at that time was also holding the charge of Secretary Mines and thereafter both A-6 A.K. Basu, Chief Secretary and A-7 Madhu Koda, Chief Minister also dealt with the file on 28.07.2008 itself. Thereafter it was 28.07.08 only when a letter was sent by A-6 A.K. Basu to A-3 H.C. Gupta, Secretary Coal stating that Rajhara coal block be allotted only to M/s VISUL and that M/s Mukund Ltd may be considered for allocation of some other coal block.
180. It is in the light of aforesaid circumstances relating to MOU executed with M/s VISUL or its subsequent extension or sending of revised recommendation in favour of M/s VISUL vide letter dated 28.07.2008 of A-6 A.K. Basu that it will be now worthwhile to refer to the file relating to M/s Mukund Ltd ie. file Ex. PW 2/E (Colly) (D-85).
MOU dated 07.09.06 executed with M/s Mukund Ltd. by Government of Jharkhand.
181. The file pertaining to M/s Mukund Ltd. as was maintained in Department of Industries, Government of Jharkhand has been exhibited as Ex. PW 2/E (Colly) (D-85). Its note sheet pages have been proved and collectively exhibited as Ex. PW 18/E (Colly). A CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 163 of 429 perusal of note sheet pages 8 & 9 thereof however show that a MOU dated 07.09.2006 was executed between M/s Mukund Ltd. and Government of Jharkhand towards establishing an integrated Steel Plant in the State. The circumstances in which proceedings were conducted in the files of Government of Jharkhand qua extension of said MOU in the year 2008 however makes an interesting read.
182. The prosecution has proved on record a letter dated 04.08.2008 written by M/s Mukund Ltd. Under the signatures of its Director, Business Development, PW-22, Sh. V.K. Mittal to Secretary Industries as Ex. PW 18/D (Colly) (D-85). In the said letter the company while referring to the MOU dated 07.09.06 executed by it with Government of Jharkhand has mentioned in detail the positive steps taken by it towards establishing its 2 MTPA integrated steel plant in District Hazaribagh, Jharkhand qua which the MOU in question was signed. The facts stated in the last para of the said letter Ex. PW 18/D (Colly) dated 04.08.2008 [available at pages 296-297 in file Ex. PW 2/E (Colly) (D-85)] are worth noting. The said letter read as under:
"4th August 2008 To, The Secretary Industries Department Government of Jharkhand Nepal House Ranchi (Jharkhand).
Dear Sir, It may be recalled that a MoU (Annexure I) for setting up a 2 MTPA Integrated Steel Plant (ISP) in village Barlanga, District CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 164 of 429 Hazaribagh, Jharkhand was signed between the Government of Jharkhand (GOJ) and M/s Mukand Ltd on 7 September 2006. The MoU inter-alia stipulated that the Govt. of Jharkhand shall extend assistance to Mukand Ltd to set up the Steel Plant. The major items of cooperation and assistance were specifically outlined as Land, Coal, Iron Ore and other Minerals, Water, Power, Environment Clearances, Incentives and Concessions. Mukand Ltd, was to be responsible for resettlement and rehabilitation of project effected families. Also, if Mukand does not make any effort towards implementation of the project within one year of signing of the MoU, the support of GOJ shall be deemed to be withdrawn.
After signing of MoU, Mukand immediately started surveying and collecting details of land selected for the Steel Plant and informed the Industries Department regularly regarding the progress. As directed by the Industries Department, after only
5 months of signing of MoU, Mukand on 19 th Feb. 2007, applied to JIIDCO for acquisition of 171.72 acres land for which the requisite processing fee was deposited with JIIDCO vide Demand Draft No. 513491 dated 19.02.2007 (Annexure II). MD (JIIDCO) who also holds the charge of Director Industries, requested Secretary Industries Department for issuing necessary orders (Vide letter no. 63 dated 23.03.2007 (Annexure III) with copy to Mukund Ltd) for acquisition of the said land for Mukand.
Thereafter, vide our letter no. JIDCO/ML/2007-08/001 dated 15 January 2008 (Annexure IV) request for acquisition of additional 118.89 acres land along with Demand Draft towards processing fee was submitted to MD (JIIDCO). The MD (JIIDCO) once again requested Secretary Industries with copy to Mukand Ltd vide letter no. 37 dated 18 Feb. 2008 (Annexure V) for issue of orders for acquisition of 263.91 acres of Raiyati Land for Mukand Ltd. There was no further intimation from Industries Department on this account.
As per the Detailed Project Report (DPR) submitted to GoJ for the ISP, 264 Million Tonnes (MT) of Iron Ore will be required for 30 years. Mukand had applied for four Iron Ore Mines in 2005 and 2006. Out of the four mines, we understand that while three have been allotted to others, only Bichaburu & Araburu Iron Ore Mine Block is available for allocation to Mukand. The total reserves of Bichaburu & Araburu shall only meet a small part of Mukand's total requirement of Iron Ore.
As per the DPR, Mukand's Non-Coking coal requirement for 30 years is 120 million tons and Coking Coal requirement 182 million tons. Mukand had applied for Non -Coking and Coking Coal blocks to the Ministry of Coal, GOJ on 12 January 2007. We CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 165 of 429 understand that Mukand has been recommended for part of Rajhara North (C&E) which has total reserves of only 17 million tons of Non-Coking Coal. Mukand has also been recommended for a part of the Behraband North Extension, Coking Coal Block in Madhya Pradesh which in fact, is basically being allocated for Mukand's existing Steel Plant in Ginigera, Dist. Koppal, Karnataka and not for Mukand's ISP in Jharkhand. As such, the Non Coking Coal block of Rajhara North (C&E) shall only cater to about 10% of the Non Coking Coal. Mukand is yet to be allocated a Coking Coal block which is the prime raw material required (apart from Iron Ore) for the ISP in Jharkhand.
If may be mentioned that Mukand's Machine Building Division is designing and shall manufacture various equipments of the Steel Plant. If may be recalled that in the DPR which was approved by MECON, it has been mentioned that Phase I of 1MTPA shall take approximately 48 months for commissioning after breaking ground. As such, it is of utmost importance that the land is acquired at the earliest.
In the meeting the undersigned had with your good self on 2 August 2008, you had mentioned that we should now go ahead and purchase the land directly from the landowners. It may he mentioned here, that some of the land applied by us belongs to the Government of Jharkhand and as such the same will required to be alloted to Mukand Ltd by the Revenue Department, GOJ.
From the above, it is evident that we have taken proactive steps in the execution of 2 MTPA Integrated Steel Plant for which the MoU was signed with GOJ on 7 Sep. 2006. However, if GOJ still insists that GOJ requires to issue a further letter for supposedly continuation of the MoU, then, we request that in the interest of the project, the same be issued at the very earliest for a further period of at least two to three years from today. Thanking you, Yours sincerely, For Mukand Ltd Sd/-
V.K. Mital Director Business Development."
(Emphasis supplied by me)
183. Thus from the aforesaid concluding remarks of the letter it is clear that the company M/s Mukund Ltd. was impressed upon by Government of Jharkhand to submit a request for extension of its CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 166 of 429 MOU dated 07.09.2006. Accordingly, alongwith its letter dated 04.08.2008, company M/s Mukund Ltd. also annexed various documents in support of the claims made by it qua the positive steps taken towards establishing its integrated steel plant. It is also clear from the letter that talks were being held with representatives of M/s Mukund Ltd. by Secretary, Industries i.e. PW-18 K.K. Khandelwal himself as there is a reference in the letter to a meeting held between them on 02.08.08. The record further shows that in continuation of its earlier letter dated 04.08.2008 another letter dated 06.08.2008 Ex. PW 18/DX-4 was also submitted by M/s Mukund Ltd to Secretary, Industries Department, Government of Jharkhand. In the said letter dated 06.08.2008, it is mentioned that the information being furnished is in pursuant to the verbal queries raised by the Department subsequent to receipt of letter dated 04.08.2008. Once again the company reiterated its credentials to establish the integrated steel plant and the positive steps taken by it in that direction.
The letter dated 06.08.2008 Ex. PW 18/DX-4 (D-85) read as under:
"6th August 2008 To, The Secretary Industries Department Government of Jharkhand Nepal House, Ranchi, (Jharkhand).
Dear Sir, CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 167 of 429 Further to our letter dated 4th August 2008 and as per the verbal queries of your department, as desired we furnish information as under :
As per the financial results of Mukand Ltd. for FY 2007-08 the turn over of the company is Rs. 2200.50 crores and the networth of the company as on 31st March 2008 is Rs. 774.13 crores.
We reiterate that Mukand Ltd. is a over 70 years old Company and is a part of the Bajaj - Shah Group. The company has two major Steel Plants - one at Dighe, Kalwe, Dist. Thane in Maharashtra and the other at Ginigera, Dist. Koppal in Karnataka. Mukand Ltd is a leading manufacturer of Alloy and Special Steels & Stainless Steel long products in the country. Combined capacity of the above Steel Plants is over 1 Million Tones. Mukand Ltd has successfully executed the Steel Plant Projects both technologically and financially.
In fact, Mukand's Machine Building Division has designed and manufactured not only equipments for Mukand's Steel Plant at Ginigera but also for a number of Steel Plants such as Indian Iron & Steel Company (IISCO), Vizag Steel Plant, Bokaro Steel Plant, Bhushan Steels, JSW, Tata Steel etc. In light of the above it is evident that Mukand has adequate financial and technological resources to successfully execute the Steel Plant project. Activities, such as, purchase of land, operation of Iron Ore Mines and Non-Coking Coal Mines (already allotted by Govt. of India, Ministry of Coal, vide letter dt. 5Th Aug' 08 which is enclosed herewith) in the state of Jharkhand shall be executed by Mukand initially through its internal resources. Mukand with its credentials shall subsequently be able to raise adequate resources as and when required for execution of the project. The Debt :- Equity ratio envisaged is 70:30.
We hope the above information is adequate and look forward to your kind support.
Thanking you, Yours Sincerely, For Mukund Ltd.
Sd/-
V.K. Mital Director Business Development."
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 168 of 429
184. The initial letter dated 04.08.2008 was in fact processed in file Ex. PW 2/E (Colly) (D-85) vide note sheet dated 05.08.2008 and it was proposed that in view of the steps taken by the company towards establishing its plant the proposal regarding extension of MOU for a period of two years may be considered. The file with the aforesaid note came to be put up before Under Secretary and who vide his note dated 06.08.2008 also proposed that qua the proposal for extension of MOU for a period of two years approval of Chief Secretary may be obtained. The file accordingly moved to the desk of Director, Industries and who also recommended for extension of MOU as initially proposed in the note dated 05.08.2008. The file thereafter came to be put up before PW-18 K.K. Khandelwal who at that time was holding dual charge of both Secretary, Industries and Secretary, Mines. Vide his noting dated 07.08.2008 as is available at note sheet page11, he also proposed to Chief Secretary that in view of the steps taken by the company M/s Mukund Ltd towards establishing its integrated steel plant, matter regarding extension of MOU executed with M/s Mukund Ltd for a period of two years can be considered.
185. After the noting dated 07.08.2008 of PW-18 K.K. Khandelwal, the file however moved to the office of concerned Minister-in-Charge and who on 14.08.2008 approved the said proposal [There is however a stamp of the office of Chief Secretary on note sheet page 11 bearing date of receipt of file as 07.08.08 but there is neither any endorsement nor note put by the Chief Secretary or his office. Presumably the file was verbally asked to be routed through the office CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 169 of 429 of Minster-in-charge]. Thereafter, on 14.08.2008 after approval from Minister-in-charge, PW-18 K.K. Khandelwal forwarded the file to Chief Secretary for obtaining the approval of Chief Minister. Accordingly, A-6 A.K. Basu, the then Chief Secretary, Government of Jharkhand forwarded the file to Chief Minister i.e. A-7 Madhu Koda. Finally the proposal for extension of MOU for a period of two years was approved by Chief Minister, A-7 Madhu Koda also on 18.08.2008 itself. The file thereafter started travelling back and the subsequent notings show that on 01.09.2008 a draft letter for extension of the earlier MOU executed with M/s Mukund Ltd. was put up for approval by the concerned section in Department of Industries. However, the subsequent noting at note sheet page 13 shows that on 08.09.2008, PW-18 K.K. Khandelwal, Secretary, Industries sent the file to A-6, A.K. Basu, Chief Secretary for necessary action in terms of the directions conveyed to him telephonically. The said noting dated 08.09.2008 of PW-18 K.K. Khandelwal at note sheet page 13 in file Ex. PW 2/E (Colly) (D-85) read as under:
"मनख य सचचव द पर भयष पर यथय चनदग च शत, सस च चकय आवशयक कयरर व यइर हग त न भग ज ण जय रहण हह ।
sd/-
8.9.08 (कग ० कग ० खणडग ल वयल)"
186. The subsequent noting of A-6 A.K. Basu however show that thereafter the file remained in his office for a period of about two months and 25 days i.e. for 85 days and thereafter vide his note dated 02.12.2008 he forwarded the file to Chief Minister for perusal of draft CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 170 of 429 letter. In fact the file was sent to the office of Chief Minister after another 12 days. The stamp of receipt and dispatch as are available on the said note sheet page 13 show that while in the office of Chief Secretary the said file was received on 08.09.2008 but thereafter in the office of Chief Minister the file was received on 14.12.2008. The file however does not have any noting thereafter of either A-7 Madhu Koda, or that of any other officer from his office. There is in fact no noting in the file thereafter till another period of about four months. Thereafter a noting dated 29.03.2009 has been made in the file by the officials of the Department of Industries regarding extension of MOU of the company. The subsequent notings in the file show that for reasons best known to the officers of Department of Industries, Government of Jharkhand, matter was re-processed for extension of MOU and the notings in this regard continued till about the year 2013 when also request of M/s Mukund Ltd. for extension of MOU with State Government was accepted.
187. Moreover, at no point of time i.e. from noting dated 05.08.2008 onwards the claims made by M/s Mukund Ltd. regarding the positive steps taken by the company towards establishing the steel plant were not at all disputed or doubted by the officers of Department of Industries, Government of Jharkhand as was in the case of M/s VISUL.
188. At this stage, it will be also worthwhile to mention that on 05.07.2008 (i.e. much prior to the aforesaid proceedings) Sh. B.M.L. Das, Dy. Director, Industries had vide letter No. 1480/Ranchi dated CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 171 of 429 05.07.2008 sought report about detailed progress made by M/s Mukund Ltd. towards setting up of 2 MT plant at an estimated cost of Rs. 4335 crores. The information was sought in the proforma which was provided in the body of said letter itself. In response to the said letter M/s Mukund Ltd. submitted the status of progress made by it towards establishing the steel plant in the state vide its letter dated 29.07.2008. Prosecution has proved letter dated 05.07.2008 of Department of Industries and the reply submitted by M/s Mukund Ltd. vide letter dated 29.07.2008 collectively as Ex. PW 22/C (Colly).
189. Be that as it may, the sole purpose of referring to the aforesaid notings is that while on the one hand M/s Mukund Ltd. was being asked by officers of Department of Industries, Government of Jharkhand to submit status report of progress made by it towards establishing the steel plant in the State and the company was also being asked to submit application for extension of its MOU earlier executed by it with Government of Jharkhand but on the other hand A- 5 B.B. Singh, Director Mines was still recording in his note dated 28.07.08 in file Ex. PW 3/B (Colly) (D-140) about the progress of M/s Mukund Ltd. as being unsatisfactory. Moreover, subsequent thereto when the company M/s Mukund Ltd. submitted all requisite information regarding the positive steps taken by it towards establishing the integrated steel plant then even though approval of extension of MOU was granted by A-7 Madhu Koda on 18.08.2008 but A-6 A.K. Basu still kept sitting on the file for a period of about 85 days and that too after calling the file from PW-18 K.K. Khandelwal on CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 172 of 429 telephone.
190. The aforesaid facts also gains material importance when movement of file relating to M/s Mukund Ltd. is seen vis-a-vis the movement of file relating to M/s VISUL. It becomes all the more striking when it is found that on 28.07.2008 a letter was already sent to A-3 H.C. Gupta, Secretary, MOC by A-6 A.K. Basu pursuant to directions of A-7 Madhu Koda stating the progress made by M/s Mukund Ltd. towards establishing the industry in the state as being not satisfactory as compared to the steps taken by M/s VISUL. However, during the same time period, M/s Mukund Ltd. was being separately asked to not only submit a status report of progress made by it towards establishing the industry in the State but was also being asked to submit a request for extension of its MOU. As already demonstrated above the file qua M/s VISUL pursuant to noting dated 28.07.2008 of A-5 B.B. Singh, Director, Mines moved at a fast pace in as much as on 28.07.2008 itself the file after travelling from the desk of various officers including that of Secretary Industries and Chief Secretary was also approved by Chief Minister A-7 Madhu Koda and a letter was also issued on that very day by A-6 A.K. Basu to Secretary Coal recommending that Rajhara coal block may be allotted in favour of M/s VISUL only and that M/s Mukund Ltd. be considered for allocation of some other coal block. Even the letter regarding extension of MOU executed by M/s VISUL was also processed at a fast pace on a single day i.e. on 28.07.08 itself and the letter was also issued to the company on that day itself.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 173 of 429
191. Another important aspect to be noted in this regard is that after approval having been granted by Chief Minister for extension of MOU of both the companies i.e. M/s VISUL and M/s Mukund Ltd. for a period of two years, the files of both the companies were again processed by the concerned section for approval of draft letter to be sent to the company concerned. However, as demonstrated above while the draft letter to be sent to M/s VISUL was approved at the level of Secretary (Industries) only but in the case of M/s Mukund Ltd. before the draft letter could be approved by Secretary (Industries), the file was called for by A-6 A.K. Basu. He thereafter retained the file in his office for about 85 days and after another 12 days the file reached the office of Chief Minister.
192. Moreover, A-6 A.K. Basu has not put-forth any explanation as to why and for what purpose he called for the said file on telephone or as to why he retained the file in his office for about 85 days. He has also failed to explain as to why the file was marked to Chief Minister when he had already accorded approval for extension of MOU.
193. In fact the overall facts and circumstances speak for themselves. Despite knowing fully well that M/s Mukund Ltd. was taking pro-active steps towards establishing their steel plant in the State, a note was initiated by A-5 B.B. Singh, in the file Ex. PW 3/B (Colly) (D-140) without any reason, logic or occasion to do so, stating that the progress made by M/s Mukund Ltd. was not satisfactory. The purpose was to help M/s VISUL in securing allocation of "Rajhara Coal Block" entirely to itself only.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 174 of 429
194. Moreover, the note sheet pages in file Ex. PW 2/E (Colly) (D-
85) are also completely silent that in another file Ex. PW 3/B (Colly) (D-140) i.e. in the file of Department of Mines and Geology, a noting has been put up on 28.07.2008 that the progress made by M/s Mukund Ltd towards establishing the industry is not satisfactory. [It has been the claim of accused officers of Government of Jharkhand itself that files of Department of Mines and Geology and that of the Department of Industries were available to each other even without any formal correspondence/communication to summon any such record for they were situated nearby to each other in the same office complex. Moreover, at that time PW-18 K.K. Khandelwal was holding dual charge i.e. of Secretary Mines and also of Secretary, Industries and both the files had moved from his desk.]
195. It is in this context only that the contents of letter dated 28.07.2008 Ex. P-15 sent by A-6 A.K. Basu to A-3 H.C. Gupta Secretary Coal will be again worth referring to. As already mentioned in the said letter it was stated that in view of the small quantity of reserves in Rajhara Coal Block and the progress of the two companies, Rajhara Coal block may be alloted to M/s VISUL only but at the same time it was also stated that M/s Mukund Ltd be kindly considered for allotment of some other coal block in place of Rajahara Coal Block. No condition was put in the letter that M/s Mukund Ltd. be considered for allocation of some other coal block only if the company makes satisfactory progress.
196. As earlier pointed out this situation stands strikingly on a CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 175 of 429 different footing as A-6, A.K. Basu, Chief Secretary in another letter dated 04.08.2008 addressed to Secretary, Coal qua "Hutar, Hurilong coal blocks" stated that the said coal block has though been allotted in favour of M/s Rungta Projects and M/s Contisteel Ltd. by the Screening Committee but the same may be allotted in favour of M/s Rungta Projects only and that M/s Contisteel may be allotted a suitable coal block as and when it makes significant progress in setting up of its steel plant in the State of Jharkhand. Thus it is clear that A-6 A.K. Basu knew fully well while writing letter dated 28.07.2008 that progress made by M/s Mukund Ltd towards establishing the industry in the state was not satisfactory and thus nothing was mentioned in the letter dated 28.07.2008 that M/s Mukund Ltd be considered for allotment of any other coal block only after it makes progress towards establishing its industry in the state.
197. Another important aspect to be noted is that letter dated 28.07.08, Ex. P-15 of A-6 A.K. Basu also talked of small quantity of reserve in "Rajhara Coal Block" and stated it to be also a ground for recommending the said coal block to be allotted in favour of M/s VISUL only. However this position again contradicted the stand of Government of Jharkhand as was decided and duly communicated to MOC, Government of India just few days back i.e. in the month of June, 2008 itself. As already discussed in length that pursuant to Screening Committee meeting held on 08.02.2008 tentative extractable reserves in all the coal blocks were reassessed by CMPDIL. Thereafter on the basis of said information, all the State CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 176 of 429 Governments and the Administrative Ministries were asked to revisit their earlier recommendations. The said issue was dealt with in file Ex. PW 5/B (Colly) (D-5) by the officers of Government of Jharkhand including A-6 A.K. Basu. In the said file it was decided with the initial approval of A-6 A.K. Basu and subsequently with the approval of A-7 Madhu Koda that the reduction in the tentative available reserves of coal in the coal blocks situated in the State of Jharkhand will have no adverse impact on the recommendations of the State already sent to MOC, Government of India as were sent in favour of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. Necessary communication i.e. letter dated 20.06.2008 Ex. PW 6/M (D-5) in this regard was also duly sent to MOC under the signatures of Sh. S.K. Sorang, Dy. Secretary, Government of Jharkhand.
198. There is however nothing available in the files of Government of Jharkhand as to on what basis it was decided while sending letter dated 28.07.08 Ex. P-15 that in view of small quantity of coal in "Rajhara Coal Block", it be allotted exclusively to M/s VISUL only. [I have already discussed and demonstrated that there was no basis even for observing in the letter that progress made by M/s VISUL was satisfactory and that made by M/s Mukund Ltd. was unsatisfactory.].
199. At this stage it will be now worthwhile to briefly refer to the proceedings of Screening Committee meeting also as was held on 03.07.2008. The same shall also be referred to in detail subsequently at a later stage of the present judgment when the role of A-3 H.C. Gupta, Secretary Coal and Chairman, Screening Committee shall be CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 177 of 429 discussed.
Screening Committee meeting held on 03.07.2008.
200. In the said meeting held on 03.07.2008 recommendation in favour of various applicant companies qua different coal blocks were made. As regard "Rajhara Coal Block" recommendation was made for joint allocation in favour of M/s Mukund Ltd. and M/s VISUL. However no recommendation was made by 36th Screening Committee in favour of M/s Zoom Vallabh Steel Ltd. qua any coal block much less for "Rajhara Coal Block" even though its name alongwith that of M/s Mukund Ltd. was recommended by State Government of Jharkhand for allotment of "Rajhara Coal Block" in its three earlier communications sent to MOC. In fact Ministry of Steel had also not placed M/s VISUL in any of the categories devised by it and thereby did not recommend it for allocation of any coal block. As already discussed M/s VISUL was also not recommended for allotment of any coal block even by Government of Jharkhand in any of its recommendations earlier sent to MOC prior to meeting dated 03.07.2008 took place.
However before drawing any conclusion from the minutes of said 36th Screening Committee meeting held on 03.07.2008, it would be worthwhile to first have a glance over the said minutes.
201. The minutes Ex. PW 18/DX-5 (Colly) in file Ex. PW 27/B (Colly) (D-116), read as under:
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 178 of 429 "MINUTES OF THE 36TH MEETING OF THE SCREENING COMMITTEE HELD ON 7TH-8TH DECEMBER 2007, 7TH-8TH FEBRUARY 2008 AND 3RD JULY 2008 IN NEW DELHI TO CONSIDER ALLOCATION OF 23 COAL BLOCKS EARMARKED FOR NON-POWER SECTOR **** th The 36 meeting of the Screening Committee for screening applications submitted by the applicants for allocation of coal blocks earmarked for allocation to specified end-uses other than power was held on the 7th-8th December 2007 and 7th February, 2008. The Secretary (Coal) gave the background relating to advertisement issued and applications received for allocation of these blocks. It was informed to the members that in response to advertisement, total 674 applications were submitted by 184 companies for allocation of coal blocks earmarked for non-power sector. Some companies had applied for more than one block and some had submitted more than one application for a single block for different end-use plants located at different locations. The applications of the companies were sent to the Central Ministries of Steel, Commerce and Industry (Department of Industrial Policy and Promotion) etc and the concerned States where the blocks are located and also to the States where the proposed end use projects are located, for their comments. He pointed out that in view of the large number of applications, it would be a strenuous exercise to screen the proposals and advised the members to take note of minute details of each application, for taking collective decision. He further drew the attention of the Committee members to the guidelines (which are displayed on the website of the Ministry) on the matter of allocation of coal blocks notified along with the offer notice. It was also explained that the inter-se priority among the applicants for allocation of coal blocks is to be determined on the basis of the criteria of suitability of the block to the requirement of the end use plant, techno-economic viability of the project, level of progress in setting up of the end-use project by the applicants, track record and financial strength of the company, recommendations of the Administrative Ministry and the State Governments concerned etc. It was decided that all the applicants would be given an opportunity to present their case one by one and thereafter the Committee would discuss and make its recommendation in respect of each block. In case an applicant has applied for more than one block, he would make his presentation for all the applied blocks together.
2. Accordingly, the Committee screened the proposals of the applicants on three days i.e. on 7th and 8th December 2007 and 7th February 2008. The applicant companies were invited in the alphabetical order to make their presentation with regard to CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 179 of 429 information given in the application form and to clarify points, if any, raised by the members. The list of members of the Screening Committee that attended the meeting is placed at Annexure-I. The list of the representatives of the applicant, companies that appeared before the Committee is given at Annexure-II.
3. The committee met again on 8th February, 2008 to finalise its recommendation. However, there were some differences of opinion among the Committee members with regard to accommodation of prospective allocatees in coal blocks based on mine capacity or minable reserves. Accordingly, a decision was taken to get the mine capacity and reserves reassessed by CMPDIL. The report received from CMPDIL was circulated to the members of the Committee for their comments. The members had taken note of the revised details of reserves etc. for giving their views.
4. The 23 coal blocks (4 coking and 19 non-coking) under consideration were - Urtan, Beharaband North Extn., Tandsi-III & Tandsi-III extn., Urtan North (coking blocks), Macherkunds, Rajhara North (Central & Eastern), Moira-Madhujore (North & South), Datima, Bhaskarpara, Kudari, Bikram, Vijay Central, Rajgamar Dipside (South of Phulakdih Nala), Kesla North, Gondkhari, Kappa & Extn. Dahegaon-Makardhokra-IV, Bander, Hurilong, Hutar Sector C, Rajgamar Dispside (Deavnara), Tehsgora-B/Rudrapuri and Andal East (Non Coking blocks). The status of geological reserves of 23 blocks is given at Annexure-III, the mine capacities and extractable reserves of blocks are only tentative. Some blocks are either partially explored or only regionally explored. The share of quantities among the joint allocatees shall remain in the same proportion subsequent to exploration, formulation of GR and approval of mining plan.
5. The details of each applicant company in respect of core business, proposed capacity of end-use plant, location etc. as per the application forms are given at Annexure-IV.
6. Some of the companies did not appear for presentation despite the notices issued to them through individual letters, as well as through the Ministry's web-site. However, their applications were also considered by the Screening Committee as per the information submitted by them in their application forms.
7. In the meeting of the Screening Committee convened on 3 rd July 2008, the Secretary (coal) informed the members that there were a few issues which need to be brought to the notice of the Committee. They were as follows:-
i) Representations were received from some companies, which were not able to present their case due to delay in receipt of notice, to be considered in the meeting. The following companies have CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 180 of 429 made the representation:
M/s Shanno Business M/s Shanti GD Ispat M/s Special Blasts Limited M/s Eastern Steel and Power Limited Though the notices were issued individually and was also placed in the Ministry's Website, however, keeping in view the request made by the above companies, the information submitted by them was placed before the Screening Committee for consideration of their cases also, along with the others.
ii) Modification in the boundaries of Moira Modhujore and Behraband North Extn. Coal blocks offered for allocation;
(iii) SECL and CMPDIL have intimated that the reserves in the Kudri block have been exhausted. Therefore, it may not be considered for allocation.
The Screening Committee took note of the information submitted by the above companies for consideration and also change in the status of blocks offered for allocation.
8. (i) The Chairman then invited the Joint Secretary, Ministry of Steel to brief the members about the rationale followed by the Ministry of Steel for evaluating the applications relating to sponge iron, pig iron and steel projects. The Joint Secretary, MoS explained that the present capacity of steel production in the country is around 60 MT and the Ministry of Steel is projecting a capacity expansion of 6% to 7% in the immediate future. Therefore, the blocks be allocated to those companies which are genuine, technically and financially sound to take up the project and where capacity addition is expected to be accomplished by the year 2010. These companies need to be encouraged with assured supply of coal as raw material and those who are not expected to set up the projected capacities based on their track record etc. should be discouraged. Allocation of coal block to smaller players though desirable, but keeping in view their technical and financial constraints, it would be difficult for them to get the block developed in a time bound manner. He suggested that the requirement of small producers, which are genuine, should be met through linkages granted from CIL subsidiaries. He further stated that priority for allocation of coking coal blocks may be determined in the following order:-
I. To those companies which have integrated steel plants without any coking coal block;
II. To those companies which are opting for blast furnace route, and the end use plants are likely to be commissioned by 2010; III. To those big companies, which are yet to commission their CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 181 of 429 plants, but are opting for blast furnace route; IV. Stand-alone pig iron producers supplying foundry grade pig iron may not be considered for coking coal blocks.
(ii) It was further suggested that for coking coal blocks, companies with minimum capacity of 0.5 MTPA and for non-coking coal blocks, DRI plants with minimum capacity of 0.3 MTPA be given priority in view of scarcity of resource, it was suggested that ceiling of maximum end use plant capacity of 2 MTPA for coking coal blocks (coal requirement 2 MTPA) and 1.2 MTPA for non-coking coal blocks (Coal requirement 1.96 MTPA) be imposed to ensure equitable distribution of resources. This has been arrived at by multiplying the minimum capacity by a factor of 4 (four) and keeping in view that maximum applicants have applied for plant capacities in range of 0.3-1.0 MTPA (for DRI route) and 0.5-1.5 MTPA (for Blast Furnace route).
9. Representative of DIPP observed that since hardly any blocks were allocated to cement plants in the past this sector should get a higher share in this round, as large number of established companies have applied for coal blocks. He further advised that preference be accorded to cement plants with minimum capacity of 2 MTPA.
10. Chief Secretary Government of Chhattisgarh expressed the view that as per the past trends, major players have been getting the coal blocks but the smaller players are not getting coal blocks for the reason of smaller capacity and weaker financial strength compared to major players. For this reason, they are finding it difficult to compete with those bigger companies which are enjoying assured raw material at a lower cost for captive iron ore and coal mines. Therefore he suggested that the interest of smaller players may be taken care of by allocating coal blocks to consortium formed by these companies. The representative from the State Governments reiterated that location of end-use project within the coal bearing State and a Memorandum of Understanding (MOU) with that State Government should be the main consideration for allocation of coal blocks. The Chairman observed that while the views expressed by the State Governments would be given due weightage, these cannot be accepted as the sole basis or a mandatory qualifying prerequisite for allocation of coal blocks. This would not be in conformity with the guidelines laid down for allocation of coal blocks. There are many other factors which would have to be taken into account before the Screening Committee makes its recommendations. Coal is a national resource, and needs to be tapped optimally to sub-serve the economic interest of the whole country. However, he assured the representatives of the State CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 182 of 429 Govts. that the Committee would take into consideration the interests of State Govts. as well.
11. The Screening Committee suggested that in case of allocation to consortium companies, it should be ensured that consortium is a well defined entity in terms of equity participation by the member units. It was, therefore, decided that thorough verification be made about the consortium in terms of number of participants, equity participation, end use capacity, coal requirement etc. before the allocation of coal block to consortium company is made.
12. After detailed deliberations the parameters suggested by the Ministry of Steel and Department of Industrial Policy and Promotion, were agreed to. It was also accepted that an upper cap on projected capacity should be placed in order to secure more equitable distribution of limited resources. Therefore, ceiling of 1.2 MTPA for DRI, 2 MTPA for Steel and 4 MTPA for cement were agreed upon. It was also decided that in case companies have been allocated blocks in the past for the same project, then reserves allocated for such blocks may be adjusted while assessing the total requirement and share of coal of such companies.
13. The Screening Committee, thereafter, deliberated at length over the information furnished by the applicant companies in the application forms, during the presentations and subsequently. The Committee also took into consideration the views/comments of Ministry of Steel, Department of Industrial Policy and Promotion, State Governments concerned, guidelines laid down for allocation of coal blocks, and other factors as mentioned in paragraphs 8 to 12 above, as regards inter-se distribution of shares among the joint allocattees, it was decided by the Committee that capacity of end-use projects shall be determined as follows:
i) The capacity indicated in the application form;
ii) The capacity indicated in the MoU entered into between the applicant company and the State Govt. concerned, wherever applicable;
iii) The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/Department concerned;
Whichever is the lowest.
14. Based on the data furnished by the applicants, and the feedback received from the State Governments, the Ministry of Steel and Department of Industrial Policy and Promotion, the Committee assessed the applications having regard to matters such as techno- economic feasibility of end-use project, status of preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 183 of 429 recommendations of the State Governments and the Administrative Ministries concerned etc. the Screening Committee, accordingly decided to recommend for allocation of coal blocks in the manner as follows:
S. State Name of the Geologic Tentative Mine Name of End Use Location Share No Block al Extractable Capacity Company Plant Reserves Reserves Capacity (in MTPA) 1 2 3 4 5 6 7 8 9 10 BLOCKS EARMARKED FOR PIG IRON (Coking Coal) 1 MP Urtan 55.391 18.97 0.6 1. Prakash 0.5 CH 16.01 Industries Ltd.
2. Bhushan Steel & Strips 1.23 OR 39.38 Ltd.
2 MP Beharaband 174.875 65 2 1. ESSAR 1.6 GJ 55.32
North Extn Steel Ltd.
2.Ispat 3.6 MH 69.15
Industries Ltd.
3. Mukund
Ltd* 0.47 KR 16.25
4. IND
Synergy Ltd. 0.9855 MP 34.15
3 MP Tandsi-III 17.39 4.78 0.36 MESCO Steel 1.42 OR 17.39
&Tandsi-III (Mideast
Extn Integrated
Steels Ltd.
4 MP Urtan North 69.823 17.68 0.6 1. Jindal Steel 10.55 JH, OR, 46.55
& Power Ltd. CH
2. Monnet
Ispat & 1 CH 23.27
Energy Ltd.
* Coal allotted to M/s Mukund Ltd shall be used in their blast furnace at Hospet, which is used jointly with M/s Kalyani Steels Ltd.
BLOCKS EARMARKED FOR OTHER END USES - NON COKING COAL 1 Jharkhand Macherkund 23.862 3.26 0.18 Bihar Sponge 0.51 JH 23.86 a Iron Ltd 2 Jharkhand Rajhara 17.09 14 0.75 1. Mukund 0.3 JH 10.05 North Ltd (Central & Eastern)
2. Vini Iron & 0.21 JH 7.04
- Steel Udyog Ltd 3 Jharkhand Hurilong 84.33 17.48 0.6 1. Rungta 0.33 JH 25.77 Projects Ltd.
4 Jharkhand Hutar sector 2. Contisteel 0.75 JH 58.56
C Ltd.
5 Maharastra Gondkhari 98.717 30.02 0.96 1. Maharastra 0.3 MH 29.91
Seamless Ltd.
2. Dariwal
- Infrastructures
(P) Ltd. 0.24 MH 23.93
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 184 of 429
3. Kesoram
- Industries Ltd.
9 KR 44.87
6 Maharastra Khappa & 84.718 17.81 0.5 1. Sunflag 1.5 MH 53.60
Extn. Iron & Steel
Co. Ltd.
- 2.Dalmia 15.5 TN, AP, 31.12
Cement KR
(Bharat) Ltd.
7 Maharastra Dahegaon/M 132 46.20 1 1. IST Steel & 0.63 KR 70.74
akardhokra- Power Ltd.
IV
2. Gujrat 2.85 MH 36
- Ambuja
Cement Ltd.
- 3. Lafarge 2 KR 25.26
India Pvt. Ltd.
8 Maharastra Bander 126.105 24.52 0.6 1. AMR Iron & 0.3 MH 31.53
Steel Pvt. Ltd.
2. Century
- Textiles & Ind. 12.7 MH, WB 47.29
Ltd.
3. J.K.
- Cement Ltd. 7.3 RJ, KR 47.29
9 MP Kudari
10 MP Bikram 20.975 8.09 0.36 Birla 11.8 MP, RJ, 20.98
Crporation WB
Ltd.
11 MP Thesgora- 45.04 5.51 0.3 1. Kamal 0.6 MP 30.67
B/Rudrapuri Sponge Steel
& Power Ltd.
- 2. Revati
Cement Pvt. 2.5 MP 14.37
Ltd.
12 Chattisgarh Datima 13.3 3.28 0.36 Binani 4 RJ 13.3
Cement Ltd.
13 Chattisgarh Bhaskarpara 46.91 18.74 0.64 1. 0.5 GJ 24.69
Electrotherm
(India) Ltd..
- 2. Grasim 5.65 CH 22.22
Industries Ltd.
14 Chattisgarh Vijay Central 56.751 36 1 1. Prakash 1.45 CH 2.7
Industries Ltd.
- 2. SKS Ispat
& Power Ltd. 0.585 CH 16.08
15 Chattisgarh Rajgamar 61.697 11.64 0.3 1. Monnet 0.7 CH 49.93
Dipside Ispat &
(South of Energy Ltd.
Phukakdih
Nala) 2. Topworth 0.165 CH 11.77
Steel Pvt. Ltd.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 185 of 429
-
16 Chattisgarh Kesla North 36.148 7.05 0.3 Rathi Udyog 0.75 OR 23.17
Ltd.
17 Chattisgarh Rajgamar 78.463 20.09 0.45 1. API Ispat & 0.42 CH 20.34
Dipside Powertech
(Deavnara) Private Ltd.
(Action
Group).
-
2. C.G. 1.46 CH 58.12
Sponge
Manufactures
Consortium
Coalfield Pvt.
Ltd.
18 WB Moira- 685.394 275 2 1. Ramsarup 0.15 WB 32.85
Madhujore Lohh Udyog
North & Ltd.
South
2. Adhunik 0.6 WB 131.3
- Corporation 9
Ltd.
- 3. Uttam 0.9 OR
Galva Steels 197.0
Ltd. 8
-
4. Howrah 0.3 WB
Gases Ltd.
- 65.69
5. Vikash 0.73 BH
Metal &
Power ltd. 159.8
5
- 6. ACC Ltd. 7.02 KR
98.54
19 WB *Andal East 700 190 2 1. Bhushan 2 WB 237.2
Steel & Strips 3
Ltd.
-
2. Jai Balaji 4.935 WB
Sponge Ltd. 229.5
- 0
3. Rashmi 1.18 WB
Cement Ltd.
233.2
7
A signed copy of the recommendations of the Screening Committee is placed at 'Annexure-V'.
The meeting ended with a vote of thanks to the chair."
(Note: Various annexures of the minutes have not been reproduced over here being not relevant for the purposes of present discussion.) (Emphasis supplied by me) CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 186 of 429
202. Thus from a bare perusal of the aforesaid minutes of 36th Screening Committee, it is clear that though some of the representatives expressed their concern for considering small companies also for allocation of coal blocks and they were also assured by the Chairman that their interests will be taken care of but the minutes as above are completely silent as to on what ground the company M/s Zoom Vallabh Steel Ltd. was not found suitable for being recommended for allocation of a coal block or as to why M/s VISUL was found as a suitable company for being recommended for allocation of a coal block. However these circumstances in the light of nature of minutes so recorded shall be dealt with by me at a later stage in detail while discussing the role played by A-3 H.C. Gupta and A-6 A.K. Basu but at this stage it would be pertinent to mention that during the course of trial it has been the consistent deposition of prosecution witnesses (PW-26 N.R. Dash and PW-29 U.P. Singh) that during the course of meeting A-6, A.K. Basu, Chief Secretary, Government of Jharkhand insisted for allocation of "Rajhara Coal Block" in favour of M/s VISUL. They also deposed that A-6 A.K. Basu also stated in the meeting that qua allocation of "Rajhara Coal Block"
in favour of M/s VISUL he also has the directions of Chief Minister of the State. In fact PW-26 N.R. Dash even deposed that in the meeting, A-6 A.K. Basu also stated that if the said coal block is not allotted in favour of M/s VISUL then he will not be able to further participate in the meeting or cooperate. A-6 A.K. Basu, however has denied having said so in meeting. At this stage it would be also pertinent to mention the stand taken by A-3 H.C. Gupta, Chairman Screening Committee in CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 187 of 429 this regard. In his deposition as DW-6 (u/s 315 Cr.PC) he stated that as during the course of Screening Committee meeting the representative of Government of Jharkhand had strongly advocated for allocation of "Rajhara Coal Block" in favour of M/s VISUL stating that of all the applicant companies M/s VISUL was best prepared in terms of land, power, water etc. He further deposed that thereafter the Screening Committee discussed the issue and after detailed discussion arrived at a unanimous decision to make recommendation for allocation of "Rajhara Coal Block" in favour of M/s VISUL and M/s Mukund Ltd. He however also stated that A-6 A.K. Basu had insisted for allocation of "Rajhara Coal Block" in favour of M/s VISUL.
203. At this stage an important question which however arises for consideration is if A-6 A.K. Basu had insisted for allocation in favour of M/s VISUL stating that of all the applicant companies M/s VISUL was best prepared in terms of land, power, water etc., then how A-6 A.K. Basu gathered information in this regard i.e. about M/s VISUL and other applicant companies. In fact A-6 A.K. Basu has claimed that he had merely placed before the Screening Committee the facts relating to progress made by various applicant companies and that thereafter discussion took place and subsequent thereto it was decided by the Screening Committee that M/s VISUL and M/s Mukund Ltd. be recommended for allocation of "Rajhara Coal Block".
204. A-6 A.K. Basu in fact has also claimed that as just few days before the Screening Committee meeting held on 03.07.08 the file relating to extension of MOU executed by Government of Jharkhand CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 188 of 429 with M/s VISUL was dealt with by him so he was aware of the progress made by the company in terms of land, power, water etc. He has also claimed that as PW-18 K.K. Khandelwal was accompanying him in the meeting and beside being Secretary Mines he was also Secretary Industries, Government of Jharkhand so he too was well aware of the status of progress made by M/s VISUL and all the other applicant companies with whom MOU was executed by Government of Jharkhand. It was in these circumstances claimed by A-6 A.K. Basu that the facts relating to progress made by M/s VISUL were placed before the Screening Committee and it was stated that M/s VISUL is better placed to be considered for allocation of a coal block. On the other hand, PW-18 K.K. Khandelwal has deposed that though he was initially present in the meeting held on 03.07.08 but after some time on account of some other work he left the meeting with the permission of A-6 A.K. Basu. He further deposed that till the time he remained present in the meeting discussion qua coal blocks situated in the State of Madhya Pradesh only took place and no discussion qua coal blocks situated in the State of Jharkhand took place.
205. Thus in view of the aforesaid disputed position regarding presence of PW-18 K.K. Khandelwal during the entire duration of meeting held on 03.07.2008 it becomes important to first examine the said issue. The said issue in my considered opinion can be easily examined and answered if the records pertaining to Screening Committee meeting held on 03.07.08 are seen and analysed in the light of evidence led by prosecution.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 189 of 429 Whether PW-18 K.K. Khandelwal left the Screening Committee meeting held on 03.07.2008 before the discussion qua coal blocks situated in the State of Jharkhand took place.
206. PW-18 K.K. Khandelwal deposed that he had taken over the charge of Secretary Mines only on 02.07.2008 consequent to superannuation of PW-6 Jai Shankar Tiwary. He further deposed that as a meeting of the Screening Committee was already fixed for 03.07.2008 so Chief Secretary A.K. Basu asked him to accompany him to the said Screening Committee meeting. He further deposed that he had accordingly come to Delhi but he stayed at a separate guest house while A-6 A.K. Basu stayed at Jharkhand Bhawan. He further stated that on 03.07.2008 in the afternoon he went to Shastri Bhawan office of MOC where the Screening Committee meeting was to be held. He also deposed that after opening comments were made by Chairman H.C. Gupta the discussion qua coal blocks situated in the State of Madhya Pradesh took place. He further deposed that as he had no concern with the said coal blocks so he did not participate in the discussion qua the said coal blocks. He however further stated that as he had some other official work to attend in Delhi so he sought permission of A-6 A.K. Basu to leave the meeting in between and to which request A-6 A.K. Basu agreed.
207. He however stated that before leaving the meeting hall he was asked to sign the recommendation sheet qua coal blocks situated in the State of Madhya Pradesh as discussion with respect to them had already taken place and he accordingly signed the same. He thus pointed out that since he was not present thereafter in the meeting so CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 190 of 429 his signatures do not appear on any of the other recommendation sheets pertaining to coal blocks situated in other states including that of State of Jharkhand.
208. PW-18 K.K. Khandelwal also deposed that subsequently in the evening of 03.07.08 he was told by A-6 A.K. Basu on telephone about the recommendations made by the Screening Committee with respect to coal blocks situated in the State of Jharkhand. He was however also told that as some of the applicant companies have been recommended for joint allocation of certain coal blocks so on 04.07.2008 a meeting shall be held under the chairmanship of Sh. K.S. Kropha, the then Joint Secretary, Coal and which he must attend. He further deposed that accordingly on 04.07.2008 he attended the said meeting chaired by Sh. K.S. Kropha, Joint Secretary, Coal and the said meeting lasted for 15-20 minutes only and thereafter he returned back to Jharkhand.
209. On the other hand A-6 A.K. Basu and A-3 H. C. Gupta have strongly disputed the aforesaid claim of PW-18 K.K. Khandelwal stating that he was present all through the entire duration of Screening Committee meeting held on 03.07.08. It was also submitted while referring to the deposition of various other prosecution witnesses i.e. PW-27 N.R. Dash and PW-29 U.P. Singh that the recommendation sheets were prepared at the end of the meeting and thus the same could not have been signed by him at an early hour. It is in the light of aforesaid nature of claims made by PW-18 K.K. Khandelwal on one hand and the counter claims made by the accused persons on the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 191 of 429 other hand that the various recommendation sheets needs to be seen.
210. A perusal of the five recommendation sheets as are available as annexure-V to the minutes Ex. PW 18/DX-5 (colly) of 36th Screening Committee meeting shows that name and signatures of PW-18 K.K. Khandelwal appear only on the recommendation sheet prepared qua coal blocks situated in the State of Madhya Pradesh. His name and signatures however does not find mention on any of the other four recommendation sheets prepared during the course of said meeting much less on the recommendation sheet pertaining to coal blocks situated in the state of Jharkhand. Thus the aforesaid documentary nature of evidence clearly supports the claim of PW-18 K.K. Khandelwal that he left the meeting venue soon after the discussion qua coal blocks situated in the State of Madhya Pradesh stood concluded. The onus to prove their claim that PW-18 K.K. Khandelwal was present all through the entire Screening Committee meeting was certainly upon the accused persons as they are so claiming but they have certainly failed in discharging the said burden even by preponderance of probabilities.
211. In these circumstances, I am thus of the considered opinion that in view of the aforesaid undisputed, cogent and documentary nature of evidence it can not be even presumed for the sake of preponderance of probabilities that PW-18 K.K. Khandelwal was present all through the entire Screening Committee meeting. In fact my subsequent discussion would also corroborate the aforesaid conclusion.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 192 of 429
212. The statements made by PW-26 N.R. Dash and PW-29 U.P. Singh that the recommendation sheets were prepared at the end of meeting can not be given much credence especially when PW-18 K.K. Khandelwal merely stated that while leaving the meeting hall in between he was asked to sign the recommendation sheet pertaining to coal blocks situated in the State of Madhya Pradesh. He did not state anything as to when other members present signed the said recommendation sheets. Moreover in his detailed cross-examination as was conducted on behalf of all the accused persons he was neither put a question or even a suggestion in this regard. No suggestion was even put to him that either he was present through the entire duration of the Screening Committee meeting or that the recommendation sheets were prepared at the end of meeting only.
213. In fact in his cross-examination as was conducted on behalf of A-3 H.C. Gupta, he was merely cross-examined qua the discussion which took place in relation to the coal blocks situated in the State of Madhya Pradesh or as regard the proceedings which took place prior to it. His deposition in the examination-in-chief that he had left the meeting in between was not at all questioned or disputed. He was in fact simply put a suggestion that the recommendation sheet qua coal blocks situated in the State of Madhya Pradesh was signed by him only after decision in this regard was finalised by the Screening Committee. The witness admitted the said suggestion to be correct. However, this suggestion rather supported the facts stated by him in his examination-in-chief that decision qua coal blocks situated in State CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 193 of 429 of Madhya Pradesh was finalized in his presence only. Thus the said suggestion can in no way be read as suggesting that the recommendation sheets were prepared at the end of meeting.
214. Similarly in the cross-examination of the witness as was conducted on behalf of A-6 A.K. Basu even though he was confronted with his previous statement u/s 161 Cr.PC stating that in his said statement it was not mentioned that during the meeting held on 03.07.08 he had left the meeting to attend to some other work with the permission of A-6 A.K. Basu but no suggestion was even put to him that he was present all through the meeting or that during the meeting he had provided any information about progress made by applicant companies in the State including M/s VISUL, M/s Mukund Ltd. and M/s Zoom Vallabh Steel Limited.
215. However at this stage, I may state as a mark of caution that no conclusion is being simply drawn on the basis of any weaknesses in the defence. The purpose of highlighting the aforesaid nature of deposition of PW-18 K.K. Khandelwal was simply to point out that not only it is the stand of A-3 H.C. Gupta himself that the recommendation sheet qua coal blocks situated in the State of Madhya Pradesh were prepared after discussion in this regard was finalized but even PW-18 K.K. Khandelwal also never stated that all the members present signed the recommendation sheet at the same time when he signed it.
216. Moreover as already discussed after the Screening Committee meeting as above was concluded on 03.07.2008 and the share CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 194 of 429 allocation Committee meeting was over on 04.07.2008, PW-18 K.K. Khandelwal and A-6 A.K. Basu returned to Ranchi. As already discussed at length the subsequent events post Screening Committee meeting which took place in the files of State Government of Jharkhand qua Screening Committee recommendations for "Rajhara Coal Block" and Hutar Hurilong coal block leading to sending of letter dated 28.07.08 and letter dated 04.08.2008 to A-3 H.C. Gupta, Secretary, Coal are also quite interesting beside being also instructive of the arbitrary nature of functioning of various officers of State government of Jharkhand.
217. In fact letter dated 04.08.2008 also refers to the meeting held on 04.07.2008 in MOC in the chamber of Joint Secretary Coal for devising criteria to calculate the capacity of the steel plant for the purpose of deciding shares amongst joint allocatee companies. It also mentions that in the said meeting PW-18 K.K. Khandelwal Secretary Mines and Industries, Government of Jharkhand had apprised that M/s Contisteel Ltd. has no valid MOU as on date and has not made significant progress and hence quantity entitlement as per the above criteria decided in the meeting works out to be Nil. The criteria decided in the said meeting held on 04.07.2008 for calculating the capacity of the Steel plant for the purpose of deciding share among the allocatees was also mentioned in the letter as under:
(I) The quantity as mentioned in the applications for coal allocation, (II) The quantity as per MOU and (III) The likely production capacity to be achieved by the year 2010.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 195 of 429 The existence of a valid MOU by an applicant company with State Government was also thus strongly stressed upon in the letter by A-6 A.K. Basu.
218. However, the aforesaid facts and circumstances, again belies the stand of A-6 A.K. Basu that during the course of meeting held on 03.07.2008, PW-18 K.K. Khandelwal Secretary Mines and Industries was present throughout the meeting and had apprised him about the current status of progress made by M/s VISUL or that of other applicant companies. If PW-18 K.K. Khandelwal was present through the entire duration of meeting held on 03.07.2008 then during the course of discussion regarding Hutar and Hurilong coal block he would have certainly informed about the current status of progress made by M/s Contisteel Ltd. also for he admittedly stated about it in the meeting held on the very next day itself i.e. on 04.07.2008. Thus if PW-18 K.K. Khandelwal been present at the time of discussion in the meeting held on 03.07.2008 then there was no reason for the Screening Committee to recommend M/s Contisteel Ltd. also for Hutar Hurilong coal block or at least the said facts would have found mention in the minutes of the meeting. These facts and circumstances thus leads to the only irresistible conclusion that PW-18 K.K. Khandelwal was not present in the Screening Committee meeting when discussion qua coal blocks situated in the State of Jharkhand took place.
219. Moreover, from the files of Government of Jharkhand as discussed above, it is also clear that till the time of Screening CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 196 of 429 Committee meeting held on 03.07.08 no noting had come to the notice of A-6 A.K. Basu wherein any comparison was made stating that the progress made by M/s VISUL in setting up the steel plant was satisfactory or that made by M/s Zoom Vallabh Steel Ltd. Or of other applicant companies was not satisfactory. (The noting dated 02.07.2008 in file Ex. PW 3/B (Colly) (D-140) made by A-4 B.K. Bhattacharya admittedly never travelled to the desk of either A-6 A.K. Basu or even to that of PW 18 K.K. Khandelwal).
220. Moreover in view of the importance of existence of a valid MOU in favour of an applicant company as stressed by A-6 A.K. Basu in his letter dated 04.08.2008, it would be also pertinent to mention that as is evident from file Ex. PW 2/B (Colly) (D-82) as on 03.07.08 i.e. the date of Screening Committee meeting the proposal for extension of MOU earlier executed with M/s VISUL was not yet approved by the competent authority i.e. the Chief Minister and thus as on that date no valid MOU with M/s VISUL was in existence.
221. Thus after having seen the manner in which the applications received from MOC were processed in the files of Government of Jharkhand and the circumstances in which the recommendations of the Government of Jharkhand in favour of certain companies were attempted to be repeatedly changed and having also briefly seen the circumstances in which M/s VISUL came to be recommended for allocation of Rajhara coal block by 36th Screening Committee, MOC, I now intend to discuss the prosecution case further qua each of the accused persons in the light of submissions made by various accused CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 197 of 429 persons.
222. Initially it is proposed to be seen as to what all incriminating circumstances, the prosecution has been successful in proving against each of the accused persons. Thereafter, the said proved incriminating circumstances shall be comprehensively considered as to whether the said acts were done in pursuance to the common object of a criminal conspiracy or not.
223. I thus shall be first discussing the role of accused officers of Government of Jharkhand followed by that of A-3 H.C. Gupta, Secretary Coal, and Chairman Screening Committee. Thereafter, the role of A-1 M/s VISUL and that of other private parties i.e. A-2 Vaibhav Tulsyan, A-8 Vijay Joshi and of A-9 Navin Kumar Tulsyan shall be discussed.
A-4 B.K. Bhattacharya, Section Officer, Department of Mines and Geology, Government of Jharkhand.
224. Prosecution has tried to rest its case against A-4 B.K. Bhattacharya, Section Officer, Department of Mines and Geology, Government of Jharkhand, primarily on the basis of noting dated 02.07.2008 made by him in file Ex. PW 3/B (Colly) (D-140). It has been alleged that A-4 B.K. Bhattacharya malafidely recorded the said note stating the progress made by M/s VISUL towards establishing its industry as satisfactory while stating the progress made by M/s Zoom Vallabh Steel Ltd. as being not satisfactory. It has been alleged that the said noting was recorded by him in pursuance to a conspiracy CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 198 of 429 hatched by various officers of Government of Jharkhand including Chief Minister, Madhu Koda so as to favour M/s VISUL in obtaining allocation of "Rajhara Coal Block". It has also been stated that there was neither any occasion for A-4 B.K. Bhattacharya to make any such noting in the file nor there was any record available in the file from which steps taken by M/s Zoom Vallabh Steel Ltd. towards establishing its industry could be ascertained much less being unsastisfactory. It has also been alleged that earlier in the same file A-4 B.K. Bhattacharya had recorded that till any decision is taken by MOC qua the earlier recommendation sent by Government of Jharkhand in favour of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd., there does not appear to be any necessity of recommending the name of any other company. It has been thus alleged that A-4 B.K. Bhattacharya deliberately did not mention in the note dated 02.07.08 about any such earlier observations of his. It has also been alleged that even the observations made by PW-6 Jai Shankar Tiwary in his detailed note dated 04.12.2007 qua M/s VISUL (as has been reproduced in the earlier part of the present judgment) that as requirement of coal of the company was not much so it may not be recommended for allocation of a coal block and may be considered for grant of coal linkage, if the company applies for it, was also not mentioned by him in his note. It has also been submitted that even in the MOU dated 14.09.06, Ex. PW 2/DX-1 executed by State Government of Jharkhand with M/s VISUL it was only stated that State Government shall assist the company in making available coal linkages from State PSUs. In fact a specific request of M/s VISUL to CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 199 of 429 also incorporate a clause in the MOU that the company will be recommended for allocation of mining block was even rejected by the State Government and this fact was also not pointed out in the note dated 02.07.08. It has also been alleged that at page 125 of the correspondence side as has been referred to by A-4 B.K. Bhattacharya in his note dated 02.07.08 nothing is mentioned about M/s Zoom Vallabh Steel Ltd. even though the status of M/s VISUL is mentioned over there and thus there was no record before A-4 B.K. Bhattacharya from where he could have ascertained the present status of M/s Zoom Vallabh Steel Ltd.. It has also been alleged by the prosecution that in fact M/s Zoom Vallabh Steel Ltd. was already having a running sponge iron plant in the state as it had taken over another company i.e. Vallabh Steel Limited which not only was having a MOU executed with State Government of Jharkhand but was already having existing production capacity of 0.5 MTPA of sponge iron in the State.
225. It has also been alleged that note dated 02.07.08 was deliberately recorded by A-4 B.K. Bhattacharya as final Screening Committee meeting was to take place on 03.07.08 wherein final recommendations of Screening Committee were to be made. It was thus submitted that false noting was being recorded in the file so as to support the claim of M/s VISUL unjustly and to the detriment of M/s Zoom Vallabh Steel Ltd.
For all the aforesaid reasons, A-4 B.K. Bhattacharya was stated to be an active participant in the impugned criminal conspiracy CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 200 of 429 hatched by officers of Government of Jharkhand including Chief Minister, Madhu Koda so as to favour M/s VISUL since from the month of May 2008 onwards A-8 Vijay Joshi, a close associate of A-7 Madhu Koda, Chief Minister of the state had taken over the company M/s VISUL.
226. On the other hand it has been submitted by Ld. Sr. Advocate Ms. Sonia Mathur for A-4 B.K. Bhattacharya that though recording of note dated 02.07.08 is not disputed by A-4 B.K. Bhattacharya but admittedly the said note dated 02.07.08 did not travel beyond the desk of Dy. Secretary, Subodh Kishore Sorang. It was pointed out that Dy. Secretary vide his note dated 07.07.2008 returned back the file observing that whether after earlier recommendations sent with the approval of Chief Minister fresh recommendation can be sent. It was thus submitted that note dated 02.07.08 of A-4 B.K. Bhattacharya did not proceed beyond the desk of Dy. Secretary and in fact the file was returned back from his desk only and the note thus died its own death.
227. It was also submitted that admittedly the final Screening Committee meeting took place on 03.07.2008 in which Chief Secretary i.e. A-6 A.K. Basu and Secretary Industry and Mines i.e. PW-18 K.K. Khandelwal had gone but prosecution has clearly failed in proving that noting dated 02.07.08 of A-4 B.K. Bhattacharya ever came to the notice of either the Chief Secretary or Secretary Industries and Mines much less at any time came into discussion in the meeting held on 03.07.08. It was thus submitted by Ld. Sr. Advocate that even if it is presumed for the sake of arguments that CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 201 of 429 note dated 02.07.08 did not contain correct facts then also the prosecution has failed to prove that the said noting was ever acted upon. It was also submitted that even otherwise it is not the case of prosecution that recommendation in favour of M/s VISUL was made in the Screening Committee meeting on 03.07.2008 pursuant to said note dated 02.07.08 of A-4 B.K. Bhattacharya. It was also submitted that as the note dated 02.07.08 started with the words "Aapse Yatha Vimarshit" so it was clear that the said note was recorded as per the discussion and directions of Sr. officers i.e. Dy. Director, R.N. Prasad.It was also submitted that as none of the Sr. officers to whom the file was put up with note dated 02.07.08 ever objected to the contents of the said note as being not correct or proper so it has to be presumed that the said note was put on the file by A-4 B.K. Bhattacharya pursuant to discussion and directions of Sr. officers only.
228. It was also submitted by Ld. Sr. Advocate that the information as is available at page No. 125 on correspondence side was part of a comparative chart, prepared by Department of Mines qua all the 34 applicant companies who had applied for allocation of "Kurta iron ore mine". It was thus submitted that undisputedly other Sr. officers of the department were also involved in the said process and even though only one page of the said chart was placed in file Ex. PW 3/B (Colly) (D-140) but the entire information was very much available with A-4 B.K. Bhattacharya. It was thus again reiterated that as none of the Sr. Officers at all objected to the correctness of the facts stated in the note dated 02.07.08 so it has to be presumed that the facts mentioned CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 202 of 429 in the note were on the basis of record available and also that the note in question was prepared by A-4 B.K. Bhattacharya as per the discussion/directions of Sr. Officers i.e. Dy. Director, Sh. R.N. Prasad. It was thus also submitted that if the said noting is considered to have been prepared in pursuance to any criminal conspiracy then Dy. Director, Sh. R.N. Prasad ought to have been also arrayed as an accused. It was thus submitted that CBI has adopted a pick and choose policy in prosecuting some of the officers only while leaving certain other officers. It was thus submitted by Ld. Sr. Advocate that the present investigation is completely biased and malafide and the conclusion thereof thus can not be relied upon.
229. Various notings as were recorded in file Ex. PW 3/B (Colly) (D-
140) were also extensively referred to by Ld. Sr. Advocate to show that recommendations of Government of Jharkhand were earlier also repeatedly changed without there being any reason or material available on record for changing the same. It was also submitted that earlier A-4 B.K. Bhattacharya had himself recorded a note in the file that when recommendations have already been sent to MOC then new recommendations can not be sent. It was thus submitted that it was pursuant to discussion and directions of Sr. Officers only that A-4 B.K. Bhattacharya put up the note dated 02.07.08 in the file. It was also submitted that even in the month of November 2007, the then Chief Secretary Government of Jharkhand namely Sh. P.P. Sharma had sent a letter dated 30.11.2007 to Secretary Coal requesting to consider the application of M/s Bihar Sponge Iron for allotment of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 203 of 429 "Macharkunda" and "Hurilong Hutar" coal blocks in the Screening Committee meeting to be held on 07.12.2007. It was however pointed out that neither the said letter was placed in the files of Government of Jharkhand nor there was any corresponding note sheet in the file. It was thus submitted that in view of the aforesaid facts and circumstances no criminality can be read in the mere act of recording of note dated 02.07.08 by A-4 B.K. Bhattacharya or in the fact that earlier recommendation sent by Government of Jharkhand were proposed to be changed.
230. Even as regard the sanction to prosecute, issued against A-4 B.K. Bhattacharya u/s 19 P.C. Act and Section 197 Cr.PC, it was submitted that it has come on record during the deposition of PW-1 B.B. Mangalmurti that the complete record and especially the impugned noting dated 02.07.08 of A-4 B.K. Bhattacharya was never put up before the competent authority and thus in the absence of complete documents having been not put up before the competent authority, it can not be stated that the sanction was accorded after due application of mind.
Conclusion regarding incriminating circumstances against A-4 B.K. Bhattacharya.
231. At the outset, I may state that admittedly the impugned note dated 02.07.08 recorded by A-4 B.K. Bhattacharya did not proceed beyond the desk of Dy. Secretary and the file was returned back from his desk on 07.07.2008. Thus whether in the light of said facts can it be stated that A-4 B.K. Bhattacharya recorded the said note only CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 204 of 429 because he was part of a criminal conspiracy hatched by various officers of Government of Jharkhand including its Chief Minister is an aspect which shall be dealt with by me at a later stage of the present judgment. However at this stage, it will be important to first analyse and understand as to whether there was any occasion for A-4 B.K. Bhattacharya to record any such note. It also needs to be seen as to whether there was any material available to him on the basis of which any conclusion regarding the status of progress made by the two companies i.e. M/s VISUL and M/s Zoom Vallabh Steel Ltd. could be drawn. The overall circumstances in which the said note came to be recorded also needs to be seen.
232. However, as the subsequent discussion shall revolve around note dated 02.07.08 of A-4 B.K. Bhattacharya only so it will be worthwhile to once again reproduce the said note over here for a ready reference.
233. Note dated 02.07.08 at note sheet page 19 in file Ex. PW 3/B (Colly) (D-140) read as under:
"उपचनदगशक खयन-2 (पन०) आपसग यथय चवमचशर त/इस पससग मम पक० 125/प० पर उपलबध statement कग कम सस०- 22 मम M/s Vini Iron & Steel Udyog Ltd. कग current status कक जयनकयरण दण गई हह। Status report कग अननसयर इनकय अनययनय पगचत ससतलषपद हह। जबचक इसकग तनलनय मम Zoom Ballabh Steel Ltd. कय पगचत ससतलषपपणर नहह हह। इसललए उनकग सथयन पर M/s Vini Iron and Steel Udyog कल Rajhara Coal Block कय एक असश दगनग कग ससबसध मम चनणर य ललयय जय सकतय हह। एवस कगनद सरकयर कल इसकक अननशससय कक जय सकतण हह।
आदगशनयथर sd/-
बसस त कन मयर भटक टयचययर 2/7/2008"
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 205 of 429
234. However a bare perusal of file Ex. PW 3/B (Colly) (D-140) shows that there is nothing over there from which it could be ascertained as to for what reason A-4 B.K. Bhattacharya proceeded to record the note dated 02.07.08. As already mentioned by me that from around May 2008 onwards, the fortunes of M/s VISUL in State of Jharkhand suddenly changed and every officer of Government of Jharkhand started favouring the company. In fact the impugned note dated 02.07.08 of A-4 B.K. Bhattacharya is clearly illustrative of the said fact. Moreover, even it if is presumed that the said note was recorded by A-4 B.K. Bhattacharya pursuant to discussion with higher officers then also the words "Aapse Yatha Vimarshit" can not imply that beside having discussion with senior officers there were directions also for A-4 B.K. Bhattacharya to record the said note with the contents as mentioned therein. Moreover even it it is presumed for the sake of arguments that beside discussion there were arguments that beside discussion there were directions also then also A-4 B.K. Bhattacharya who was a Section Officer in the Department, can certainly not disown his responsibility of recording correct and complete facts in his note simply on the ground that since there was discussion (or even directions) with senior officers so he had recorded the said noting.
235. This fact assumes importance all the more when it is seen that page No. 125 on the correspondence side of the file as has been referred to in his note dated 02.07.08 by A-4 B.K. Bhattacharya though mentions about the steps taken by M/s VISUL towards CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 206 of 429 establishing its proposed industry in the State but it, no where mentions anything about M/s Zoom Vallabh Steel Ltd.. During the course of arguments Ld. Sr. Advocate for A-4 B.K. Bhattacharya has tried to argue that as the said page No. 125 was part of a comparative chart Ex. P-50 (Colly) [as is available in file Ex. PW 3/C (Colly) (D- 141 of Department of Industry)] containing comparative statement of merit of various applicant companies who had applied for allocation of "Kurta Iron Ore mine" so the said entire chart was accordingly referred to by A-4 B.K. Bhattacharya while recording his note dated 02.07.08 and that it was not necessary that all the documents which were referred to while preparing a note should find mention in the note itself.
236. However, I may state that the aforesaid argument is not tenable per-se. One could have very feebly believed the said argument to some extent, had there been no reference to any document in the note dated 02.07.08 written by A-4 B.K. Bhattacharya, but here is a case where one document available at page No. 125 on the correspondence side in file Ex. PW 3/B (Colly) (D-140) has been specifically referred to while making the note. Thus no presumption can be drawn in these circumstances even for the sake of arguments that A-4 B.K. Bhattacharya had referred to the entire comparative chart Ex. P-50 (Colly) as was available in file Ex. PW 3/C (Colly) (D-
141) while recording his note dated 02.07.08 in file Ex. PW 3/B (Colly) (D-140).
237. At the same time the argument that none of the senior officers CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 207 of 429 to whom the said note was put up on 02.07.08 raised any objection also does not cut ice as not only one of them namely Director (Mines) i.e. B.B. Singh is also facing trial on the allegations of being a part of the impugned criminal conspiracy, but even otherwise if any other officer has not been arrayed as an accused still the same can not give a ground to A-4 B.K. Bhattacharya to say that he should also be absolved of all his responsibilities.
238. Apart from the aforesaid circumstances what is important to be examined is whether there were any circumstances which prompted revised recommendation to be sent in favour of M/s VISUL even if M/s Zoom Vallabh Steel Ltd. had not made sufficient progress in establishing the industry in the state. As rightly pointed out by Ld. Sr. P.P., it has been the consistent stand of the officers of Government of Jharkhand including that of A-4 B.K. Bhattacharya in various notings recorded in file Ex. PW 3/B (Colly) itself that till a decision is taken by MOC qua the earlier recommendations sent in favour of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd., it will not be proper to send any new recommendation[Two such notings of A-4 B.K. Bhattacharya himself dated 19.02.2008 and 09.05.2008 recorded in file Ex. PW 3/B (Colly) (D-140) have already been reproduced by me in the earlier part of present judgment.]. Moreover, as A-4 B.K. Bhattacharya was continuously dealing with the said file so it was also imperative for him to highlight that earlier Secretary Mines namely PW-6 Jai Shankar Tiwary had observed vide his note dated 04.12.2007 that on account of small requirement of coal, M/s VISUL may not be recommended for CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 208 of 429 allotment of a coal block and may be provided coal linkage if the company applies for the same. Apart from the aforesaid facts it will be also important to mention that A-4 B.K. Bhattacharya has all during the trial and in his written submissions placed strong reliance on requirement of execution of MOU with Government of Jharkhand by applicant companies including M/s VISUL before being recommended for allocation of a coal block. However, as already discussed in the earlier part of the present judgment that in the MOU executed with M/s VISUL by Government of Jharkhand commitment was made only to provide linkage to the company from State PSUs and the specific request of M/s VISUL to incorporate a clause in the MOU that Government of Jharkhand shall recommend the company M/s VISUL for allotment of a mining block was specifically rejected. Moreover as also discussed earlier even the MOU executed with M/s VISUL had already expired and thus as on 02.07.08 no valid MOU with M/s VISUL was in existence. The omission to mention the aforesaid important facts coupled with the fact that note dated 02.07.08 was made without there being any occasion or requirement for making it and that too a day before the final meeting of 36 th Screening Committee to be held on 03.07.08, clearly raises eyebrows about the intention and motive of putting up the said note by A-4 B.K. Bhattacharya.
239. Thus, in view of my aforesaid discussion, it stands conclusively proved that there was neither any occasion nor reason for A-4 B.K. Bhattacharya to record any such note dated 02.07.08 in file Ex. PW CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 209 of 429 3/B (Colly) (D-140) stating the progress made by M/s VISUL to be satisfactory and the progress made by M/s Zoom Vallabh Steel Ltd. as being not satisfactory. It also conclusively stands proved that there was no record before A-4 B.K. Bhattacharya on the basis of which he could have mentioned that the progress made by M/s Zoom Vallabh Steel Ltd. is not satisfactory. It also stands well proved that A-4 B.K. Bhattacharya deliberately did not disclose complete facts regarding his earlier notings in the file or that of PW-6 Jai Shankar Tiwary or that of terms of MOU of M/s VISUL as was entered into by Government of Jharkhand. The only reason in the overall facts and circumstances of the case in putting up note dated 02.07.08 was thus to help M/s VISUL in securing allotment of a coal block from MOC in the forthcoming Screening Committee meeting to be held on 03.07.08.
240. However, as already mentioned whether the aforesaid incriminating circumstances which stands conclusively proved against A-4 B.K. Bhattacharya can lead to a conclusion that the same were undertaken in pursuance to the common object of a criminal conspiracy, if any, hatched by the officers of Government of Jharkhand or not shall be discussed by me towards a later part of the present judgment i.e. after the incriminating circumstances appearing against all the accused persons are discussed. The issues raised regarding sanction to prosecute A-4 B.K. Bhattacharya as accorded by Government of Jharkhand shall also be dealt with at a later stage.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 210 of 429 A-5 B.B. Singh, Director (Mines), Government of Jharkhand
241. Prosecution has primarily sought to prove its case against A-5 B.B. Singh the then Director (Mines), Government of Jharkhand on the basis of his noting dated 28.07.2008 as recorded by him in file Ex. PW 3/B (colly) (D-140). It has been submitted that subsequent to Screening Committee Meeting held on 03.07.2008 wherein decision was already taken to recommend M/s Mukund Ltd. and M/s VISUL for allocation of Rajhara Coal Block there was no occasion or reason for A-5 B.B. Singh to record note dated 28.07.2008 mentioning that the progress of M/s VISUL towards establishing its industry in the State was satisfactory or that made by M/s Mukund Ltd. was not satisfactory. It has been submitted that the said note dated 28.07.2008 is an important indicator of involvement of A-5 B.B. Singh in the impugned criminal conspiracy. It was pointed out that prior to 28.07.2008 there was no note or report submitted by either A-6 A.K. Basu or by PW 18 K.K. Khandelwal as to the proceedings which took place in the Screening Committee meeting held on 03.07.2008 and thus there was no way for A-5 B.B. Singh to know as to in whose favour recommendation has been made by Screening Committee for Rajhara Coal Block. It was also submitted that PW 18 K.K. Khandelwal has clearly deposed that on 28.07.2008 A-6 A.K. Basu had called for the file relating to Rajhara Coal Block and upon inquiry as to for what purpose the same is being asked for, he stated that A-6 A.K. Basu angrily told him that B.B. Singh Director (Mines) knows about the purpose. PW 18 K.K. Khandelwal further deposed that he CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 211 of 429 accordingly called upon A-5 B.B. Singh to bring the said file. He further stated that when A-5 B.B. Singh brought the said file then the said note already stood recorded in the file and thus he merely forwarded the same to Chief Secretary. Prosecution has also alleged that neither there was any record available to A-5 B.B. Singh from which it could be ascertained that the progress made by M/s Mukund Ltd. was not satisfactory nor there was any reason for A-5 B.B. Singh to himself initiate such a note in the file. It has also been submitted that earlier A-5 B.B. Singh had himself endorsed the view in the file while considering the applications of other companies that till the time Screening Committee takes a decision qua recommendation of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. as have already been sent by Government of Jharkhand, names of the other companies need not be recommended. It has also been alleged that if at all A-5 B.B. Singh in his note dated 28.07.2008 was proposing that a decision may be taken by Government qua recommendation to be sent for Rajhara Coal Block then he also ought to have mentioned that in the MOU executed with M/s VISUL the Government of Jharkhand had not committed to recommend the company for allocation of a coal block. Thus, for the aforesaid facts and circumstances, it was stated that A-5 B.B. Singh actively participated in the impugned criminal conspiracy whose ultimate object was to procure allocation of a coal block in favour of M/s VISUL.
242. On the other hand, Ld. Counsel Sh. Sidharth Aggarwal and Sh. Akhand Pratap Singh for A-5 B.B. Singh strongly opposed the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 212 of 429 submissions made by prosecution alleging that A-5 B.B. Singh had no authority to take any final decision on behalf of Government of Jharkhand and thus merely on the basis of certain notings put up by him in the file he cannot be even presumed to have committed any offence. It was submitted that even otherwise the impugned conspiracy as alleged by prosecution had come to an end soon after recommendation was made by 36th Screening Committee in favour of M/s VISUL qua allocation of Rajhara coal block. It was thus submitted that as the object of criminal conspiracy was already achieved as on 03.07.2008 so any act if at all undertaken by any person subsequent to culmination of criminal conspiracy cannot make him a conspirator with other accused persons. It was also submitted that in fact it has been the consistent stand of A-5 B.B. Singh right during the entire investigation and also during the trial of the present case that it was PW 18 K.K. Khandelwal who had called for the file Ex. PW 3/B (colly) (D-140) and on his directions only the note dated 28.07.2008 was put up by him. It was also submitted that for this reason only the decision of Screening Committee as was taken in the meeting held on 03.07.2008 came to his knowledge. As regard the availability of records relating to progress made by the companies towards setting up their industries in the State, it was submitted that subsequent to execution of MOU with a given company by Government of Jharkhand review of progress made by the company towards setting up its industry in the State is regularly carried out by Department of Industries. It was further submitted that as the working of Department of Mines and Department of Industries was closely interlinked and the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 213 of 429 Directorate and Secretariat of Department of Mines and Geology and that of Department of Industries were situated in the same building i.e. Nepal House so there used to be free exchange of information between the two departments. While referring to the deposition of PW 6 Jai Shankar Tiwary it was stated that no formal communication used to be undertaken in between the two departments for exchange of any such information or files/documents. It was thus submitted that prosecution has wrongly stated that no information regarding progress made by M/s Mukund Ltd. or that made by M/s VISUL was available to A-5 B.B. Singh. Even while referring to the earlier note dated 20.09.2007 made by A-5 B.B. Singh in file Ex. PW 3/B (colly) (D-140) it was submitted that in the said note also A-5 B.B. Singh had merely presented the facts before the senior officers and he himself did not make any proposal or recommendation in favour of any company.
243. It was also submitted by Ld. Counsel for A-5 B.B. Singh that as is evident from the files of Government of Jharkhand, the recommendations of Government in favour of various companies as were sent to MOC were repeatedly changed without there being any material available on record or reasons for such change of recommendation and thus nothing adverse can be read in the note dated 28.07.2008 put up by A-5 B.B. Singh mentioning about the progress made by M/s VISUL and M/s Mukund Ltd. in setting up their industries in the State. It was also submitted by Ld. Defence Counsel that earlier also on various occasions whenever the file was put up before him by any of his subordinate officers with any proposal CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 214 of 429 regarding recommendation to be made to MOC by Government of Jharkhand then also he simply used to forward the file to senior officers as all the decisions were to be taken either at the level of Secretary or the Government. It was also submitted that in fact the CBI has not carried out free and fair investigation in as much as the role of other officers involved in the entire matter has not been investigated. The prosecution was thus stated to have miserably failed in proving that A-5 B.B. Singh in any manner acted as being part of any criminal conspiracy, if at all hatched by other officers of the Government of Jharkhand.
Conclusion regarding incriminating circumstances against A-5 B.B. Singh.
244. As regard the role of A-5 B.B. Singh, I may again state that the fact as to whether by merely recoding note dated 28.07.2008, A-5 B.B. Singh can be held to be a part of criminal conspiracy, if any, hatched by other officers of Government of Jharkhand or not shall be dealt with by me at a later stage of the present judgment but it will be important to first examine as to whether any of the incriminating circumstances as have been alleged against him by the prosecution cogently stands proved or not.
245. In order to appreciate the aforesaid issue, it will be important to first see as to whether there was any occasion or reason for A-5 B.B. Singh to put up the said note in file Ex. PW 3/B (colly) (D-140). PW 18 K.K. Khandelwal stated in his deposition that A-6 A.K. Basu Chief Secretary of the State had called for the said file and he also stated CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 215 of 429 that B.B. Singh Director (Mines) knows the purpose thereof. PW 18 K.K. Khandelwal further deposed that when the file was called for by him then before bringing the file to him, A-5 B.B. Singh had already recorded note dated 28.07.2008 in the file. On the other hand, A-5 B.B. Singh has claimed that in fact PW 18 K.K. Khandelwal had called him and Additional Director, Sh. S.L. Minz in his office and had directed them to put up the note as has been recorded by him and accordingly the said note dated 28.07.2008 was put up by him.
246. In this regard it would be suffice to state that in view of the contrary claims made by PW 18 K.K. Khandelwal and A-5 B.B. Singh the only option left before this Court is to place reliance on the said note dated 28.07.2008 itself. For a ready reference the said note dated 28.07.2008 is reproduced once again over here:
"उप सचचव-II पपवर पकष पर पकचछय।
भयरत सरकयर कक सककनहग कचमचट दयरय रयजहरय नयथर , सगनटट ल एवस इसटट न कलल बलयलक कल ससयक न रप सग मगससर मनकननद लल० एवस मगससर चवनण आयरन एवस सटणल उदलग लल० कग पक मम आबसटन कय चनणर य ललयय गयय हह।
इस ससबध स मम उलगखनणय हह चक मगससर मनकननद लल० दयरय झयरखणड रयजय मम उदलग सथयचपत करनग कक चदशय मम अदतन पगचत ससतलषजनक नहह हह। उनकग दयरय जमणन कय कय नहह चकयय गयय हह। और ऊजयर कग ललए आवगदन नहह चदयय गयय हह। ललह अयसक कग ललए भण अभण तक रयजय सरकयर दयरय कगनद सरकयर कग अननशससय नहह भगजण गई हह, परनतन मगससर चवनण आयरन एणड सटणल उदलग लल० दयरय उदलग सथयचपत करनग हगतन जमणन कय कय चकयय गयय हह और ऊजयर कग ललए आवगदन दयलखल चकयय गयय हह। मगससर चवनण कग पक मम ललह अयसक कग ललए कगनद सरकयर कल अननशससय भण कक गई हह। यह उलगखनणय हह चक रयजहरय नयथर , सगनटट ल एवस ईसटट न कलल बलयलक मम कलयलय खचनज कय चनकगप भण मयत 17.09 चमललयन टन हण हह।
उपयनरक पररपसथचत मम अदतन पगचत कग आललक मम भयरत सरकयर कक सककचनसग कचमचट कग दयरय ललए गए चनणर य कग आललक मम रयजहरय कलल बलयलक कग आबसटन कग ससबसध मम अननशससय हगतन सरकयर दयरय समनचचत चनणर य ललयय जय सकतय हह।
sd/-
(बण०बण० लससह ) 28/7/08."
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 216 of 429
247. A bare perusal of the aforesaid note shows that the said note commences with a reference to the previous page. However a perusal of the previous page shows that the last note on previous note sheet page 20 is note dated 07.07.2008 of Dy. Secretary (Mines) Sh. Subodh Kishore Sorang. In the said note Dy. Secretary had questioned as to whether after approval of earlier proposal from Chief Minister can recommendation in favour of any other company be sent. Though, there are certain signatures of some officials including that of A-5 B.B. Singh thereafter on the said note sheet page bearing dates 07.07.2008 to 10.07.2008 but no note has been recorded by anyone. There is however a hand written note thereafter in the file but the same has been subsequently struck off by putting lines across it. During the course of trial the said words written in hand and thereafter struck off have been admitted by A-5 B.B. Singh u/s 294 Cr.PC to be in his own hand. The said struck off note at note sheet page 20 read as under
उप सचचव -II उपयनरक पकच छय।
पपवर पकष पर चटपपणण कग आललक मम सवर शण चवनण आयरन एणड सटणल उदलग लल० कग पक मम रयजहरय नयलथर , सग न टट ल एवस इसटनर कलल बलयलक आबस ट न हग त न कलयलय मस त यलय भयरत सरकयर, नयण चदलण।
It is thereafter that note in question dated 28.07.08 has been recorded by A-5 B.B. Singh at note sheet page 21.
248. Thus from a bare perusal of the aforesaid part note which has CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 217 of 429 been struck off subsequently or from the subsequent note dated 28.07.2008 of A-5 B.B. Singh, it is clear that the same was put up in reference to the previous noting available at note sheet page 20 i.e. note dated 07.07.2008 of Dy. Secretary (Mines) Sh. Subodh Kishore Sorang. Though, during the course of arguments and in the written submissions also this claim has been disputed by Ld. Defence Counsel for A-5 B.B. Singh but in view of the aforesaid documentary nature of evidence no presumption much less any conclusion can even be drawn that the said note was put up by A-5 B.B. Singh pursuant to the directions of PW 18 K.K. Khandelwal more so when no such fact has been mentioned in the note by him. Drawing of any such presumption much less conclusion that the note in question was written on the directions of PW-18 K.K. Khandelwal shall be purely based on conjunctures and surmises and will also tantamount to giving precedence to oral testimony despite availability of uncontroverted written record to the contrary.
249. Apart from the aforesaid facts even if it is presumed for the sake of arguments that the said note dated 28.07.2008 was put up by A-5 B.B. Singh on the basis of directions of PW 18 K.K. Khandelwal then also A-5 B.B. Singh cannot absolve himself from his responsibility of recording true and correct facts in the note. He has claimed that he came to know about the progress made by the two companies towards establishing their industries in the State from the files of Department of Industries only. However if that be so, then as earlier also discussed in the initial part of present judgment while CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 218 of 429 referring to file Ex. PW 2/E (colly) (D-85) relating to M/s Mukund Ltd., that there has been no observation over there that progress made by M/s Mukund Ltd. towards establishing its industry in the State was not satisfactory. I have also already discussed that even in the letter dated 28.07.2008 sent by A-6 A.K. Basu to Secretary (Coal) recommending allocation of Rajhara Coal Block in favour of M/s VISUL only, it was not stated unlike letter dated 04.08.2008 qua M/s Contisteel Limited, that M/s Mukund Ltd. be allotted some other coal block only after it makes progress in setting up the industry in the State. In fact as already discussed at length, in the file relating to M/s Mukund Ltd. of Department of Industries i.e. Ex. PW 2/E (Colly) (D-85) vide letter dated 05.07.2008 report of progress made by the company was in fact sought for and reply thereof from the company was received in Department of Industries from the company only on 29.07.2008.
Moreover, just a few days after 28.07.2008 repeated recommendations were made in the file of Department of Industry for extension of MOU executed by M/s Mukund Ltd.. Once again as already mentioned the proposal to extend the term of MOU is mooted only when the progress made by the company is found to be satisfactory. Moreover in these circumstances, it is also clear that file Ex. PW 2/B (Colly) (D-82) containing MOU dated 14.09.2006 as was executed by Government of Jharkhand with M/s VISUL was also very much available with A-5 B.B. Singh and thus he ought to have also mentioned in his note dated 28.07.08 that under the said MOU Government of Jharkhand had only committed to provide assistance to the company for linkages of raw material from State PSUs and that CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 219 of 429 specific request of company M/s VISUL to incorporate a Clause in the MOU that it may also be recommended for allocation of a coal block was specifically rejected. He also did not mention in his note that Sh. Jai Shankar Tiwary, Secretary (Mines) (PW-6) had vide note dated 04.12.2007 had observed that on account of less requirement of coal by M/s VISUL, the company may not be recommended for allocation of a coal block and may be provided coal linkage, if the company applies for it. A-5 B.B. Singh also did not mention in his note dated 28.07.2008 that the aforesaid observations of PW-6 Jai Shankar Tiwary were also not disagreed by the senior officers including Chief Minister, A-7 Madhu Koda.
250. As regard the claim of Ld. Counsel for A-5 B.B. Singh that earlier also the recommendation of Government of Jharkhand were repeatedly changed without any logic, it will be suffice to state that such an argument does not require any detailed discussion to brush aside as not only A-6 A.K. Basu Chief Secretary of the State who made one such recommendation in favour of M/s VISUL in the Screening Committee Meeting held on 03.07.2008 but also the then Chief Minister i.e. A-7 Madhu Koda with whose approval the earlier recommendations were sent to MOC have been arrayed as accused in the present matter. Moreover, the argument that the role of other officers of Government of Jharkhand was not investigated is also not of any relevance in appreciating the role played by A-5 B.B. Singh.
251. At this stage it will be also important to mention that subsequently when in the year 2009 onwards the progress made by CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 220 of 429 M/s VISUL again came to be reviewed by Department of Industries then it was found that the company had in fact not made any progress at all and it was rather observed that the company had misrepresented the facts with a view to secure allocation of a coal block. PW-28 Amrendra Pratap Singh, who was posted as Secretary, Department of Industries, Government of Jharkhand from 15.04.2010 till 19.08.2013 stated that when the file relating to M/s VISUL came up before him then he recorded a detailed note dated 25.09.2012 at note sheet pages 48-50 in file Ex. PW 2/B (Colly) (D-82) observing that as per the MOU executed with the company by Government of Jharkhand, only assistance for making available linkages for raw material from State PSUs was provided for but allotment of iron ore mine/coal block to the company was a clear violation of the MOU. In his said detailed note he also observed about the unsatisfactory progress made by the company and that there was no financial closure of the project and in fact the company had under valued the project. He had thus observed that the entire project of integrated steel plant and captive power plant was a non-viable enterprise and had accordingly recommended for cancellation of MOU executed by the Government with M/s VISUL. The said proposal was thereafter even accepted by the then Chief Minister, Sh. Arjun Munda. An order dated 17.10.2012 Ex. PW 24/D was accordingly issued to M/s VISUL in this regard. In fact in his cross-examination as was carried out on behalf of A-7 Madhu Koda he again referred to his one earlier note dated 22.09.2010 stating that at that time also in the said file itself he had recommended cancellation of MOU entered into by Government.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 221 of 429 In his further cross-examination he however also stated that upon review the progress of M/s Mukund Ltd. during his tenure was found to be satisfactory.
However, a perusal of note dated 22.09.2010 recorded by PW-24 Amrendra Pratap Singh at note sheet page 23 in file Ex. PW 2/B (Colly) (D-82) also shows that in the said note it was observed that the representative of company M/s VISUL did not participate in the review meeting held on 21.06.2010 in Department of Industries and that the company has been furnishing contradictory information and during the period of four years of its MOU, no special efforts or work has been undertaken. It was also observed that the company has not yet made any financial closure and there does not appear to be any chances of progress being made. It was also stated that company M/s VISUL has not submitted any request for extension of MOU. It was thus proposed that as the term of MOU has already come to an end on its own so there was no necessity for any further action in the matter for de-allocation of iron ore mine and the coal block allocated to company and that Department of Mines can initiate further action.
252. Thus, in view of my aforesaid discussion it is crystal clear that neither there was any occasion nor reason for A-5 B.B. Singh to record note dated 28.07.2008 in the file except to favour M/s VISUL in securing exclusive allocation of Rajhara Coal Block in its favour. It also stands proved that the said noting was not recorded by A-5 B.B. Singh pursuant to directions of PW 18 K.K. Khandelwal. Even CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 222 of 429 otherwise after note dated 07.07.2008 of Dy. Secretary the file had gone to concerned section after being routed through the desk of A-5 B.B. Singh and thus there is nothing on record as to why no such note was initiated by the concerned dealing hand in the section or as to why A-5 B.B. Singh, Director (Mines) himself chose to initiate the said note dated 28.07.2008 in the file. It also stands conclusively proved that there was no material available to A-5 B.B. Singh from which it could be even presumed much less concluded that the progress made by M/s Mukund Ltd. was not satisfactory. In fact prosecution has been also able to successfully prove that Department of Industries never found the progress made by M/s Mukund Ltd. to be unsatisfactory and for this reason only within six days of note dated 28.07.2008 i.e. on 02.08.2008 a letter was asked for from M/s Mukund by Department of Industries seeking extension of their MOU. As already discussed it was for this reason only letter dated 04.08.2008 followed by letter dated 06.08.2008 were submitted by M/s Mukund Ltd. to Department of Industries, seeking extension of their MOU for a period of 2-3 years.
253. Thus, in view of the aforesaid proved incriminating circumstances against A-5 B.B. Singh the issue as to whether the same makes him a co-conspirator with the other co-accused persons or not shall be discussed by me at a later stage of the present judgment.
A-6 A.K. Basu Chief Secretary, Government of Jharkhand:
254. Prosecution has sought to prove role of A-6 A.K. Basu the then Chief Secretary, Government of Jharkhand in the impugned criminal CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 223 of 429 conspiracy primarily on the ground that despite having knowledge that Government of Jharkhand has recommended M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. to MOC for allocation of "Rajhara Coal Block", he in the Screening Committee meeting held on 03.7.2008 still insisted for allocation of the said coal block in favour of M/s VISUL. It has also been alleged that though A-6 A.K. Basu claims to have recommended M/s VISUL for allocation of a coal block on the basis of better progress made by the company towards establishing its end use plant as compared to other applicant companies but there was no record available to him either before or even during the Screening Committee meeting held on 03.07.2008 on the basis of which he could have stated so. It has also been alleged that A-6 A.K. Basu even stated in the meeting that he has also got the directions of Chief Minister of the State for allocation of said coal block in favour of M/s VISUL. It was also submitted that even though Government of Jharkhand had even rejected the request of company M/s VISUL for incorporation of a condition in the MOU executed with it that Government of Jharkhand shall recommend the company for allocation of a coal block but A-6 A.K. Basu still insisted in the Screening Committee meeting for allocation of a coal block in favour of M/s VISUL. It has also been submitted that even after the meeting so held, A-6 A.K. Basu did not report anything to Government of Jharkhand about the proceedings which took place in the Screening Committee meeting much less the fact that in the meeting he had deviated from the earlier recommendations of Government of Jharkhand, which were sent pursuant to approval of Chief Minister i.e. CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 224 of 429 A-7 Madhu Koda. It has also been submitted that subsequent to Screening Committee meeting held on 03.07.2008, when the file was put up by A-5 B.B. Singh, Director (Mines) vide his note dated 28.07.08 mentioning the progress made by M/s VISUL to be satisfactory while stating the progress made by M/s Mukund Ltd. towards establishing the industry in the State as being unsatisfactory, then the file moved at a fast pace from the desk of Director (Mines) to that of Dy. Secretary (Mines) and thereafter to Secretary (Mines) and also to the desk of A-6 A.K. Basu, Chief Secretary on the same day i.e. on 28.07.2008 itself. In fact the file thereafter even went to the office of Chief Minister A-7 Madhu Koda also on 28.07.08 itself and he too approved the note on the same day. It has been however further alleged that even though the said file came back to the office of A-6 A.K. Basu on 01.08.2008 but still A-6 A.K. Basu on 28.07.2008 itself i.e. soon after the approval was given by Chief Minister wrote a letter to Secretary (Coal) requesting that "Rajhara Coal Block" be allotted exclusively in favour of M/s VISUL only in view of the less quantity of reserve available and the progress made by it and he further also mentioned that M/s Mukund be considered for allocation of some other coal block. It was thus submitted that all the aforesaid acts were done by A-6 A.K. Basu in pursuance of the common object of a criminal conspiracy hatched by him with other co-accused persons so as to procure allocation of a coal block in favour of M/s VISUL.
255. On the other hand, Ld. Sr. Advocate Sh. Sukumar Pattjoshi and Ld. Counsel Sh. K.K. Patra on behalf of A-6 A.K. Basu submitted that CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 225 of 429 earlier also the recommendations made by Government of Jharkhand in favour of various applicant companies were repeatedly changed and that too without any basis and valid input and thus there was nothing wrong if the recommendation of State Government of Jharkhand came to be again revised during the Screening Committee meeting itself. In fact allocation in favour of M/s VISUL was stated to have taken place by the Screening Committee primarily on the ground of better progress made by the company in establishing the proposed industry in the State as compared to progress made by the other applicant companies. It has also been submitted that the criteria on which the Administrative Ministry i.e. Ministry of Steel considered the applications of various applicant companies was certainly different from the criteria adopted by State Government of Jharkhand and thus no conclusion can be derived on the basis of categorization of various companies as was carried out by Ministry of Steel. It was also submitted that even in the chart, wherein various applicant companies were placed under different categories by Ministry of Steel there were glaring mistakes and thus it is clear that said categorization of companies was done without any proper application of mind. Minutes of 36th Screening Committee Meeting were extensively referred to stating that on the suggestion of Chief Secretary, Government of Chattisgarh, it was decided that recommendation of State Governments shall also be given due weightage and that industries having less requirement of coal should also be considered for allocation of coal blocks. It was also pointed out that just few days before the meeting held on 03.07.08 the file relating to extension of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 226 of 429 MOU had come before A-6 A.K. Basu wherein recommendation of extension of MOU of the company was recommended by Department of Industries and thus the progress made by the company was well to the knowledge of A-6 A.K. Basu. It was also submitted that PW 18 K.K. Khandelwal who had taken over the charge of Secretary Mines on 02.07.2008 itself was already holding the charge of Secretary Industries, Government of Jharkhand and thus during the course of Screening Committee meeting held on 03.07.2008 PW 18 K.K. Khandelwal was having complete information about the status of progress made by M/s VISUL towards establishing the industry in the State. It was also submitted that PW 18 K.K. Khandelwal has wrongly stated that on 03.07.2008 he left the meeting in between i.e. prior to the time when discussion qua coal blocks situated in the State of Jharkhand took place. As regard signing of letter dated 28.07.2008, it was submitted that from the deposition of PW 18 K.K. Khandelwal it is clear that the file in question was never called for by A-6 A.K. Basu and that he has made a wrong statement in this regard. It was also submitted that the said file was brought by hand by PW 18 K.K. Khandelwal himself and in that process only he got the letter dated 28.07.2008 signed from A-6 A.K. Basu on that day itself while the file actually got routed from the office of Chief Minister to the office of Chief Secretary in routine course subsequently and for this reason only the date of receipt of file in the office of Chief Secretary as mentioned in the stamp is 01.08.2008.
256. In the aforesaid facts and circumstances, it has been submitted CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 227 of 429 by Ld. Counsel Sh. K.K. Patra that the prosecution has miserably failed in proving that either there was any criminality in the acts of A-6 A.K. Basu or that he acted in pursuance to any criminal conspiracy hatched by him with other co-accused persons.
Conclusion regarding incriminating circumstances against A-6 A.K. Basu.
257. At the outset, I may state that A-4 B.K. Bhattacharya, A-5 B.B. Singh and A-6 A.K. Basu have all rightly stated in their respective written submissions that the recommendations of Government of Jharkhand to MOC in favour of various applicant companies came to be repeatedly changed without any logical reasons or basis available on record. However, as a mark of caution I may mention that on the basis of said claims of various accused persons, I am not drawing any conclusion either against them or as against any of the other accused persons. In fact from my earlier discussion of the manner in which applications of different applicant companies have been dealt with in the files of Government of Jharkhand, it is clear that recommendations in favour of different applicant companies have been repeatedly changed/revised by Government of Jharkhand without there being any reason or record available in the files. [This issue shall be however discussed more specifically while discussing the role of A-7 Madhu Koda the then Chief Minister of State of Jharkhand.]
258. However, irrespective of the fact whether recommendations of Government of Jharkhand were repeatedly revised without any logical CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 228 of 429 basis/reasons on record or not, the important questions to be considered now are firstly whether A-6 A.K. Basu was competent to change the recommendations of State Government of Jharkhand again during the course of Screening Committee meeting held on 03.07.2008 itself and if yes, then whether sufficient relevant record/information was available to him so that the changed recommendations may appear to be logical and prudent output of said record/information as was available to him.
Whether A-6 A.K. Basu, Chief Secretary, Government of Jharkhand was competent to change the recommendations of Government of Jharkhand during the Screening Committee meting held on 03.07.08.
259. Undoubtedly, Chief Secretary, State of Jharkhand was a member of Screening Committee as a representative of Government of Jharkhand. However, in order to appreciate the issue under discussion, it would be important to once again examine the manner in which the earlier recommendations of Government of Jharkhand were sent to MOC. As already discussed the initial recommendation of Government of Jharkhand was provided to A-3 H.C. Gupta, Secretary, Coal, vide letter dated 07.12.2008 by PW-6 Jai Shankar Tiwary pursuant to directions of Chief Minister i.e. A-7 Madhu Koda. Again when the Screening Committee meetings held on 07/08.12.2007 were over and the file was put up by PW-6 Jai Shankar Tiwary for obtaining written approval of A-7 Madhu Koda on the file then name of one other company i.e. M/s Bihar Sponge Iron Ltd. was also added by A-7 Madhu Koda, Chief Minister of the State beside also approving CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 229 of 429 the earlier recommendations as were made by him. Thus, the second revised recommendation of State of Jharkhand as was communicated to A-3 H.C. Gupta by Sh. Subodh Kishore Sorang, Dy. Secretary, Mines, vide letter dated 16.01.2008, Ex. P-57 was also sent to MOC pursuant to approval accorded by A-7 Madhu Koda only.
260. Subsequently, when pursuant to the decision of the Screening Committee meeting held on 08.02.2008, the availability of reserves in the Coal Blocks were reassessed by CMPDIL and State Governments as well as Administrative Ministries were asked to submit their comments/views, if any, in the light of the said information then as already discussed Government of Jharkhand vide letter dated 20.06.2008 Ex. PW 6/M communicated to Ministry of Coal, stating that they stand by their earlier recommendations and the reduction in the coal reserves does not affect their earlier recommendations in any manner. The said communication as earlier also discussed was sent subsequent to approval in this regard given by Chief Minister i.e. A-7 Madhu Koda only. On that occasion also the file Ex. PW 5/B (Colly) (D-5) was forwarded to the Chief Minister by A-6 A.K. Basu himself for seeking his approval.
261. Coming now to the meeting of Screening Committee held on 03.07.08 wherein A-6 A.K. Basu allegedly stated that M/s VISUL be recommended for allocation of a coal block on account of progress made by it then as per PW-29 U.P. Singh, he also stated that he has approval of Chief Minister, A-7 Madhu Koda in this regard. PW-26 N.R. Dash also stated that in the meeting held on 03.07.08, A-6 A.K. CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 230 of 429 Basu stated that with respect to allocation of "Rajhara Coal Block" in favour of M/s VISUL, he has the directions of Chief Minister of the State of Jharkhand. Moreover, when subsequently a note dated 28.07.08 was put up by A-5 B.B. Singh mentioning about the status of progress made by M/s VISUL to be satisfactory and that of M/s Mukund Ltd. being not satisfactory then again the file was forwarded to Chief Minister by Chief Secretary A-6 A.K. Basu himself. Again it was only when A-7 Madhu Koda directed that recommendation for Rajhara Coal Block be sent in favour of M/s VISUL only that A-6 A.K. Basu sent letter dated 28.07.08 Ex. P-15 to Secretary Coal.
262. Moreover, a perusal of letter dated 28.07.08 Ex. P-15 also show that in the said letter A-6 A.K. Basu himself wrote that the State of Jharkhand accepts the decision of the Screening Committee in so far as it relates to M/s VISUL (This fact though shall also be subsequently dealt with at length while discussing the role of A-3 H.C. Gupta as to whether the decision of the Screening Committee was unanimous or not.). However, from the aforesaid averments made in letter dated 28.07.08 itself by A-6 A.K. Basu, it is clear that if he alone was competent to revise the recommendation of Government of Jharkhand then subsequent acceptance of the decision of Screening Committee by State Government of Jharkhand qua M/s VISUL only and not as regard M/s Mukund Ltd. would not have arisen.
263. Similarly, a perusal of note sheet pages 23-27 in file Ex. PW 3/B (Colly) (D-140) wherein matter regarding Hutar and Hurilong coal blocks has been dealt with, it is found that again file was put up before CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 231 of 429 Chief Minister by A-6 A.K. Basu himself for seeking his approval.
264. Apart from the aforesaid circumstances, if file Ex. PW 2/B (Colly) (D-82) is seen then it is found that even the matter regarding extension of MOU of M/s VISUL was forwarded to Minister-in-charge by A-6 A.K. Basu himself and even after approval accorded by Minister-in-charge, the file was again forwarded to Chief Minister by A- 6 A.K. Basu himself.
265. Thus, from the aforesaid circumstances, it is clear beyond any doubts whatsoever that in the Screening Committee Meeting held on 03.07.2008 A-6 A.K. Basu himself was not competent to revise the recommendations of Government of Jharkhand as were already communicated to MOC pursuant to approval by Chief Minister of the State. It is in this context only the deposition of PW 26 N.R. Dash and PW 29 U.P. Singh needs to be seen. Both the witnesses stated that while proposing the name of A-1 M/s VISUL in the meeting A-6 A.K. Basu also stated that he has the directions of Chief Minister in this regard. Even in the cross-examination of PW 26 N.R. Dash as was conducted on behalf of A-3 H.C. Gupta this fact was reasserted by the witness as being correctly stated when Ld. Counsel asked him whether he stated the said facts in his statement u/s 161 Cr. PC recorded during the course of investigation or not.
In this regard, it would be worthwhile to reproduce the relevant portion of cross-examination of PW-26 N.R. Dash as was conducted on behalf of A-3 H.C. Gupta on 09.03.2016.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 232 of 429 "At this stage attention of the witness has been drawn to the following portion from D to D in his statement u/s 161 Cr.PC and has been asked as to whether in response to the question put by the IO and as also mentioned hereinbelow, the answer following thereafter was given by him or not:
"Inspite of this, the Ministry of Steel representatives have agreed with the recommendations of the Screening Committee and I have been asked to explain this anomaly. In this regard, I say that the turning point in the Screening Committee proceedings for the date 03.07.08 in regard to discussion for Rajhara North Coal block came when the Chief Secretary, Jharkhand stated that the Chief Minister of Jharkhand has instructed that M/s Vini Iron and Steel Iron should be recommended for Rajhara North Coal block. At this, Shri U P Singh, Joint Secretary from the Ministry of Steel, who had been representating Ministry of Steel alongwith me, stated that M/s Vini Iron and Steel Udyog ltd is not eligible as per the guidelines of the Ministry of Steel."
Witness replied in affirmative.
It is also correct that in my statement u/s 161 Cr.PC Ex. PW 26/DX-1, I stated that I recall that the Chief Secretary of Jharkhand had insisted for recommendation for allotment in regard to M/s VISUL.
It is correct that I stated in my statement u/s 161 Cr.PC the following sentences:
"On this, Chief Secretary of Jharkhand had stated that O.K. but now we are changing our recommendation and recommending Rajhara North Coal Block for M/s VISUL."
"There was much insistence by the Chief Secretary of Jharkhand. I do recall that Coal Secretary had stated in the end of the meeting to sent recommendations in writing. I do not know whether the Chief Secretary of Jharkhand had later sent the recommendation in writing or not."
"On being asked, I do agree that the importance of the category would not be there, if no eligible company is considered, but then even the recommendation of the States has to be considered".
In my statement u/s 161 Cr.PC Ex. PW 26/DX-1, the following question was put to me and the answer thereafter as reproduced below was given by me:
Q. Whether giving recommendations to M/s VISUL served the purpose/objectives of Ministry of Steel? Ans. The matter is of subjective opinion. The recommendation of the State Government is always given priority. I was there only to help the other representatives of Ministry of Steel. I could not CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 233 of 429 have intervened in the proceedings of the Screening Committee, as I was not authorised to do so.
I had also stated in my statement u/s 161 Cr.PC Ex. PW 26/DX-1, the following fact:
"I have been asked about the legal status of the guidelines of the Ministry of Steel and I can not say about the same, as I am not from the legal background."
The facts mentioned above and as admitted to be correct by me having been stated in my statement u/s 161 Cr.PC were correct facts."
266. Apart from the aforesaid facts even if it is presumed for the sake of arguments that A-6 A.K. Basu was having the necessary authority to revise the recommendations of State Government of Jharkhand during the course of Screening Committee meeting itself then a bigger question which arises for consideration is as to whether A-6 A.K. Basu was having any information or basis much less any record to so change the recommendation.
The answer to this question is however a big "No" and reasons thereof shall be discussed by me hereunder:
Whether A-6 A. K. Basu had access to any information/record qua progress made by M/s VISUL towards setting up of its industry in the State as being satisfactory or even being better than that of M/s Zoom Vallabh Steel Ltd. Or of other applicant companies or was there any basis to A-6 A.K. Basu to so propose the name of M/s VISUL for allocation of a coal block in the Screening Committee meeting held on 03.07.2008.
267. In fact this issue can be viewed from various angles. Had there been any proposal by the representatives of Ministry of Steel or that of MOC in favour of M/s VISUL during the Screening Committee meeting itself and pursuant to which A-6 A.K. Basu would have agreed for CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 234 of 429 recommendation to be made in favour of M/s VISUL, one could have still argued that during the course of discussion A-6 A.K. Basu, in the light of information as came up during the discussion in the meeting agreed for recommendation to be made in favour of M/s VISUL. However, here is a case where name of M/s VISUL was in fact proposed by A-6 A.K. Basu himself. The representatives of Administrative Ministries i.e. Ministry of Steel have rather claimed to have stated in the meeting that Ministry of Steel has not placed M/s VISUL under any category. A-3 H.C. Gupta, Secretary, Coal and Chairman Screening Committee has also not claimed to have first proposed the name of M/s VISUL for allocation of any coal block much less for Rajhara coal block. Rather his consistent stand has been that after A-6 A.K. Basu insisted for allocation in favour of M/s VISUL that discussion took place and thereafter it was unanimously decided that M/s VISUL be recommended for allocation of Rajhara coal block.
268. In fact in the cross-examination of both PW-27, N.R. Dash and PW-29 U.P. Singh, the two representatives of Ministry of Steel in the Screening Committee meeting held on 03.07.2008, it has not been disputed either by way of any question or suggestion that A-6 A.K. Basu did not propose the name of M/s VISUL for allocation of a coal block in the meeting stating the progress made by the company better as compared to other applicant companies.
269. The prosecution has claimed that no such information by way of either any noting or record was avialable with A-6 A.K. Basu till the Screening Committee meeting was held on 03.07.08 and especially CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 235 of 429 any information or record from which a comparison of the progress made by M/s VISUL and M/s Zoom Vallabh Steel Ltd. or that of other applicant companies could be made.
270. On the other hand A-6 A.K. Basu has claimed that apart from presence of PW-18 K.K. Khandelwal, Secretary Industries and Mines, Government of Jharkhand in the meeting alongwith him, he had also dealt with a file relating to extension of MOU of M/s VISUL just a few days before and in the said file the progress made by M/s VISUL was duly mentioned. It has been thus claimed that PW-18 K.K. Khandelwal being also Secretary Industries was having information about progress made by all the companies in the State.
271. However as already discussed at length, PW 18 K.K. Khandelwal has claimed that soon after the discussion qua coal blocks situated in the State of MP was over and before the discussion qua coal blocks situated in the State of Jharkhand took place, he left the meeting with the permission of Chief Secretary A-6 A.K. Basu. Though A-6 A.K. Basu has disputed the aforesaid claim of PW 18 K.K. Khandelwal but as already mentioned the signatures of PW 18 K.K. Khandelwal appears only on one recommendation sheet from out of five recommendation sheets as were prepared during the course of said Screening Committee meeting and the said recommendation sheet bearing signatures of PW 18 K.K. Khandelwal pertains to coal blocks situated in the State of Madhya Pradesh only. However, on the other hand, there has been no explanation put forth by the accused persons at all as to under what circumstances PW 18 K.K. CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 236 of 429 Khandelwal did not sign the remaining four recommendation sheets and especially that of coal blocks situated in the State of Jharkhand, if he was present during the entire course of meeting held on 03.07.2008. It will be also worthwhile to mention that in the cross- examination of PW-18 K.K. Khandelwal though it was highlighted by Ld. Counsel for A-6 A.K. Basu that in his statement u/s 161 Cr.PC he had not stated that he left the meeting held on 03.07.08 in between but except for pointing out the said contradiction, no question or suggestion was put to the witness that he had not left the meeting in between or that he was present all throughout the entire discussion of meeting held on 03.07.2008.
272. Moreover, this issue has already been discussed by me at length in the earlier part of the present judgment and it has been concluded that from the records of Screening Committee meeting coupled with other facts and circumstances, I do not find any reason to disbelieve the claim of PW 18 K.K. Khandelwal that he left the Screening Committee meeting before the commencement of discussion qua coal blocks situated in the State of Jharkhand took place.
273. As regard the claim of A-6 A.K. Basu that few days before the meeting held on 03.07.08 the file relating to extension of MOU of M/s VISUL for a period of two years had come to his desk and in the said file the progress made by the company was clearly mentioned by PW- 18 K.K. Khandelwal, in his note dated 23.05.2008. In this regard it would be however suffice to state that even if for the sake of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 237 of 429 arguments it is presumed that from the said file A-6 A.K. Basu gathered information about the progress made by company M/s VISUL in terms of land, power, water etc, then also in the said file Ex. PW 2/B (Colly) (D-82) there was nothing mentioned as regard the progress made either by M/s Zoom Vallabh Steel Ltd. or by any other applicant company. During the course of entire trial A-6 A.K. Basu has failed to point out any record/information from which it could be even remotely stated that any information regarding progress made by M/s Zoom Vallabh Steel Ltd. or by other applicant companies had come to his notice till the Screening Committee meeting was held on 03.07.08. Moreover A-3 H.C. Gupta in his deposition as DW-6 has clearly stated that all the facts regarding better progress made by M/s VISUL as compared to other applicant companies were orally stated by A-6 A.K. Basu in the Screening Committee meeting held on 03.07.2008.
274. On the other hand it will be pertinent to mention that when file Ex. PW 2/B (Colly) (D-82) was put up before A-6 A.K. Basu by PW-18 K.K. Khandelwal vide his note dated 23.05.2008 for consideration of extension of MOU of the company for a period of two years then A-6 A.K. Basu himself stated that approval of Minister-in-charge may be obtained. The file accordingly was presented before Minister-in-charge by PW-18 K.K. Khandelwal on 04.06.2008 and necessary approval in this regard was accorded by Minister-in-charge on 05.07.2008 only. The file again came to be put up before A-6 A.K. Basu on 16.07.2008 by PW-18 K.K. Khandelwal vide his note dated 15.07.2008. Again A-6 A.K. Basu forwarded the file to Chief Minister, A-7 Madhu Koda and CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 238 of 429 who approved it on 24.07.2008.
275. However, I am still not on the issue that in the MOU dated 14.09.06, Ex. PW 2/DX-1 executed with M/s VISUL, it was only stated that the Government shall provide assistance in making available linkages for raw material from state PSUs. The specific request of company M/s VISUL for incorporation of a clause in the MOU that Government shall recommend the company for allocation of a coal block was specifically rejected by Government. As earlier also mentioned PW-25 Amrendra Pratap Singh, Secretary, Department of Industries, Government of Jharkhand recorded in the file Ex. PW 2/B (Colly) (D-82) in the year 2010 that the earlier recommendation of the company M/s VISUL for allocation of a coal block by Government of Jharkhand was in clear violation of the terms of MOU. Apart from the aforesaid facts what is equally important to note is that no record or information whatsoever was available with A-6 A.K. Basu either before the meeting held on 03.07.08 or during the meeting from which he could ascertain the status of progress made by M/s Zoom Vallabh Steel Ltd. towards establishing its industry in the State, much less holding that the progress made by it was unsatisfactory. Similarly no record was available to him from which any assessment qua the progress made by other applicant companies could be made. It is also not the case of A-6 A.K. Basu, during the course of entire trial that at the time of Screening Committee meeting he was aware that M/s Zoom Vallabh Steel Limited itself had not executed any MOU with Government of Jharkhand or that through another company of it i.e. CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 239 of 429 Vallabh Steel Ltd. a MOU was executed. Thus if no such information was available with A-6 A.K. Basu about progress made by M/s M/s Zoom Vallabh Steel Limited or that made by other applicant companies towards establishing their industry in the state then the question of any assessment having been made by him in the Screening Committee meeting that the progress made by M/s VISUL was satisfactory as compared to that made by M/s Zoom Vallabh Steel Ltd. or BY other applicant companies does not arise and thus it could not have been insisted by him that on account of progress made by M/s VISUL, the company deserves to be recommended for allocation of a coal block.
276. From the aforesaid sequences of events two things clearly emerges out, firstly the progress as was stated to have been made by company M/s VISUL was not verified from any angle in Department of Industries. Secondly as on the date of Screening Committee meeting held on 03.07.2008, the approval of extension of MOU was not yet accorded by the competent authority i.e. Chief Minister. Thus, as on 03.07.08 there was no valid MOU in existence executed between Government of Jharkhand and M/s VISUL and this fact was well to the knowledge of A-6 A.K. Basu. Thus, when it has been the consistent stand of Government of Jharkhand that a pre-condition for being recommended for allocation of a coal block to MOC is the execution of MOU with the company by the State Government so the said condition clearly did not stand fulfilled. Thus, irrespective of the progress made by M/s VISUL, the company could not have been CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 240 of 429 recommended for allocation of a coal block. In fact in the written submissions filed by A-6 A.K. Basu, it has been asserted by him only while mentioning about the status of M/s Zoom Vallabh Steel Ltd. that PW-6 Jai Shankar Tiwary had wrongly recorded in the file Ex. PW 3/B (Colly) (D-140) in his noting date 04.12.2007 that M/s Zoom Vallabh Steel Ltd. through its another company Vallabh Steel Limited had executed a MOU with Government of Jharkhand and as no MOU was executed with M/s Zoom Vallabh Limited so the said company could not have been even considered for being recommended to MOC for allocation of a coal block.
277. It is in these circumstances only the claim made by A-6 A.K. Basu and also by A-3 H.C. Gupta that interse priority in accordance with the guidelines issued by MOC was decided during the course of discussion and deliberation which took place in the Screening Committee meeting held on 03.07.2008 needs to be seen and appreciated at least qua the case of M/s VISUL to be recommended for allocation of "Rajhara Coal Block". When no such information or record about status of different applicant companies was available in the meeting then clearly no such assessment of interse priority could have taken place during the course of any discussion/deliberation which took place in the Screening Committee meeting. [In fact at a later stage of the present judgment, I shall be also discussing that even the minutes Ex. PW 18/DX-5 (Colly) have not been correctly recorded in as much as they do not contain true and correct facts much less complete facts.] CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 241 of 429
278. In fact similar is the position with respect to the status of progress made by M/s Mukund Ltd. qua which subsequently a note was initiated in file Ex. PW 3/B (Colly) (D-140) by A-5 B.B. Singh, Director, Mines, Government of Jharkhand on 28.07.08.
279. Thus, in these circumstances, it is clear beyond shadows of all reasonable doubts that in the Screening Committee meeting held on 03.07.08, A-6 A.K. Basu was neither having any information/record or basis to even presume much less to conclude that progress made by M/s VISUL towards establishing its industry in the State is satisfactory or that of M/s Zoom Vallabh Steel Ltd. is not satisfactory much less that of other applicant companies. In fact a perusal of subsequent notings of the year 2009-11 as are available in file Ex. PW 2/B (Colly) (D-82) show that no substantial progress in fact was made by M/s VISUL towards setting up the industry in the State. Even the claims made by the company in the year 2010 were found to be contrary to the claims made by the company in the year 2008 while seeking extension of its MOU.
280. Yet another important issue was that in the file Ex. PW 2/B (Colly) (D-82) relating to extension of MOU of M/s VISUL and from which A-6 A.K. Basu claims to have gathered knowledge about progress made by the company it was specifically mentioned that State Government shall only make available linkages for raw material from State PSUs. The specific request of the company for being recommended for allocation of captive coal block and for identifying area for iron ore mines was specifically rejected. This fact in itself was CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 242 of 429 sufficient for M/s VISUL to be neither proposed for allocation of a coal block by A-6 A.K. Basu in the Screening Committee meeting much less insisting for allocation in its favour.
281. Moreover, the fact that after returning from attending Screening Committee meeting held on 03.07.2008 he did not even care to inform the Chief Minister about the proceedings of the meeting or the stand taken by him in the meeting or the consequent recommendation made by the Screening Committee for joint allocation of "Rajhara Coal Block" in favour of M/s Mukund Ltd. and M/s VISUL is also indicative of a dubious and tacit understanding between A-6 A.K. Basu and A-7 Madhu Koda. This fact will further get reinforced from my subsequent discussion.
282. In these circumstances the only necessary conclusion which emerges from the aforesaid facts is that A-6 A.K. Basu had come to the Screening Committee meeting held on 03.07.2008 with a per- determined intention of helping M/s VISUL in procuring allocation of a coal block in place of M/s Zoom Vallabh Steel Ltd.
283. In fact the aforesaid facts and circumstances also provide the reason which necessitated recording of note dated 28.07.08 by A-5 B.B. Singh, Director Mines and the swift movement of file thereafter on that very day itself right upto the desk of Chief Minister and consequent sending of letter dated 28.07.08 by A-6 A.K. Basu to Secretary Coal that Rajhara coal block be allocated to M/s VISUL only.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 243 of 429
284. The aforesaid exercise served two purposes. Firstly it amounted to a revised recommendation of State Government of Jharkhand in favour of M/s VISUL which till date was not all recommended by State Government. Secondly an attempt was made to ensure that entire Rajhara coal block be got allotted to M/s VISUL only. This attempt however could not succeed as by that time recommendations of Screening Committee were already approved by Prime Minister as Minister-in-charge.
285. As regard the issue of sending revised recommendation subsequent to meeting held on 03.07.08 it would be pertinent to mention that PW-26 N.R. Dash clearly stated in his examination-in- chief that at the time of conclusion of the meeting Sh. H.C. Gupta made a general statement to all present that with respect to all such companies from whom recommendation for allotment of a coal block has been made by the Screening Committee but the names of the said companies did not find mention in the recommendations already received from the State Governments and qua whom the recommendations were made by the representatives of the concerned state Government during the course of meeting itself then all such members shall ensure that subsequently recommendation in favour of the said allocatee companies is duly sent to MOC. Similarly, PW-29 U.P. Singh also in his examination-in-chief stated that Sh. H.C. Gupta, asked Sh. A.K. Basu to send a recommendation in favour of M/s VISUL in writing and upon which A-6 A.K. Basu stated that he will ensure that necessary recommendation in this regard is sent from CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 244 of 429 Government of Jharkhand to MOC. Strangely enough in the cross- examination of none of the said two witnesses it was even suggested to them on behalf of any of the accused persons that no such revised recommendations or subsequent recommendations were asked for by A-3 H.C. Gupta in the meeting form A-6 A.K. Basu. Thus this portion of the deposition of these two witnesses has completely remained uncontroverted. However in his examination-in-chief as DW-6 (u/s 315 Cr.PC) A-3 H.C. Gupta stated that in the meeting held on 03.07.08 since the decision was arrived at unanimously by all the members of the Screening Committee so no revised recommendations were asked from A-6 A.K. Basu.
286. The purpose of mentioning the aforesaid deposition of various witnesses including that of A-3 H.C. Gupta when he examined himself as DW-6 is simply that at the time when the independent witnesses of the incident were examined by the prosecution then their deposition to this effect was not at all controverted by the accused persons so the mere statement made by A-3 H.C. Gupta in his deposition recorded as DW-6 u/s 315 Cr.PC or denial of any suggestion by him as put by Ld. Sr. P.P. while cross-examining him can not be assigned any weightage.
287. In fact A-3 H.C. Gupta also examined DW-7 Shiv Raj Singh a member of 36th Screening Committee in his defence. He being Chief Secretary of the State of Chattisgarh was a member of the Screening Committee. In his examination-in-chief he stated that after the meeting was over then Sh. H.C. Gupta asked him and Sh. B.L. Thakur that we CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 245 of 429 should send the project preparedness details of the companies whose projects were proposed to be established in State of Chattisgarh.
288. Thus from his testimony also it is clear that some information/details of the companies were in fact sought by A-3 H.C. Gupta after the meeting was over. The said project preparedness details will in effect amount to progress made by the companies towards setting up their industry in the state. Thus if in the light of these facts the letter dated 28.07.2008 Ex. P-15 of A-6 A.K. Basu is seen then it is found that progress made by M/s VISUL and by M/s Mukund Ltd. was only mentioned in the letter and on the basis of said progress report it was proposed that "Rajhara Coal Block" be allotted to M/s VISUL only.
289. Thus, in view of my aforesaid discussion, it is crystal clear that neither during the course of Screening Committee meeting held on 03.07.08, nor prior thereto A-6 A.K. Basu was having any information or record pertaining to progress made by M/s VISUL and M/s Zoom Vallabh Steel Limited towards establishing their industry in the state much less that of other applicant companies and from which record he could state that of all the companies who had applied for " Rajhara Coal Block" the progress made by M/s VISUL in terms of land, power, water etc was better and thus " Rajhara Coal Block" be allocated to M/s VISUL.
290. Thus various incriminating circumstances as discussed above stands conclusively proved against A-6 A.K. Basu. However whether CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 246 of 429 these circumstances are sufficient or not to conclude that A-6 A.K. Basu so acted in pursuance to a criminal conspiracy or not shall be discussed by me at a later stage of the present judgment.
A-7 Madhu Koda, Chief Minister, State of Jharkhand
291. The prosecution has sought to prove its case against A-7 Madhu Koda primarily on the ground that since from the month of May 2008, A-8 Vijay Joshi a close associate of A-7 Madhu Koda, the then Chief Minister, State of Jharkhand acquired interest in M/s VISUL so the fortunes of M/s VISUL suddenly turned and various officers of Government of Jharkhand started favouring the company. It has also been alleged by the prosecution that initially when in the month of December 2007 recommendations were to be sent to MOC, Government of India then for reasons best known to A-7 Madhu Koda only and not ascertainable from the file, he disagreed with the names of some of the companies who were proposed to be recommended by PW-6 Jai Shankar Tiwary, Secretary, Mines. However again in the month of January 2008, he added name of one more company in the earlier recommendations approved by him again for reasons best known to him. It was thus submitted by prosecution that despite repeated recommendations having been sent to MOC after conscious approval given by A-7 Madhu Koda names of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. were still consistently recommended by Government of Jharkhand. Thereafter again in the month of June 2008 vide letter dated 20.06.2008 Ex. PW 6/M the earlier recommendations sent by Government of Jharkhand were reasserted CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 247 of 429 despite having information about reduction in the reserves of coal in "Rajhara Coal Block". The said letter was also sent by Department of Mines to MOC pursuant to approval accorded by A-7 Madhu Koda. However suddenly in the month of July 2008 i.e. subsequent to Screening Committee meeting held on 03.07.08, A-7 Madhu Koda instead of questioning his officers as to why and in what circumstances name of M/s Zoom Vallabh Steel Ltd. came to be not recommended for allocation of a coal block by the Screening Committee rather made an endorsement dated 28.07.2008 in the file Ex. PW 3/B (Colly) (D-140) that Rajhara Coal Block may be recommended for allocation in favour of M/s VISUL only. It has thus been submitted by the prosecution that the aforesaid circumstances clearly speak volumes about the conduct of A-7 Madhu Koda, Chief Minister, State of Jharkhand in the entire coal block allocation process wherein he played an active role in even granting ex-post facto recommendation of Government of Jharkhand towards allocation of "Rajhara Coal Block" in favour of M/s VISUL. It has also been submitted that the manner in which the files relating to M/s VISUL moved at different levels in State of Jharkhand and that too on a single day clearly shows that A-7 Madhu Koda was in fact the moving force behind the entire criminal conspiracy which ultimately led to allocation of "Rajhara Coal Block" in favour of M/s VISUL.
292. On the other hand Ld. Counsel Sh. Anshuman Sinha for A-7 Madhu Koda strongly argued that prosecution has been unable to bring on record any legally admissible evidence against his client CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 248 of 429 which may help in establishing any incriminating circumstance against him much less proving that he was part of any criminal conspiracy, if at all hatched in the present matter. It was submitted by Ld. Defence Counsel that administration primarily runs on trust and A-7 Madhu Koda being Chief Minister of the State while putting his signatures on various notings in the file relied upon the observations made by his officers and there was no reason for him to disbelieve or doubt the intention of his officers. It was also submitted that even if it is considered that the decision taken by A-7 Madhu Koda or any of the officers working under him were wrong but still prosecution has failed to prove existence of any malafide or malice in the said action. It was submitted that no administration can run efficiently if an officer doing his work in honest belief or good faith is not able to act independently, free from fear, primarily on the ground that his action or noting in any file may lead to his prosecution. While referring to Section 77 and Section 79 IPC, it was submitted that nothing is an offence which is done by any person who is justified by law, or by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified in law in doing it.
293. It was thus submitted that even if an act is considered as ultra vires but if no malice or malafide is shown in the commission of said act then the same can not even lead to a claim of damages much less a criminal prosecution. It was submitted that it is only a deliberate abuse of public office or authority or bad faith on the part of a public servant which alone may lead to his prosecution for an offence. It was CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 249 of 429 also submitted that for being part of any criminal conspiracy if at all hatched, it was imperative that the factum of meeting of minds of A-7 Madhu Koda with other accused persons must be proved by the prosecution and it was submitted that prosecution has miserably failed in doing so. It was also submitted by Ld. Counsel Sh. Anshuman Sinha that though PW-26 N.R. Dash and PW-29 U.P. Singh have both stated that during the course of Screening Committee meeting held on 03.07.2008, A-6 A.K. Basu, Chief Secretary, State of Jharkhand stated that he and his Government including the Chief Minister were of the view that M/s VISUL is a good company as it proposes to have its end use project in their state only where the coal block is situated and hence the company M/s VISUL name should be recommended for allocation of coal block and also that Sh. Basu further stated that the Chief Minister of the State also desires that M/s VISUL should be allotted the said coal block but the said statements are clearly not admissible as against A-7 Madhu Koda.
294. It was submitted by Ld. Defence Counsel that the said statement alleged to have been made by A-6 A.K. Basu though can be held to be admissible against A-6 A.K. Basu but the same can not be read against A-7 Madhu Koda since qua him the said statement was in the nature of hear-say evidence. It was submitted that the said statement will not be hear-say and will become admissible when prosecution intends to establish by evidence only, the fact that such a statement was made by A-6 A.K. Basu before the Screening Committee but it shall not be admissible if the truthfulness of the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 250 of 429 statement so made is sought to be established by the said evidence.
295. As regard the circumstances sought to be proved by prosecution that A-7 Madhu Koda subsequently recommended the name of M/s Bihar Sponge and Iron Ltd. to be sent to Screening Committee for Macharkunda coal block, it was submitted that prosecution has not produced any evidence either by way of oral or by way of documentary evidence as to whether M/s Bihar Sponge and Iron Ltd. could not have been at all recommended to the Screening Committee. It was submitted that neither the applications pertaining to Macharkunda coal block have been placed on record of the present case nor the entire sequence of events which led to the recommendations in question have been placed or proved on record.
296. As regard relationship of A-7 Madhu Koda with A-8 Vijay Joshi, it was submitted that prosecution has again failed to establish this circumstance by any cogent or legally admissible evidence. It was submitted that there is nothing on record from which it could be ascertained or inferred that A-7 Madhu Koda was having close relations with A-8 Vijay Joshi. It was submitted that the mere fact that A-7 Madhu Koda and A-8 Vijay Joshi happened to be lodged in jail in some other case where trial is still in progress in the Courts at Ranchi, it can not be inferred that A-7 Madhu Koda and A-8 Vijay Joshi were close associates.
297. It was in the aforesaid circumstances submitted by Ld. Defence Counsel that prosecution has failed to establish any of the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 251 of 429 incriminating circumstance against A-7 Madhu Koda.
Conclusion regarding incriminating circumstances against A-7 Madhu Koda.
298. As already discussed in detail in the earlier part of present judgment, PW-6 Jai Shankar Tiwary, in his note dated 04.12.2007 had proposed names of various companies to be recommended to MOC on behalf of Government of Jharkhand for allocation of different coal blocks. However when the said file reached the office of Chief Minister i.e. A-7 Madhu Koda then his Principal Secretary, PW-7 Sukhdeo Singh contacted him on telephone to seek his approval qua the proposal so put up by PW-6 Jai Shankar Tiwary (since as already mentioned A-7 Madhu Koda was out of Head Quarters at that time). However A-7 Madhu Koda gave directions that names of certain companies i.e. four (4) companies be only recommended for all the three coal blocks. As earlier also mentioned in his note dated 04.12.2007. PW-6 Jai Shankar Tiwary had proposed names of four companies i.e. M/s A.M.L. Steel & Power Ltd., M/s Conti Steel Ltd., M/s Jupiter Iron Co. Pvt. Ltd. and M/s Bihar Sponge Iron Ltd. for Macharkunda coal block but A-7 Madhu Koda chose to recommend the name of M/s Sunflag Iron and Steel Ltd. even though the name of said company was not proposed by PW-6 Jai Shankar Tiwary. However the names of both the companies i.e. M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. as were proposed by PW-6 Jai Shankar Tiwary for "Rajhara Coal Block", were approved by A-7 Madhu Koda also. As regard Hurilong and Hutar, Sector (C) coal block, again out of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 252 of 429 three names, as were recommended by PW-6 Jai Shankar Tiwary, the name of only one company i.e. M/s Rungta Projects Ltd. was approved by A-7 Madhu Koda and the names of two other companies i.e. M/s Jindal Steel & Power Ltd. and M/s Narsingh Ispat Ltd. as were proposed by PW-6 Jai Shankar Tiwary were not approved for recommendation.
299. For a ready reference the names of companies as were proposed to be recommended by PW-6 Jai Shankar Tiwary and the companies whose names were finally approved by A-7 Madhu Koda are as under:
(1) Companies proposed to be recommended by PW-6 Jai Shankar Tiwary vide his note dated 04.12.2007 at note sheet page 10.
Sl No Name of Coal Block Name of the Company
1. Macherkunda 1. M/s A.M.L. Steel & Power Ltd.
2. M/s Conti Steel Ltd.
3. M/s Jupiter Iron Co. Pvt. Ltd.
4. M/s Bihar Sponge Iron Ltd.
2. Rajhara North Central & 1. M/s Mukund Ltd.
Eastern 2. M/s Zoom Ballabh Steel Ltd.
3. Hurilong & Hutar Sector 1. M/s Jindal Steel & Power Ltd.
(C) 2. M/s. Narsingh Ispat Ltd.
3. M/s. Rungta Project Ltd.
(2) Companies whose names were telephonically approved by A-7 Madhu Koda on 06.12.2007 at note sheet page 10.
1. मयचगरकनणडय सनफलहग आयरन एणड सटणल कस०
2. रयजहयरय मलचर मनकननद ललचमटगड समटटल एस ड इसटनर जपम बलब सटणल ललचमटगड
3. हह रणलअग एणड हह टयर सगकटर रसगटय पलजगकट ललचमटगड CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 253 of 429
300. It will be however important to note over here that name of M/s Sunflag Iron and Steel Co. as was approved by A-7 Madhu Koda was not there in the list of companies as were proposed by PW-6 Jai Shankar Tiwary. In fact PW-6 Jai Shankar Tiwary in his note dated 04.12.2007 had observed that the progress made by the company M/s Sunflag Iron & Steel Co. Ltd. towards establishing its steel plant is almost negligible and thus its application need not be considered.
301. Thus from the aforesaid circumstances, it is crystal clear that while according his approval to the names of various companies to be recommended for allocation of different coal blocks situated in the State of Jharkhand, A-7 Madhu Koda had duly applied his mind and the said approval even on telephone was not granted in a mechanical manner. It is however certainly a different matter that there are no reasons available in the file from which it could be ascertained as to on what grounds A-7 Madhu Koda did not agree to accord approval to the names of other companies whose names were proposed by PW-6 Jai Shankar Tiwary. In fact during the entire trial also no reason has been put forth by A-7 Madhu Koda as to on what basis he arrived at the said decision.
302. Be that as it may, when subsequent to the Screening Committee meeting held on 07/08.12.2007, PW-6 Jai Shankar Tiwary again put up the file to the Chief Minister for obtaining his post-facto approval then again for reasons best known to A-7 Madhu Koda, he while endorsing his earlier approval as was given for four companies stated that for Macharkunda coal block, the recommendation for M/s CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 254 of 429 Bihar Sponge Iron Ltd. be also sent.
303. Strangely enough on this occasion also there is nothing available on record from which it could be ascertained as to on account of what reasons the name of yet one other company was also ordered to be recommended to MOC for allocation of Macharkunda coal block by A-7 Madhu Koda. Once again even during the course of trial also no reason has been put-forth by him which could show as to on what basis the said decision was taken.
304. In fact the aforesaid acts are clearly illustrative of the arbitrary nature of functioning on the part of A-7 Madhu Koda and by no stretch of imagination can it be stated that while putting his approval on the files, he worked on the basis of trust and belief in the working of his subordinate officers. Here is a case where not only on one occasion but twice A-7 Madhu Koda duly applied his mind before according his approval to the recommendations to be sent to MOC on behalf of Government of Jharkhand. The important point to be however taken note of is that on both the occasions the name of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. as were proposed initially by the officers below for "Rajhara Coal Block" were accorded approval by A-7 Madhu Koda also. At the same time it is also important to note that on none of the two occasions name of M/s VISUL was either recommended by PW-6 Jai Shankar Tiwary or by A-7 Madhu Koda. The only inference which can certainly be drawn in the aforesaid circumstances is that at least qua M/s VISUL, A-7 Madhu Koda did not disagree with the reasons as were mentioned by PW-6 Jai Shankar CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 255 of 429 Tiwary in his note dated 04.12.2007.
305. At this stage, it would be also worthwhile to recapitulate the reasons mentioned by PW-6 Jai Shankar Tiwary in his note dated 04.12.2007 qua M/s VISUL. He twice observed in his note both while discussing the applications received for Macharkunda coal block and again for "Rajhara Coal Block" that as the requirement of coal of M/s VISUL was not much for which it may be allotted a coal block so there is no requirement of considering its application. He further observed that Government may consider granting it coal linkage, if the company so applies.
306. Thus from the aforesaid facts and circumstances, it is crystal clear that M/s VISUL was consciously not recommended by Government of Jharkhand to MOC as its requirement of coal was not found to be sufficient. Once again, I may state that the issue as to whether the said reasons given by PW-6 Jai Shankar Tiwary were justified or not is not to be considered in the present proceedings. The only fact to be seen, as earlier also stated is that for certain reasons PW-6 Jai Shankar Tiwary did not find it appropriate to propose the name of M/s VISUL to be recommended for allocation of any coal block much less for "Rajhara Coal Block" and when the file got routed through the desk of Chief Secretary to the desk of Chief Minister, A-7 Madhu Koda then Sh. P.P. Sharma, the then Chief Secretary also did not change the said recommendation of PW-6 Jai Shankar Tiwary and in fact he forwarded the file to the Chief Minister. At the cost of repetition it may again be stated that the approval of names of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 256 of 429 companies to be recommended by Government of Jharkhand to MOC, Government of India as given by A-7 Madhu Koda was clearly after proper application of mind. Moreover, even if for the sake of arguments it is considered that for certain reasons which must have been in the mind of A-7 Madhu Koda, the names of only four companies were initially ordered to be recommended for allocation of coal blocks followed by addition of name of one other company in the revised recommendations then the said reasons ought to have been atleast now spelled out so that this Court could have got an opportunity to appreciate the circumstances in which the said decision was taken at least to see that the exercise of discretion by A-7 Madhu Koda was not actuated by any malice or malafide. In the absence of any such reasons though no conclusion is being drawn as to whether the aforesaid actions of A-7 Madhu Koda were actuated with any malice or malafides or not but it is crystal clear that on both the occasions A-7 Madhu Koda recommended the names of certain companies after due application of mind. It certainly can not be claimed by any public authority much less by the Chief Minister of a State who is bound to act as per rule of law that any decision if taken for reasons best known to him could be changed by him at any stage without placing on record any reason for such change of decision.
307. In fact it will be an act of constitutional blasphemy, if one was to say that an Act or rules and regulations made thereunder confers unfettered discretion on a Minister or on the officers responsible under the Act to implement it or to implement the rules and regulations CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 257 of 429 made thereunder. Unfettered discretion ceases to exist where the rule of law reigns.
308. At this stage it would be also worthwhile to reiterate that even in the month of June 2008 a communication dated 20.06.2008 Ex. PW 6/M was sent to MOC by Dy. Secretary, Subodh Kishore Sorang that despite reduction in the available reserves in the coal blocks the State Government still reiterate its earlier recommendations as have been made to MOC. The said communication as already discussed and demonstrated above was also sent with the approval of A-7 Madhu Koda only.
309. Moving further it will be pertinent to mention that as already discussed in the Screening Committee meeting held on 03.07.2008 A- 6 A.K. Basu insisted for allocation of "Rajhara Coal Block" in favour of M/s VISUL primarily on the ground of progress made by the company in establishing its industry in the State. Ld. Counsel Sh. Anshuman Singh is however certainly right in stating that even if it is presumed for the sake of arguments that A-6 A.K. Basu also stated in the Screening Committee meeting that Chief Minister of the State is also interested in allocation of a coal block in favour of M/s VISUL or a statement by A-6 A.K. Basu that he has the directions of Chief Minister in this regard, then any such statement is certainly not admissible against A-7 Madhu Koda being hear-say in nature. Ld. Counsel is however also right in stating that such statements can be however proved by prosecution in order to establish the fact that such statements were indeed made by A-6 A.K. Basu in the Screening CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 258 of 429 Committee meeting but the same can not be used against A-7 Madhu Koda in order to establish the truthfulness of the said statement.
310. However, subsequent to the Screening Committee meeting held on 03.07.08 there is nothing on record to show that any note was put up either by A-6 A.K. Basu or even by PW-18 K.K. Khandelwal intimating the State Government about the proceedings which took place in the Screening Committee meeting. As already discussed on 28.07.2008, A-5 B.B. Singh, Director, Mines, suddenly puts up a note in file Ex. PW 3/B (Colly) (D-140) stating that the progress made by M/s VISUL in setting up the industry in the state was satisfactory while that of M/s Mukund Ltd. was not satisfactory. It was for the first time in the said note mentioned by an officer of Government of Jharkhand that in the meeting of Screening Committee, decision has been taken for allotment of "Rajhara Coal Block" in favour of M/s Mukund Ltd. and M/s VISUL. The file as already discussed at length in the earlier part of present judgment moved at a fast pace from the desk of A-5 B.B. Singh, Director, Mines to the desk of Dy. Secretary, Mines, Subodh Kishore Sorang to Secretary, Mines i.e. PW-18 K.K. Khandelwal and thereafter to the desk of Chief Secretary i.e. A-6 A.K. Basu and upto the desk of A-7 Madhu Koda, Chief Minister on 28.07.08 itself. Thereafter A-7 Madhu Koda on 28.07.08 only made a note that in view of nature of progress as mentioned above recommendation be sent for allocation of "Rajhara Coal Block" in favour of M/s VISUL only. As earlier also discussed though the file travelled back after three days to the office of Chief Secretary but a letter dated 28.07.08 pursuant to CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 259 of 429 the aforesaid noting of Chief Minister A-7 Madhu Koda was sent by A- 6 A.K. Basu on 28.07.08 itself. In the said letter it was stated by A-6 A.K. Basu that the State of Jharkhand accepts the decision of Screening Committee in so far as it relates to M/s VISUL. It was further stated in the said letter that in view of small quantity of reserve in "Rajhara Coal Block" and the progress made by two companies i.e. M/s VISUL and M/s Mukund Ltd. and the ground realities, the State Government recommends that "Rajhara Coal Block" be allocated to M/s VISUL only. As regard M/s Mukund Ltd. it was stated that it may be considered for allotment of some other coal block in place of "Rajhara Coal Block".
311. Thus from the aforesaid proceedings it is clearly evident that while putting his observations that recommendation for "Rajhara Coal Block" be sent in favour of M/s VISUL only A-7 Madhu Koda again duly applied his mind. It is all the more evident since in his initial noting dated 28.07.08, A-5 B.B. Singh after mentioning the progress made by the two companies i.e. M/s VISUL and M/s Mukund Ltd. merely stated that in view of the aforesaid progress made by the companies the Government may take appropriate decision qua recommendation to be made for "Rajhara Coal Block" in the light of decision taken by the Screening Committee. Similarly, when the file moved through the desk of Dy. Secretary Mines, Secretary Mines or Chief Secretary then also no proposal of any nature whatsoever was put-forth as regard the action which may be taken by the Government of Jharkhand. It was only observed by all the three officers that CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 260 of 429 directions of Chief Minister who was Minister-in-charge be obtained. Thus, it is clear that in giving the said directions of sending recommendation in favour of M/s VISUL only, A-7 Madhu Koda duly applied his mind. Thus in these circumstances, it can not be stated by A-7 Madhu Koda that he simply signed on the dotted lines in the files as were put up before him by his officers.
312. The aforesaid facts and circumstances raises number of questions and A-7 Madhu Koda has clearly failed to offer any explanation or answer to the said questions even for the sake of preponderance of probabilities.
Since the names of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. were earlier recommended to MOC on behalf of Government of Jharkhand pursuant to his specific approval so he i.e. A-7 Madhu Koda did not even enquire from his officers as to in what circumstances M/s Zoom Vallabh Steel Ltd. was not recommended by the Screening Committee or in what circumstances M/s VISUL came to be recommended. No question was asked that if the requirement of coal of M/s VISUL was not much so as to be recommended for a captive coal block then in what circumstances the said company came to be recommended by the Screening Committee . Again no question was asked as to in what circumstances, the status of progress made by the two companies i.e. M/s Mukund Ltd. and M/s VISUL came to be highlighted now in the files or why the same were not stated before the Screening Committee during the course of meeting held on 03.07.2008. No question was even asked as to on what basis the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 261 of 429 progress made by M/s VISUL was found to be satisfactory or that of M/s Mukund Ltd. to be not satisfactory. Above all another important question which certainly raises eyebrows is that in the MOU executed with M/s VISUL by Government of Jharkhand it was only agreed to make available linkages for raw minerals from State PSUs. The specific request of the company for recommending it for allocation of coal block or for identifying areas for iron ore mines was specifically rejected by the State Government. Moreover approval of extension of said MOU executed with MOU for a period of two years was accorded by A-7 Madhu Koda himself just four days back i.e. on 24.07.2008 itself.
313. Apart from the aforesaid issues an important aspect relating to terms and conditions of MOU executed with M/s VISUL was also conveniently overlooked in the entire proceedings. As already discussed in the MOU dated 14.09.06 executed with M/s VISUL by Government of Jharkhand, it was only stated that Government of Jharkhand shall assist in making available linkages for minerals from State PSUs. In fact the specific request of company M/s VISUL for incorporating a clause that company may be recommended for allocation of a coal block or iron ore mine was specifically rejected by Government of Jharkhand.
314. Be that as it may, while I shall be discussing the aforesaid circumstances again at a later stage of the present judgment while considering the issue as to whether all these actions were undertaken pursuant to a criminal conspiracy or not but it can be safely concluded CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 262 of 429 now that various approvals as were accorded by A-7 Madhu Koda were after due application of mind. It can be also safely concluded that no reasons which actuated the said decision of A-7 Madhu Koda are available in the files and even no such reasons have been even placed on record during the course of present trial which may provide even a slight hint of the reasons justifying the decisions so taken.
315. Another important incriminating circumstance sought to be proved by the prosecution is that A-7 Madhu Koda and A-8 Vijay Joshi were close associates. However this circumstance could have been proved by the prosecution only by way of circumstantial evidence and no direct evidence could have been available in this regard. Still, the prosecution has attempted to do so from the testimonies of PW-13 Gaurav Aggarwal, PW-23 Arvind Vyas and that of PW-40 Dr. Rajeshwar Singh. A case against Madhu koda and various other persons was registered at Ranchi by the Enforcement Directorate under PMLA. PW-40 Dr. Rajeshwar Singh, the then Assistant Director, Enforcement Directorate was associated with the investigation of the said case. He deposed that in the said case A-7 Madhu Koda and A-8 Vijay Joshi were both arrested and were lodged in jail. He also stated that during the course of his statement recorded u/s 50 PMLA, A-8 Vijay Joshi had disclosed names of some of his companies beside also stating that he has also invested a sum of Rs. 1.75 crores in M/s VISUL. In this regard, it would be worthwhile to mention that though in the cross-examination of PW-40 Rajeshwar Singh as carried out by Ld. Counsel for A-8 Vijay Joshi did suggest that the said statement u/s CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 263 of 429 50 PMLA was obtained by using third degree method and under force, inducement and coercion but the factum of arrest of A-8 Vijay Joshi in the said case was not disputed. It was also put to the witness in his cross-examination by Ld. Counsel that the said case was initially not registered against A-8 Vijay Joshi even though it was registered against A-7 Madhu Koda and other persons. Witness however stated that the name of A-8 Vijay Joshi was mentioned in the body of ECIR.
316. Apart from the deposition of PW-40 Rajeshwar Singh, it will be also worthwhile to briefly refer to the deposition of PW-13 Gaurav Aggarwal and PW-23 Arvind Vyas over here. Both the said witnesses deposed about widely known close association of A-8 Vijay Joshi with A-7 Madhu Koda. Though the deposition of these witnesses in this regard shall be discussed in detail by me at a later stage of the present judgment but it will be suffice to state over here that in the cross-examination of PW-13 Gaurav Aggarwal it was even suggested to him on behalf of A-7 Madhu Koda that he had only heard that A-8 Vijay Joshi and Binod Sinha were close of A-7 Madhu Koda. PW-13 Gaurav Aggarwal not only admitted the said suggestion to be correct but also admitted as correct, another suggestion put to him by Ld. Counsel for A-7 Madhu Koda that though he has no personal knowledge of association of A-8 Vijay Joshi and Binod Sinha with A-7 Madhu Koda but has heard the said fact in general from public.
In this regard it will be however worth noting that the factum of there being some association between two persons and especially when such association is stated to be clandestine in nature CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 264 of 429 and activities being carried out are dubious in nature can not usually be established by direct evidence as direct evidence of such association can ever be hardly available and all such inferences have to be necessarily drawn out on the basis of circumstantial evidence only.
317. Here I may mention that the purpose of referring to the aforesaid deposition of PW-40 Rajeshwar Singh is only to the extent that both A-7 Madhu Koda and A-8 Vijay Joshi were apparently known to each other. Though the trial in the said case at Ranchi may still be pending and no conclusion as regard the guilt of the accused persons in the said case can even be drawn by this Court or is required to be drawn except the fact that the aforesaid circumstances coupled with the conduct of A-7 Madhu Koda alongwith that of other officers of State of Jharkhand in ensuring allocation of a coal block in favour of M/s VISUL clearly show that fortunes of M/s VISUL changed from around the month of May 2008 onwards in the State of Jharkhand i.e. when A-8 Vijay Joshi started showing interest in the affairs of M/s VISUL. The fact that all the departments at different levels started favouring M/s VISUL leads to only one conclusion that the same was on account of active role played by A-7 Madhu Koda, the then Chief Minister of the State in the matter.
318. Once again the issue as to whether the aforesaid incriminating circumstances can make A-7 Madhu Koda a conspirator in the impugned criminal conspiracy shall be considered at a later stage of the present judgment.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 265 of 429 Role of A-3 H.C. Gupta, Secretary, Coal and Chairman, Screening Committee.
319. It has been strongly argued by Ld. Senior Advocate Sh. Mohit Mathur for A-3 H.C. Gupta that in view of the written record available the oral deposition of the witnesses to the contrary cannot be relied upon. It was submitted that in view of illustrations (e) & (f) to Section 114 Indian Evidence Act, 1872, presumption has to be drawn as regard the correctness of the official record maintained at that time. It was submitted that if such a course of action is not followed and oral deposition of the witnesses after so many years of the alleged incident are considered then it will amount to throwing rule of law to the winds or in other words what shall be the fate of rule of law. It was submitted that in these circumstances any officer of Government can be prosecuted merely on the basis of oral submissions made by certain persons which on the face of it are contrary to the official record. It has been argued that as per the guidelines issued by MOC and keeping in view the objective of constituting the Screening Committee in MOC it was the sole duty of the concerned Administrative Ministries and State Governments to check and verify the claims made by various applicant companies in their respective applications. It was submitted that MOC had no means from which it could have ascertained the veracity of claims made by applicant companies qua any factor be it relating to Techno-Economic Feasibility of the company in establishing the end use plant or as to what progress any given company has made towards establishing its end use plant in the State. In these circumstances it was submitted that MOC had to rely on the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 266 of 429 reports/recommendations of the concerned Administrative Ministries and State Governments. Accordingly, as regard Screening Committee it was submitted that all the decisions were taken after due deliberations and discussion between the members of Screening Committee and that too when all such decisions were unanimous in nature. Deposition of various prosecution witnesses and the minutes of Screening Committee Meeting including recommendation sheets thereof were extensively referred to by Ld. Senior Advocate while arguing that there was admittedly no restriction on anyone in putting forth his views in the meeting and that free and open discussion/deliberation took place in the Screening Committee meeting. It was also submitted that had there been any dissenting view or objection to the recommendations of the Screening Committee then the said members would have recorded their objections in the recommendation sheets. It was also submitted that even after the Screening Committee Meeting no objection was raised by any member whatsoever regarding the final recommendations of Screening Committee. Thus it was strongly emphasized that from the record of the case, it is clearly apparent that all the decisions of Screening Committee Meeting were unanimous in nature. It was for this reason only submitted that the minutes of Screening Committee Meeting were prepared in the true spirit of Para 54 of Manual of Office Procedure and did not contain any details of the discussion or deliberations since all the decisions were taken with unanimity of all members of Screening Committee. It was also submitted that role of A-3 H.C. Gupta as Chairman Screening Committee Meeting was no CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 267 of 429 different from that of other members of Screening Committee and his job was to primarily ensure that the meetings take place in orderly manner and all rules and regulations are duly complied with. In these circumstances it was submitted that every recommendation of the Screening Committee was not of A-3 H.C. Gupta but that of the entire Screening Committee itself.
320. As regard the meeting alleged to have taken place on 16.07.2008 between Sh. T.K.A. Nair, Principal Secretary to Prime Minister and A-3 H.C. Gupta Secretary (Coal) and with DW 3 R.S. Pandey Secretary (Steel) it was submitted that though neither A-3 H.C. Gupta nor DW 3 R.S. Pandey remembers anything about the said meeting, if at all the same took place, for there are neither any minutes of the meeting prepared nor any notice available in the records calling for such a meeting. It was however argued that even if it is presumed for the sake of arguments that such a meeting did take place then from note dated 16.07.2008 of PW-28 Vini Mahajan, it is clear that Secretary Steel also stated in the meeting that all decisions in the Screening Committee were taken on merits. It was submitted that as Secretary (Steel) DW 3 R.S. Pandey was himself admittedly not present in the Screening Committee meeting held on 03.07.2008 so it is clear that PW 29 U.P. Singh Joint Secretary (Steel) who was representing Ministry of Steel, in the meeting must have only briefed him about the proceedings of the meeting stating that all decisions in the Screening Committee were taken on merits.
321. Ld. Senior Advocate Sh. Mohit Mathur also raised certain CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 268 of 429 issues regarding the meaning of word "Engaged" as mentioned in the guidelines issued by MOC or the issue of no presentation having been made by A-1 M/s VISUL or as regard the preparation of inter- se priority chart/inter se merit chart in terms of the guidelines or applicability of additional guidelines issued by MOC. In fact Ld. Senior Advocate also referred to certain observations made and conclusions drawn by this Court in the judgment delivered by this Court in one other coal block allocation matter titled "CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors", stating that the same were not correct.
Conclusions regarding incriminating circumstances against A-3 H.C. Gupta.
322. Before I advert on to discuss the various submissions of Ld. Senior Advocate Sh. Mohit Mathur for A-3 H.C. Gupta, I may state at the thresh-hold itself that there can be no dis-agreement with the proposition that u/s 114 Indian Evidence Act, 1872 the Court may presume existence of certain facts and the illustrations there of in clause (e) & (f) do state that the Court may presume that judicial and official acts have been regularly performed and also that the common course of business has been followed in particular cases. However, while dealing with various issues in the present matter, the written record as earlier also mentioned will certainly be considered but it is only where the said written record is silent about any particular aspect that resort has to be made to the oral deposition of the witnesses. Moreover, if any part of the oral deposition of a witness is found contrary to the written record then ordinarily written record has to be CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 269 of 429 given precedence unless doubts arises that the written record does not contain true and correct facts. The Court will then certainly consider as to whether in view of Section 114, Indian Evidence Act, 1872, any presumption needs to be drawn about the correctness of any fact recorded over there or not. However as regard drawing of any inference regarding conduct or intention of accused persons the same has to be drawn both from the written record as well as from the oral testimony of the witnesses.
323. With the aforesaid premise, I now proceed to discuss another important aspect of the present matter on which A-3 H.C. Gupta has consistently emphasized that all decisions of the Screening Committee were taken in unanimity of all members present.
WHETHER THE RECOMMENDATIONS OF 36TH SCREENING COMMITTEE WERE UNANIMOUS IN NATURE.
324. It has been the constant and consistent stand of A-3 H.C. Gupta that during the Screening Committee Meeting held on 03.07.2008 detailed discussions were held qua the claim of each applicant company when the issue of allocation of various coal blocks were individually taken up. It has also been argued that since all the decisions of Screening Committee were unanimous in nature so no need was felt to record detailed discussion or deliberations which took place in the meeting. It has also been argued that had there been any dissenting opinion or objection to the decision of the Screening Committee then such an opinion or objection would have been CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 270 of 429 recorded by the members while signing the recommendation sheets.
325. From the aforesaid arguments an impression is however sought to be given on behalf of A-3 H.C. Gupta that mere signing of recommendation sheets signify unanimity of all members of the Committee in the decisions so taken. In this regard before proceeding further it will be however important to first understand and appreciate not only the nature but also the purpose of constituting the Screening Committee. Admittedly the Screening Committee was constituted with a view to expedite the captive coal block allocation process. While MOC was the Nodal Ministry for allocation of coal blocks but the views of Administrative Ministries such as Ministry of Power, Ministry of Steel, DIPP were important as the coal blocks were proposed to be allocated to those companies who were engaged in either generation of power or production of iron and steel or cement. Thus as the end use projects pertained to the jurisdiction of said other Administrative Ministries so their views were certainly important in considering the issue of allocation of various coal blocks to different applicant companies engaged in production of one or the other end use products. Similarly the views of the State Governments where either the coal blocks proposed to be allotted were situated or the existing or proposed end use plant was established/proposed to be established were equally important. Similarly the views of CMPDIL or CIL or its other subsidiary companies were important from the point of view of obtaining technical details of the coal blocks proposed to be allocated or the progress made by any applicant company, if previously CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 271 of 429 allocated any coal block. An effort was thus made by Government of India to constitute such an inter-departmental body called Screening Committee so as to screen the proposals of various applicant companies by obtaining views/comments of all concerned at one single place and thereafter to make recommendation for allocation of various coal blocks in favour of different applicant companies in an objective and transparent manner. It was in order to achieve the said objective only that MOC framed detailed guidelines and brought them to the notice of the public at large as to in what manner the applications will be received in MOC or in what manner they shall be processed or how the inter-se priority amongst various applicant companies for any given coal block shall be decided.
326. Thus keeping in view the aforesaid objective for which the Screening Committee came to be constituted i.e. to screen the proposals received for captive mining in an objective and transparent manner, all the applicants were directed to submit their applications in five copies. Four copies thereof were accordingly sent to concerned Administrative Ministry(ies) and to the concerned State Government(s) beside also sending one copy to CMPDIL. One copy of the application was however retained in MOC. Thus one set of applications of all such companies which were either having an existing steel plant or were proposing to establish a sponge iron plant were sent to Ministry of Steel and not to Ministry of Power. Similarly one set of applications of all such companies who were proposing to establish a power project were sent to Ministry of power and not to CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 272 of 429 Ministry of Steel or to any other Administrative Ministry. Similar was the situation qua the applications of companies proposing to establish an end use project in cement sector. Copy of their application was sent only to DIPP for comments and not to Ministry of Power or Steel. On similar lines, one copy of the applications was sent to only those State Governments where any given coal block was situated qua which applications were submitted by the company(ies) or their existing end use plant was situated or any end use plant was proposed to be established. In this manner the copy of applications of all the applicant companies was sent only to concerned State Governments and to concerned Administrative Ministries and not to all State Governments or Administrative Ministries who were members of Screening Committee.
327. Thus from the aforesaid circumstances it is clear that in the Screening Committee meetings, representative of any given State Government was not concerned with application of any such company who was neither applying for any coal block situated in the said state nor was proposing to have its end use project in the said State. Admittedly application of any such company was not even sent to those states. Similarly the Administrative Ministries were also not concerned with the applications of all such companies who were neither engaged nor were proposing to engage in any end use product relating to their Ministry. A natural consequence of the aforesaid scheme of arrangement was that such state governments or Administrative Ministries were neither having any knowledge of the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 273 of 429 claims of any such applicant company(ies) qua any factor much less their financial strength or their technical capabilities or progress made by them towards establishing their end use project nor they were concerned as to for which coal block any such given applicant company is being recommended as long as the said coal block is not situated in their state or the end use plant was proposed to be established in their state.
328. If in the aforesaid circumstances the constitution and working of Screening Committee is seen and visualized then it emerges out as an irresistible conclusion that the Screening Committee was though constituted as a large broad based inter-departmental committee but in its actual functioning it was working as a conglomeration of various small Screening Committees. Thus in its actual working whenever discussion qua any given coal block used to take place in the Screening Committee then applications of only those companies who had applied for the allocation of said coal block used to be considered. Officers of MOC however used to participate in the discussion qua every coal block and also qua each of the applicant companies being the representatives of Nodal Ministry. On the other hand representatives of only such State Governments used to participate in the discussion in whose states either the given coal block under discussion was situated or the applicant companies being considered were proposing to have their end use project in their state. Similarly representative of any Administrative Ministry used to participate in the discussion only qua such companies who were either already CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 274 of 429 engaged or were proposing to engage in an end use project relating to the said Administrative Ministry. It is important to understand the aforesaid working of Screening Committee since it will help in better understanding the claim raised by Ld. Counsels for accused persons that the decisions made in the Screening Committee were unanimous in nature as while signing the recommendation sheets the various members of Screening Committee did not raise any objection. However from the aforesaid nature of working of Screening Committee it becomes crystal clear that in the discussion which took place in the Screening Committee meeting held on 03.07.2008 qua any given coal block and while considering applications of various applicant companies who had applied for the said coal block under discussion only members of such smaller Screening Committees would have participated and none else. Thus representative of Ministry of Steel could have given his opinion or views only qua such companies who were either having any existing sponge iron or steel plant or were proposing to establish any such plant. Similarly representative of DIPP could have given his views/comments only qua such companies who were either having any existing cement plant or were proposing to establish any such cement plant.
329. Similarly as Rajhara Coal Block was situated in the State of Jharkhand so representative of State of Jharkhand would have been only interested in the discussion qua each of the applicant company which was seeking allocation of Rajhara Coal Block situated in the said State. Representatives of all other State Governments would be CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 275 of 429 interested in the discussion only if any applicant company seeking allocation of Rajhara Coal Block was either having any existing end use plant or is proposing to establish its end use plant in their State. Thus other members of the Screening Committee would have no concern with any such discussion for they were neither having any information about applicant companies nor about their proposed end use project or even any information about the coal block under discussion, for it was not situated in their State. Admittedly applications of all such companies were even not sent to them by MOC.
330. Thus if in the light of these circumstances the signing of various recommendation sheets are seen during the meeting held on 03.07.2008 then it is found that all the members of the Screening Committee present have signed recommendation sheets qua all the coal blocks irrespective of the fact whether the said coal blocks were situated in their state or not or the companies recommended for allocation were having any existing end use project or were proposing to establish their end use plant in their state or not. Similarly representatives of all Administrative Ministries signed the recommendation sheets irrespective of the fact as to whether the recommended companies were either engaged or were proposing to engage in any end use project relating to their Ministry or not. Thus the factum of signing of said recommendation sheets can at the most signify that such a decision was taken in the Screening Committee meeting on that day but in no way the signing of said recommendation CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 276 of 429 sheets by all members present can signify that the said decisions were unanimous in nature or were taken with the consent of all. It is in these circumstances only that the contention that none of the Screening Committee members while signing the recommendation sheets did not raise any objection needs to be seen and appreciated.
331. In fact the deposition of DW 7 Shiv Raj Singh the then Chief Secretary State of Chattisgarh (a witness examined by A-3 H.C. Gupta himself in his defence) who was admittedly present in the Screening Committee Meeting held on 03.07.2008 also supports the aforesaid conclusion. He deposed that the mere factum of signing of recommendation sheets by all members of the Screening Committee present can in no way show that all the decisions were unanimous in nature. He stated that though discussion and deliberations used to take place in the meeting but whenever there used to be no unanimity then further discussion used to take place and after said discussion the Chairman used to announce the recommendation of Screening Committee for allotment of a given coal block in favour of one or more applicant companies in accordance with consensus which may have developed during the course of discussion. He also deposed that in certain cases however some of the representatives used to request that their views be specifically recorded in the proceedings. He accordingly stated that the decision in these circumstances thus used to be by way of broad consensus. He however also stated in his examination-in-chief itself that on recommendation sheets the dissenting views were not required to be recorded as the record of the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 277 of 429 discussion which took place in the Screening Committee Meeting was to be recorded in the minutes of the meeting. He however also stated that though every member was free to mention his dissenting view in the meeting but since minutes used to be prepared later on so he was unable to comment as to whether said dissenting view found place in the minutes or not. He also deposed in his examination-in-chief itself that when discussion qua coal blocks situated in the State of Jharkhand took place then at that time he was not present in the meeting hall as he had gone out to have tea/snacks.
332. This witness was thereafter cross-examined by Ld. Prosecutor Sh. V.K. Sharma on behalf of CBI. In his cross-examination he again reiterated that at the time when discussion qua coal blocks situated in Jharkhand took place then he was not present in the meeting hall. He also deposed that since representative of every concerned State was a member of the Screening Committee qua the coal blocks situated in that concerned State so being a representative of State of Chhatisgarh, he was not a member of the Screening Committee qua the coal blocks situated in the state of Jharkhand. He thus stated that the question of his being in agreement or otherwise with the decision of the Screening Committee qua recommendations for any coal block situated in the State of Jharkhand or in the State of Maharashtra or West Bengal does not arise. He even went on to further state in his cross-examination that though he ought not to have signed the said recommendation sheets qua the coal blocks situated in the state of Jharkhand, Maharashtra and West Bengal but at the time of the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 278 of 429 meeting, the MOC officers were obtaining signatures of all present on all the recommendation sheets so prepared and thus he also signed all the recommendation sheets. He further stated that the signatures on recommendation sheets qua the coal blocks situated in the state of Jharkhand, Maharashtra and West Bengal does not in any manner convey his agreement or otherwise with the recommendations of the Screening Committee since he was not a party to any such decision of the Screening Committee as he was not a member of the Screening Committee qua coal blocks situated in those states.
333. Thus from the aforesaid deposition of DW 7 Shiv Raj Singh i.e. a witness examined by A-3 H.C. Gupta himself in his defence, it is crystal clear that signing of recommendation sheets at the time of Screening Committee Meeting held on 03.07.2008 can in no way signify that all the decisions were taken by the Screening Committee in unanimity with all members present. It is also clear that recommendation sheets were primarily not meant for recording of any dissenting opinion or views expressed by the members during the course of meeting. It is also clear that all such dissenting opinion or views expressed by the members during the course of meeting were to be recorded in the minutes which were to be prepared later on in MOC. However, as earlier also mentioned the minutes Ex. PW 18/DX- 5 (Colly) (D-116) of 36th Screening Committee meetings do not contain any shred of such discussion or deliberation. (In fact the minutes of 36th Screening Committee were never sent to any of the members of Screening Committee for confirmation by MOC prior to their approval CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 279 of 429 from the competent authority i.e. Prime Minister as Minister of Coal). However the issue that all the decisions of Screening Committee were unanimous or not can be seen from another angle also.
I have already discussed at length and concluded in the earlier part of the judgment that PW 18 K.K. Khandelwal was not present during the entire course of meeting held on 03.07.2008. It was also discussed that for this reason only the recommendation sheet qua coal blocks situated in the State of Madhya Pradesh was only signed by PW 18 K.K. Khandelwal and the other recommendation sheets qua coal blocks situated in any other State including that of the State of Jharkhand were not signed by him. His deposition is in fact on similar lines as that of DW 7 Shiv Raj Singh.
334. Moreover, a perusal of recommendation sheets prepared in the meeting held on 03.07.2008 shows that it does not carry signatures of either A-3 H.C. Gupta, Secretary, Coal who also was Chairman of the Committee or that of Sh. K.S. Kropha, Joint Secretary, Coal who also was Member Convener of the Committee. This issue becomes strikingly important if the recommendation sheets as were prepared in the 35th Screening Committee Meeting held on 13.09.2007 are seen. The said minutes of 35th Screening Committee along with recommendation sheets annexed thereto have been placed and proved on record in defence by A-3 H.C. Gupta himself and have been exhibited as Ex. DW 1/A (colly). A perusal of the recommendation sheets prepared in the said meeting of 35 th Screening Committee clearly shows that both A-3 H.C. Gupta and Sh.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 280 of 429 K.S. Kropha, the Chairman and Member Convener respectively have duly signed the said recommendation sheets. Though I am not drawing any conclusion whatsoever as to in what circumstances recommendation sheets prepared at the time of 35 th Screening Committee were signed by MOC officers also or what inference can by drawn from the said facts but the only purpose of referring to said minutes is that the recommendation sheets prepared at the time of 36th Screening Committee Meeting did not bear signatures of any of the MOC officers. However, A-3 H.C. Gupta in his deposition as DW 6 (examined u/s 315 Cr.PC) has stated that his role as Chairman was no different from that of other members of Screening Committee and that all the decisions were taken by the Screening Committee unanimously and the same were in no way be stated as the decisions of the Chairman. However, if the said contention of A-3 HC. Gupta is believed for the sake of arguments then it is beyond comprehension as to why the MOC officers present in 36 th Screening Committee meeting did not sign the said recommendation sheets. During the course of entire trial no reason or explanation has been put-forth in this regard.
335. Thus from the aforesaid discussion it stands clearly established beyond shadows of all reasonable doubts that the recommendations of 36th Screening Committee can not be termed as unanimous.
336. The aforesaid circumstances in fact also reinforces the conclusion that the working of Screening Committee Meeting was casual, cryptic and arbitrary in nature. This conclusion regarding the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 281 of 429 working of Screening Committee meeting will however also get established from my later discussion when the minutes of 36 th Screening Committee will be referred to and discussed in detail.
Minutes Ex. PW 18/DX-5 (Colly) of 36 th Screening Committee meetings.
337. Though the complete minutes of 36th Screening Committee meetings have been reproduced in the earlier part of present judgment but the relevant portions shall be again referred to over here whenever required. It will be also pertinent to mention that common minutes of all the five meetings of 36 th Screening Committee as were held on 07/08.12.2007, 07/08.02.2008 and 03.07.2008 were drawn up after the meeting held on 03.07.08 was over.
338. In order to appreciate the proceedings of all such meetings of 36th Screening Committee and the consequent minutes drawn up later on in MOC it will be important to once again refer to the deposition of DW-7 Shiv Raj Singh. In his examination in chief he stated that as a representative of State of Chattisgarh he had attended various Screening Committee Meetings. As regard the meeting held on 08.02.2008 of 36th Screening Committee he however deposed that though they all had assembled on that day but as no business was transacted so they all dispersed. This statement of DW 7 Shiv Raj Singh made by him in his examination-in-chief itself, if is seen in the light of minutes of 36th Screening Committee as were subsequently recorded in common for all the five meetings, then it is found that in the said minutes Ex. PW 18/DX-5 (colly), it has been recorded that in CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 282 of 429 the meeting held on 08.02.2008 when the Committee met to finalize its recommendation then there were some differences of opinion among the Committee members with regard to accommodation of prospective allocattes in the coal blocks based on mine capacity or minable reserves. It is further recorded over there that a decision was accordingly taken to get the mine capacity and reserves reassessed by CMPDIL. For a ready reference minutes of meeting held on 08.02.2008 read as under:
"3. The committee met again on 8th February, 2008 to finalise its recommendation. However, there were some differences of opinion among the Committee members with regard to accommodation of prospective allocatees in coal blocks based on mine capacity or minable reserves. Accordingly, a decision was taken to get the mine capacity and reserves reassessed by CMPDIL. The report received from CMPDIL was circulated to the members of the Committee for their comments. The members had taken note of the revised details of reserves etc. for giving their views."
339. Thus, if the said minutes are seen viz-a-viz deposition of DW 7 Shiv Raj Singh Chief Secretary State of Chattisgarh then it is more than clear that the minutes Ex. PW 18/DX-5 (colly) of 36 th Screening Committee does not reflect the actual proceedings which took place in the meeting. One can argue that there is on record a letter written by MOC to State Governments and Administrative Ministries Ex. P-9 (D-
5) wherein fresh comments/views were sought in the light of information received from CMPDIL regarding tentative extractable reserves and likely annual mine capacity of various coal blocks and that various State Governments responded to the said communication including Government of Jharkhand. However, the sole purpose of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 283 of 429 referring to the aforesaid deposition of DW 7 Shiv Raj Singh at this stage was only to point out that in the evidence led on record by A-3 H.C. Gupta himself in his defence, it has come on record that no discussion actually took place on 08.02.2008 and the said claim of the witness was not at all disputed or controverted on behalf of A-3 H.C. Gupta in the subsequent part of his deposition.
340. However, from my subsequent discussion also, it will be clear that the minutes of 36th Screening Committee Meeting Ex. PW 18/DX- 5 (Colly) (D-116) have not been correctly recorded much less in the spirit of Para 54 of Manual of Office Procedure.
341. As earlier also mentioned the minutes are completely silent as to on what grounds A-1 M/s VISUL was considered to be the most suitable applicant company along with M/s Mukund Ltd. from amongst all the applicant companies who had applied for allocation of Rajhara Coal Block. The minutes are also completely silent as to on what grounds M/s Zoom Vallabh Limited a company which was recommended by Government of Jharkhand and was also placed in category II(a) by Ministry of Steel was not found suitable for being recommended for allocation of a captive coal block much less Rajhara Coal Block.
342. I have already discussed at length that during the course of meeting no record was available with A-6 A.K. Basu from which he could have stated that A-1 M/s VISUL was better placed then all other applicant companies in terms of progress made by it. Though all CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 284 of 429 through the trial it has been argued on behalf of A-3 H.C. Gupta that after A-6 A.K. Basu insisted for allocation of Rajhara Coal Block in favour of M/s VISUL then detailed discussion/deliberation took place in the meeting. It has been further stated that subsequent thereto all the members including PW 29 U.P. Singh of Ministry of Steel also agreed for allocation of Rajhara Coal Block in favour of M/s VISUL. In this regard it will be however pertinent to refer to the deposition of PW 29 U.P. Singh when as regard the discussion which took place in the meeting he stated the following facts:
Deposition of PW-29 U.P. Singh dated 14.03.2016.
(1) At page 7 of 24:
"During all this discussion I also re-iterated that M/s VISUL should not be recommended for allocation of Rajhara North Coal Block. It was during this discussion that Chief Secretary Govt of Chattisgarh also stated that the criteria adopted by MOS was arbitrary and the views/comments of state governments where either the coal blocks were situated or the end use projects were to be established should be given priority ."
Thereafter, in his cross-examination as was conducted on behalf of A-3 H.C. Gupta he further answered as follows:
(2) At page 21 of 24:
"It is wrong to suggest that the final decision taken by the Chairman of the Screening Committee was after resolution of all conflicting views as emerged out of the discussion and deliberation which took place in the meeting. Vol. The conflicting views remained as it is and the Chairman also used to say that neither the views of State Government nor that of Administrative Ministries shall be binding on the Screening Committee."
343. Similarly, if the deposition of PW 26 N.R. Dash is seen then he CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 285 of 429 stated that when the matter regarding Rajhara Coal Block came up for discussion in the meeting then A-6 A.K. Basu representative of Government of Jharkhand suggested names of some companies including that of M/s VISUL for allocation. In his deposition PW-26 N.R. Dash also stated that when Sh. U.P. Singh (PW 29) pointed out in the meeting that M/s VISUL has not been recommended by Ministry of Steel being not eligible then after some discussion Sh. H.C. Gupta decided that the state government recommendation shall be given weightage. In his cross-examination also as conducted on behalf of A-3 H.C. Gupta he stated that he was not in a position to say that the final decision of making recommendation for allocation of "Rajhara Coal Block" in favour of M/s VISUL was made with the consent of all concerned or not. He also denied the suggestion that Chairman Sh. H.C. Gutpa had not taken any final decision in the meeting on 03.07.2008 on his own and that the final decision as stated by him at the end of the meeting was in fact reiteration of the decision of the Screening Committee as was arrived at after discussion in the meeting.
344. Apart from the aforesaid circumstances, it will be also worthwhile to mention that the minutes Ex. PW 18/DX-5 (Colly) of 36th Screening Committee meetings are completely silent as regard any such discussion/deliberation having taken place in the meeting. No details of any such discussion/deliberation are mentioned in the said minutes. Strangely enough the word "Unanimous" is also not mentioned anywhere in the minutes. On his part A-3 H.C. Gupta has CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 286 of 429 only submitted that as all the decisions of the Screening Committee were unanimous so no details of the discussion/deliberations were mentioned in the minutes. He has further claimed that minutes were recorded in the true letter and spirit of Para 54 of Manual of Office Procedure.
345. Thus, before proceeding further it will be also worthwhile to have a brief glance over Para 54 of Manual of Office Procedure.
"54. Inter-departmental consultation -
(1) Inter-departmental consultation may take the form of inter-departmental notes, inter-departmental meetings or oral discussions.
(2) In making written inter-departmental references, the following points should be observed:
(a) . . . .
(b) . . . .
(c) . . . .
(d) . . . .
(i) . . . .
(ii) . . . .
(3) (a) . . . .
(i) . . . .
(ii) . . . .
(b) . . . .
(c) . . . .
(4) Inter-departmental meetings may be held where it is
necessary to elicit the opinion of other departments on important cases and arrive at a decision within a limited time.
No such meeting will normally be convened except under the orders of an officer not below the level of Joint Secretary. In respect of such meetings, it will be ensured that:
(a) the representatives attending the meeting are officers who can take decisions on behalf of their departments;
(b) an agenda setting up clearly the points for discussion is prepared and sent alongwith the proposal for holding the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 287 of 429 meeting, allowing adequate time for the representatives of other departments to prepare themselves for the meeting; and
(c) a record of discussions is prepared immediately after the meeting and circulated to the other departments concerned, setting out the conclusions reached and indicating the department or departments responsible for taking further action on each conclusion. (5) . . . .
(a) . . . .
(b) . . . .
(c) . . . .
(d) . . . .
. . . .
(6) . . . .
. . . .
(8) . . . ."
(Emphasis supplied by me)
346. However, as already mentioned no separate minutes of each of the four meetings of 36th Screening Committee which took place on 07.12.2007, 08.12.2007, 07.02.2008 and 08.02.2008 were drawn up immediately after the respective meetings were over. The same is clearly a requirement of para 54(4)(c) of Manual of Office Procedure.
No explanation even has been put forth in this regard as to why the said provision of Manual of Office Procedure was not followed. I am still not on the issue that actually no discussion took place in the meeting held on 08.02.2008 as has been deposed to by DW 7 Shiv Raj Singh. However as per the claim of A-3 H.C. Gupta himself in the meeting 08.02.2008 the decision was admittedly taken to seek information from CMPDIL whose representative was also a member of Screening Committee to furnish information about the available geological reserves or the extractable reserves in various coal blocks CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 288 of 429 kept for allocation. Thus, as per Para 54(4)(c), the record of discussions to be prepared immediately after the meeting was to also mention about the conclusions reached and indicating the department or departments responsible for taking further action on each conclusion.
347. Thus, it cannot be stated that while conducting the meetings of Screening Committee or preparing records thereof, Provisions of Manual of Office Procedure were even kept in view much less the said Provisions were complied with in their true letter and spirit.
348. Apart from the aforesaid apparent discrepencies in the minutes it will be also to important to note that here was a case before the Screening Committee where representative of a State Government had chosen to insist for name of a company which was not recommended by the concerned State Government in the previous three recommendations sent to MOC. The said company was also not found to be eligible by Ministry of Steel as per its own criteria and was accordingly not recommended to MOC for allocation of a coal block. It has also come on record that in the meeting no record was placed by A-6 A.K. Basu regarding the progress made by A-1 M/s VISUL in terms of land, power, water etc much less that of other applicant companies. It is also not disputed that neither any presentation nor any feedback form was submitted before the Screening Committee on behalf of A-1 M/s VISUL. In the cross-examination of D-6 H.C. Gupta (A-3) as was conducted by Ld. Counsel for A-6 A.K. Basu it was stated by him that the State Government representative orally placed CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 289 of 429 the upto date status qua all the applicant companies before the Screening Committee during the course of discussion and deliberation. He also stated that it was not necessary for the State Government representatives to carry to the Screening Committee meetings the supporting documents on the basis of which they made any recommendations and accordingly no such documents used to be brought by them to the Screening Committee meetings.
349. Thus in the aforesaid facts and circumstances, it is clear that no record was available before the Screening Committee members in the meeting held on 03.07.08 on the basis of which the latest status of progress made by A-1 M/s VISUL towards establishing its end use plant could have been ascertained. On the other hand, there were admittedly other applicant companies who had made presentation before the Screening Committee and had also submitted their feedback form titled "Latest Status of End Use Plant". Thus, if in the aforesaid nature of peculiar circumstances a company i.e. M/s VISUL if is being recommended for allocation of a coal block i.e. Rajhara Coal Block then the least which could have been done or was expected of A-3 H.C. Gupta being Chairman of the Screening Committee and also Secretary MOC was to mention all such facts in the minutes subsequently prepared in MOC and admittedly approved by him. As Advisor to Minister In-charge it was expected of A-3 H.C. Gupta that even if details of any such discussion or deliberation which allegedly took place in the meeting is not mentioned in the minutes, then at least it is stated in the minutes that M/s VISUL being now CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 290 of 429 recommended for allocation of a coal block is a company which was not recommended by State Government of Jharkhand in any of its three earlier recommendations sent to MOC and was also not found eligible by Ministry of Steel. Omission to mention these important facts in the minutes is in fact a clear and strong indicator of dishonest intention on the part of A-3 H.C. Gupta in not putting forth all the true and correct facts before the Competent Authority. As already discussed and demonstrated the decision of Screening Committee to recommend M/s VISUL for allocation of "Rajhara Coal Block" can not be termed as "unanimous" and even the word "unanimous" is not mentioned in the minutes so it can not be claimed by A-3 H.C. Gupta that since the decision qua M/s VISUL was unanimous so details of any discussion or deliberation which took place in the meeting were not mentioned. At the cost of repetition, I may state that mentioning of facts that M/s VISUL was neither recommended by Government of Jharkhand in its earlier communications nor Ministry of Steel found it eligible but has been considered, discussed and deliberated upon and decided to be recommended for allocation of "Rajhara Coal Block"
during the course of meeting itself was an essential aspect to be mentioned and the same would have been reflective of transparency and objectivity in the working of Screening Committee. In fact if the language which has been used in drafting the minutes is seen then it is found that very cleverly the aforesaid facts have been omitted to be mentioned. In fact in para 12 the minutes states that after detailed deliberations, the parameters suggested by Ministry of Steel and Department of Industrial Policy and Promotion were agreed to. In para CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 291 of 429 13 the minutes suggests that Screening Committee thereafter deliberated at length over the information furnished by the applicant companies in the application forms, during the presentations and subsequently.
In these circumstances, it will be instructive to reproduce para 12, 13 & 14 of the minutes once again over here:
"12. After detailed deliberations the parameters suggested by the Ministry of Steel and Department of Industrial Policy and Promotion, were agreed to. It was also accepted that an upper cap on projected capacity should be placed in order to secure more equitable distribution of limited resources. Therefore, ceiling of 1.2 MTPA for DRI, 2 MTPA for Steel and 4 MTPA for cement were agreed upon. It was also decided that in case companies have been allocated blocks in the past for the same project, then reserves allocated for such blocks may be adjusted while assessing the total requirement and share of coal of such companies.
13. The Screening Committee, thereafter, deliberated at length over the information furnished by the applicant companies in the application forms, during the presentations and subsequently.
The Committee also took into consideration the views/'comments of Ministry of Steel, Department of Industrial Policy and Promotion, State Governments concerned, guidelines laid down for allocation of coal blocks, and other factors as mentioned in paragraphs 8 to 12 above, as regards inter-se distribution of shares among the joint allocattees, it was decided by the Committee that capacity of end-use projects shall be determined as follows:
i) The capacity indicated in the application form;
ii) The capacity indicated in the MoU entered into between the applicant company and the State Govt. concerned, wherever applicable;
iii) The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/Department concerned;
Whichever is the lowest.
14. Based on the data furnished by the applicants, and the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 292 of 429 feedback received from the State Governments, the Ministry of Steel and Department of Industrial Policy and Promotion, the Committee assessed the applications having regard to matters such as techno-economic feasibility of end-use project, status of preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc. the Screening Committee, accordingly decided to recommend for allocation of coal blocks in the manner as follows:"
BLOCKS EARMARKED FOR OTHER END USES - NON COKING COAL S. State Name of Geological Tentative Mine Name of End Use Location Share No. the Block Reserves Extractable Capacity Company Plant Reserves Capacity (in MTPA) 1 2 3 4 5 6 7 8 9 10 BLOCKS EARMARKED FOR PIG IRON (Coking coal) 1 2
3...
BLOCKS EARMARKED FOR OTHER END USES - NON COKING COAL 1 2
3....
350. Though a bare perusal of the aforesaid minutes shows that discussion over various claims made by applicant companies on different factors had taken place in the meeting but the deposition of PW-26 N.R. Dash and PW-29 U.P. Singh clearly contradicts the said claim. During the course of cross-examination of PW-26 N.R. Dash and PW-29 U.P. Singh efforts were repeatedly made to highlight that certain companies including M/s Zoom Vallabh Steel Limited and M/s Mukund Ltd. were placed in wrong categories by Ministry of Steel even as per their own criteria. It was also pointed out that complete and correct information regarding various companies was not CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 293 of 429 mentioned in the chart prepared by Ministry of Steel placing various applicant companies in different categories and as was sent to MOC. PW-26 N.R. Dash and PW-29 U.P. Singh though denied the aforesaid claims of accused persons but even stated that these facts never came to their notice during the course of Screening Committee as no discussion on these aspects at all took place. Moreover, had such a discussion over the categarisation carved out by Ministry of Steel taken place in the meeting then once again it was an important fact effecting the decision of Screening Committee which ought to have been mentioned in the minutes of the Screening Committee meetings. In fact A-3 H.C. Gupta in his deposition as DW-6 stated that though no interse merit/interse priority chart was prepared for the purpose of discussion in the Screening Committee meeting as the same was not required to be prepared in terms of the guidelines issued by MOC, governing allocation of coal block but discussion on the basis of factors mentioned in the guidelines did take place. He also stated that two of the most important factors were the recommendations of the Administrative Ministries and the recommendations of the State Governments. He further stated that even other important factors like stage of preparedness, technical experience etc. were also in the domain of the Administrative Ministries or State Governments as they were only in the best position to know about the stage of preparedness having knowledge of the ground situation. As regard technical factors relating to coal mine, CMPDIL was stated to be the competent organisation. He thus stated that if a recommendation made by the Screening Committee was agreed to by the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 294 of 429 representatives of Administrative Ministires, State Governments, CMPDIL and other members of the Screening Committee then it was likely to be the appropriate recommendation on the basis of the ten factors mentioned in the guidelines. He further stated that preparation of mathematical chart to determine interse priority would not have been appropriate as it was not provided for in the advertisement. He also stated that such an exercise would have required allocating weightage to different factors and then allocating marks to each company for all such factors. He thus stated that in the absence of anything mentioned in the advertisement in this regard it would have been subjective and arbitrary as it could have been done in many ways.
351. In order to appreciate the aforesaid submissions of A-3 H.C. Gupta, it will be worthwhile to first reproduce para 9 of the guidelines which talks of interse priority of competing applicant companies.
352. Para 9 of the guidelines Ex. PW 26/DX-3 (D-112) issued by MOC governing allocation of coal blocks read as under:
"9. Inter-se priority for allocation of a block among competing applicants for a captive block may be decided as per the following guidelines:
• Status (stage) level of progress and state of
preparedness of the projects;
• Net-worth of the applicant company (or in the case
of a new SP/JV, the net-worth of their principals); • Production capacity as proposed in the application; • Maximum recoverable reserve as proposed in the application;
• Date of commissioning of captive mine as proposed in CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 295 of 429 the application;
• Date of completion of detailed exploration (in respect of unexplored blocks only) as proposed in the application; • Technical experience (in terms of existing capacities in coal/lignite mining and specified end use); • Recommendation of the Administrative Ministry concerned;
• Recommendation of the State Government
concerned (i.e. where the captive block is
located);
• Track record and financial strength of the company.
• Preference will be accorded to the power and the
steel sectors. Within the power sector also, priority shall be accorded to projects with more than 500 MW capacity. Similarly, in steel sector, priority shall be given to steel plants with more than 1 million tonne per annum capacity."
353. A bare perusal of the aforesaid guidelines would show that as earlier also discussed the latest status (stage), level of progress and stage of preparedness of the project especially as regard M/s VISUL was not there before the Screening Committee [The company M/s VISUL had admittedly neither made any presentation before the Screening Committee nor submitted any feedback form.]. I have already discussed and demonstrated that A-6 A.K. Basu was also not having any such information as regard other applicant companies even if it is presumed that he was having such information qua M/s VISUL. The purpose was to discuss and deliberate on the interse priority from amongst all the applicant companies. I have also concluded that PW-18 K.K. Khandelwal, Secretary Industries and Secretary Mines, Government of Jharkhand was not present in the Screening Committee meeting at the time when discussion qua coal blocks situated in the State of Jharkhand took place. Both PW-26 N.R. CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 296 of 429 Dash and PW-29 U.P. Singh have also deposed that no discussion on these factors at all took place in the Screening Committee meeting. As regard criteria of networth of the applicant companies, I may mention that irrespective of the fact whether group networth of company M/s VISUL was correctly mentioned or not. PW-26 N.R. Dash, PW-28 V.S. Rana and PW-29 U.P. Singh all in their cross-examination as was conducted by Ld. Sr. Advocate for A-2 Vaibhav Tulsyan stated that there were other companies having much higher networth than that of M/s VISUL. As regard proposed production capacity mentioned in the application, no detailed discussion is required as on account of less proposed production capacity of M/s VISUL only it was not found to be eligible by Ministry of Steel. In fact on this account only and consequent less requirement of coal, Government of Jharkhand had also not chosen to earlier recommend M/s VISUL for allocation of a coal block.
354. Apart from the aforesaid circumstances, I have also already discussed and demonstrated that A-6 A.K. Basu, Chief Secretary, Government of Jharkhand was not competent to revise recommendation of Government of Jharkhand in the Screening Committee meeting itself. As regard track record and financial strength of the company, I may again mention that no such track record of M/s VISUL was available before the Screening Committee and in so far as the financial strength of the company is concerned, the same as earlier mentioned was not better than all other co- applicant companies. The last clause mentioned in para 9 that priority CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 297 of 429 shall be given to steel plants with more than one MTPA capacity was also clearly not applicable in the case of M/s VISUL.
355. The purpose of mentioning the aforesaid circumstances qua the applicability of various factors mentioned in para 9 for determining interse priority from amongst competing applicants for allocation of the impugned coal block is not to substitute the decision of Screening Committee but only to point out that as rightly stated by PW-26 N.R. Dash and PW-29 U.P. Singh no such discussion actually took place in the Screening Committee meeting.
356. Had such a discussion taken place then on no reason whatsoever recommendations of Screening Committee could have been in favour of M/s VISUL. It is for this reason only that it was observed earlier that the minutes of 36 th Screening Committee meeting have been drawn in a most casual and cryptic manner so that no one can ever ascertain as to on what basis any given applicant company (M/s VISUL) was considered for recommendation for allotment of a captive coal block in the meeting. Apart from the aforesaid circumstances, it is also now crystal clear that the minutes of 36th Screening Committee meeting Ex.PW 18/DX-5 (Colly) have not been correctly recorded (in so far as recommendation of "Rajhara Coal Block" in favour of M/s VISUL is concerned.) in as much as neither the information furnished by the applicant companies in the application forms or even during the presentation (M/s VISUL though even did not make any presentation) was considered. It is also wrongly recorded in the minutes as mentioned in para 14 that the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 298 of 429 Committee assessed the applications having regard to matters such as techno-economic feasibility of end use project, status of preparedness to set up end use project, past track record in execution of projects financial and technical capabilities of applicant companies, recommendations of the State Government and the Administrative Ministries concerned. The dissenting views expressed by PW-29 U.P. Singh, Joint Secretary, Steel have also not been mentioned in the minutes. It is also not mentioned that State Government had not recommended M/s VISUL in any of its earlier three recommendations sent to MOC or that Ministry of Steel had not found the company to be eligible for allotment of a coal block.
357. From the aforesaid discussion it is thus crystal clear and also beyond shadows of all reasonable doubts that recommendation of Screening Committee in favour of M/s VISUL qua allocation of "Rajhara Coal Block" was not made in accordance with the guidelines issued by MOC, governing allocation of captive coal blocks. In fact it is also clear beyond shadows of all reasonable doubts that in the discussion which took place in the Screening Committee meeting on 03.07.08 between MOC officers, representative of State Government of Jharkhand and that of Ministry of Steel, no unanimity was reached and representative of Ministry of Steel did not agree to the recommendation made in favour of M/s VISUL for allocation of "Rajhara Coal Block". It is also clear that in the meeting A-6 A.K. Basu insisted for allocation of " Rajhara Coal Block" in favour of M/s VISUL stating it to be revised recommendation of State Government and A-3 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 299 of 429 H.C. Gupta for reasons best known to him agreed with the said claim made by A-6 A.K. Basu. However, the malafides in the acts of A-3 H.C. Gupta in agreeing with the said revised recommendation of A-6 A.K. Basu is evident from the fact that in the minutes of 36 th Screening Committee Ex. PW 18/DX-5 which admittedly were prepared later on in MOC and were approved by A-3 H.C. Gupta, nothing was mentioned as regard the fact that M/s VISUL was not recommended by State Government of Jharkhand in any of its three earlier recommendations sent to MOC or that even Ministry of Steel did not find the company to be eligible. It also stands concluded that it has been wrongly mentioned in the minutes that discussion qua various factors such as status (stage) of preparedness, technical experience or techno-economic feasibility aspects etc. took place and that decision of Screening Committee was based on said discussion. I have also already discussed that even if no discussion/deliberation which took place in the meeting was to be mentioned still the aforesaid facts ought to have been mentioned in the minutes by A-3 H.C. Gupta so as to present a clear picture before the competent authority i.e. Prime Minister as Minister of Coal. The non-mentioning of the aforesaid facts is thus clearly a conscious act on the part of A-3 H.C. Gupta. It can not be claimed by him being Secretary Coal and Chairman Screening Committee that in his opinion such facts were not required to be mentioned for the mentioning of said facts could have only provided objectivity and transparency not only to the decision of the Screening Committee but also in the subsequent approval of the recommendations by competent authority. The actions CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 300 of 429 of A-3 H.C. Gupta as described above thus can not be stated to have been taken in good faith.
358. In this regard it would be apt to refer to some observations of Hon'ble Supreme Court as made in para 38-41 in the case Noida Entrepreneurs Association Vs. Noida and others (2011) 6 SCC 508 in almost similar circumstances.
"38. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse, etc. acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.
39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic from of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any rule, it is unpredictable and such a decision is antithesis to be decision taken in accordance with the rule of law.
40. The public trust doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. The rule of law is the foundation of a democratic society.
41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. "Public authorities CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 301 of 429 cannot play fast and loose with the powers vested in them." A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this contest, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other."
359. As regard the alleged meeting held between Sh. T.K.A. Nair Principal Secretary to Prime Minister with Secretary Coal i.e. A-3 H.C. Gupta and Secretary Steel i.e. DW 3 R.S. Pandey, I may state that in view of Section 114, Indian Evidence Act, 1872 there is no reason to disbelieve the correctness or veracity of note dated 16.07.2008 prepared by PW28 Ms. Vini Mahajan the then Joint Secretary PMO in the routine course of discharge of her official duties. In the said note it has been stated that Principal Secretary discussed the matter today with Coal Secretary and Steel Secretary and who confirmed that the proposal is based strictly on the merits of the applicants including the recommendation of the State Governments where the blocks are located.
360. In this regard it has been argued by Ld. Counsel for A-3 H.C. Gupta that admittedly DW 3 R.S. Pandey was not present in the Screening Committee meeting held on 03.07.2008 and thus PW 29 U.P. Singh Joint Secretary, Steel who was present in the meeting must have only briefed him about the proceedings which took place in the meeting. It was thus submitted that on the basis of said briefing only DW 3 R.S. Pandey must have told Sh. T.K.A. Nair in the meeting held on 16.07.2008 that the proposal is based strictly on the merits of the applicants.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 302 of 429
361. In this regard I may, however, state that firstly no question or suggestion was put to PW 29 U.P. Singh in his cross-examination as to whether after the meeting held on 03.07.2008 he briefed Secretary Steel about the proceedings of the meeting or not. Moreover, DW 3 Sh. R.S. Pandey i.e. a witness examined by A-3 H.C. Gupta himself in his defence, stated in his examination-in-chief itself that he does not remember whether Sh. U.P. Singh after attending the Screening Committee Meetings ever put up any note before him or orally briefed him regarding the proceedings of the Screening Committee Meeting which was attended by him. He also stated that it was not necessary that whenever any officer from ministry attends a meeting in any other ministry of Government of India or any other department then he is necessarily supposed to put up a note in the file informing the senior officers about the proceedings and outcome of the said meeting. As regard the meeting dated 16.07.2008 he in fact claimed ignorance stating that he does not remember having attended any such meeting.
362. Moreover, in the deposition of PW 28 Ms. Vini Mahajan when she deposed about the impugned meeting dated 16.07.2008 having taken place between Sh. T.K.A. Nair Principal Secretary to Prime Minister, A-3 H.C. Gupta Secretary Coal and DW 3 R.S. Pandey Secretary Steel no question or suggestion was even put to her in her cross-examination on behalf of A-3 H.C. Gupta that no such meeting ever took place. The said witness in fact has claimed that she herself was present in the meeting when both Secretary Coal and Secretary Steel informed to Principal Secretary to Prime Minister that the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 303 of 429 proposal is based strictly on the merits of the applicants.
363. In view of the aforesaid nature of evidence, it thus stands categorically proved that a meeting dated 16.07.2008 did take place between Sh. T.K.A. Nair Principal Secretary to Prime Minister, A-3 H.C. Gupta and DW 3 R.S. Pandey, wherein PW 28 Ms. Vini Mahajan was also present. Any stand being now taken by A-3 H.C. Gupta claiming ignorance about any such meeting having taken place or not is clearly an afterthought and primarily taken with a view to wriggle out of yet another wrong representation made by him in PMO.
364. As regard the claim of Ld. Counsel for A-3 H.C. Gupta that DW 3 R.S. Pandey Secretary Steel must have stated before Sh. T.K.A. Nair that the proposal is based strictly on the merits of the applicants on the basis of briefing given to him by PW 29 U.P. Singh, it will be suffice to state that his statement to this effect made in the said meeting as compared to the statement made by A-3 H.C. Gupta himself who was present in the Screening Committee meeting held on 03.07.2008 and in fact was Chairing the meeting pales into complete insignificance. Admittedly, DW 3 R.S. Pandey himself was not present in the meeting. Accordingly, a presumption can only be drawn that any such statement made by him in the meeting held with Sh. T.K.A. Nair on 16.07.2008 must have been on the basis of information given to him by officers of Ministry of Steel who had gone to attend the Screening Committee Meeting. However, still nothing can be read either against PW 29 U.P. Singh even if he had stated to DW 3 R.S. Pandey that recommendations have been made on the basis of merits CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 304 of 429 of the applicant companies, for in the meeting as already discussed and demonstrated above after he had expressed his objection to the recommendation being made in favour of M/s VISUL qua Rajhara Coal Block, then A-3 H.C. Gupta, as per PW 29 U.P. Singh, specifically stated that though the view of Ministry of Steel is well taken but in the present case the end use plant as well as the coal block in question are both situated in the State of Jharkhand and State Government is strongly recommending in favour of M/s VISUL so the views of State Government shall hold ground as against that of Ministry of Steel. Thus, in these circumstances it is quite natural to believe for PW 29 U.P. Singh that the recommendation in favour of M/s VISUL qua allocation of Rajhara Coal Block being made by A-3 H.C. Gupta at the insistence of A-6 A.K. Basu despite objection being put by Ministry of Steel must have been on merits. However, as I have already discussed and demonstrated that neither the minutes of the meeting which were later on prepared in MOC and were approved by A-3 H.C. Gupta and were not even sent for confirmation to members of Screening Committee prior to their approval contain any such dissenting view of Ministry of Steel nor the minutes contain any discussion qua inter se merit of the applicant companies. Thus nothing much can be read if DW 3 R.S. Pandey stated in the meeting held on 16.07.2008 with Sh. T.K.A. Nair that the proposals have been based strictly on the merits of the applicants as drawing of such a presumption by DW 3 R.S. Pandey regarding the work of Screening Committee headed by a Secretary level officer i.e. A-3 H.C. Gupta Secretary Coal was a reasonable conclusion.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 305 of 429
365. However at the same time, the statement made by A-3 H.C. Gupta in the said meeting of 16.07.2008 again shows his deliberate intention of not disclosing the true and correct facts in the PMO. In fact it will be interesting to point out that the minutes of 36 th Screening Committee Meeting were forwarded to Prime Minister as Minister of Coal through Minister of State for Coal by A-3 H.C. Gupta vide his detailed note dated 14.07.2008 as recorded in file Ex. PW 27/D (colly) (D-116). In the said note A-3 H.C. Gupta even referred to a representation given by M/s Contisteel Limited which was recommended for joint allocation of Hurilong Hutar Sector-C coal block by 36th Screening Committee. In the said representation, the company had stated that as they are asking for much smaller quantity of coal and want to work peacefully, so they may be recommended for allocation of Rajhara coal block on exclusive basis and that M/s Mukund Ltd. and M/s VISUL may be recommended for Hurilong Hutar Sector-C coal block. A-3 H.C. Gupta however went on to observe further in his note that as M/s VISUL has not applied for Hurilong Hutar Sector-C block and in the past a block has never been allotted to a company who had not applied for it so if the request of M/s Contisteel is to be considered then perhaps as a special case willingness of M/s VISUL may be ascertained. It was also stated in the note that the recommendations received from the State Governments and concerned Ministries have been kept in a separate folder in the file.
366. The purpose of mentioning the aforesaid facts is only to CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 306 of 429 highlight that while forwarding the minutes of 36 th Screening Committee for approval of Prime Minister as Minister of Coal, A-3 H.C. Gupta did refer to M/s VISUL as having been recommended for joint allocation of Rajhara coal block and also about recommendations received from State Governments and concerned Ministries having been placed in a separate folder but still for reasons best known to him chose to remain silent that M/s VISUL was not recommended by State Government of Jharkhand in any of its earlier three recommendations received in MOC and that too as late as in the month of June i.e. vide letter dated 20.06.2006 Ex. PW 6/M of Sh. Subodh Kishore Sorang Dy. Secretary (Mines) Government of Jharkhand. He also did not mention that Ministry of Steel has also not found company M/s VISUL to be eligible for allocation of a coal block.
367. Thus, from my aforesaid discussion, it stands proved beyond shadows of all reasonable doubts that A-3 H.C. Gupta made conscious efforts even in a meeting held at PMO before minutes of 36th Screening Committee were put up for approval to Prime Minister as Minister of Coal to not disclose true and correct facts atleast as regard recommendation made in favour of M/s VISUL for allocation of Rajhara Coal Block.
368. A-3 H.C. Gupta knew very well that Prime Minister as Minister- in-Charge was to act upon the recommendation of Screening Committee only. In fact the Screening Committee as earlier also mentioned was constituted for that purpose only i.e. it will screen all proposals and will make its recommendations objectively and in a CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 307 of 429 transparent manner. Moreover, as Secretary Coal A-3 H.C. Gupta was not only the Administrative Head of the Ministry but was also the principal advisor of the Minister on all matters of policy and administration within his Ministry. Thus as the file containing recommendation of Screening Committee was to be put up to Prime Minister as Minister of Coal so responsibility of A-3 H.C. Gupta was all the more onerous in ensuring that complete and correct facts are placed before him. There was certainly no apparent reason for Prime Minister as Minister In charge to disbelieve the minutes of 36 th Screening Committee as were forwarded to PMO by A-3 H.C. Gupta and that too followed by note dated 16.07.2008 of PW-28 Ms. Vini Mahajan as discussed above. He had no reason to doubt that the said minutes do not contain true and correct facts.
369. Thus in view of my aforesaid discussion it can be stated at the cost of repetition that the decision of 36 th Screening Committee to recommend M/s VISUL for allocation of Rajhara Coal Block was not a unanimous decision. It also stands proved beyond shadows of all reasonable doubts that the minutes Ex. PW 18/DX-5 (Colly) which were later on prepared in MOC and were admittedly approved by A-3 H.C. Gupta does not contain true and complete facts. It is also an undisputed fact that the said minutes prior to their approval in MOC or even by the competent authority i.e. Prime Minister as Minister of Coal were not sent for confirmation to the members of Screening Committee. It also stands clearly proved that A-3 H.C. Gupta deliberately did not mention in the minutes Ex. PW 18/DX-5 (colly) CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 308 of 429 that State of Jharkhand in its earlier three recommendations sent to MOC had not recommended M/s VISUL and also that Ministry of Steel as per its criteria did not find M/s VISUL to be an eligible company so as to be recommended for allocation of a coal block.
370. However as earlier mentioned whether the aforesaid incriminating circumstances which stands cogently proved against A-3 H.C. Gupta makes him a conspirator with other co-accused persons or not shall be discussed at a later stage of the present judgment.
Role of private parties i.e. A-1, M/s VISUL, A-2 Vaibhav Tulsyan, A-8 Vijay Joshi and A-9 Navin Kumar Tulsyan.
371. After having discussed the role played by various public servants i.e. A-3, H.C. Gupta, Secretary, Coal and Chairman, Screening Committee, A-4 B.K. Bhattacharya, Section Officer, Department of Mines, Government of Jharkhand, A-5 B.B. Singh, Director (Mines) Government of Jharkhand, A-6 A.K. Basu, Chief Secretary, Government of Jharkhand and that of A-7 Madhu Koda, the Chief Minister, Government of Jharkhand, I now intend to discuss the role of private persons involved i.e. company A-1, M/s VISUL, A-2 Vaibhav Tulsyan, A-8 Vijay Joshi and A-9 Navin Kumar Tulsyan in the impugned coal block allocation process. However, in order to appreciate their roles, it will be important to revisit certain facts and circumstances of the case, even though at the cost of repetition.
Role of A-2 Vaibhav Tulsyan and A-9 Navin Kumar Tulsyan
372. I shall be however first of all discussing an important issue CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 309 of 429 relating to group companies as the same is important for appreciating the roles played by A-2 Vaibhav Tulsyan and A-9 Navin Kumar Tulsyan.
373. It is the case of prosecution that while submitting application Ex. P-60 (Colly) on behalf of M/s VISUL seeking allocation of "Rajhara Coal Block", the company beside furnishing the required information as was asked for by MOC in the prescribed proforma also furnished certain additional information. In the prescribed proforma MOC had asked for figures of turn-over and profit for the last three years of the applicant company beside asking the net-worth of the applicant company as on 31.03.06. However it has been pointed out that in the application Ex. P-60 (Colly) submitted on behalf of M/s VISUL under the signatures of it's the then director namely A-2 Vaibhav Tulsyan, certain additional information i.e. figures of group turn-over and group profit for the last three years beside also furnishing group net-worth as on 31.03.06 was mentioned. It has been also submitted that alongwith the application a certificate dated 04.08.2006 Ex. P-59 (Admitted u/s 294 Cr.PC) issued by A-9 Navin Kumar Tulsyan, Proprietor, Tulsyan N.K. & Company, Chartered Accountants was also annexed. In the said certificate titled "To whom it may concern" A-9 Navin Kumar Tulsyan had mentioned names of 15 companies/firms and certified them to be the group concern/associate concern of M/s VISUL. The collective net-worth turn-over and net profit of the said companies/firms for three years i.e. 2003-04, 2004-05 and 2005-06 were also mentioned in the certificate beside stating that the said CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 310 of 429 figures were based on the basis of balance sheets provided to them.
374. However it is the case of prosecution that except for companies mentioned at S. No. 1 to 6 in the said certificate the remaining nine (9) companies/firms can in no way be termed as group concern/associate concern of M/s VISUL. The said six (6) companies as mentioned at serial No. 1 to 6 in the certificate are as under:
(i) ACM Fuels Pvt. Limited;
(ii) Auroma Coke Manufactures Pvt. Ltd.;
(iii) SRS Hotel Pvt. Ltd.;
(iv) Auroma Coke Limited;
(v) Smart Dealers Pvt. Ltd. And
(vi) ACM Finvest Pvt. Ltd., The remaining nine (9) companies/firms as mentioned in the certificate are as under:
(vii) Vikas Viniyog Pvt. Ltd.;
(viii) SK Fintex Pvt. Ltd.;
(ix) Madhushri Finvest Pvt. Ltd.;
(x) Burlington Barter Pvt. Ltd.;
(xi) Krittika Jewellers;
(xii) Ram Pratap Katta Jewellers;
(xiii) Naman Bullion Corporation;
(xiv) Naman Vinayak Industries and
(xv) Naman Gold Corporation
375. It has been submitted that though in the first six (6) companies CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 311 of 429 one or the other Tulsyan family member was associated as a director/Managing Director but in none of the other nine (9) entities as are mentioned in the certificate there was any relation between Tuslyan family members and the owners/promoters of said entities. In order to substantiate and prove the said allegations, prosecution examined PW-8 Dipak Murarka, PW-9, Manoj Jha, PW-10 Anubhav Kumar Kanodia and PW-15 Anil Kumar Khandelwal. The said witnesses deposed that upon coming to know about the proposal of M/s VISUL to establish a sponge iron plant they had expressed interest in investing in the said project and to be thus associated with M/s VISUL. They also stated that on this account only they had issued necessary letters (Though most of such letters are undated) expressing their intention to invest in the said steel project of M/s VISUL and had also provided the balance sheets of their companies/firms. They further deposed that subsequently when no such project or proposal materialised so they did not pursue the matter any further with M/s VISUL. It has been thus submitted by the prosecution that from the deposition of said witnesses or the letters issued by them it can not be concluded that the said nine (9) entities were in any manner group concern/associate concern of M/s VISUL. It was also submitted that the said certificate was got issued from A-9 Navin Kumar Tulsyan with a view to present a higher status (stage of preparedness of the company M/s VISUL in establishing the end use project. It was also submitted that though the said certificate was issued in December 2007 but it has been antedated so as to show that the same was not obtained with a view to apply before 36 th CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 312 of 429 Screening Committee.
376. On the other hand, it has been strongly argued by Ld. Sr. Advocate Sh. N. Hariharan for A-2 Vaibhav Tulsyan and A-9 Navin Kumar Tulsyan that neither the guidelines issued by MOC nor any other communication of MOC provides the definition of the word "Group Companies". Reference in this regard was accordingly made to the meaning of "Group" as given in various dictionaries as under:
"d. Meaning of Associate (noun) in the Oxford Dictionary is "a partner or companion in business or at work".
e. Meaning of Associate (noun) in thefreedictionary.com is as under:
i) A person united with another or others in an act, enterprise, or business; a partner or colleague.
ii) A companion; a comrade.
Iii) One that habitually accompanies or is associated with another; an attendant circumstance.
f. As per the Legal Glossary of the Government of India, Ministry of Law and Justice, the word associate means 'one who is united to others by community of interest' and also 'to joint in any action or in companionship for a common purpose'."
377. It was thus submitted by Ld. Sr. Advocate that from the aforesaid meaning of the word "Group" as given in various dictionaries it is clear that as all the 9 companies had agreed to pool necessary financial resources with a view to associate with the proposed steel project of M/s VISUL so they all were unified by their common commercial objective and practically constituted associate concerns of the company and vice-versa. It was also submitted that in the deposition of PW-21 Swapan De Chaudhary, it has come on record CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 313 of 429 that M/s VISUL had also applied for "Bihari Nath" coal block in 34th Screening Committee and in September 2006 a presentation before 34th Screening Committee was made by him. He has also deposed that the said certificate issued by A-9 Navin Kumar Tulsyan was used at that time also by M/s VISUL and thus the allegation of prosecution that the certificate in question has been ante-dated does not hold ground.
378. It was thus submitted by Ld. Sr. Advocate that prosecution has miserably failed to prove that either the certificate in question was issued by A-9 Navin Kumar Tulsyan as part of any criminal conspiracy or that mentioning of group financial figures in the application Ex. P-60 (Colly) by A-2 Vaibhav Tulsyan was in furtherance of any criminal conspiracy.
Conclusion regarding issue of Group Companies.
379. In order to appreciate the aforesaid issue it will be proper to first briefly discuss as to in what circumstances any two given companies can be termed to be Group Companies. Though Ld. Counsel for accused submitted that MOC never defined the meaning of the word "Group" and thus no criminality can be seen in the actions of accused now on the basis of some new interpretation which may be provided to the word "Group" by the Court.
380. In this regard, I am however of the considered opinion that the said concept of Group Companies has been well explained by Hon'ble CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 314 of 429 Supreme court in the case Commissioner of Central Excise Mumbai V Vs. M/s 'J' Foundation & Ors, 2015 SCC Online SC 1046.
381. The primary test as has been laid down by Hon'ble Supreme Court where two companies/firms belong to the same group is of mutuality of interest. While lifting the corporate veil it was observed by the Court that the test as to whether family concerns would be beneficiaries in the affairs of each other is the test of "mutuality of interest".
382. Thus as already conceded by the prosecution the first 6 (six) companies where one or the other Tulsyan family members were directors can always be termed as group companies of M/s VISUL. However as regard the other nine (9) business entities where admittedly none of the Tulsyan family members were associated in any manner it can not be stated that they were also group concern/associate concern of M/s VISUL. From the deposition of PW- 8 Dipak Murarka, PW-9, Manoj Jha, PW-10 Anubhav Kumar Kanodia and PW-15 Anil Kumar Khandelwal, it is clear that the owners/promoters of all such business entities had merely expressed interest in being associated with the proposed steel project of M/s VISUL. They however also stated that as nothing further materialised so the said proposal did not continue further. In these circumstances even if it is presumed to be true for the sake of arguments that all such owners/promoters of said nine (9) business entities agreed to be associated with the proposed steel project of M/s VISUL then also this CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 315 of 429 mere expression of interest can in no way make said nine (9) business entities to be group concern/associate concern of M/s VISUL merely on the basis of such expression of interest. Thus on the basis of said letters expressing their interest to be associated in the proposed steel project of M/s VISUL it can not be stated that the test of mutuality of interest stands satisfied.
383. Thus, by no stretch of imagination or logic the said nine (9) business entities can be termed as group concern/associate concern of M/s VISUL. There is yet another aspect of the matter pertaining to the period when the ownership of company M/s VISUL got changed. Certainly consequent to change of ownership of M/s VISUL from Tulsyans to M/s Saturn Iron Ore and Mining Ltd. Or finally to A-8 Vijay Joshi, the first six (6) entities even as per the logic and reasoning given by Ld. Counsel for A-2 Vaibhav Tulsyan, ceases to be group concern or associate concern of M/s VISUL. From the deposition of PW-8 Dipak Murarka, PW-9, Manoj Jha, PW-10 Anubhav Kumar Kanodia and PW-15 Anil Kumar Khandelwal it is also clear that they all had consented to be associated with the proposed steel project of M/s VISUL only because of their acquaintance with Tulsyans.
384. These facts also rather tends to explain as to why upon change of ownership no intimation was given to MOC. The company M/s VISUL would have been thus required to clear its stand as to which of 15 companies/firms continue to be its group/associate concern. The figures relating to group turnover, group profit and net-worth of the group would have been required to be clarified. This would have CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 316 of 429 entailed a reduction in those figures and thereby lowering the status of applicant company M/s VISUL on an important factor i.e. net-worth as compared to that of other applicant companies.
385. Thus, from my aforesaid discussion, it is clear that the nine (9) companies/firms as were mentioned in the certificate Ex. P-59 issued by A-9 Navin Kumar Tulsyan from serial No. (vii) to (xv) can not be considered as group concern/associate concern of M/s VISUL. More so, issuance of such a certificate by a professionally qualified Chartered Accountant, as A-9 Navin Kumar Tulsyan was, does not appeal to any reason or logic. It is also thus clear that the names of said nine (9) companies/firms were mentioned in the certificate by A-9 Navin Kumar Tulsyan so as to facilitate Tulsyans the then owners/promoters of M/s VISUL to mention in their application submitted to MOC a higher financial status/capability of M/s VISUL in establishing the proposed end use project. Consequently, mentioning of said group financial figures by modifying the prescribed proforma was also with an intention to mislead the Screening Committee, MOC so as to procure allocation of a captive coal block in favour of M/s VISUL.
386. I now intend to discuss other incriminating circumstances as have been alleged against A-2 Vaibhav Tulsyan. However discussion of the said circumstances shall be taken up together with the incriminating circumstances as have been alleged against company M/s VISUL (A-1) and as against A-8 Vijay Joshi, for the discussion qua all such circumstances shall overlap.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 317 of 429
387. Another important incriminating circumstance alleged against A-2 Vaibhav Tulsyan is that even though company M/s VISUL is stated to have been sold to M/s Saturn Iron Ore & mining Ltd. on 29.05.2008 by way of MOU Ex. PW 14/A and in the said MOU, it is mentioned that all blank share transfer deeds have been given to PW- 23 Arvind Vyas of M/s Saturn Iron Ore & Mining Ltd. but on 30.04.2008 A-2 Vaibhav Tulsyan had transferred 5000 shares of M/s VISUL to PW-12 Amit Sharma vide share transfer deed dated 30.04.2008 Ex. P-84. It has been submitted that though A-2 Vaibhav Tulsyan has claimed that till 29.05.2008 company M/s VISUL was with Tulsyans but it is found that on 06.05.08 PW-12 Amit Sharma, admittedly an employee of A-8 Vijay Joshi had applied to Department of Industries, Government of Jharkhand vide letter dated 06.05.08 Ex. P-98 seeking extension of MOU dated 14.09.06 executed with M/s VISUL by Government of Jharkhand and that he signed the said letter as Director, M/s VISUL.
Prosecution has thus alleged the said circumstance to be a strong indicator of existence of a criminal conspiracy between Tulsyans, the earlier owners of M/s VISUL and A-8 Vijay Joshi. It has also been alleged by the prosecution that even after sale of the company, Tulsayns, the earlier owners of M/s VISUL continued to support A-8 Vijay Joshi in execution of the impugned criminal conspiracy so as to procure allocation of a captive coal block in favour of M/s VISUL.
388. On the other hand, Ld. Counsel for A-2 Vaibhav Tulsyan has CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 318 of 429 stated the said letter dated 06.05.08 to be a forged and fabricated letter planted in the files of Department of Industries, Government of Jharkhand without the knowledge of earlier owners of M/s VISUL. As regard the share transfer certificate Ex. P-84 dated 30.04.2008, it has been submitted that as mentioned in the MOU Ex. PW 14/A executed between Tulsyans and M/s Saturn Iron Ore and Mining Ltd. blank transfer deeds were given to PW-23 Arvind Vyas at the time of execution of MOU on 29.05.2008 and thus it was for PW-23 Arvind Vyas to explain as to how on share transfer deed Ex. P-84 date 30.04.2008 came to be mentioned. As regard post sale co-operation as alleged between Tulsyans, the earlier owners of M/s VISUL and A- 8 Vijay Joshi, it was submitted that though all such allegations have not been proved by the prosecution beyond shadows of all reasonable doubts but even otherwise no overt or covert act of A-2 Vaibhav Tulsyan has been proved by the prosecution in this regard.
389. As already mentioned these issues shall be taken up for discussion at a slightly later stage.
390. Similarly yet another issue raised by Ld. Counsel for A-2 Vaibhav Tulsyan that such enhanced financial figures of group companies as were mentioned in the application were not relied upon by the Screening Committee with a view to recommend M/s VISUL for allocation of "Rajhara Coal Block" shall also be discussed by me at a later stage of the present judgment.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 319 of 429 Role of A-1 M/s VISUL and A-8 Vijay Joshi.
391. As regard A-1 M/s VISUL, it has been alleged by the prosecution that initially while applying for allocation of a coal block on behalf of the company, the then director A-2 Vaibhav Tulsyan in the application Ex. P-60 (Colly) (D-7) intentionally mentioned the financial figures of certain companies/firms stating them to be group companies of M/s VISUL, so as to present a higher level of financial capability to establish the proposed end use project. It has also been alleged that 5000 shares of M/s VISUL were transferred to PW-12 Amit Sharma on 30.04.2008 by A-2 Vaibhav Tulsyan, the then director of M/s VISUL and thereafter PW-12 Amit Sharma applied on behalf of the company to Department of Industries vide letter dated 06.05.08 Ex. P-98 seeking extension of MOU dated 14.09.06 executed with M/s VISUL by Government of Jharkhand. It has also been alleged that said letter dated 06.05.08 submitted on the letter head of M/s VISUL by PW-12 Amit Sharma representing himself to be a director of the company was followed up by another letter dated 20.05.2008 of PW-21 Swapan De Choudhary a Consultant of M/s VISUL, furnishing further information about progress made by the company towards establishing its end use project. It has thus been alleged that pursuant to said request dated 06.05.08 of M/s VISUL followed by letter dated 20.05.2008 of PW-21 Swapan De Choudhary, Government of Jharkhand extended the MOU of M/s VISUL for a period of two years and that too with retrospective effect. It is also the case of prosecution that despite the sale of M/s VISUL to M/s Saturn Iron Ore and Mining CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 320 of 429 Ltd., its affairs continued to be managed and controlled by A-8 Vijay Joshi. It has thus been stated that all the acts of the alleged criminal conspiracy whether done by the earlier owners/promoters of M/s VISUL or by A-7 Madhu Koda and A-8 Vijay Joshi himself or through other persons were done on behalf of company M/s VISUL only and thus the company being the ultimate beneficiary of allotment of "Rajhara Coal Block" in its favour can not escape away from its liability of being part of the said criminal conspiracy.
392. As against A-8 Vijay Joshi also the prosecution has alleged that all the acts on behalf of M/s VISUL from around the month of May 2008 onwards and after joint-allocation of "Rajhara Coal Block" in favour of M/s VISUL and M/s Mukund Ltd. as have been mentioned above were controlled and managed by A-8 Vijay Joshi in conspiracy with A-7 Madhu Koda. It has also been alleged that the earlier owners i.e. Tulsyans were acting in conspiracy with A-8 Vijay Joshi in procuring allocation of "Rajhara Coal Block" in favour of M/s VISUL. It was submitted that Hemant Aggarwal who was a director of M/s VISUL alongwith Tulsyans was made to continue in the board of directors of M/s VISUL after sale of the company to M/s Saturn Iron Ore Steel Ltd. so as to facilitate allocation of a captive coal block to M/s VISUL.
393. On the other hand Ld. Counsel for A-2 Vaibhav Tulsyan has strongly denied the said facts. It has been submitted that Hemant Aggarwal as is mentioned in the MOU itself continued on the board of directors even after sale of company only till the time a new board of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 321 of 429 directors is formed by the acquirers. All such allegations of there been any co-operation between the earlier owners of M/s VISUL and the new owners was stated to be false.
394. However, as already mentioned since a discussion of various incriminating circumstances as alleged against A-1, M/s VISUL, A-2 Vaibhav Tulsyan and A-8 Vijay Joshi shall be overlapping so all the said circumstances are proposed to be dealt with together herein- after.
395. Thus some of the important issues which needs to be discussed can be delineated as under:
1) Whether A-8 Vijay Joshi was a close associate of A-7 Madhu Koda having close links with him.
2) Whether the affairs of A-1 M/s VISUL were controlled and managed by A-8 Vijay Joshi from around the month of May 2008.
3) Circumstances relating to sale of A-1 M/s VISUL to M/s Saturn iron Ore and Mining Ltd.
4) Circumstances in which Mr. Hemant Aggarwal was made to continue on the Board of Directors of M/s VISUL.
5) Circumstances in which valuation of shares of M/s VISUL was fixed at Rs. 230/- per share at the time of its sale to M/s Saturn Iron Ore and Mining Ltd.
6) Whether letter dated 06.05.08 Ex. P-98 (D-82) submitted by PW-12 Amit Sharma to Department of Industries, Government of Jharkhand is a forged and fabricated letter.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 322 of 429
7) Whether A-8 Vijay Joshi was the brain behind all the acts undertaken by PW-12 Amit Sharma, PW-13 Gaurav Aggarwal, PW-14 Prabhash Mittal and PW-23 Arvind Vyas qua the affairs of A-1 M/s VISUL.
Conclusion regarding aforesaid issues:
396. In this regard it would be worthwhile to refer to the deposition of PW-13 Gaurav Aggarwal who alongwith one Bastimal Shal had become Director of M/s VISUL in the year 2008. He deposed that he was engaged in mining business and was running a company with the name of M/s Manmohan Industries Pvt. Ltd. with its head office at Patna and Branch office at Jamshedpur. He further stated that though the said industry was registered in the year 1994 but the actual mining business started in the year 2003. He also deposed that though he and his family members were primarily Directors in the said company but in the year 2006 one Bastimal Shah who was having vast experience in the field of mining and metallurgy and was a known face in the industry was inducted as a President of their company. He further deposed that somewhere around May 2008 his Manager received a phone call from Department of Mines, Government of Jharkhand stating that P.A. to the then Chief Minister, A-7 Madhu Koda wanted to visit their project site. He accordingly asked his Manager to facilitate the said visit. He further deposed that subsequently he came to know that one Binod Sinha who was well known to be close to the then Chief Minister, Madhu Koda had visited the project site. He further deposed that thereafter he received a number of phone calls enquiring about the projects which include CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 323 of 429 mining also. He further stated that subsequently Binod Sinha called him and Bastimal Shah to Ranchi and over there Binod Sinha made various enquiries from them regarding their mining experience and for setting up a sponge iron plant and later on during certain subsequent meetings, Binod Sinha also introduced them to one Vijay Joshi (A-8) stating him to be his friend and told them that Vijay Joshi was interested in setting up a steel plant. He also deposed that A-8 Vijay Joshi was introduced to him as a Director of M/s Indo Ashai Glass Factory Ltd.
397. PW-13 Gaurav Aggarwal further deposed that thereafter A-8 Vijay Joshi used to interact with them and he told him and Bastimal Shah to become Directors of one of their company i.e. M/s VISUL stating that they wanted some persons having mining experience on the Board of the said company. He further deposed that even though he and Bastimal Shah were reluctant to become directors of the said company but at the insistence of A-8 Vijay Joshi and Binod Sinha they agreed. He also deposed that as A-8 Vijay Joshi and Binod Sinha were well known to be close to the power quarters in the state and especially to A-7 Madhu Koda so they could not have afforded to annoy them.
398. He further deposed that though he and Bastimal Shah had no role to play in the affairs of M/s VISUL despite being Directors thereof but at some point of time A-8 Vijay Joshi had called them to Delhi stating that they should remain present in Delhi as their presence may be required in connection with some work. Accordingly he alongwith CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 324 of 429 Bastimal Shah remained in Delhi for about 2-3 days. He further deposed that during those days he was asked to sign some agreement whereby some joint venture company was being formed between M/s VISUL and M/s Mukund Ltd.. He also deposed that at that time they came to know that M/s VISUL has been allotted a coal block by MOC, Government of India jointly with M/s Mukund Ltd.. He further deposed that at the asking of A-8 Vijay Joshi, he had signed only two other documents of M/s VISUL beside the said joint venture agreement i.e. one map and a document relating to bank guarantee which was obtained by M/s VISUL. He also deposed that at no point of time he purchased any shares of M/s VISUL and thus denied having purchased 100 shares of M/s VISUL for a sum of Rs. 23000/- from M/s Saturn Iron Ore and Mining Ltd. Vide share transfer form Ex. P-94 (Colly) stating that he never made any payment in this regard. He also deposed that even in the year 2010 he had sent a letter to M/s VISUL resigning from the directorship of the company and subsequently even personally delivered a copy thereof in the office of Registrar of Companies, Kolkata.
399. However, in the cross-examination of this witness as was carried out by Ld. Counsel for A-1 M/s VISUL and A-8 Vijay Joshi certain improvements made by the witness over his statements recorded u/s 161 Cr.PC were pointed out as regard the fact as to whether they had come to Delhi at the instance of Binod Sinha or A-8 Vijay Joshi. It was also pointed out to him that in his statement u/s 161 Cr.PC he stated that Binod Sinha had called him to Shastri CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 325 of 429 Bhawan, MOC office, Delhi. It was also found that in his statement u/s 161 Cr.PC he had not stated that he was called to Delhi by A-8 Vijay Joshi. PW-13 Gaurav Aggarwal was also suggested that during the period when he remained Director of M/s VISUL he played an active role in the affairs of the company. Though the witness stated the said suggestion to be wrong but the important issue to be taken note of from his entire deposition is that his statement as made by him in his examination-in-chief that Binod Sinha who was a close associate of Chief Minister i.e. A-7 Madhu Koda had made a number of enquiries from him regarding their mining experience and in setting up of a sponge iron plant, was not at all disputed in his cross-examination by the accused persons. It was also not disputed in his cross- examination either by way of a question or suggestion that A-8 Vijay Joshi was introduced to him and Bastimal Shah by Binod Sinha. His further statement as made in his examination-in-chief that he and Bastimal Shah were infact reluctant to become directors in M/s VISUL but they so became as they could not have afforded to annoy A-8 Vijay Joshi and Binod Sinha since they were well known to be close to the power quarters in the State and especially to Chief Minister i.e. A- 7 Madhu Koda, was also not at all controverted or disputed by A-7 Madhu Koda or by A-8 Vijay Joshi. In fact in his cross-examination as was conducted by Ld. Counsel for A-7 Madhu Koda, a suggestion was put to him that he had only heard that A-8 Vijay Joshi and Binod Sinha were close to Madhu Koda and that he had no personal knowledge in this regard except having heard the said fact in general from public.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 326 of 429
400. It thus stands well proved that at least in public opinion Binod Sinha and A-8 Vijay Joshi were two close associates of the then Chief Minister of the State i.e. A-7 Madhu Koda. [In fact in such kind of matters or issues the general public opinion or perception matters a lot and direct evidence is not only difficult to be gathered but is generally not available. This issue shall be however discussed again at a later stage also especially in the light of various acts done by A-7 Madhu Koda and other officers of Government of Jharkhand so as to favour M/s VISUL]. The fact that the administration of Government of Jharkhand also got involved in the process is evident from the fact that the initial phone call made to the Manager of PW-13 Gaurav Aggarwal was from Department of Mines, Government of Jharkhand stating that PA to the Chief Minister wanted to visit their project site. This fact as deposed to by PW-13 Gaurav Aggarwal has also not been disputed in his cross-examination.
401. At this stage, I may also mention that from number of other circumstances also which I shall be discussing herein-after the conclusion that A-8 Vijay Joshi acquired interest in M/s VISUL only because of the fact that he was a close associate of A-7 Madhu Koda and also that A-8 Vijay Joshi was primarily controlling and managing the affairs of the company M/s VISUL, will further get re-inforced.
402. At this stage, I may mention that though qua such nature of circumstances direct evidence can hardly be ever available but the facts of the present case speak loudly about these circumstances. At the cost of repetition I may state that since the factum of Binod Sinha CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 327 of 429 and A-8 Vijay Joshi being close associates of Chief Minister of the State as deposed to by PW-13 Gaurav Aggarwal has remained uncontroverted in his cross-examination so this fact stands cogently proved on record. However, in this regard deposition of PW-23 Arvind Vyas will also be worth referring to. His deposition cogently proves that all affairs of M/s VISUL were being managed and controlled by A- 8 Vijay Joshi only.
PW-23 Arvind Vyas deposed that in the year 2008 M/s Saturn Iron Ore and Mining Ltd. was got incorporated in Mumbai. He further stated that he has been a director in the said company since beginning. He also deposed that as he was interested in diversifying his business so one Chartered Accountant Rishabh Jain suggested him to invest in iron ore business. He accordingly told him to look out for any such likely prospects. He also deposed that in the year 2008 A-8 Vijay Joshi was introduced to him by said Rishabh Jain and he also told him about M/s VISUL being a company engaged in iron ore business and owned by Tulsyans'. He further deposed that thereafter A-8 Vijay Joshi also helped him in carrying out due diligence of M/s VISUL and even provided him with the services of one Chartered Accountant namely Prabhash Mittal. He thus twice visited Tulsyan family members i.e. the owners of M/s VISUL at Dhanbad and on one such occasion Prabhash Mittal also accompanied him. PW-23 Arvind Vyas further deposed that in about May 2008 at Dhanbad he had talks with one Vaibhav Tulsyan and Hemant Aggarwal and who told him that they have already applied for allocation of a coal block and that future CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 328 of 429 of company M/s VISUL was bright. He further deposed that after carrying out due diligence he agreed to purchase the said company on behalf of M/s Saturn Iron Ore and Mining Ltd. and an agreement in this regard was entered into with Tulsyan family members. The value of shares of M/s VISUL was fixed at Rs. 230/- per share and thus a total sum of Rs. 4.32 crores was to be paid to the Tulsyan brothers towards purchase of all shares of the company. He accordingly offered cheques dated 23.05.2008 to the Tulsyan brothers but they refused to accept the same and thus payment was thereafter transferred to their bank accounts by way of RTGS from the account of M/s Saturn Iron Ore and Mining Ltd. On 28.05.2008.
403. PW-23 Arvind Vyas further deposed that at the time of taking over company M/s VISUL, it was decided that one Hemant Aggarwal who was already a director in M/s VISUL shall continue to remain on the board of directors of the company as the technical aspects qua allocation of coal block etc. were to be looked after by him. PW-23 Arvind Vyas himself also became a director of M/s VISUL for a period of about 10 months. He also deposed that one Amit Sharma a person known to A-8 Vijay Joshi was also inducted as a director in M/s VISUL. He further deposed that at the instance of A-8 Vijay Joshi beside Amit Sharma one Bastimal Shah and Gaurav Aggarwal were also appointed as Directors of M/s VISUL. He however stated that he does not know any person with the name of Gaurav Aggarwal. He also claimed that even Bastimal Shah, Vinod Kumar and Pranob Kumar Sandell who subsequently became directors of M/s VISUL CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 329 of 429 were also not known to him. He further stated that subsequently on 31.03.2009 he resigned from the company as during that period some talks were going on to enter into a joint venture agreement with M/s Mukund Ltd. and he accordingly told A-8 Vijay Joshi that he will not be in a position to continue in the business with so many technicalities. He also deposed that at the time of taking over M/s VISUL all the documents as were collected from Tulsyan family members were handed over by him to A-8 Vijay Joshi. He further stated that even as regard joint venture agreement to be entered into between M/s VISUL and M/s Mukund Ltd., A-8 Vijay Joshi only was negotiating on behalf of M/s VISUL. He further stated that he was however also made a director in the said joint venture company so formed i.e. M/s Mukund Vini Mineral Private Limited. He also stated that all the affairs of M/s VISUL were being looked after by A-8 Vijay Joshi only.
404. PW-23 Arvind Vyas also deposed that even after transfer of shares from Tulsyan family members in the name of M/s Saturn Iron Ore and Mining Ltd., the share certificates remained with A-8 Vijay Joshi only and later on in the month of September 2008 all the said shares were transferred in the name of A-8 Vijay Joshi, his wife and other persons whose names were suggested by A-8 Vijay Joshi only. He also deposed that vide share transfer form Ex. P-84 (at page 5 in D-78) 5000 shares of M/s VISUL were even transferred in favour of PW-12 Amit Sharma (admittedly an employee of A-8 Vijay Joshi) on 30.04.2008 by A-2 Vaibhav Tulsyan. He further stated that even though the shares of M/s VISUL as were held in the name of M/s CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 330 of 429 Saturn Iron Ore and Mining Ltd. were subsequently sold to A-8 Vijay Joshi and other persons as suggested by him but no payment in that regard has been received by him till date. He further stated that though initially A-8 Vijay Joshi assured to make the payment but subsequently he stated that on account of fall in the share market and thereafter company M/s VISUL having become tainted so he is not able to sell the shares of M/s VISUL and thus shall make the payment as and when the shares are sold by him. PW-23 however stated that as he found the financial condition of A-8 Vijay Joshi to be not good so he did not initiate any legal proceedings against him even though he had written 2-3 letters to him asking for the payments.
405. As regard letter dated 06.05.08 Ex. P-98 submitted on behalf of M/s VISUL to Department of Industries, Government of Jharkhand seeking extension of their MOU dated 14.09.06 for a period of two years PW-23 Arvind Vyas stated that though letter dated 06.05.08 Ex. P-98 bears signatures of PW-12, Amit Sharma but he has no knowledge about the same. He however stated that Amit Sharma was a man of A-8 Vijay Joshi. He further stated that as on 06.05.08 the company M/s VISUL was with Tulsyan family members.
406. At this stage, I may also mention that from the statement of account of M/s Saturn Ion Ore & Mining Ltd. as was maintained in Union Bank of India Zaveri Bazar, Mumbai branch and which has been placed and proved on record by the prosecution as Ex. PW 23/D, it is clearly apparent that a huge sum of Rs. 4,40,00,000/- was deposited in the said account on 28.05.2008 only before it was CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 331 of 429 transferred by way of RTGS to different bank accounts of Tulsyans on 28.07.2008 itself. However prior to deposit of said amount of Rs. 4.40 crores in the said account of M/s Saturn Iron Ore & Mining Ltd. there was hardly a balance of Rs. 11,000/- available in the said bank account. Such a circumstance does raises eyebrows as to the source of said money. However, as no investigation has been carried out on the said aspect so it would remain in the realm of presumption only that had that aspect been investigated then source of said money would have also thrown some light on the impugned criminal conspiracy which is now being alleged by the prosecution as having been executed by the accused persons. Be that as it may, in the aforesaid circumstances I do not wish to go into any further length of the said issue.
407. Reverting back now to the deposition of PW-23 Arvind Vyas, it will be pertinent to mention that in his cross-examination it was vehemently disputed by Ld. Sr. Advocate Sh. N. Hariharan for A-2 Vaibhav Tulsyan that when he took over the company M/s VISUL then it was never decided that Hemant Aggarwal shall remain on the Board of Directors in order to look after the technical aspects qua coal block allocation. It was also pointed out that for this reason only no such fact was mentioned in the MOU Ex. PW 14/A (D-124). It was also pointed out that in the MOU it was mentioned that share certificates with blank transfer deeds duly signed by the seller have been handed over to Arvind Vyas. He was also suggested that Hemant Aggarwal continued on the Board of Directors of M/s VISUL only till the time all due CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 332 of 429 formalities of taking over were completed and in order to constitute the Board of acquirers only.
408. It was also specifically put to the witness by Ld. Counsel for A-2 Vaibhav Tulsyan that nothing was stated by Tulsyan family members to him that the company had already applied for allocation of a coal block and thus had a bright future. As regard valuation of shares of the company @ Rs. 230/- it was suggested that as the company was already having 55 acres of land in village Lupungdi i.e. near Tata Purulia, NH-32 Highway and whose value was Rs. 2.20 crores beside also having another piece of land valuing about Rs. 10 lacs in Village Keonjhar and the company was also having plant and machinery of Rs. 74 lacs, so the value of shares of the company was arrived at Rs. 230 per share. On the other hand in the cross examination of the witness as was carried out by Ld . Counsel Sh. Harsh Kumar Sharma on behalf of A-8 Vijay Joshi he admitted it to be correct that Amit Sharma was appointed as director of M/s VISUL as he had asked A-8 Vijay Joshi to provide him with some local person who can look after the affairs of the company on his behalf and as Amit Sharma was working in one of the company of A-8 Vijay Joshi and was also a resident of the same area. On a suggestion being put forth by Ld.Defence Counsel Sh. Harsh Sharma also the witness admitted it to be correct that share value was fixed at Rs. 230/- per share as the Tulsyan family members had stated that they will get both the iron ore mines and coal block allocated even after transfer of the company. He also admitted it to be correct as suggested by Ld. Counsel for A-1 M/s CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 333 of 429 VISUL and A-8 Vijay Joshi that Hemant Aggarwal continued to be a director of the company even after its acquisition by M/s Saturn Iron Ore and Mining Ltd. for the said purpose only. The witness also stated that this fact was not mentioned in the MOU as it was decided that in the MOU it shall be only mentioned that Hemant Aggarwal shall continue to remain on the Board of Directors till all the formalities of taking over were completed.
409. In view of the aforesaid nature of deposition of PW-23 coupled with the contradictory stands taken by A-2 Vaibhav Tulsyan on one hand and A-8 Vijay Joshi on the other hand, the only option left with the Court is to refer to the express language of said MOU Ex. PW 14/A in the light of attendant facts and circumstances of the case which may suggest as to in what regard the witness is deposing the true facts.
410. As regard MOU Ex. PW 14/A (D-124) it will be important to note that in the entire MOU entered into for acquisition of a company and that too for a sum of Rs. 4.32 crores there is no date of execution mentioned. Even none of the signatories of the MOU have chosen to put date below their signatures and in fact from out of four pages of the MOU only the fourth page carries signatures of the parties and none of the first three pages carries their signatures. However, the stamp paper on which the first page of the MOU has been written carries a stamp on the back of it from which the date of purchase of stamp paper can be ascertained as 29.05.2008. In these circumstances, the earliest the said MOU can be held to be executed CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 334 of 429 is 29.05.2008. In fact PW-23 Arvind Vyas also stated that payment by RTGS was transferred on 28.05.2008 and thereafter only MOU was executed.
411. At this stage, it will be pertinent to mention that during the course of investigation of the present case, original of the said MOU was neither produced by the Tulsyans nor by A-8 Vijay Joshi nor by PW-23 Arvind Vyas. However, one Sanjeev Tulsyan, a brother of A-2 Vaibhav Tulsyan and who too was a director of M/s VISUL produced a copy of said MOU to the IO. The same with various other documents were received by IO Insp. Vijay Chettiar vide receipt memo dated 04.08.2012, Ex. P-86 (D-123). The said memo alongwith all documents as were collected by Insp. Vijay Chettiar from said Sanjeev Tulsyan were admitted by A-2 Vaibhav Tulsyan u/s 294 Cr.PC. Though non-production of original MOU by any of the parties coupled with the fact that first three pages of the photocopy of MOU does not carry signatures of any of the parties to the MOU does raises some question-mark as to the genuineness of the photocopy of MOU so produced. In fact during the course of trial certain clauses mentioned on the first 2-3 pages of the MOU only have been strongly relied upon by the accused persons in support of their claims. It was argued on behalf of A-2 Vaibhav Tulsyan that on the 1 st and 2nd page of the MOU, it is mentioned that blank share transfer deeds duly signed by seller have been handed over to Arvind Vyas. It has been strongly disputed that vide share transfer form Ex. P-84, 5000 shares of M/s VISUL were transferred in favour of PW-12 Amit Sharma on 30.04.2008. It CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 335 of 429 was submitted that as all blank share transfer deeds were handed over to PW-23 Arvind Vyas only on 29.05.08 so question of transfer of 5000 shares to PW-12 Amit Sharma on 30.04.2008 does not arise.
412. Moreover, another clause mentioned on 2 nd page of the MOU that Mr. Hemant Kumar Aggarwal shall continue to be director until all due formalities of takeover is completed, so as to constitute the Board of the Acquirers only has also been strongly relied upon on behalf of A-2 Vaibhav Tulsyan to argue that at the time of sale of company M/s VISUL, it was never told or assured to PW-23 Arvind Vyas that Tulsyans will get both the iron ore mines and coal block allotted or for that purpose only Mr. Hemant Kumar Aggarwal continued on the board of directors of M/s VISUL.
413. Another reason for raising doubts about the correctness of photocopy of MOU is also that on the last page of the MOU which carries signatures of both parties to the MOU, the following words are mentioned:
"IN WITNESS WHEREOF THE PARTIES HERETO HAVE HEREUNTO SET AND SUBSCRIBED THEIR RESPECTIVE HANDS THE DAY AND THE YEAR FIRST HEREINABOVE WRITTEN"
However, as already mentioned no date or year is mentioned in the entire body of the MOU. Thus, the fact pertaining to date of signing of MOU as mentioned on the last page is clearly contrary to the first three pages of the MOU whose photocopies have been filed.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 336 of 429
414. However, as the present matter has not been investigated from the point of view that photocopy of MOU i.e. Ex. PW 14/A produced by Sanjeev Tulsyan is genuine or not so I am also not venturing into the said arena any longer and rather proceed to consider the rival contentions of the parties in the light of photocopy of MOU i.e. Ex. PW 14/A as is available on record only.
415. As already mentioned qua the issue of Hemant Aggarwal continuing on the Board of Directors it is mentioned in the MOU that he shall continue to be a director until all due formalities of taking over are completed so as to constitute the board of directors of the acquirers only. As rightly pointed out by Ld Sr. Advocate Sh. N. Hariharan for A-2 Vaibhav Tulsyan that it is also mentioned in the MOU that all the share certificates (physical form) with blank transfer deeds and as duly signed by the sellers were also handed over to Arvind Vyas. However Ld. Counsel for A-8 Vijay Joshi while relying upon the deposition of PW-23 Arvind Vyas has stated that Hemant Aggarwal continued on the board of directors in order to assist company M/s VISUL in procuring allocation of a coal block from MOC, Government of India and iron ore mine from Government of Jharkhand. Thus in view of the aforesaid contradictory claims made by A-2 Vaibhav Tulsyan and A-8 Vijay Joshi regarding the purpose for which Hemant Aggarwal continued to be on the board of directors one will have to refer to the attendant facts and circumstances of the matter.
416. As already discussed M/s VISUL had come to know that CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 337 of 429 company is not going to be recommended for allocation of a coal block and for this reason they themselves chose not to go before the Screening Committee to make a presentation on behalf of the company. PW-21 Swapan De Chaudhary has also stated that the company was also told that on account of less requirement of iron ore it is also not going to be allotted any iron ore mine. Thus as already discussed above it was in these circumstances only that the Tulsyan family members primarily agreed to sell the company so as to recover in monetary terms, whatever financial physical or emotional investment they had made towards establishing the impugned sponge iron plant in the State. Another reason which from the overall facts and circumstances is also clearly apparent is when close associates of Chief Minister of the State starts showing interest in any company with a view to acquire it then the existing share holders of such a company hardly have any other alternative except to agree to the said proposal.
417. In this regard it will be now worthwhile to refer to the deposition of PW-12 Amit Sharma. He deposed that during the period January 2008 till 2013 he was working in a company owned by A-8 Vijay Joshi namely M/s Indo Asahi Glass Company Ltd. at Kolkata. He further deposed that on the asking of A-8 Vijay Joshi he became Director in M/s VISUL on 08.07.2008. He also stated that at that time he came to know that one Sh. Hemant Agarwal was also a Director in the company but he stated that he has never met him. He further deposed that in the papers relating to company M/s VISUL, he had also read that earlier Mr. Vaibhav Tulsyan, Mr. Prashant Tulsyan, Mr. Sanjeev CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 338 of 429 Tulsyan, Ms. Nisha Tulsyan and Hemant Kumar Aggarwal were Directors in M/s VISUL but he claimed to have never met any one of them either prior to becoming a Director in M/s VISUL nor even thereafter. He also claimed ignorance as regard the duties and responsibilities of a Director in a private limited compnay and stated that he had never attended any meeting of Board of Directors of M/s VISUL. He further stated that when he became Director of M/s VISUL then all the correspondence of the company used to take place from "30 CR Avenue, Fourth Floor, Kolkata-12". He further deposed that no specific duty or responsibility was assigned to him in M/s VISUL when he became a Director thereof and his only job was to sign various letters as used to be sent to him by A-8 Vijay Joshi after they were already typed on the letter head of M/s VISUL and he accordingly used to sign the said letters and return them back. He however claimed ignorance as regard the contents of all such letters, which were signed by him and stated that A-8 Vijay Joshi used to talk to him on telephone stating that he is sending some letters and he accordingly used to sign them in the capacity of Director of M/s VISUL. He also deposed that all the papers relating to M/s VISUL used to remain with A-8 Vijay Joshi only. He further stated that one Mr. Debashish Choudhary, who was the Chartered Accountant of the company used to submit balance sheets and other returns of the company to ROC by using his digital signatures. He thus deposed that his digital signatures also used to remain with the Chartered Accountant and he himself never used them. He however claimed ignorance as to what business was being undertaken by M/s VISUL.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 339 of 429 He also claimed ignorance as to whether M/s VISUL had submitted any application to Government of Jharkhand for allocation of Iron Ore Mine or not or whether M/s VISUL entered into any MOU of any nature whatsoever with Govt. of Jharkhand or not. He also stated that he never visited the office of Department of Industries, Govt. of Jharkhand at Ranchi. He also claimed that he never invested in the equity of M/s VISUL and thus claimed ignorance as regard the status of ownership of shares of M/s VISUL at the time when he became a Director of the company. He however stated that after about 2-3 months of his becoming the Director of M/s VISUL he had come to know that 5000 shares of M/s VISUL stood allotted in his name but he again claimed ignorance as regard the fact as to who made payment towards purchase of said shares.
418. PW 12 Amit Sharma further deposed that during the investigation of present case whenever the CBI officers used to ask for any document from him then he used to communicate the said message to A-8 Vijay Joshi and after collecting all such documents from the office ie. 30 CR Avenue, Fourth Floor, Kolkata-12, he used to post them to CBI.
419. He also deposed that some Joint Venture (JV) Agreement was entered between M/s VISUL and M/s Mukund Ltd. and a joint venture company namely M/s Mukund Vini Mineral Private Ltd. was also incorporated, but he claimed ignorance as to the purpose for which the said company was incorporated. He also deposed that he had heard that one Sh. Gaurav Agarwal was also a Director of M/s VISUL CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 340 of 429 but stated that he had never met him. He however further deposed that one Neha Behati and Renu Jhunjhunwala in whose names also shares were transferred were his colleague in M/s Indo Asahi Glass Company Ltd. PW 12 Amit Sharma thus stated that whatever actions or communication were under taken by him on behalf of M/s VISUL as a Director thereof with any authority whatsoever the same were undertaken at the instance of A-8 Vijay Joshi only and he himself had no personal knowledge of the contents of any such documents. However, in his cross-examination as conducted by Ld. Senior Advocate Sh. N. Hari Haran for A-2 Vaibhav Tulsyan he though initially stated that he does not remember as to whether he used to sign the letters/papers of M/s VISUL even before the time when be became a Director thereof. He also claimed ignorance as to whether in the month of May 2008 he signed any document of M/s VISUL or not. However at a slightly later stage he stated that all the documents as were signed by him on behalf of M/s VISUL were signed only after he became Director in M/s VISUL on 08.07.2008. However, upon being put a letter dated 06.05.2008 Ex. P-98 (D-82) he though admitted having signed the said letter but claimed ignorance as to the contents of the said letter stating that he signed the same as a Director of M/s VISUL since he was asked by A-8 Vijay Joshi to so sign the letter.
420. PW 20 Sh. Suketu V. Shah Joint Managing Director M/s Mukand Ltd. was also examined by the prosecution. In his deposition he not only proved MOU Ex. PW 20/D as was executed by the company M/s Mukand Ltd with Government of Jharkhand. He also CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 341 of 429 deposed that subsequently M/s Mukand Ltd. had also submitted two applications to MOC for allotment of captive coal blocks and 36 th Screening Committee recommended M/s Mukand Ltd for joint allocation of Rajhara Coal Block with M/s VISUL. He thus stated that MOC thereafter issued a joint option letter to M/s Mukand Ltd and M/s VISUL and pursuant to which the two companies agreed to form a joint venture/special purpose vehicle. A joint venture agreement dated 01.09.2008 Ex. PW 13/A was thus entered into between the two companies. He also stated that on behalf of M/s VISUL, the agreement was signed by one Gaurav Agarwal. Thereafter, the said JV Agreement was sent by him to Secretary (Coal) and pursuant to which allocation letter dated 05.08.2008 Ex. P-99 in file Ex. PW 27/C (D-118) (Colly) was issued by MOC allocating Rajhara coal block jointly in favour of M/s VISUL and M/s Mukand Ltd. He further deposed that A-8 Vijay Joshi on behalf of A-1 M/s VISUL had contacted him and he had introduced himself as a Director of A-1 M/s VISUL. He further stated that 3-4 meetings were then held between them at Delhi and Bombay and a JV Agreement was accordingly entered into. He also deposed that pursuant to the JV Agreement dated 01.09.2008 Ex. PW 13/A (D-122) a company called M/s Mukand Vini Mineral Pvt. Ltd. was got incorporated. He further stated that M/s VISUL through A-8 Vijay Joshi was allotted 41190 shares in the said JV company while the other shares were issued in favour of representatives of M/s Mukand Limited. He also stated that prior to entering into said JV agreement, Minister of State for Coal had also called a meeting of representatives of various joint allocattee CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 342 of 429 companies and in the said meeting held on 20.08.2008 while he appeared on behalf of M/s Mukand Limited, A-8 Vijay Joshi however represented A-1 M/s VISUL.
421. In this regard deposition of PW-14 Prabhash Mittal will also be worth referring to. PW-14 Prabhash Kumar Mittal deposed that from the year 2007 till 2011 he was on the board of directors of M/s Indo Asahi Glass Company Ltd. as an independent director. He claimed himself to be a Chartered Accountant by profession. He further stated that in the said company apart from him A-8 Vijay Joshi, Rakesh Doshi and Vinay Jalan were the directors but the company was primarily owned and controlled by A-8 Vijay Joshi. He further deposed that on and around May 2008 he was asked by A-8 Vijay Joshi to carry out due diligence of M/s VISUL at their office at Dhanbad and was told to meet Sanjeev Tulsyan and Hemant Aggarwal in order to check and verify the documents of M/s VISUL. He further stated that A-8 Vijay Joshi also told him that due diligence of M/s VISUL is to be conducted as he wanted to purchase the said company. He also deposed that on his first visit he accordingly met Sanjeev Tulsyan and Hemant Aggarwal and they introduced him to one Sh. Shyamji, the Chartered Accountant of their company and he was told to verify all the documents from him. PW-14 Prabhash Kumar Mittal further deposed that he had accordingly seen all the necessary papers of M/s VISUL and after inspecting them he informed A-8 Vijay Joshi that the documents of the company were being properly maintained. He further stated that after staying for two days during this process he CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 343 of 429 returned back to Ranchi. He further deposed that after about 15-20 days or so he was again asked to visit Dhanbad by A-8 Vijay Joshi and was also told to collect all the documents pertaining to M/s VISUL from over there. He deposed that on this occasion he met Shyamji and Hemant Aggarwal but they stated that all the documents shall be handed over only after necessary payment in this regard is received by them. They also old him that in this regard they have already talked to A-8 Vijay Joshi and who has deputed someone to deliver them necessary cheques.
422. PW-14 Prabhash Kumar Mittal also deposed that on the next day one Arvind Vyas (PW-23) came and handed over certain cheques to them but they refused to receive the same stating that merely on the basis of cheques they shall not hand over the documents as actual payment should be first received by them. Accordingly, PW-14 Prabhash Kumar Mittal rang up A-8 Vijay Joshi informing him about the situation and upon which A-8 Vijay Joshi told him to wait for one more day stating that he will try to arrange the payment for them. He further deposed that on the next day the concerned officers of M/s VISUL handed over to him about 10-15 files as the necessary payment was received by them. He accordingly informed A-8 Vijay Joshi in this regard who asked him to return back to Ranchi and after returning to Ranchi someone deputed by A-8 Vijay Joshi collected all the files from him. He also deposed that on the day when the files as above were handed over to him at Dhanbad by the officers of M/s VISUL then a MOU was also entered into between PW-23 Arvind Vyas CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 344 of 429 and concerned officers of M/s VISUL.
423. What is important to note about the deposition of this witness is that his deposition as above has completely remained unimpeached at the altar of cross-examination qua A-1 M/s VISUL and A-8 Vijay Joshi. In fact the witness was cross-examined only on behalf of A-2 Vaibhav Tulsyan and A-9 Navin Kumar Tulsyan but even in his said cross-examination also he stated that he had told the Tulsyans that he has been deputed by A-8 Vijay Joshi.
424. It is in the light of aforesaid nature of deposition of various witnesses as have been examined by the prosecution the other documentary evidence needs to be seen and appreciated. While A-8 Vijay Joshi has claimed that he purchased the shares of M/s VISUL from M/s Saturn Iron Ore and Mining Limited in September 2008 but he at the same time stated that prior thereto he was looking after the affairs of M/s VISUL only at the instance of PW 23 Sh. Arvind Vyas as he had requested him to help in managing the affairs of the company.
425. Thus, in the aforesaid facts and circumstances, I may state that despite claim being made by A-8 Vijay Joshi that he was managing the affairs of M/s VISUL on behalf of PW-23 Arvind Vyas, I am of the considered opinion that the overall facts and circumstances of the present case speak otherwise. While it has not been disputed that PW 12 Amit Sharma was a man of Vijay Joshi as he was admittedly an employee in one of his company namely M/s Indo Asahi Glass Company Ltd. At the same time, as already discussed, even PW 13 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 345 of 429 Gaurav Aggarwal and Bastimal Shah were appointed as Directors of M/s VISUL at the instance of A-8 Vijay Joshi only. PW-14 Prabhash Mittal was also sent by A-8 Vijay Joshi to carry out due diligence of M/s VISUL as A-8 Vijay Joshi wanted to purchase the said company. This statement made by the witness has not been controverted or disputed at all in his cross-examination much less on behalf of A-8 Vijay Joshi. Moreover, a perusal of file Ex. PW 2/F (D-82-A) would further show that a letter dated 06.05.2008 signed by PW 12 Amit Sharma on the letterhead of M/s VISUL was submitted to Secretary, Department of Industries, Government of Jharkhand, seeking renewal of MOU dated 14.09.2006 entered into by the company M/s VISUL for a period of at least two years. In the said letter dated 06.05.2008 seeking extension of MOU various steps taken by the company towards establishing its industry in the State were referred to. As already discussed the said letter bears stamp of receipt of the office of Secretary Industries dated 14.05.2008 with signatures of PW 18 K.K. Khandelwal. The said letter has been thereafter marked downward in the Department of Industries and stamps of different officers thereof appear on the letter right up to 21.05.2008. In the meantime, another letter dated 20.05.2008 Ex. PW 18/DX-1 under the signatures of PW 21 Swapan De Chaudhary was submitted to Special Secretary, Department of Industries. In the said letter also various steps taken by the company towards establishing its industry were mentioned and various documents in support of the said documents were also enclosed. However, the letter dated 20.05.2008 was submitted on a plain paper and not on the letterhead of M/s VISUL. Thereafter, the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 346 of 429 letter dated 06.05.2008 Ex. P-98 of PW 12 Amit Sharma and letter dated 20.05.2008 Ex. PW 18/DX-1 of PW 21 Swapan De Chaudhary along with documents so received were collectively dealt with in Department of Industries vide note dated 22.05.2008 at note sheet page 9-11 in file Ex. PW 2/F (colly) (D-82-A).
426. Though, it has been claimed by A-2 Vaibhav Tulsyan that letter dated 06.05.2008 Ex. P-98 of PW 12 Amit Sharma is a forged and fabricated letter having been subsequently placed in the file but I may state that despite suggestions having been put to a number of witnesses in this regard and also mentioning the said facts in the written submissions submitted at the time of final arguments, the said claim however could not stands substantiated even for the sake of preponderance of probabilities. As already discussed letter dated 06.05.2008 of PW 12 Amit Sharma and 20.05.2008 of PW 21 Swapan De Chaudhary along with its enclosures were collectively dealt with in the Department of Industries vide a note dated 22.05.2008 as is available on note sheet page 9-11 in note sheet pages Ex. PW 18/A (colly) in file Ex. PW 2/F (colly) (D-82-A). Thereafter the file with the said noting dated 22.05.2008 was put up before senior officers and the same was duly forwarded by them and finally on 24.07.2008 Chief Minister A-7 Madhu Koda accorded approval to the proposal of extension of MOU dated 14.09.2006 of M/s VISUL for a period of two years with retrospective effect i.e. from 14.09.2007 to 14.09.2009. Thus, in these circumstances even for the sake of arguments it cannot be presumed that in the year 2008 there was any reason for the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 347 of 429 officers of Department of Industries to forge and fabricate documents available in their files maintained in the regular course of their duties much less putting up false noting in the file making reference to the said letter dated 06.05.2008.
427. Thus by merely, stating that letter dated 06.05.2008 submitted by PW 12 Amit Sharma on the letterhead of M/s VISUL and signing it as Director of M/s VISUL makes the letter forged and fabricated is not a tenable argument. Though legality of the action of PW 12 Amit Sharma in signing the said letter dated 06.05.2008 as a Director of M/s VISUL may be questioned but what is being examined over here are the circumstances in which and when A-8 Vijay Joshi actually started managing and controlling the affairs of M/s VISUL. In fact if the over all circumstances in which M/s VISUL was sought to be taken over from Tulsyan family members are seen then it is clear that from prior to the month of May 2008 efforts were being made to acquire M/s VISUL. It is thus clear that the exercise towards acquiring M/s VISUL started much prior to May 2008. It is also an undisputed case that PW 12 Amit Sharma who was an employee of A-8 Vijay Joshi in some other company was ultimately roped in as a Director of the company M/s VISUL by A-8 Vijay Joshi so as to manage the affairs of the company through him. It is also an undisputed case that various documents used to be got signed from PW 12 Amit Sharma by A-8 Vijay Joshi and he used to sign them as Director, VISUL as and when asked for by A-8 Vijay Joshi. In the similar manner the signing of letter dated 06.05.2008 Ex. P-98 has also not been disputed by PW 12 Amit CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 348 of 429 Sharma. Thus the only necessary inference which arises in these circumstances is that though execution of necessary documents to formally take over company M/s VISUL took place a few days later but in effect the affairs of M/s VISUL were permitted to be controlled by A- 8 Vijay Joshi by the earlier owners from a much earlier date. It is for this reason only that A-8 Vijay Joshi could lay hand on the letterhead of the company and in anticipation that finally upon formal acquisition of company M/s VISUL, PW 12 Amit Sharma shall be appointed as a Director of the company that letter in question dated 06.05.2008 was got submitted to Department of Industries under the signatures of PW 12 Amit Sharma as Director M/s VISUL and thereby to set into motion the process of getting the MOU extended. At this stage it will be also worthwhile to mention and recapitulate that existence of a valid MOU with the State Government was a pre-requisite condition for any company to get recommended for allocation of any coal block or that of Iron Ore Mine.
428. Moreover, this conclusion further gets corroborated when various other clauses of MOU Ex. PW 14/A are seen. In para 7 & 8 of the MOU it is mentioned that the liability of the seller towards income tax, sales tax or any other liability payable to any Government, Semi Government or other bodies or if the company is found to be indebted to anyone till 31.03.2008 and which liability has not been disclosed, shall be the responsibility of the seller. Similarly, in para No. 8, it has been mentioned that the seller shall be responsible for all the papers and records as have been maintained by the company since its CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 349 of 429 inception and till 31.03.2008.
429. For a ready reference it will be appropriate to reproduce Para 7 & 8 of the MOU Ex. PW 14/A over here:
"7. The Seller also agree that in the event of it being found that the Company is indebted to any person till 31 st March 2008, whose liability is not disclosed for other taxes whether Income Tax, Sales Tax or any other liabilities payable to any Government, semi Government or other bodies, the Seller shall pay the same and agree hereby to indemnify and keep indemnified the Company and the Acquirers against any such liability. Similarly if any refund of income tax or any other taxes paid in excess of its liabilities up to the year end 31-03-2008 arises in future, the same shall be to the account of seller, which shall be similarly treated as consideration money over and above as paid and acquirer shall pass on the benefit of such refund to the seller. Further seller also hereby undertakes that it will not claim for any other benefit accruing to acquirer.
8. The Seller shall formerly handover to the Acquirers each and every assets of the Company as per the company record, save and except as mentioned in para 4 above after due physically verification by the Acquirer, including the books of accounts, Common Seal, Statutory Registers maintained under Companies Act, 1956 and all other papers and records maintained by the company since its inception and is to be updated in all respect till 31st March, 2008."
(Emphasis supplied by me)
430. Thus, if the company was being acquired pursuant to MOU Ex. PW 14/A and which as already mentioned is though undated but is typed on a stamp paper bought on 29.05.2008 then it is beyond comprehension as to how the liability of the seller i.e. Tulsyan family members can be fixed till 31.03.2008 only and not till the date of execution of MOU. These clauses otherwise defies all logic or reason much less any basic business prudent. The only inference which thus CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 350 of 429 can arise from the aforesaid circumstances is that the exercise of taking over M/s VISUL by the new owners was going on from much prior to execution of MOU Ex. PW 14/A. It is primarily for this reason also that even no date of execution has been mentioned in the MOU.
431. There is yet another important aspect which also supports the aforesaid conclusion. During the course of trial IO Insp. Vijai Chettiar collected various share transfer forms of M/s VISUL from A-8 Vijay Joshi. One such share transfer form vide which 5000 shares of M/s VISUL were transferred in the name of PW-12 Amit Sharma by A-2 Vaibhav Tulsyan was also thus collected. The said share transfer form has been admitted by A-2 Vaibhav Tulsyan u/s 294 Cr.PC and has been thus exhibited as Ex. P-84. The said share transfer form is however dated 30.04.2008 and it shows that for a total consideration of Rs. 11,50,000/-, 5000 shares of the company were transferred in the name of Amit Sharma. Though Ld. Counsel for A-2 Vaibhav Tulsyan pointed out that in the MOU Ex. PW 14/A itself, it was mentioned that blank transfer deeds are being handed over to PW-23 Arvind Vyas and thus it was for A-8 Vijay Joshi to explain as to how on the said transfer deed date of 30.04.2008 came to be mentioned even though the same was handed over to PW-23 Arvind Vyas on 29.05.2008.
432. Though the aforesaid argument may appear to be carrying some force in view of the specific averment mentioned in the MOU about blank transfer deeds being given but I may state that in view of the undisputed documentary evidence in the nature of share transfer CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 351 of 429 form Ex. P-84 such an argument is hard to be believed. Moreover, as already discussed the MOU Ex. PW 14/A also seems to have been created solely with a view to cover up certain previous acts for otherwise it does not contain all true and correct averments. As earlier mentioned the actual liability of the seller towards company M/s VISUL in fact came to an end on 31.03.2008 as per the MOU itself. Thus, at the cost of repetition, I may state that the mere averment in the MOU that blank transfer deeds were handed over to PW-23 Arvind Vyas can not be per-se believed. More so even if blank transfer deeds were handed over to PW-23 Arvind Vyas then there was no reason for him to put a date of 30.04.2008 on the share transfer form vide which 5000 shares of M/s VISUL stood transferred in favour of PW-12 Amit Sharma. This fact again lends support to the conclusion that from much before the execution of MOU Ex. PW 14/A, the affairs of M/s VISUL came to be controlled by A-8 Vijay Joshi through one of his employee i.e. PW-12 Amit Sharma. It was in these circumstances only that on 06.05.08 a letter seeking extension of MOU was submitted by PW-12 Amit Sharma to Director, Industries, Government of Jharkhand.
433. Be that as it may, as regard the issue of valuation of shares of M/s VISUL, it was suggested by Ld. Sr. Advocate Sh. N. Hariharan that the company at the time of acquisition was already having land worth about Rs. 2.20 crores at village Lupungdi and another land of value about Rs. 10 lacs in village Keonjhar beside also having plant and machinery valuing about Rs. 74 lacs. Thus in these circumstances, the valuation of shares of the company M/s VISUL CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 352 of 429 was stated to have been decided as Rs. 230 per share. Thus if on the basis of facts mentioned in the MOU it is being claimed by Ld. Counsel for A-2 Vaibhav Tulsyan that the purpose of continuing Hemant Aggarwal in the board of directors was only to ensure smooth take over, as is mentioned in MOU so in similar circumstances in order to ascertain the valuation of shares of the company resort must be had to the plain language of MOU only. In fact A-2 Vaibhav Tulsyan has admitted the genuineness of the said copy of MOU u/s 294 Cr.PC.
434. At page 2 of the MOU, it is mentioned that the Acquirer hereby agrees to take all the assets and liabilities of the company at their book value as are appearing in the books of account on the date of transfer of shares except certain vehicles, shares, and securities as were held in D-mat Account No. "IN300159" and balances as were lying with various subsidiaries of CIL. It is also mentioned in the MOU that a sum of Rs. 62.92 lacs which was paid to one M/s Shree Jyoti Technologies Private Ltd. as an advance by the seller (Tulsyans) if recovered shall be paid/transferred to the sellers by the acquirers. It is also mentioned in the MOU that the same may be treated as consideration over and above the amount as paid. At this stage, it will be appropriate to reproduce para 4 and 5 of MOU Ex. PW 14/A over here for the purposes of ready reference.
"4. Acquirer hereby agrees to take all the Assets and Liabilities of the Company at their book value as appearing in the books of account on the date of transfer of shares, expect following, if any.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 353 of 429 Assets Particulars (1) VEHICLES Scorpio - OR02AE-9797 Bolero GLX - OR02AE-9911 Bajaj Platina - JH10P-6232 Bajaj Caliber -
(2) SHARES AND SECURITIES (Being held in D-mat a/c no. IN300159) (3) Balances lying with BCCL/CCL/ECL etc.
5. Receivable from Shree Jyothi Technologies Pvt. Ltd.
The acquirers shall re-direct and pay/transfer all the recoveries as and when collected on account of Shree Jyoti technologies Pvt. Ltd. (to whom an advance of Rs. 62.92 lacs has been made), and other assets as mentioned above to the seller hereof. The same may be treated as consideration over and above the amount as paid. The acquirer will pay all necessary support in realising the same to the seller from time to time and as and when required."
435. In this regard, I may also mention that in the cross-examination of PW-23 Arvind Vyas, Ld. Counsel for A-2 Vaibhav Tulsyan has tried to justify the nature of the assets of the company M/s VISUL stating them to be the reason on account of which the value per share of the company was fixed as Rs. 230/-.
436. The prime emphasis of Ld. Counsel in this regard was in fact upon the land owned by the company. However, for reasons best known to the parties between whom MOU Ex. PW 14/A was entered into there is no mention of any land whatsoever in the said MOU Ex. PW 14/A. Moreover, even, if it is presumed for the sake of arguments that there was some land with M/s VISUL then it will be worth pointing CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 354 of 429 out that continuously contradictory stands have been made by M/s VISUL in this regard not only in the year 2008 before Department of Industries while seeking extension of MOU but even now during the course of trial. In the letter dated 06.05.08 Ex. P-98, PW-12 Amit Sharma while mentioning the steps taken by the company towards establishing its project stated that land of around 50 acres has already been registered in the name of the company. He also stated that further around 20 acres of land is under negotiations and for which advance has already been given beside entering into sale agreement. Though this letter has been stated to be forged and fabricated by A-2 Vaibhav Tulsyan but another letter dated 20.05.2008 Ex. PW 18/DX-1 submitted by PW-21 Swapan De Chaudhary has been admitted by him as having been submitted on behalf M/s VISUL and that too when the company was still owned by Tulsyans. A perusal of the said letter however shows that as regard land it was stated that 100 acres of land has been purchased and rest will be acquired nearby and for which effort is on. However, during the course of cross-examination of PW-23 Arvind Vyas as carried out on behalf of A-2 Vaibhav Tulsyan, it was suggested to him that as on the date of execution of MOU in question 55 acres of land was already with M/s VISUL beside one other piece of land valuing about Rs. 10 lacs.
437. Thus, even if it is presumed for the sake of arguments that the letter dated 06.05.08 submitted by PW-12 Amit Sharma was a forged and fabricated document then also there is no explanation furnished or available on record as to how 100 acres of land which was claimed CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 355 of 429 to have been purchased by M/s VISUL in terms of letter dated 20.05.2008 Ex. PW 18/DX-1 as was submitted by PW-21 Swapan De Choudhary became 55 acres of land just after 9 days i.e. when the MOU in question was executed. Certainly the piece of land valuing Rs. 10 lacs could not have measured the remaining 45 acres of land.
438. The purpose of mentioning all these apparent inherent contradictions is only to show that all the dealings relating to M/s VISUL as were conducted either by their earlier owners or even by the subsequent purchasers with different Departments of Government of Jharkhand or even with MOC, Government of India were shady.
439. It is in fact in these circumstances that no amount of land at all was mentioned in the MOU. In fact land as a topic was not even touched upon in the said MOU. Moreover, the claim that plant and equipments valuing about Rs. 74 lacs was already installed at the site is also apparently a false stand now taken during the course of trial.
440. Reference again in this regard needs to be made to letter dated 06.05.08 Ex. P-98 of PW-12 Amit Sharma and letter dated 20.05.2008 Ex. PW 18/DX-1 of PW-21 Swapan De Chaudhary. While in the letter dated 06.05.08, PW-12 Amit Sharma stated that vendors for most of the plant and machinery have been short listed and price negotiations have also been finalized. It was also stated that company has already given substantial advance to various suppliers. It was further stated that equipment supply is going to start as soon as the erection and other work at site will be completed. As regard proposed power plant CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 356 of 429 also it was stated that vendors for supply of equipments on EPC basis of power plant have also been selected. On the other hand in the letter dated 20.05.2008, PW-21 Swapan De Chaudhary stated that though construction of boundary wall around the land acquired has started but the same has been hampered due to law and order problems. He thereafter mentioned a very important fact that " now local administration is ready to help us and construction will start soon". As regard machinery it was stated that the same has been ordered and acceptance letter has been received for two rotary kilns, melting furnace, billet, concast, crushing and screening equipments.
441. Copies of certain invoices issued by some of the suppliers were also annexed with the letter dated 20.05.2008. Thus, if in these circumstances, the questions put to PW-23 Arvind Vyas in his cross examination are considered then it is found that while as per letter dated 06.05.08 of PW-12 Amit Sharma and thereafter vide letter dated 20.05.2008 of PW-21 Swapan De Chaudhary and which is an undisputed document on behalf of A-2 Vaibhav Tulsyan, it was only stated that orders for machinery have been placed and confirmation received but strangely enough just after 9 days i.e. on 29.05.2008 when the MOU in question is stated to have been executed, plant and machinery worth Rs. 74 lacs were stated to have been installed by the company and which in fact again resulted in enhancing the share price of the company. The aforesaid circumstances are thus per-se explanatory that even though no such plant and machinery was available the valuation of shares of the company M/s VISUL was still CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 357 of 429 enhanced and assessed @ Rs. 230/- per share. As earlier mentioned in the MOU one other sum of Rs. 62.92 lacs was also agreed to be paid to the sellers over and above the consideration amount decided in case the said amount was recovered from one Shree Jyoti Technology Ltd. to whom an advance payment was made. Though there is no clarity in the records as to on what account the said Rs. 62.92 lacs was paid but it is clear that even any amount which was to be recovered by the earlier owners from anyone was also agreed to be paid to the earlier owners only as and when recovered. Thus, it also shows that the rate of Rs. 230/- per share as was fixed allegedly at the time of execution of MOU was beside any amount which was payable to the sellers by any third party and the acquirers agreed to transfer the said amount as and when the same is recovered.
442. The sole purpose of mentioning in detail the aforesaid facts is only to emphasise that by no stretch of imagination or logic and reason can the valuation of shares of M/s VISUL i.e. a company having very few assets could have been assessed @ Rs. 230/- per share except the fact that it had already applied for allocation of a coal block and iron ore mine with MOC, Government of India and Department of Industries, Government of Jharkhand respectively. In fact it was these very steps already taken by earlier owners of M/s VISUL which attracted the new acquirers and for which only a large sum of Rs. 4.32 crores was agreed to be paid to the earlier owners. Another important fact to be noted over here is that the last date of receipt of applications for allocation of captive coal blocks as were CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 358 of 429 invited by MOC, Government of India was 12.01.2007 and thus in no way the new acquirers could have applied for allocation of a captive coal block to MOC Government of India, in case they would have thought of applying for it after getting a new company incorporated. It was thus imperative for them to acquire an existing company and that too which had already applied for allocation of a captive coal block. The applications which were already submitted for allocation of iron ore mines acted as additional factors which further enhanced the share price of M/s VISUL.
443. Thus from the aforesaid circumstances it is crystal clear that A- 8 Vijay Joshi who was a close associate of A-7 Madhu Koda, the then Chief Minister of State had acquired control over the affairs of M/s VISUL through PW-23 Arvind Vyas and his own employee PW-12 Amit Sharma from much prior to execution of MOU Ex. PW 14/A on 29.05.2008. It was for this reason only that PW-21 Swapan De Chaudhary in his letter dated 20.05.2008 Ex. PW 18/DX-1 stated that "Now the local administration is ready to help us and construction will start" In fact during the course of investigation Sanjeev Tulsyan who was also one of the Director of M/s VISUL on behalf of Tulsyan's family produced copy of a letter dated 24.05.2007 addressed to "Upayukta, Saraikela Kharsawan, Aarakshi Adhikshak, Saraikela Kharsawan" (D-124), written by one Santosh Kumar Satpati, Secretary Industries on 24.05.2007 wherein it was stated that company M/s VISUL has informed that some unsocial elements are creating problems in the construction work being undertaken by them CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 359 of 429 at the site and thus it was requested that all necessary cooperation and security may be provided.
444. Moreover, from the fact that initially cheques dated 23.05.2008 were given to Tulsyan's by PW-23 Arvind Vyas towards sale consideration of shares of M/s VISUL, and PW-23 Arvind Vyas also stated that talks were going on for the past many days towards acquiring company M/s VISUL and prior to it even due diligence was carried out so it is clear that as on 20.05.2008 talks of acquiring M/s VISUL must have been at an advanced stage. Thus it will not be incorrect to state that in such a situation submission of letter dated 20.05.2008 Ex. PW 18/DX-1 by PW-21 Swapen De Chaudhary, who was admittedly a Consultant of Tulsyan's family only submitted the said letter on behalf of the new owners of M/s VISUL. It is in fact for this reason only, it was mentioned in the letter dated 20.05.2008 Ex. PW 18/DX-1 by PW-21 Swapan De Chaudhary that now the local administration is ready to help us and construction will start soon. It is in these circumstances, the import of mentioning the words that "now local administration is ready to help us and construction will start soon" needs to be seen.
445. On the other hand, Ld. Counsel for A-2 Vaibhav Tulsyan has claimed that letter dated 20.05.2008 was submitted by PW-21 Swapan De Chaudhary, a Consultant of Tulsyans as details regarding progress made by the company towards establishing its end use project were asked for by Department of Industries, Government of Jharkhand. However, it has been claimed that PW-21 Swapan De CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 360 of 429 Chaudhary was completely unaware as to for what purpose the said details are being asked much less he was having any knowledge about letter dated 06.05.08 Ex. P-98 submitted by PW-12 Amit Sharma seeking extension of MOU of M/s VISUL earlier executed by Government of Jharkhand. This argument in fact, on the face of it is neither convincing nor tenable. It is highly unbelievable that PW-21 Swapan De Chaudhary who was a Consultant of Tulsyans, the earlier owners of M/s VISUL as regard their business concerns including M/s VISUL and was a person who was pursuing their coal block application with MOC, Government of India and applications for allocation of iron ore mine with Government of Jharkhand and was also admittedly a retired Director of Coal India Ltd. would have furnished all these details as are mentioned in letter dated Ex. PW 18/DX-1 regarding progress made by company M/s VISUL towards establishing its end use project without even bothering to enquire as to for what purpose the same are being asked for. In fact from the overall facts and circumstances, it is clearly apparent that all such details alongwith all necessary supporting documents were submitted by PW-21 Swapan De Chaudhary in order to assist Department of Industries in processing letter dated 06.05.08 Ex. P-98 submitted earlier by PW-12 Amit Sharma for extension of MOU of M/s VISUL.
446. From the aforesaid circumstances, it is thus crystal clear that Tulsyans, the earlier owners of M/s VISUL were actively assisting the new owners of M/s VISUL in all their acts so as to procure allocation of iron ore mine and coal blocks in faovur of M/s VISUL. However, in CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 361 of 429 the aforesaid circumstances, though it can not be concluded as a fact proved beyond reasonable doubt that Hemant Aggarwal who was one of the directors of company M/s VISUL prior to execution of MOU Ex. PW 14/A continued on the board of directors alongwith new owners only with a view to facilitate allocation of coal blocks and iron ore mine in favour of M/s VISUL but it is a fact that Hemant Aggarwal resigned from the board of directors thereafter in the month of September 2008 and by that time allocation of both iron ore mines and coal block in favour of M/s VISUL had already taken place. However, as already mentioned I do not wish to enter into that arena of presumption based on conjectures and surmises in this regard to hold that Hemant Aggarwal continued on the board of directors of M/s VISUL only with a view to assist the new owners in procuring iron ore mines and coal blocks in favour of M/s VISUL.
447. As already stated the fortunes of M/s VISUL which was a company facing law and order problems in the state and for which reason was not able to take any construction activity for their proposed project and was not even being recommended for allocation of any iron ore mine by Department of Mines, Government of Jharkhand or for allocation of a captive coal block by MOC, Government of India, suddenly changed in or around May 2008. The Local Administration suddenly became ready to help so that construction may restart. As already demonstrated while discussing the role of public servants, the file relating to grant of iron ore mines also started moving at a fast pace. The matter regarding extension of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 362 of 429 MOU and that too with retrospective effect also got initiated and was even processed at an extra ordinary pace. Similarly as earlier discussed at length in the Screening Committee meeting also the representative of State of Jharkhand strongly recommended for M/s VISUL for being recommended for allocation of a captive coal block.
448. In view of my aforesaid discussion, it will be now appropriate to reiterate that prosecution has been successful in proving that A-8 Vijay Joshi was a close associate of A-7 Madhu Koda, the then Chief Minister, Government of Jharkhand. It also stands cogently proved that affairs of M/s VISUL were being managed and controlled by A-8 Vijay Joshi from prior to May 2008. It also stands well proved on record that A-8 Vijay Joshi was infact the brain behind all the acts as were taken by PW-12 Amit Sharma, PW-13 Gaurav Aggarwal, PW-14 Prabhash Mittal and PW-23 Arvind Vyas qua the affairs of A-1 M/s VISUL. It also stands well proved that letter dated 06.05.08 Ex. P-98 submitted to Department of Industries, Government of Jharkhand under the signatures of PW-12 Amit Sharma as director M/s VISUL was also at the instance of A-8 Vijay Joshi. It also stands well proved that the valuation of shares of M/s VISUL, fixed at a higher value of Rs. 230/- per share, was primarily on account of the fact that the company had already applied for allocation of a coal block and iron ore mine.
449. With the aforesaid discussion of various incriminating circumstances as stand proved against all the accused persons by the prosecution, be it the officers of Government of Jharkhand including A-
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 363 of 429 7 Madhu Koda, the then Chief Minister or A-3 H.C. Gupta, Secretary, Coal and Chairman Screening Committee or the other private persons involved I now deem it appropriate to discuss the most crucial aspect of the present case as to whether all these acts were undertaken by different accused persons as part of a criminal conspiracy hatched by them.
Criminal Conspiracy
450. It has been already discussed at length that company M/s VISUL had applied to MOC in January 2007 for seeking allocation of a captive coal block but the company could not succeed in obtaining any recommendation in their favour to MOC either from the State Government of Jharkhand or from Ministry of Steel which was the concerned Administrative Ministry for allocation of a captive coal block. PW 21 Sh. Swapan De Chaudhary who was working as a consultant to Tulsyan's family with respect to their different business enterprises including M/s VISUL and Aroma Coke Ltd. Deposed that on 07/08.12.2007 he had gone to 36 th Screening Committee meeting at New Delhi for making presentation on behalf of Aroma Coke Ltd. (Yet another family concern of Tulsyans which also had applied for allocation of a captive coal block). He further stated that on 08.12.07 no presentation could be however made on behalf of M/s VISUL as no time was left. He further stated that subsequently when he visited MOC office, New Delhi then he was told that there are no chances of M/s VISUL getting allocation of a captive coal block. Accordingly he informed the Tulsyans in this regard and it was decided that no CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 364 of 429 presentation be therefore made before the Screening Committee in the subsequent meeting i.e. on 07.02.2008. He thus stated that for this reason he did not go again before the Screening Committee in the next Screening Committee meeting held on 07.02.2008 to make any presentation on behalf of M/s VISUL. PW 21 Sh. Swapan De Chaudhary also deposed that after M/s VISUL had submitted applications to Department of Industries, Government of Jharkhand for seeking allocation of iron ore mines and later on upon enquiry in Department of Industries also he was told that as the requirement of iron ore of M/s VISUL was very less so it will not be allotted any iron ore mine but can be provided with a linkage.
451. The purpose of reiterating the aforesaid facts is that after Tulsyans, the initial owners/promoters of M/s VISUL had applied for allocation of iron ore mines to Government of Jharkhand and for allocation of captive coal block to MOC, Government of India, they had got sufficient knowledge that primarily on account of less requirement of coal and equally less requirement of iron ore they will neither be recommended for allocation of any coal block by Screening Committee nor they will be recommended for allocation of any iron ore mine by Government of Jharkhand. It is in these circumstances as earlier also discussed the plight of any industrial house in moving ahead for establishing a large project such as sponge iron manufacturing plant can be easily imagined. Undoubtedly both coal and iron ore are two important raw materials essential for production of sponge iron and in the event when captive mines of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 365 of 429 none of the two raw materials is available to a company then establishment of such a plant is clearly not a viable option for the owners/promoters. Precisely for this reason beside various other issues such as law and order problem in undertaking construction at the proposed site, Tulsyans did not proceed ahead with establishing the proposed sponge iron plant. In fact as pointed out by PW-8 Dipak Murarka, PW-9, Manoj Jha, PW-10 Anubhav Kumar Kanodia and PW- 15 Anil Kumar Khandelwal, that despite their intention to associate with M/s VISUL qua their proposed sponge iron plant nothing further materialized as no such plant was established by M/s VISUL.
452. Be that as it may, the aforesaid circumstances thus in fact provide the basic reason as to why Tulsyan family members agreed to sell M/s VISUL to a party who expressed intention to purchase the company. However, an important issue which arises for consideration in such circumstances is why any person or any other business entity would like to purchase such a company. In order to appreciate the said issue certain important facts and circumstances of the case needs to be revisited again, though at the cost of repetition.
453. Thus we have a case in hand where owners/promoters of a company desirous of establishing a sponge iron plant is neither able to procure allocation of a captive coal block nor that of a captive iron ore mine i.e. the two most important raw materials required for production of sponge iron. It is also true that in this process of proposing to establish a sponge iron plant or to apply for an iron ore mine and a coal block, not only some monetary investment but CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 366 of 429 physical efforts must have been also put by the owners/promoters beside also generating a lot of hopes and aspirations. The entire planning of the proposed project must have been worked out by them. Thus if in such a scenario some individual or business entity offers to purchase such a company and if the owners/promoters agrees to sell their company so as to recover the fruits of their all financial, physical or emotional investment in monetary terms, then such a decision certainly can be termed as a wise and prudent business decision for them. At the same time a question may however arise as to why some other business entity would like to purchase such a company. Can in these circumstances such a decision be termed as a wise and prudent business decision for them. Apparently the two competing interests appear to be contradictory in nature and can not be easily explained in ordinary nature of business transactions. However the things even otherwise are not so simple as they appear on the face of it. Like an ice berg what is apparent on the top does not actually represents the entire picture and infact there is much more beneath the water then what is apparently visible.
454. The facts and circumstances of the case as have been discussed at length in the earlier part of present judgment clearly show that A-8 Vijay Joshi who was a businessman having close links with the then Chief Minister of the State i.e. A-7 Madhu Koda thought of a plan whereby a company which had already applied for allocation of an iron ore mine to Government of Jharkhand and for allocation of a captive coal block to MOC be acquired and in the process an iron ore CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 367 of 429 mine be got allotted from Government of Jharkhand, while also getting a captive coal block allotted from MOC, Government of India. As the overall circumstances clearly suggest that A-7 Madhu Koda also willingly joined A-8 Vijay Joshi in the said plan and thereby the seeds of a criminal conspiracy were sowed with a clear objective of acquiring M/s VISUL and thereafter procuring a captive coal block from MOC, Government of India and iron ore mine from Government of Jharkhand in favour of M/s VISUL.
455. At this stage as a mark of caution, I may state that the aforesaid conclusion of conceiving and developing such an idea as has been attributed to A-8 Vijay Joshi and A-7 Madhu Koda is not at all based on any assumption or presumption much less on conjectures and surmises. My subsequent discussion of the overall facts and circumstances of the case and which in fact will be a reiteration of discussion already made in the earlier part of present judgment qua various incriminating circumstances, will clearly show that since the day such a conspiracy was thought of by them, the fortunes of M/s VISUL completely changed. The circumstances of the present case clearly suggest that a well planned conspiracy was worked out by A-8 Vijay Joshi and A-7 Madhu Koda and they even succeeded in achieving the final objective of the conspiracy i.e. obtaining allocation of a captive coal block from MOC, Government of India in favour of M/s VISUL and iron ore mine from Government of Jharkhand. [However in the present case we are primarily concerned with the procurement of "Rajhara Coal Block" for captive use in favour CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 368 of 429 of M/s VISUL from MOC, Government of India.]
456. At this stage, it will be worthwhile to mention that coal is an important raw material for industry especially in steel and cement sector. Availability of a captive coal block provides the allottee company the necessary edge in the competitive market over its other rival companies which are unable to procure allocation of a captive coal block. Even Hon'ble Supreme Court in its order dated 25.08.2014 in the case Manohar Lal Sharma case (Supra) in Para 1 underlined the importance of coal in the industrial development of India.
457. Para 1 of the said order dated 25.08.2014 read as under:
"1. Coal is king and paramount Lord of industry is an old saying in the industrial world. Industrial greatness has been built up on coal by many countries. In India, coal is the most important indigenous energy resource and remains the dominant fuel for power generation and many industrial applications. A number of major industrial sectors including iron and steel production depend on coal as a source of energy. The cement industry is also a major coal user. Coal's potential as a feedstock for producing liquid transport fuels is huge in India. Coal can help significant economic growth. India's energy future and prosperity are integrally dependant upon mining and using its most abundant, affordable and dependant energy supply - which is coal. Coal is extremely important element in the industrial life of developing India. In power, iron and steel, coal is used as an input and in cement, coal is used both as fuel and an input. It is no exaggeration that coal is regarded by many as the black diamond."
458. However, before proceeding further to discuss as to how and in what manner the criminal conspiracy in question proceeded ahead and its objective was achieved i.e. to procure allocation of a captive coal block in faovur of M/s VISUL, it will be appropriate to first refer to CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 369 of 429 the often quoted observations of Hon'ble Supreme Court as regard the offence of criminal conspiracy as were made in the case "State through Superintendent of Police, CBI/SIT Vs. Nalini", 1999 (5) SCC 235. The said observations have been consistently followed in all the cases till date.
459. In the said case, Hon'ble Supreme Court summarized the broad principles governing the law of conspiracy as under:
"591. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles. Under Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.
Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. Conspirators may, for example, be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 370 of 429 single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella-spoke enrollment, where a single person at the center doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 371 of 429 to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".
As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is in contemplation of law, the act of each of them and they are jointly responsible therefore. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 372 of 429 to take no active part in the crime."
460. In this regard, it will be also worthwhile to quote certain other observations with regard to the offence of criminal conspiracy as were made by Hon'ble Supreme Court in the case E.G. Barsay Vs. State of Bombay, AIR, 1961 SC 1762, the view whereof was affirmed and applied in several later decisions, such as Ajay Aggarwal Vs Union of India 1993 (3) SCC 609; Yashpal Mittal Vs. State of Punjab 1977 (4) SCC 540; State of Maharastra Vs. Som Nath Thapa 1996 (4) SCC 659; Firozuddin Basheeruddin Vs. State of Kerala, (2001) 7 SCC 596:
"―The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable."
461. Thus in order to constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 373 of 429 implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied. Even Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co- conspirators.
462. As earlier also stated the events from May 2008 onwards initially in the state of Jharkhand and subsequently in MOC in fact led to a sudden change in the fortunes of M/s VISUL. In other words M/s VISUL suddenly acquired the status of most preferred company in the state of Jharkhand. The said events speak loudly about the hatching of such a conspiracy and thereafter its fine execution so as to achieve its ultimate objective i.e. seeking allocation of a captive coal block from MOC Government of India in favour of M/s VISUL. The subsequent discussion will also show as to how in the impugned conspiracy which can be easily termed as a chain type conspiracy. [Though also having some traces of a wheel spoke type conspiracy with A-7 Madhu Koda and A-8 Vijay Joshi being the focal points.] CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 374 of 429 Various persons were enrolled as and when need arose. Their intention to so agree or in other words their meeting of mind is also writ large on the face of record.
463. From the circumstances discussed above, it is crystal clear that the company M/s VISUL was used as a vehicle to further their ill- intention by A-7 Madhu Koda and A-8 Vijay Joshi so as to procure allocation of a captive coal bock in favour of M/s VISUL. Since A-8 Vijay Joshi was a close associate of A-7 Madhu Koda and as is also reflective from the subsequent conduct of A-7 Madhu Koda (Already discussed at length), the entire administration in Government of Jharhkhand suddenly started favouring the company. Thus, the conspiracy in question moved further with regular steps being taken at different levels to cover up any requirement which may come in the way of allocation of a captive coal block in favour of M/s VISUL. An important issue which arises over here is that if the conspiracy was hatched and initiated by A-8 Vijay Joshi and A-7 Madhu Koda then whether the earlier owners of M/s VISUL i.e. Tulsyan's family had parted way with the company or whether they also became part of any such conspiracy. In this regard I may state that even though Tulsyan family members had agreed to sell their company i.e. M/s VISUL but the said sale as already discussed and demonstrated above was on the assurance by them that they will assist the new owners of M/s VISUL in procuring allocation of iron ore mine and allocation of coal block. I have already discussed and demonstrated that the earlier owners i.e. Tulsyans were actively assisting A-8 Vijay Joshi in CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 375 of 429 procuring allocation of a captive coal block from MOC, Government of India. They in fact agreed to remain associated with A-8 Vijay Joshi in facilitating him in procuring allocation of a captive coal block from MOC.
464. It is the admitted case of A-2 Vaibhav Tulsyan as well as A-8 Vijay Joshi that intimation of sale of company M/s VISUL was never given either to MOC, Government of India nor to Department of Mines or Department of Industries, Government of Jharkhand at any point of time. Thus in these aforesaid circumstances, it becomes clear that whatever communications were undertaken by Ministry of Coal, Government of India or by Department of Mines or Department of Industries, Government of Jharkhand with M/s VISUL were always at their initial registered office, information about which was initially submitted by the company to them. M/s VISUL had initially furnished the address of its registered office to MOC as " REGD. OFFICE :
SUITE NO. 706, SHANTI NIKETAN, 8, CAMAC STREET, KOLKATA- 700017". It is however the case of A-8 Vijay Joshi that after the ownership of company M/s VISUL changed hands then its registered office was changed to "30 CR Avenue, Fourth Floor, Kolkata-12". PW-12 Amit Sharma has categorically stated so. In fact the said address was also the office address of another company of A-8 Vijay Joshi namely M/s Indo Asahi Glass Company Ltd. Thus when during the course of allocation of a coal block number of communications were undertaken at different point of time with M/s VISUL by MOC then all such letters used to be addressed at the initial registered CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 376 of 429 office of M/s VISUL i.e. at Suite No. 706, Shanti Niketan, 8, Camac Street, Kolkata-700017. However, the record shows that the reply to any query, if raised by MOC used to be furnished by A-8 Vijay Joshi under the signatures of PW 12 Amit Sharma. Thus the only necessary conclusion which arises is that the earlier owners of M/s VISUL were actively assisting the new purchasers in making available all such correspondence. However, as earlier also mentioned while discussing the issue of group companies there was one more reason of not intimating to MOC about the sale of company M/s VISUL. In the initial application a certificate Ex. P-59 from A-9 Navin Tulsyan was annexed mentioning the names of 15 companies/firms to be group concern/associate concern of M/s VISUL. During the course of investigation, it was found that out of them only six companies i.e. ACM Fuels Pvt. Limited, Auroma Coke Manufactures Pvt. Ltd, SRS Hotel Pvt. Ltd, Auroma Coke Limited, Smart Dealers Pvt. Ltd and ACM Finvest Pvt. Ltd., were family concerns of Tulsyan's. The remaining nine concerns were however found to be having no relation whatsoever with M/s VISUL.
465. However, it has been already concluded that the said nine companies/firms mentioned at Sr. No. 9 to 15 in the certificate Ex. P- 59 can not be termed as group concern/associate concern of M/s VISUL. Still, for the sake of arguments, if the said nine companies/firms are considered as group concern/associate concern of M/s VISUL then also it is not the case of A-2 Vaibhav Tulsyan that after the sale of M/s VISUL their six family concerns i.e. ACM Fuels CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 377 of 429 Pvt. Limited, Auroma Coke Manufactures Pvt. Ltd, SRS Hotel Pvt. Ltd, Auroma Coke Limited, Smart Dealers Pvt. Ltd and ACM Finvest Pvt. Ltd., were still interested in getting associated with the proposed sponge iron plant to be established by M/s VISUL. Apparently the company M/s VISUL was sold off by them and if they so claim that their six other family concerns were still interested in getting associated with the proposed sponge iron plant to be established by M/s VISUL (since taken over by the new owners) then no further arguments is required to conclude that earlier owners also joined the Band Wagon of criminal conspiracy as was hatched by A-8 Vijay Joshi and A-7 Madhu Koda. Certainly that can never be the claim of A-2 Vaibhav Tulsyan. However, this fact does explain as to why neither the Tulsyans who were the earlier owners of M/s VISUL nor the new owners of M/s VISUL chose to disclose any such information to MOC. Though it has been separately discussed by me that the mentioning of group turnover/group profit/group net-worth was also in fact a calculated step by A-2 Vaibhav Tulsyan on behalf of M/s VISUL so as to enhance the net-worth of the company with a view to provide a better Techno-Economic Viability in establishing the project and thus giving of any intimation to MOC about change of ownership would have taken away the very basis of the said claim made in the application. Thus it was primarily for this reason that neither the earlier owners nor the subsequent purchasers decided to disclose to any authority whatsoever about the change of ownership.
466. However, since A-7 Madhu Koda the then Chief Minister of the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 378 of 429 Government of Jharkhand was interested in the project so things started moving swiftly and easily for M/s VISUL. It would not be rather out of place to say that A-8 Vijay Joshing being a known close associate of A-7 Madhu Koda the then Chief Minister of the State started calling shots in Government of Jharkhand as regard the affairs regarding M/s VISUL were concerned. PW 12 Amit Sharma had already stated that despite being a Director of M/s VISUL he himself never visited any Department. This claim of his has also remained completely uncontroverted on behalf of all the accused persons. It is in this context if the file Ex. PW 3/C (colly) (D-141/1) relating to allocation of Kurta Iron Ore Mine is seen then it is found that on 11.07.2008 the District Mining Officer, Chaibasa had written a letter to Director (Mines), Jharkhand, Ranchi i.e. A-5 B.B. Singh furnishing along with it necessary information in the prescribed check-list with map duly attested under his signatures. In the said information so furnished in the prescribed proforma as is available from page 275- 278 in the file, two addresses of M/s VISUL are mentioned i.e. 210, Shanti Bhawan, Bank More, Dhanbad with registered office address as 30, C.R. Avenue, 4th Floor, Kolkata-700012. Thus, it is beyond comprehension that if no information about sale of company was furnished to Department of Mines or Department of Industries either by earlier owners or by the new owners and in the initial application submitted on 05.08.2005 by A-2 Vaibhav Tulsyan as Director of M/s VISUL, the address was mentioned as 210, Shanti Bhawan, Bank More, Dhanbad then how Chief Mining Officer Chaibasa gathered information about the new registered office of company as being 30, CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 379 of 429 C.R. Avenue, 4th Floor, Kolkata-700012. The purpose of mentioning the aforesaid facts is simply to highlight that since the Chief Minister of the State was personally interested in the affairs of M/s VISUL so things moved as per the wishes and desires of A-7 Madhu Koda and A-8 Vijay Joshi who was a known close associate of A-7 Madhu Koda.
467. Even during the course of search operation carried out at the residence of yet another Director of M/s VISUL namely Prashant Tulsyan copy of allocation letter dated 05.08.2008 issued by MOC allocating Rajhara Coal Block jointly in favour of M/s Mukand Limited and M/s VISUL was recovered. This fact again reinforces that all correspondence as were received in the name of company from different departments including MOC, Government of Jharkhand were being routed to A-8 Vijay Joshi by the earlier owners. At this stage a question may arise as to why after selling the company the earlier owners would like to be associated with any such criminal conspiracy. The answer to the same is plain and simple. As already discussed and demonstrated M/s VISUL was a company which was neither recommended for allocation of a coal block by Government of Jharkhand nor for allocation of any Iron Ore Mine and was also facing law and order problem in the State in establishing its industry. The company however suddenly found a purchaser which as already discussed in ordinary circumstances defied any logic, reason or business prudence. The Icing on the Cake was that not only M/s VISUL was able to recover whatever investment was made by them but they also made profits by being able to procure a handsome CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 380 of 429 amount i.e. @ Rs. 230/- per share. Thus it was in lieu of getting the said handsome amount, the circumstances clearly suggest that the Tulsyan family members who were the earlier owners of M/s VISUL agreed with A-8 Vijay Joshi in assisting him in procuring allocation of a coal block from MOC in favour of M/s VISUL and in the process and rendering whatever help as may required by the new purchasers.
468. With the aforesaid background, it would be now pertinent to examine as to how the criminal conspiracy so hatched by A-8 Vijay Joshi and A-7 Madhu Koda moved ahead. As already mentioned, the final meeting of 36th Screening Committee where recommendations for allocation of various coal blocks in favour of different applicant companies were to be made was scheduled to be held on 03.07.08 in MOC office, Shastri Bhawan, New Delhi. The said meeting was very crucial for A-8 Vijay Joshi and A-7 Madhu Koda, for success in getting recommendation for allocation of a coal block in favour of M/s VISUL in the said meeting could have only made their entire efforts in hatching up the criminal conspiracy fruitful. The ultimate objective for which the criminal conspiracy in question was hatched i.e. to secure allocation of a captive coal block in favour of M/s VISUL could not have been achieved had 36th Screening Committee meeting not made any recommendation in favour of M/s VISUL.
469. However, there were various road blocks coming in the way of achieving this objective of the criminal conspiracy. Government of Jharkhand had repeatedly reasserted the names of M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. to MOC for allocation of "Rajhara CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 381 of 429 Coal Block".
However, as is apparent from file Ex. PW 3/B (Colly) (D-
140) an attempt was sought to be made on 02.07.08 to revise the recommendation of Government of Jharkhand as were earlier sent for "Rajhara Coal Block" so as to replace M/s Zoom Vallabh Steel Limited by M/s VISUL. As already discussed at length on 02.07.08, A-4 B.K. Bhattacharya, Section Officer, Department of Mines, Government of Jharkhand himself initiated a note in file Ex. PW 3/B (Colly) (D-140) without there being any context, reason, logic or basis for the same observing that the current status of progress of M/s VISUL was satisfactory while in comparison thereto the progress of M/s Zoom Vallabh Steel Ltd. was not satisfactory. He thus further recorded that in these circumstances a decision may be taken regarding allocation of a part of "Rajhara Coal Block" to M/s VISUL in place of M/s Zoom Vallabh Steel Ltd.. As earlier also mentioned the said note though travelled to the desk of A-5 B.B. Singh, Director (Mines) and he too forwarded it on 02.07.08 itself without even questioning as to in what context or reason or basis the said note has been initiated. However, when the file reached the desk of Dy. Secretary Mines, Subodh Kishore Sorang, then vide note dated 07.07.2008 he returned back the file as to whether after approval of earlier recommendation by the Chief Minister, can recommendation in favour of any other company be sent.
470. Thus, the recording of aforesaid note clearly shows the concerted efforts being made by the officers of Government of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 382 of 429 Jharkhand to somehow or other include M/s VISUL in the recommendations already sent to MOC by Government of Jharkhand. However, such an effort so attempted vide note dated 02.07.08 could not succeed. The only option thus left was the Screening Committee meeting itself, as was to be held on 03.07.08.
471. Coming now to the proceedings of Screening Committee meeting held on 03.07.08. It would be worthwhile to reiterate that in the said meeting it was well to the knowledge of A-3 H.C. Gupta, Secretary Coal and Chairman, Screening Committee that Government of Jharkhand has recommended M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. for allocation of "Rajhara Coal Block" and that M/s VISUL has not been recommended by Government of Jharkhand. It was also to his knowledge from the comments received from Ministry of Steel that the Ministry has not placed M/s VISUL under any of its seven (7) categories for being recommended for allocation of a coal block. Ministry of Steel had found the company M/s VISUL to be ineligible as per the criteria evolved by it. Thus, in these circumstances as per the claim of A-3 H.C. Gupta himself (when he entered the witness box as DW-6 u/s 315 Cr.PC) that after A-6 A.K. Basu, Chief Secretary of the State proposed the name of M/s VISUL for being recommended for allocation of "Rajhara Coal Block" then he pointed out to him that the said company has not been recommended by Government of Jharkhand. It is also his case that Joint Secretary, Steel, PW-29 U.P Singh also pointed out at that time that company M/s VISUL has not been placed under any category by Ministry of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 383 of 429 Steel and thus may not be recommended for allocation of any coal block. However, A-3 H.C. Gupta has claimed that pursuant to insistence of A-6 A.K. Basu that progress made by M/s VISUL was much better as compared to other companies then discussion/deliberation took place and a unanimity thereafter arose during the course of discussion in the Screening Committee meeting and pursuant to which M/s Mukund Ltd. and M/s VISUL were jointly recommended for allocation of "Rajhara Coal Block". He also stated that A-6 A.K. Basu stated that even though the State Government might have sent a different proposal earlier but now in the meeting it was their revised proposal.
472. I have however already discussed in the earlier part of my present judgment that neither A-6 A.K. Basu was having any information or record prior to 03.07.08 from which he could have ascertained the progress made by M/s Zoom Vallabh Steel Limited or that made by other applicant companies nor during the course of meeting held on 03.07.08 any such information or record was available with him so that he could state that of all the applicant companies M/s VISUL was best placed in terms of progress made qua land, power, water, etc. Moreover as earlier also discussed PW-18 K.K. Khandelwal, Secretary Industries and Mines, Government of Jharkhand who could have been presumed to be having any such information being Secretary Industries was also not present in the Screening Committee meeting held on 03.07.08 at the time when discussion qua coal blocks situated in the State of Jharkhand took CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 384 of 429 place. It has also come on record that during the meeting A-6 A.K. Basu had not placed any documentary evidence in support of his statements made by him in favour of M/s VISUL.
473. Thus, from the aforesaid circumstances, it is crystal clear that except for making the aforesaid bald statement by A-6 A.K. Basu there was not even a single iota of evidence before the Screening Committee from which it could have been ascertained that M/s VISUL has made satisfactory progress in terms of land, power, water etc. in the state towards setting up the industry much less in comparison to that made by the other companies including M/s Zoom Vallabh Limited which was already recommended by State Government of Jharkhand. It is in this context when the minutes of Screening Committee meeting held on 03.07.08 are again revisited than as already discussed at length it is found that they are completely silent as to in what circumstances M/s VISUL was recommended for allocation of a captive coal block even though it was neither recommended by Government of Jharkhand nor by Ministry of Steel. The minutes are also silent as to why M/s Zoom Vallabh Steel Limited i.e. a company recommended both by Government of Jharkhand and by Ministry of Steel was not recommended for allocation of a coal block.
474. It is also the undisputed case that M/s VISUL had neither made any presentation before the Screening Committee nor submitted any feed back form titled "Latest Status of End Use Plant" as the company had already got a hint prior to February 2008 that it is not going to be recommended for allocation of any coal block by the Screening CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 385 of 429 Committee.
475. As earlier also discussed, A-3 H.C. Gupta in his examination- in-chief, deposed that though in the Screening Committee meeting no interse priority chart was prepared but the interse priority was determined through discussion amongst members of the Screening Committee. Thus, if the aforesaid claim of DW-6 H.C. Gupta is accepted as true then it is beyond comprehension as to how in the absence of any fresh information regarding progress made by M/s VISUL subsequent to submission of initial application form in January 2007, any comparative assessment of the company could have been made vis-a-vis that of various other applicant companies in terms of progress made by them towards establishing their industry could have been made and that too in July 2008 i.e. after about 18 months. Moreover, we have a case where M/s Mukund Ltd. and M/s Zoom Vallabh Steel Ltd. not only submitted their feedback form titled "Latest Status of End Use Project" before 36th Screening Committee meeting but also made their presentation.
476. In the aforesaid circumstances the only necessary inference which arises is that in the Screening Committee meeting held on 03.07.08, A-6 A.K. Basu agreed to assist by his overt acts A-7 Madhu Koda and A-8 Vijay Joshi in procuring allocation of "Rajhara Coal Block" in favour of M/s VISUL. It is also clear that A-3 H.C. Gupta, Secretary, Coal and Chairman Screening Committee also boarded the band wagon of criminal conspiracy as was floated by A-7 Madhu Koda and A-8 Vijay Joshi and which was being propelled by A-6 A.K. Basu CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 386 of 429 in the Screening Committee meeting. I have also already discussed and demonstrated at length that the recommendation made by the Screening Committee in favour of M/s VISUL for allocation of "Rajhara Coal Block" can by no means be termed as unanimous decision.
477. Moreover, at the cost of repetition, I may again state that as regard minutes Ex. PW 18/DX-5 (Colly), A-3 H.C. Gupta has though claimed that the same were prepared in the spirit of Manual of Office Procedure and it was not possible to record all such discussion in the minutes but it does not require any far-fetched arguments to see that when the final recommendations of 36 th Screening Committee were to be sent to Prime Minister as Minister of Coal for approval alongwith minutes thereof then it was not only necessary but imperative that the circumstances or reasons for which recommendation qua any given coal block in favour of any particular company was being made ought to be mentioned and especially when a particular company was recommended against the recommendation of Administrative Ministry concerned and also against the earlier three consistent recommendations of the concerned State Government. However very conveniently neither in the minutes of 36 th Screening Committee nor in the note dated 10.07.2008 as was later on prepared by CA-I, Section, MOC and which got routed through the desks of PW-28 Sh. V.S. Rana, Under Secretary, CA-I, Sh. K.C. Samria, Director, CA-I and Sh. K.S. Kropha, Joint Secretary Coal and finally to the desk of A-3 H.C. Gupta, it was mentioned anywhere as to on what ground or for what reasons M/s VISUL was being recommended for allocation of a coal CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 387 of 429 block. In fact it was mentioned in the note as was also mentioned in the minutes that the Committee assessed the applications having regard to matters such as techno-economic feasibility of the end use project, status of preparedness to set up the end use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned. However, as also earlier discussed that in fact no such discussion on any of the said factors/criteria took place at least as regard the issue of M/s VISUL to be recommended for allocation of "Rajhara Coal Block". and minutes Ex. PW 18/DX-5 (Colly) thus does not contain true and correct facts in this regard. Moreover, as earlier also mentioned A-3 H.C. Gupta in his note dated 14.07.2008 while forwarding the file to Prime Minister as Minister of Coal even referred to the allocation made in favour of M/s VISUL while dealing with the request of M/s Contisteel Ltd. for being recommended for "Rajhara Coal Block" but again chose to not mention any facts relating to circumstances in which M/s VISUL was recommended for allocation of "Rajhara Coal Block".
478. These circumstances appear all the more strange when it is seen that the matter being dealt with by A-3 H.C. Gupta was relating to important nationalized natural resources of the country having immense importance for the industrial development of the country and also that coal blocks being allotted were having high monetary value.
479. Thus, from the aforesaid circumstances, it is clear that there CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 388 of 429 was a concerted effort by A-3 H.C. Gupta in not placing all true and complete facts before the competent authority i.e. Prime Minster as Minister of Coal. As also earlier discussed at length that even subsequently, in a meeting with Sh. T.K.A. Nair, Principal Secretary to Prime Minister, A-3 H.C. Gupta stated that the proposal is based strictly on merits of the applicants, including the recommendations of the State Governments where the coal blocks are located. Thus, there was again a conscious effort by A-3 H.C. Gupta in ensuring allocation of a captive coal block in favour of M/s VISUL by not disclosing true and complete facts relating to circumstances in which M/s VISUL was recommended for allocation of "Rajhara Coal Block".
480. Thus from the aforesaid detailed discussion, it is crystal clear that the facts and circumstances of the case in hand presents a case of a classic criminal conspiracy. It will not be wrong to state, if the criminal conspiracy which has emerged from the facts and circumstances of the present case is termed as a typical copy book criminal conspiracy as has also been explained by Hon'ble Supreme Court in the case CBI Vs. Nalini (Supra). In fact we have not only circumstantial evidence but also direct evidence duly proved on record and which provides irresistible and conclusive proof of not only of hatching of a criminal conspiracy but also as to how the said criminal conspiracy moved ahead enrolling other persons as and when need arose and ultimately succeeding in achieving its ultimate objective of procuring allocation of a captive coal block in favour of M/s VISUL.
481. Thus as already discussed A-7 Madhu Koda and A-8 Vijay CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 389 of 429 Joshi both conspired together to hatch a criminal conspiracy so as to procure allocation of a captive coal block in favour of a company. In this process and as also earlier mentioned A-1 M/s VISUL was found to be the most ideal company which could be so acquired, as it had already applied for allocation of iron ore mine to Government of Jharkhand and also to MOC, Government of India for allocation of a captive coal block. It also stands clearly established that even though company M/s VISUL was not recommended by Government of Jharkhand in any of its earlier three recommendations sent to MOC for allocation of a captive coal block and efforts made by other officers of Government of Jharkhand i.e. A-4 B.K. Bhattacharya and A- 5 B.B. Singh on 02.07.08 in including the name of A-1 M/s VISUL in the recommendations of Government of Jharkhand to be sent to MOC could not succeed, so A-6 A.K. Basu, the Chief Secretary of the State who was a member of 36th Screening Committee and was to attend Screening Committee meeting held on 03.07.2008 was roped in and as is evident from his conduct discussed above he also agreed to join them as a conspirator. It has also been clearly established that in the meeting of 36th Screening Committee held on 03.07.2008, A-6 A.K. Basu without there being any record or information available with him insisted for allocation of "Rajhara Coal Block" in favour of M/s VISUL and falsely claimed it to be better placed in terms of land, power, water etc. as compared to all other applicant companies who had applied for allocation of "Rajhara Coal Block". It has also been established that despite opposition by PW-29 U.P. Singh, Joint Secretary, Ministry of Steel, A-3 H.C. Gupta, Secretary, Coal and CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 390 of 429 Chairman, Screening Committee, agreed to the said suggestion of A-6 A.K. Basu without there being any record or information available before the Screening Committee to conclude that M/s VISUL was better placed then all other applicants for "Rajhara Coal Block" in terms of progress made towards establishing its end use project and especially qua land, power, water etc. The fact that A-3 H.C. Gupta agreed to join the said criminal conspiracy is also evident from the fact that in the minutes of 36th Screening Committee, which were later on prepared in MOC and were approved by him as Secretary Coal, it was not mentioned at all that in what circumstances M/s VISUL has been recommended for allocation of a coal block or as to why M/s Zoom Vallabh Steel Ltd. was not recommended. It was also not mentioned that M/s VISUL has neither been recommended by Government of Jharkhand in any of its earlier three recommendations sent to MOC nor Ministry of Steel had found it to be eligible for being recommended for allocation of a coal block. It was also not mentioned that M/s Zoom Vallabh Steel Ltd. was recommended by Government of Jharkhand in all its three earlier recommendations and Ministry of Steel has also placed it in category II (a) and thereby recommending it for allocation of a coal block. The complicity of A-3 H.C. Gupta in the impugned criminal conspiracy is also clearly evident and stands well established from the fact that despite knowing fully well that Competent Authority i.e. Prime Minister as Minister of Coal shall act on the recommendations of 36th Screening Committee only, but still true and complete facts were not mentioned in the minutes. It has also been clearly established that it was wrongly mentioned in the minutes at CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 391 of 429 least as regard M/s VISUL that the Screening Committee in arriving at its decision had considered the techno-economic feasibility of end use project, status of preparedness of setting up the end use project, past track record in execution of project, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc.
482. Thus, it is clear that it was on account of aforesaid acts of A-6 A.K. Basu, Chief Secretary, Government of Jharkhand, A-3 H.C. Gupta, Secretary Coal and Chairman Screening Committee, A-7 Madhu Koda, Chief Minister, State of Jharkhand and A-8 Vijay Joshi who in fact was managing and controlling all the affairs of A-1 M/s VISUL and was thus acting on behalf of company M/s VISUL, it is clear that the ultimate object of the criminal conspiracy i.e. to procure allocation of "Rajhara Coal Block" in favour of M/s VISUL could be achieved. All through company A-1 M/s VISUL was used as a vehicle and all acts so done on its behalf are clearly attributable to it.
483. After having established the existence of a criminal conspiracy and involvement of A-1, M/s VISUL, A-3 H.C. Gupta, A-6 A.K. Basu, A- 7 Madhu Koda and A-8 Vijay Joshi in it, some other important questions however arises for consideration such as when the criminal conspiracy was hatched. It also needs to be examined as to when the criminal conspiracy came to an end. Thereafter the role of A-2 Vaibhav Tulsyan, A-4 B.K. Bhattacharya, A-5 B.B. Singh and A-9 Navin Kumar Tulsyan in the said criminal conspiracy needs to be also examined.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 392 of 429
484. In this regard, it will be suffice to state and as earlier also discussed and demonstrated above at length that efforts to gain control over the affairs of A-1 M/s VISUL by A-8 Vijay Joshi with the help of A-7 Madhu Koda, Chief Minister of the State started much before the execution of MOU Ex. PW 14/A. It has been clearly established that even before the month of May 2008 such efforts had started. Thus even though no definite date can be assigned as to when the criminal conspiracy in question was exactly hatched by A-7 Madhu Koda and A-8 Vijay Joshi but it is clear that it started even prior to May 2008.
485. Since the ultimate object of the criminal conspiracy in question was to procure allocation of a coal block in favour of M/s VISUL so it can be reasonably concluded that the said object was achieved when the final letter of allocation was issued by MOC in favour of M/s VISUL i.e. letter dated 20.11.2008 Ex. P-104 (D-122).
Whether A-4 B.K. Bhattacharya can be held liable as a conspirator with other co-accused persons.
486. In the aforesaid circumstances a question however arises as to whether, A-4 B.K. Bhattacharya who has been primarily arrayed by the prosecution as a conspirator on account of recording of note dated 02.07.2008 by him in file Ex. PW 3/B (D-140) without there being any logic, basis or reason for recording the same and also not mentioning complete facts in it, can be held to be a conspirator in the impugned criminal conspiracy or not. However in my considered opinion the answer is "No". As already discussed and demonstrated above the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 393 of 429 note dated 02.07.2008 initiated by A-4 B.K. Bhattacharya, wherein he stated the progress made by M/s VISUL towards establishing its industry in the state to be satisfactory and that made by M/s Zoom Vallabh Steel Ltd. to be not satisfactory proved to be an abortive attempt as the said note though travelled through the desk of A-5 B.B. Singh on 02.07.08 itself but could not cross through the desk of Dy. Secretary, Mines, Sh. S.K. Sorang, who vide his note dated 07.07.2008 returned back the file observing that when recommendations with the approval of Chief Minister have already been sent, can new recommendation be sent. Thus in view of the aforesaid circumstances, it is clear that the said note dated 02.07.08 initiated by A-4 B.K. Bhattacharya or even forwarded by A-5 B.B. Singh though was clearly made to favour A-1 M/s VISUL and that too without any logic, reason or basis ( as already discussed in detail in the earlier part of present judgment ) but the same never came to the notice of either A-6 A.K. Basu or A-3 H.C. Gupta. It is also not the case of prosecution that the said note dated 02.07.2008 was in any manner instrumental in procuring recommendation of Screening Committee in its meeting held on 03.07.2008 in favour of M/s VISUL for allocation of "Rajhara Coal Block". In these circumstances it thus can not be stated that A-4 B.K. Bhattacharya was also one of the conspirator in the impugned criminal conspiracy. I thus giving benefit of doubt to A-4 B.K. Bhattacharya hereby acquit him of the offence of criminal conspiracy i.e. u/s 120-B IPC.
487. For the same reasons the charge for the offence u/s 13 (1) (d) CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 394 of 429 P.C. Act, 1988 also can not hold ground against A-4 B.K. Bhattacharya. Even though he abused his position as a public servant in putting up a wrong and incomplete note but since the said note dated 02.07.08 initiated by him could not achieve its desired objective on account of intervention made by Dy. Secretary (Mines) Sh. S.K. Sorang so it can not be stated that the said act of abusing his office by A-4 B.K. Bhattacharya resulted in obtaining of any valuable thing or pecuniary advantage either for himself or for any other person. Thus an important ingredient of the offence u/s 13 (1) (d) P.C. Act, 1988 that the act alleged to have been committed by the public servant must result in obtaining of any valuable thing or pecuniary advantage either for himself or for any other person does not stand proved or established against him. A-4 B.K. Bhattacharya accordingly stands acquitted of the offence of criminal misconduct i.e. u/s 13 (1)
(d) P.C. Act, 1988.
Consequently, A-4 B.K. Bhattacharya also stands acquitted of the charge for the offence u/s 120-B r/w Section 409/420 IPC and Section 13 (1) (c)/13 (1) (d) P.C. Act, 1988 .
Whether A-5 B.B. Singh can be held liable as a conspirator with other co-accused persons.
488. As regard A-5 B.B. Singh also, I may state that beside forwarding of note dated 02.07.2008 of A-4 B.K. Bhattacharya as above, he has been arrayed as a conspirator by the prosecution primarily for having recorded note dated 28.07.2008 wherein he stated the progress made by M/s VISUL towards establishing its industry in CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 395 of 429 the state to be satisfactory and that made by M/s Mukund Ltd. to be not satisfactory. No doubt as has been discussed earlier, the said note has also been made by A-5 B.B. Singh without there been any logic, basis or reason for recoding the same. It is also clear that the same was recorded with a view to ensure that "Rajhara Coal Block" is allotted in favour of M/s VISUL alone. The quick movement of the file on that day beside sending of letter dated 28.07.2008 Ex. P-59 by A-6 A.K. Basu (as already discussed at length) all smells of acts having been undertaken as part of the impugned criminal conspiracy. However in my considered opinion even though A-5 B.B. Singh had not only recorded note dated 28.07.08 without any reason, occasion or logic and he was also not having any basis or record or information to state in his note that the progress made by M/s Mukund Ltd. is not satisfactory and also in his note he did not disclose complete information that as per MOU Ex. PW 18/DX-1 executed with M/s VISUL, the company could not have been recommended for allocation of a coal block but still his attempt to procure allocation of "Rajhara Coal Block" exclusively in favour of M/s VISUL (though in strict terms can be stated to be an extended objective of the impugned criminal conspiracy) also proved to be an abortive attempt. As already mentioned the said request of Government of Jharkhand communicated by A-6 A.K. Basu vide his letter dated 28.07.2008 Ex. P-15 was turned down by MOC as by that time the recommendation of 36th Screening Committee were already approved by the Competent Authority i.e. Prime Minister as Minister of Coal.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 396 of 429 In view of the aforesaid circumstances, I am of the considered opinion that he too deserves benefit of doubt in as much as on the basis of evidence led on record he also can not be considered as a conspirator in the impugned criminal conspiracy hatched by the other accused persons.
I accordingly acquit A-5 B.B. Singh also of the charge of the offence of criminal conspiracy i.e. u/s 120-B IPC.
489. Similarly for the same reasons as are mentioned qua A-4 B.K. Bhattacharya while acquitting him of the offence u/s 13 (1) (d) P.C. Act, 1988 as mentioned above, A-5 B.B. Singh is also acquitted of the charge for the offence u/s 13 (1) (d) P.C. Act, 1988 as it has not been proved on record that the impugned acts of A-5 B.B. Singh which though were committed by him by abusing his official position resulted in obtaining any valuable thing or pecuniary advantage either for himself or for any other person.
A-5 B.B. Singh is accordingly acquitted of the charge for the offence of criminal misconduct i.e. u/s 13 (1) (d) P.C. Act, 1988 also.
Consequently, A-5 B.B. Singh is also acquitted of the charge for the offence u/s 120-B IPC r/w Section 409/420 IPC and Section 13 (1) (c)/13 (1) (d) P.C. Act, 1988.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 397 of 429 A-2 Vaibhav Tulsyan
490. As regard A-2 Vaibhav Tulsyan the allegations against him beside being part of a criminal conspiracy are also that he committed the acts of cheating by furnishing false information about group turnover, group profit and group networth in the application submitted to MOC on behalf of M/s VISUL seeking allocation of a captive coal block and thereby induced MOC, Government of India in allocating "Rajhara Coal Block" in favour of M/s VISUL. In this regard, I may however state that in view of my aforesaid detailed discussion wherein it has been conclusively established that A-3 H.C. Gupta and A-6 A.K. Basu acted as part of a large conspiracy which was hatched by A-7 Madhu Koda and A-8 Vijay Joshi using A-1 M/s VISUL as their vehicle and thereby obtained allocation of "Rajhara Coal Block" in favour of M/s VISUL and also it is clear that the Screening Committee never discussed any of the factors, be it status of preparedness to set up the end use project, past track record in execution of project, technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries much less the financial capabilities of the applicant companies or the techno-economic feasibility of the end use projects at least while making its recommendation in favour of M/s VISUL for allocation of "Rajhara Coal Block". In these circumstances, I am of the considered opinion that even though it has been proved that misrepresentation was made in the application by A-2 Vaibhav Tulsyan stating highly inflated group turnover, group profit and group networth but since the said CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 398 of 429 information was never acted upon by the Screening Committee much less by MOC, Government of India so it can not be stated that by virtue of said information A-2 Vaibhav Tulsyan deceived the Screening Committee and thereby MOC, Government of India so as induce it to allocate a captive coal block i.e. "Rajhara Coal Block" in favour of A-1 M/s VISUL.
491. Thus clearly an important ingredient of the offence of cheating i.e. the "misrepresentation" made to Screening Committee either fraudulently or dishonestly on behalf of A-1 M/s VISUL by A-2 Vaibhav Tulsyan, induced Screening Committee and thereby MOC, Government of India so as to allocate "Rajhara Coal Block" in favour of M/s VISUL is not satisfied. Accordingly without any further discussion, I am of the considered opinion that prosecution has miserably failed in proving the offence of cheating i.e. u/s 420 IPC as against A-2 Vaibhav Tulsyan.
He is accordingly acquitted of the charge for the offence of cheating i.e. u/s 420 IPC.
492. As regard allegations against A-2 Vaibhav Tulsyan of his being a part of criminal conspiracy, it will be pertinent to mention that clearly the factum of submission of application by A-2 Vaibhav Tulsyan to MOC on 09.01.2007 even though containing misrepresentation as mentioned above was an act prior to the time when the criminal conspiracy was hatched i.e. when the common intention was so shared by the conspirators and thus can not be considered as an CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 399 of 429 incriminating piece of evidence against him for assessing his involvement in the impugned criminal conspiracy.
493. Apart from the aforesaid factum of submission of application another allegation levelled against A-2 Vaibhav Tulsyan is that on 30.04.2008 he executed a share transfer deed and thereby transferred 5000 shares in the name of PW-12 Amit Sharma. As regard the said act, I may state that it is not even the case of prosecution that selling of shares of a company was an illegal act or was in any manner prohibited by any rules, regulations or guidelines issued by MOC or by Government of Jharkhand. It is also not the case of prosecution that selling of said shares to PW-12 Amit Sharma on 30.04.2008 resulted in submitting of letter dated 06.05.08 Ex. P-98 by PW-12 Amit Sharma to Department of Industries seeking extension of MOU executed with M/s VISUL or his signing the said letter as Director M/s VISUL. The said act of PW-12 Amit Sharma of signing the letter dated 06.05.08 as Director, M/s VISUL can not in any manner be attributed to selling of 5000 shares of M/s VISUL to him by A-2 Vaibhav Tulsyan. Thus mere selling of 5000 shares by M/s VISUL in favour of PW-12 Amit Sharma can not be termed to be an incriminating act in itself against A-2 Vaibhav Tulsyan. Though number of other acts have also been alleged against the earlier owners/directors of M/s VISUL i.e. Tulsyans and Hemant Aggarwal by the prosecution which as per my discussion in the earlier part of present judgment have also been cogently established showing active involvement of Tulsyans, and also that of Hemant Aggarwal who too CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 400 of 429 was a director in M/s VISUL, in assisting A-8 Vijay Joshi in procuring allocation of a captive coal block in favour of M/s VISUL even after sale of company. Even execution of MOU Ex. PW 14/A by Hemant Aggarwal, is stated to be yet another act in this regard. The submission of letter dated 20.05.2008 Ex. PW 18/DX-1 (Colly) by PW- 21 Swapan De Choudhary, Consultant, M/s VISUL and thereby supporting letter dated 06.05.2008 Ex. P-98 of PW-12 Amit Sharma seeking extension of MOU executed with M/s VISUL for a period of two years has also been already held to be one of such act showing involvement of Tulsyans, the earlier owners of M/s VISUL in the alleged criminal conspiracy. The subsequent delivery of various communications to A-8 Vijay Joshi after they were received from Government of Jharkhand and MOC by Tulsyans have been stated to be certain additional circumstances in this regard. However, I am of the considered opinion that though all such acts have been held to be categorically established by this Court but none of the aforesaid acts have been specifically attributed to A-2 Vaibhav Tulsyan. Even though PW-23 Arvind Vyas has stated that when he went to have talks with Tulsyans to purchase the company M/s VISUL then he had talks with A-2 Vaibhav Tulsyan and Hemant Aggarwal who was another director of M/s VISUL but the said statement in itself certainly is insufficient to indicate any involvement of A-2 Vaibhav Tulsyan in the impugned criminal conspiracy. Moreover, as already discussed the MOU Ex. PW 14/A with M/s Saturn Iron Ore & Mining Ltd. was admittedly signed by Hemant Aggarwal and he continued to be on board of directors even after the sale of company by Tulsyans. However, no evidence has CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 401 of 429 been led on record which could show that any subsequent communication received from Government of Jharkhand or MOC, Government of India were passed on to A-8 Vijay Joshi by A-2 Vaibhav Tulsyan himself or at his directions. As already stated, submission of letter dated 06.05.2008 Ex. P-98 by PW-12 Amit Sharma stating himself to be director of M/s VISUL can not impute any liability on A-2 Vaibhav Tulsyan. The subsequent submission of letter dated 20.05.2008 Ex. PW 18/DX-1 by PW-21 Swapan De Chaudhary also can not be attributed specifically to A-2 Vaibhav Tulsyan.
The sum and substance of my aforesaid discussion is that as there is no evidence on record which could show any overt or covert act as may be attributed to A-2 Vaibhav Tulsyan from after the time when the common intention amongst the conspirators came into existence, so it can not be stated that from out of all the five earlier owners/directors of M/s VISUL i.e. Vaibhav Tulsyan, Prashant Tulsyan, Sanjeev Tulsyan, Nisha Tulsyan and Hemant Kumar Aggarwal, it is only A-2 Vaibhav Tulsyan who can be held liable for the said acts on behalf of company M/s VISUL. Moreover when none of the other four directors have been arrayed as accused in the present trial.
Thus in view of my aforesaid discussion, I am of the considered opinion that from the nature of evidence as brought on record against A-2 Vaibhav Tulsyan by the prosecution, he, i.e. A-2 Vaibhav Tulsyan can not be personally held liable for the various acts as were committed by the earlier owners/directors of M/s VISUL. The CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 402 of 429 law in this regard is well settled that before any director of a company is held liable it must be proved that he was either directly and personally involved with the commission of the alleged acts and that under Penal law, he can not be held vicariously liable. It has also not been proved that A-2 Vaibhav Tulsyan was the person who was in control of the management and day to day affairs of the company. [Reference in this regard may be had to the case Sunil Bharti Mittal (Supra)] Thus charge for the offence of criminal conspiracy i.e. u/s 120-B IPC does not stand proved against A-2 Vaibhav Tulsyan beyond shadows of all reasonable doubts. I accordingly giving benefit of doubt to A-2 Vaibhav Tulsyan also acquit him of the offence of being a member of the impugned criminal conspiracy.
Consequently, A-2 Vaibhav Tulsyan is also acquitted of the charge for the offence u/s 120-B IPC r/w Section 409/420 IPC and Section 13 (1) (c)/13 (1) (d) P.C. Act, 1988.
A-9, Naveen Kumar Tulsyan
494. In view of the reasons mentioned above qua A-2 Vaibhav Tulsyan while acquitting him of the offence of cheating i.e. u/s 420 IPC and of the offence of criminal conspiracy i.e. u/s 120-B IPC. when the details of group turnover, group profit and group networth as were furnished in the application of A-1 M/s VISUL by A-2 Vaibhav Tulsyan on the basis of certificate Ex. P-59 issued by A-9, Naveen Kumar CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 403 of 429 Tulsyan were not even considered by the Screening Committee so it also can not be held that A-9, Naveen Kumar Tulsyan issued the impugned certificate Ex. P-59 on account of being a conspirator in the impugned conspiracy.
Accordingly, A-9 Navin Kumar Tulsyan is acquitted for the offence of criminal conspiracy i.e. u/s 120-B IPC and also for offences u/s 120-B IPC r/w Section 409/420 IPC and Section 13 (1)
(c)/13 (1) (d) P.C. Act, 1988.
Charge for the offence of cheating i.e. 420 IPC against A-1, M/s VISUL and A-8 Vijay Joshi.
495. For the similar reasons as have been mentioned in the discussion qua A-2 Vaibhav Tulsyan in relation to the charge for the offence of cheating, framed against him, it also can not be stated that the allotment of "Rajhara Coal Block" in favour of M/s VISUL was procured by A-1 M/s VISUL or A-8 Vijay Joshi on the basis of any information regarding group turnover, group profit and group net-worth as was mentioned in the application of A-1 M/s VISUL. Though I have already held that the said information was wrongly mentioned in the application and there was no basis for mentioning the same but as it has also been already concluded that the allocation of "Rajhara Coal Block" in favour of M/s VISUL was procured as part of a larger criminal conspiracy having no relation with the said financial figures mentioned in the application so the essential ingredients of the offence of cheating that any such false information submitted by the accused persons had the effect of deceiving Screening Committee and thereby CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 404 of 429 MOC, Government of India so as to induce them to deliver allocation of a coal block in favour of the company M/s VISUL does not stand proved or established.
I accordingly hereby acquit A-1 M/s VISUL and A-8 Vijay Joshi also for the offence of cheating i.e. u/s 420 IPC.
Charge for the offence u/s 13 (1) (d) P.C. Act against A-3 H.C. Gupta A-6 A.K. Basu and A-7 Madhu Koda.
496. Before proceeding to analyse the charge for the offence u/s 13 (1) (d) P.C. Act, 1988 as framed against the three aforesaid accused public servants, it will be pertinent to first have a glance over the said section.
Section 13 (1) (d) P.C. Act, 1988 read as under:
"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 position 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)......."
497. Apparently offence u/s 13 (1) (d) (i) P.C. Act, 1988, shall stand CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 405 of 429 attracted only if it is proved by the prosecution that the public servant involved committed the offence of criminal misconduct by using any illegal or corrupt means. However neither there is any allegation of prosecution nor any such evidence is available on record which may show that any of the three public servants obtained allocation of "Rajhara Coal Block" in favour of A-1 M/s VISUL by any corrupt or illegal means as has been contemplated in section 13 (1)(d) (i) P.C. Act, 1988.
498. However as regard 13 (1) (d) (ii) P.C. Act, 1988, prosecution is required to prove only that in order to obtain either for himself or for any other person any valuable thing or pecuniary advantage, the public servant abused his position. Thus as is evident from my aforesaid detailed discussion, it is clear that the three public servants i.e. A-3 H.C. Gupta, Secretary, Coal and Chairman Screening Committee, A-6 A.K. Basu, Chief Secretary, Government of Jharkhand and A-7 Madhu Koda, Chief Minister, Government of Jharkhand abused their position as such public servants in order to obtain for A-1 M/s VISUL allocation of "Rajhara Coal Block". The circumstances of the case as have been discussed above clearly shows the existence of malafide intention on the part of all the three public servants in their various acts. It has been clearly established that in pursuance to the object of criminal conspiracy A-6 A.K. Basu insisted in the Screening Committee meeting held on 03.07.08 that M/s VISUL is better placed in terms of land, power, water etc. as compared to all other applicant companies and thus company M/s VISUL be recommended for CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 406 of 429 allocation of "Rajhara Coal Block". It has been also clearly established that in making such a statement A-6 A.K. Basu was having neither any record nor information about the progress made by the other applicant companies including M/s Zoom Vallabh Steel Limited which was recommended by Government of Jharkhand in its earlier three communications sent to MOC. It has been also clearly established that A-3 H.C. Gupta despite having full knowledge that company M/s VISUL has neither been recommended by Government of Jharkhand in either of its three earlier recommendations sent to MOC nor Ministry of Steel has found it to be eligible still chose to recommend M/s VISUL for allocation of "Rajhara Coal Block". It has been also clearly established that the said decision of Screening Committee was not a unanimous decision. It has been also clearly established that A-3 H.C. Gupta in order to obtain allocation of "Rajhara Coal Block" in favour of M/s VISUL abused his position both as Secretary Coal and Chairman Screening Committee in not only recommending company M/s VISUL for allocation of "Rajhara Coal Block" but also not mentioning either in the minutes Ex. PW 18/DX-5 (Colly) of 36 th Screening Committee as were approved by him later on in MOC nor in the note dated 14.07.2008 forwarding the said minutes for approval of competent authority i.e. Prime Minster as Minister of Coal, any fact with regard to the circumstances in whch M/s VISUL has been recommended for allocation of "Rajhara Coal Block" or as to why M/s Zoom Vallabh Steel Limited which was recommended by Government of Jharkhand in all its earlier three recommendations and was also placed in category II (a) by MOC was not being recommended. It has also been CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 407 of 429 clearly established that subsequently the aforesaid information in a meeting held on 16.07.2008 in PMO with T.K.A. Nair, Principal Secretary to Prime Minister, A-3 H.C. Gupta reiterated that all the proposals have been made on merits of the applicants, including the recommendations of the State Government where the blocks are located. Similarly, A-7 Madhu Koda, Chief Minister of the State despite having consciously recommended the names of M/s Zoom Vallabh Steel Limited for allocation of "Rajhara Coal Block" to MOC repeatedly on three occasions consciously agreed to the recommendations of 36th Screening Committee in favour of M/s VISUL and rather made efforts to secure allocation of "Rajhara Coal Block" exclusively in favour of M/s VISUL. It has also been conclusively proved that his acceptance of M/s VISUL as one of the allottee of "Rajhara Coal Block" contrary to the earlier recommendations of Government of Jharkhand was primarily on account of the fact that his close associate A-8 Vijay Joshihad acquired interest in M/s VISUL and the affairs of the company M/s VISUL were being managed and controlled by A-8 Vijay Joshi. It has also been conclusively proved that the entire machinery of Government of Jharkhand from around the month of May 2008 onwards started favouring M/s VISUL only for the reason that A-8 Vijay Joshi who was a close aid of A-7 Madhu Koda, Chief Minister of the State had acquired managing interest in the company M/s VISUL. It has also been conclusively proved that as on the date of recommendation made by the Screening Committee on 03.07.2008 no valid MOU was in existence in favour of M/s VISUL and this fact was well within the knowledge of A-6 A.K. Basu also. It has also been CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 408 of 429 conclusively established that being aware of the aforesaid deficiency in the case of M/s VISUL, MOU of company M/s VISUL was extended by a period of two years on 24.07.2008 and that too with retrospective effect. It has also been established on record that subsequently in the year 2009-2010, it was found by Department of Industries that M/s VISUL while seeking extension of its MOU had misrepresented the facts. The said facts can certainly be referred as circumstance indicating the existence of the impugned criminal conspiracy in as much as it shows that various acts were done with malafide intention and in a planned manner. It has also been clearly established on record that as per the MOU Ex. PW 18/DX-1 entered with M/s VISUL by Government of Jharkhand, the company was specifically refused to be recommended for allocation of coal block for iron ore mine and this fact was also well to the knowledge of both A-6 A.K. Basu and A-7 Madhu Koda. Thus from a brief description of the aforesaid circumstances which otherwise have been discussed in detail in the earlier part of my present judgement it is crystal clear that the three accused public servants i.e. A-3 H.C. Gupta, A-6 A.K. Basu and A-7 Madhu Koda abused their position as public servants in order to obtain allocation of "Rajhara Coal Block" in favour of M/s VISUL. All three public servants as above are thus clearly guilty of committing the offence of criminal misconduct i.e. u /s 13 (1) (d)
(ii) punishable u/s 13 (2) P.C. Act, 1988 and accordingly stands convicted thereunder.
499. As regard offence u/s 13 (1) (d) (iii) P.C. Act 1988 not much CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 409 of 429 discussion is required as it is clear that the three accused public servants acted with complete disregard to public interest in obtaining allocation of "Rajhara Coal Block" in favour of A-1 M/s VISUL much less without any public interest. As a mark of caution, I may mention over here that while considering as to whether the offence u/s 13 (1)
(d) (iii) P.C. Act 1988 is made out or not against the three accused public servants the issue of there being requirement of any mens rea or guilty intention on the part of accused public servants ceases to have any significance as the guilty intention of the accused MOC officers in the entire matter stands well proved beyond shadows of all reasonable doubts.
500. Moreover, neither it has been argued nor it can be said that in the process of allocation of captive coal blocks no public interest was involved. Thus, on account of aforesaid circumstances it clearly stands establishes that the accused public servants with malafide intention abused their position as such public servants with a view to obtain allocation of "Rajhara Coal Block" in favour of A-1 M/s VISUL and that too without any public interest. Thus offence u/s 13 (1) (d)
(iii) P.C. Act 1988 r/w Section 13 (2) P.C. Act, 1988 is also clearly made out against the three accused public servants beside offence u/s 13 (1) (d) (ii) P.C. Act, 1988 as already mentioned above. The three accused public servants i.e. A-3 H.C. Gupta, A-6 A.K. Basu and A-7 Madhu Koda thus stands convicted for the offences u/s 13 (1) (d) (ii)/13 (1) (d) (iii) r/w Section 13 (1) (2) P.C. Act, 1988.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 410 of 429 Section 409 IPC and Section 13 (1) (c) P.C. Act, 1988 as against A-3 H.C. Gupta
501. As regard A-3 H.C. Gupta, who was Secretary Coal as well as Chairman Screening Committee, I may however state that though in his dual capacity as above he was controlling the affairs of both MOC as well as Screening Committee but it can not be stated that he was exercising any dominion over the coal blocks to be allocated by MOC. Undoubtedly in terms of the guidelines issued by MOC governing allocation of coal blocks A-3 H.C. Gupta was well aware that based on the recommendations of the Screening Committee, the Ministry of Coal will allocate coal blocks and as discussed above while forwarding the recommendations of Screening Committee to Prime Minister as Minister of Coal, it was no where disclosed by A-3 H.C. Gupta that M/s VISUL which has been recommended for allocation of "Rajhara Coal Block" was neither recommended by Government of Jharkhand in its earlier three recommendations and was also not found eligible by Ministry of Steel for being recommended for allocation of a coal block. Thus A-3 H.C. Gupta clearly exploited the circumstances by abusing his office as already discussed above at length in order to procure allocation of "Rajhara Coal Block" in favour of A-1 M/s VISUL. He actively did so by concealing all material and relevant information from Prime Minister as Minister of Coal.
However, the prosecution has clearly been unable to prove that A-3 H.C. Gupta was exercising any dominion/control over the said coal blocks or that the said nationalised natural resources of the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 411 of 429 country were entrusted to him in any manner. Thus, as the basic essential ingredient of the offence of criminal breach of trust by a public servant i.e. of section 409 IPC or that of the offence of criminal misconduct by a public servant u/s 13 (1) (c) P.C. Act, 1988, that the public servant concerned must have been either entrusted with the property in question or he must be having dominion/control over the property in question does not stand proved as regard A-3 H.C. Gupta vis-a-vis the coal blocks to be allocated by MOC, Government of India so the issue whether the other ingredients of the two offences stand proved or not need not be gone through. Accordingly charge for the offence u/s 409 IPC and offence u/s 13 (1) (c) P.C. Act, 1988 does not stand proved against A-3 H.C. Gupta.
Accordingly, A-3 H.C. Gupta is acquitted of the offence u/s 409 IPC and of the offence u/s 13 (1) (c) P.C. Act, 1988.
502. I now intend to discuss certain other miscellaneous issues as were raised by Ld. Counsels for the accused persons. The said issues were not earlier dealt with as in my considered opinion the discussion qua said issues or consequent decision as shall be followed hereinafter shall have no affect on the finding qua various offences as against different accused persons as has been recorded by me herein above.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 412 of 429 (1) Section 5 and 6 of Delhi Special Police Establishment Act, 1946.
503. It has been submitted by Ld. Counsel Sh. Harsh Sharma for A- 1 M/s VISUL and A-8 Vijay Joshi that in the present matter Central Government issued notification under Section 5 and Section 6 of Delhi Special Police Establishment Act, 1946 thereby extending the powers and jurisdiction of CBI to investigate the present matter in the whole State of Jharkhand on 10.09.2013. It was also submitted that Government of Jharkhand had also issued necessary notification u/s Section 6 of Delhi Special Police Establishment Act, 1946 according consent to the extension of powers and jurisdiction to the members of CBI in the whole of state of Jharkhand in connection with the investigation of the present case on 25.06.2013. It has thus been submitted that in these circumstances any investigation carried out by PW-18 IO Insp. Vijai Chettiar prior to 10.09.2013 was defective and bad in law. It was thus submitted that the said part of investigation as was carried out prior to 10.09.2013 thus can not be relied upon.
504. On the other hand Ld. DLA, Sh. V.K. Sharma has strongly opposed the said contention stating that Government of Jharkhand vide notification, No. 12-6-2000/H2/Ranchi, dated 01.01.2001 and accordingly Government of India also vide notification No. 228/61/2001-AVD.II dated 04.04.2001 interalia had already extended the powers and jurisdiction of the members of Delhi Special Police Establishment (which also includes CBI) to the whole of the state of Jharkhand for investigation of the following cases:
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 413 of 429 "(a) Offences committed in connection with the affairs of the Govt. of India, local authority, subject to the control of the Government of India or any Corporation, Company or Bank owned or controlled by the Govt of India: -
(i) Punishable, under the Prevention of Corruption Act, 1947 (Act 2 of 1947) and also under Prevention of Corruption Act, 1988.
(ii) Punishable under Sections 403, 406, 407, 408, 409, 411, 412, 413, 414, 417, 418, 419, 420, 465, 466, 467, 468, 471 and 477 A of the Indian Penal Code ( 45 of 1860) and"
505. It was also submitted that moreover in the present matter, prior to issuance of notifications Ex. PW 38/G and Ex. PW 38/G-1, it was only documents which were collected from different authorities by CBI during the course of investigation of a matter registered in connection with the affairs of Government of India i.e. of MOC and thus there was no violation of the provisions of Section 5 and 6 of Delhi Special Police Establishment Act, 1946. It was also submitted that raising of such an objection at the stage of final arguments is not even otherwise permissible as no prejudice has been caused to the accused in this regard.
506. I have carefully perused the record.
507. Certainly this Court can take judicial notice of the notifications issued by Central Government as well as by the State Government of Jharkhand. Even otherwise it will be pertinent to mention that in the present matter relating to coal block allocation cases Hon'ble Supreme Court vide order dated 10.02.2014 in Manohar Lal Sharma CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 414 of 429 Vs. The Principal Secretary and Others, Criminal Writ Petition No. 120 of 2012 observed that as Supreme Court is montioring the investigation being done by CBI in respect of coal block allocation matters so formal consent of the concerned states which have not given their consent so far is dispensed with. Apart from the aforesaid circumstances I also found that till the time the notification in question i.e Ex. PW 38/G and Ex. PW 38/G-1 were issued by Government of Jharkhand and Central Government respectively, the CBI had merely collected various documents from different authorities/sources during the course of investigation of present matter registered in connection with the offices of Government of India, i.e. Ministry of Coal (MOC).
508. Moreover Ld. Counsel Sh. Harsh Sharma in support of his submissions as above relied upon the case H. N. Rishbud Vs. State of Delhi, 1955 (1) SCR 1150. However, a bare perusal of the said case law itself shows that where such an objection is not taken at the initial stage itself then the only option left before the Court is to see as to whether on account of non-grant of sanction, any prejudice is caused to the accused during the course of trial or not. In this regard, it would be however suffice to state that except for raising the said plea at the stage of final arguments or during the course of cross- examination of PW-38 IO Insp. Vijai Chettiar, nothing has been either shown or argued as to in what manner accused has been prejudiced during the course of present trial. The aforesaid objection relevant to Delhi Special Police Establishment Act, 1946 is thus certainly not tenable.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 415 of 429 (2) Application of Section 300 Cr.PC to the present proceedings as against A-3 H.C. Gupta.
509. In the written submissions filed on behalf of A-3 H.C. Gupta, it has also been stated that on account of judgment passed by this Court in another coal block allocation matter i.e. CBI Vs. M/s KSSPL & Ors., where present accused H.C. Gupta has also been convicted, so he claims benefit of Section 300 Cr.PC i.e. under the principle of double jeopardy.
510. In this regard, it would be suffice to state that benefit u/s 300 Cr.PC can be availed of by the accused only if he has been tried by a Court of Competent Jurisdiction for an offence and is sought to be tried again for the same offence. Such benefit is also available to an accused if he is sought to be tried upon the same facts for other offences for which a different charge from the one earlier made against him might have been framed.
511. However, as is evident from the detailed discussion and observations made in the present judgment except for calling the present case as also a coal block allocation matter like various other coal block allocation matters pending in this Court there is no similarity of facts between that of present case relating to M/s VISUL with that of case relating to M/s KSSPL. It is certainly a different matter that charge against A-3 H.C. Gupta in both the cases was for the offences u/s 13 (i) (d) P.C. Act and that of criminal conspiracy u/s 120-B IPC but the facts on the basis of which said charges have been framed in the two matters are completely different. In these circumstances the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 416 of 429 objections raised by Ld. Counsel for A-3 H.C. Gupta in the written submissions is completely not tenable.
512. In fact it will not be wrong to state that not only during the course of trial but even at the time of final arguments efforts were being made on behalf of A-3 H.C. Gupta to revisit some of the conclusions/observations made by this Court in the case relating to M/s KSSPL as if the said matter is being heard in appeal before this Court. Certainly such a course of action is not permissible and thus no attempt is being made to deal with all such aspects.
(3) Meaning of word "Engaged" as used in the guidelines issued by MOC governing allocation of captive coal blocks or the requirement of checking of applications in MOC for their completeness and eligibility.
513. At this stage it would be also worthwhile to refer to certain other ancillary issues as have been raised by Ld. Counsel for A-3 H.C. Gupta. Arguments were addressed as regard the meaning of the word "engaged" as was used in the guidelines issued by MOC governing allocation of captive coal blocks. Arguments were also addressed as to the requirement of checking of applications so received in MOC for their completeness and eligibility beside also addressing arguments as to whose responsibility it was.
514. In this regard, I may however state that I do not intend to go into the nitty-gritty of the said issues in the present judgment as in the present coal block allocation matter, the liability of the accused persons for any act whatsoever is not being assessed on the basis of CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 417 of 429 any of the aforesaid aspects. Certainly these issues may arise in other coal block allocation matters but this Court do not deem it appropriate to delve into the said issues over here as neither they are required nor are relevant for the purposes of present judgment. Accused persons have also not been put to trial on account of any of the aforesaid allegations and their liability or responsibility in the present matter is not being assessed or judged qua these aspects.
(4) Requirement of Sanction u/s 197 Cr. PC as against A-3 H.C. Gupta, A-6 A.K. Basu and A-7 Madhu Koda.
515. Before parting away with the present judgment, I may also mention that Ld. Counsels for A-3 H.C. Gupta and also for A-6 A.K. Basu and A-7 Madhu Koda have vehemently argued that since all the acts as have been attributed to the said accused persons in the present coal block allocation process were done in the discharge of their official duties so cognizance of the offence u/s 120-B IPC against them was clearly bad in law.
516. However, before proceeding to discuss the aforesaid issue, I may mention that I had consciously not dealt with the present issue at an earlier stage of the present judgment as I first intended to examine as to which offence(s) under IPC the prosecution may succeed in proving against the accused persons. However, as now charge for the offence u/s 409 IPC does not stand proved against A-4 H.C. Gupta so the issue of grant of sanction u/s 197 Cr. PC qua the said offence need not be gone into. We are thus left only with the offence of criminal conspiracy i.e. u/s 120-B IPC as against the three accused CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 418 of 429 persons i.e. A-3 H.C. Gupta, A-6 A.K. Basu and A-7 Madhu Koda for whom it has been argued that sanction for prosecution u/s 197 Cr. PC is a sine qua non for taking cognizance. In this regard I may mention that the present issue can be viewed from two different stand points. Firstly, as discussed above the various acts of omission and commission as were committed by the accused public servants cannot be stated to have been committed by them while acting or purporting to act in the discharge of their official duties. In fact it was their position as public servants as above which provided them an occasion to enter into a criminal conspiracy with the private parties involved but it cannot be stated that they so acted either in the discharge of their official duties or in the purported discharge of their official duties. Moreover, in the case Rajib Ranjan & Ors vs R. Vijay Kumar, (2015) 1 SCC 513 and Inspector of Police & Anr. Vs Battenapatla Venkata Ratnam &Anr., C.A. No. 129 of 2013 (SC), it has been categorically held by Hon'ble Supreme Court that when a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and therefore, provisions of Section 197 Cr. PC will not be attracted. Reference in this regard can also be had to K. Satwant Singh vs State of Punjab, 1960 (2) SCR 89; Amrik Singh vs State of Pepsu, 1955 (1)SCR 1302 and Om Prakash Gupta vs State of U.P., 1957 SCR 423.
517. There is, however, yet another aspect of the present matter. Since the role attributed to the accused public servants in the entire CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 419 of 429 criminal conspiracy is clearly traceable to the offences u/s 13 (1) (d)
(ii)/13 (1) (d) (iii) P.C. Act, 1988 so for any conspiracy to commit any such offence under Prevention of Corruption Act, 1988, no sanction u/s 197 Cr. PC can be held to be required. Certainly, for a substantive offence thereof under Prevention of Corruption Act, 1988, sanction u/s 19 Prevention of Corruption Act, 1988 is required but the requirement of said sanction u/s 19 of Prevention of Corruption Act, 1988 is clearly not applicable as being not required in the case of A-3 H.C. Gupta and A-6 A.K. Basu since both the public servants have since retired from Government service and is also not required against A-7 Madhu Koda as the term of Legislative Assembly of State of Jharkhand during which A-7 Madhu Koda committed the impugned acts is also over much before. Thus as no such sanction u/s 19 PC Act, 1988 is required for taking cognizance of the offences under Prevention of Corruption Act,1988 against all the three accused public servants so no sanction u/s 197 Cr. PC is even required for the offence of criminal conspiracy to commit any offence under Prevention of Corruption Act, 1988 qua any one of them.
518. Ld. Counsels for the public servants while relying upon the case N. K. Ganguly Vs. CBI (2015) SCC On-line SC 1205 however strongly argued that for the acts allegedly committed by the accused public servants no cognizance of the offences under IPC can be taken without a prior sanction u/s 197 Cr.PC. However, I may observe that in the N. K. Ganguly case (Supra), Hon'ble Supreme Court has primarily reiterated the basic principle of law that for an act which is CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 420 of 429 alleged to have been committed in discharge of official duty by accused the previous sanction u/s 197 Cr PC is a pre-requisite condition. However, with utmost respect I may state that the said principle is not applicable to the facts and circumstances of the present case in as much as the various acts of omission and commission committed by the public servants and as discussed in the present judgment can not be said to have been committed by the accused public servants in the discharge of their official duties. As already discussed above the facts of the present case clearly show that A-3 H.C. Gupta, A-6 A.K. Basu and A-7 Madhu Koda entered into a criminal conspiracy with company A-1 M/s VISUL and A-8 Vijay Joshi so as to procure allotment of a coal block in favour of A-1 M/s VISUL. Thus the said acts of entering into a criminal conspiracy to commit offence of criminal misconduct as defined under Prevention of Corruption Act, 1988 cannot be deemed to have been done in discharge of their official duty by the accused MOC officers. It is altogether a different matter that the position of the accused persons either as Secretary, Coal and as Chairman, Screening Committee or as Chief Secretary, Government of Jharkhand or as Chief Minister, Government of Jharkhand, provided them an opportunity to so enter into a criminal conspiracy with the private persons. However, I may again reiterate that the acts as stands proved against the accused public servants i.e. A-3 H. C. Gupta, A-6 A.K. Basu and A-7 Madhu Koda are such that if questioned they cannot claim that they were acting in the discharge of their official duties.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 421 of 429
519. Thus, in view of my aforesaid discussion, it is clear that there is no requirement of sanction u/s 197 Cr. PC in the present matter.
(5) Can an incorporated company be prosecuted for an offence involving mens rea.
520. Ld. Counsel Sh. Harsh Kumar Sharma for M/s VISUL has also argued that company being a juristic person can not have mensrea to commit a crime. It was submitted that a company can be held responsible only when either all directors/officers of company who had acted on behalf of company, as soul of the company are arrayed as accused being an "alter ego" of the company.
In support of his submissions Ld. Counsel placed reliance on the following case law:
S. Particulars Citation
No.
1 SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr. (2005) 8 SCC 89
2 Iridium India Telecom Ltd. Vs. Motorola (2011) 1 SCC 74
Incorporated & Ors.
3 Sunil Bharti Mittal Vs. CBI 2015 (1) AD (SC)
269
521. On this issue, it will be however suffice to state that law in this regard has since been well settled by Hon'ble Supreme Court in the case Sunil Bharti Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609. Though Ld. Counsel Sh. Harsh Kumar Sharma has also placed reliance on certain earlier decisions of Hon'ble Supreme Court but I may state that with the decision of Hon'ble CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 422 of 429 Supreme Court in Sunil Bharti Mittal case (Supra), the issue is no longer res-integra. The said case was decided by three Judge bench of Hon'ble Supreme Court and in the said judgment the entire history of case law relating to prosecution of a company for an offence involving mandatory imprisonment and also for an offence involving mens rea has been reiterated. In this regard, it will be worthwhile to reproduce para 33 to 35 of the said judgment.
522. Para No. 33 to 35 of Sunil Bharti Mittal case (Supra) read as under:
33. First case which needs to be discussed is Iridium India (supra). Before we discuss the facts of this case, it would be relevant to point out that the question as to whether a company could be prosecuted for an offence which requires mens rea had been earlier referred to in a Constitution Bench of five Judges in the case of Standard Chartered Bank v. Directorate of Enforcement11. The Constitution Bench had held that a company can be prosecuted and convicted for an offence which requires a minimum sentence of imprisonment. In para 8 of the judgment, the Constitution Bench clarified that the Bench is not expressing any opinion on the question whether a corporation could be attributed with requisite mens rea to prove the guilt.
Para 8 reads as under:
"8. It is only in a case requiring mens rea, a question arises whether a corporation could be attributed with requisite mens rea to prove the guilt. But as we are not concerned with this question in these proceedings, we do not express any opinion on that issue."
In Iridium India (supra), the aforesaid question fell directly for consideration, namely, whether a company could be prosecuted for an offence which requires mens rea and discussed this aspect at length, taking note of the law that prevails in America and England on this issue. For our benefit, we will reproduce paras 59, 60, 61, 62, 63 and 64 herein:
"59. The courts in England have emphatically rejected the notion that a body corporate could not commit a criminal offence which was an outcome of an act of will needing a particular state of mind. The aforesaid notion has been rejected by adopting the CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 423 of 429 doctrine of attribution and imputation. In other words, the criminal intent of the "alter ego" of the company/body corporate i.e. the person or group of persons that guide the business of the company, would be imputed to the corporation.
60. It may be appropriate at this stage to notice the observations made by MacNaghten, J. in Director of Public Prosecutions v. Kent and Sussex Contractors Ltd. 1972 AC 153: (AC p. 156):
"A body corporate is a "person" to whom, amongst the various attributes it may have, there should be imputed the attribute of a mind capable of knowing and forming an intention - indeed it is much too late in the day to suggest the contrary. It can only know or form an intention through its human agents, but circumstances may be such that the knowledge of the agent must be imputed to the body corporate. Counsel for the respondents says that, although a body corporate may be capable of having an intention, it is not capable of having a criminal intention. In this particular case the intention was the intention to deceive. If, as in this case, the responsible agent of a body corporate puts forward a document knowing it to be false and intending that it should deceive, I apprehend, according to the authorities that Viscount Caldecote, L.C.J., has cited, his knowledge and intention must be imputed to the body corporate."
61. The principle has been reiterated by Lord Denning in Bolton (H.L.) (Engg.) Co. Ltd. v. T.J. Graham & Sons Ltd. in the following words: (AC p.172):
"A company may in many ways be likened to a human body. They have a brain and a nerve centre which controls what they do. They also have hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what they do. The state of mind of these managers is the state of mind of the company and is treated by the law as such. So you will find that in cases where the law requires personal fault as a condition of liability in tort, the fault of the manager will be the personal fault of the company. That is made clear in Lord Haldane's speech in Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. (AC at pp. 713, 714). So also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the directors or the managers will render the company themselves guilty."
62. The aforesaid principle has been firmly established in CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 424 of 429 England since the decision of the House of Lords in Tesco Supermarkets Ltd. v. Nattrass. In stating the principle of corporate liability for criminal offences, Lord Reid made the following statement of law: (AC p. 170 E-G) "I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability."
63. From the above it becomes evident that a corporation is virtually in the same position as any individual and may be convicted of common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree and control of the person or body of persons is so intense that a corporation may be said to think and act through the person or the body of persons. The position of law on this issue in Canada is almost the same. Mens rea is attributed to corporations on the principle of "alter ego" of the company.
64. So far as India is concerned, the legal position has been clearly stated by the Constitution Bench judgment of this Court in Standard Chartered Bank v. Directorate of Enforcement (2005) 4 SCC 530 . On a detailed consideration of the entire body of case laws in this country as well as other jurisdictions, it has been observed as follows: (SCC p. 541, para 6) "6. There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 425 of 429 authorities to the effect that corporations cannot commit a crime, the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agents."
35. It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of the "alter ego" of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are "alter ego" of the company."
523. In view of the aforesaid circumstances, the contention of Ld. Counsel for accused company M/s VISUL that a company being juristic personality can not be tried for an offence involving mens rea, does not hold ground.
524. Moreover, in the present case beside the company M/s VISUL one of its director namely A-2 Vaibhav Tulsyan and a shareholder who in fact was controlling the entire affairs of the company beside also being the brain behind all the activities of the company have also been arrayed as accused and are facing trial with company. It is also clear from the detailed discussion as have been made in the present judgment that all the acts done by them were clearly attributable to company M/s VISUL as they were acting as "alter ego" of the company.
(6) Issue relating to sanction having been accorded against A-4 B.K. Bhattacharya and A-5 B.B. Singh by the Competent Authority in State of Jharkhand.
525. In view of the fact that both A-4 B.K. Bhattacharya and A-5 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 426 of 429 B.B. Singh have been acquitted of all the offences in the present case so I do not deem it appropriate to go into the issue as to whether the competent authority in State of Jharkhand accorded sanction u/s 19 P.C. Act, 1988 and Section 197 Cr.PC against these two accused persons after due application of mind or not, as the same is no longer required.
526. It is also hereby clarified that in the present judgment all the documents as have been relied upon stand duly proved on record as per the provisions of The Indian Evidence Act, 1872.
527. However, before parting away with this judgment, I would like to mention that when this Court was going through the written submissions and the case law relied upon in support thereof as were filed on behalf of different accused persons then, it was noticed that on behalf of some of the accused persons a number of judgments were cited but it was not even specified as to on which point of law or in support of which argument any given case law is being relied upon or which paragraph of the said judgment is being referred to. It was also found that instead of citing the lead judgment on a given point of law, number of judgments were simply thrust upon the Court so that the Court may on its own dive deep into the said ocean of case law so as to find whatever is relevant over there. Such a practice is however not appreciated.
528. The final conclusion as drawn by me herein above qua various charges as framed against different accused persons may be now summarized as follows:
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 427 of 429 CHARGES FRAMED S. Name of (I) (II) Final Decision No accused Charges Charges Common to all separately framed 1 M/s Vini Iron (i) 120-B IPC 420 IPC Convicted for the offence & Steel u/s 120-B IPC; 120-B IPC Udyog Ltd. (ii) u/s 120-B IPC r/w Sec. r/w section 13(1)(d) 409/420 IPC and Section (ii)/13(1)(d)(iii) r/w 13(2) 13 (1) (c) and 13 (1) (d) P.C. Act, 1988.
P.C. Act, 1988 Acquitted for the offence u/s 420 IPC.
2 Vaibhav (i) 120-B IPC 420 IPC Acquitted for all offences Tulsyan
(ii) u/s 120-B IPC r/w Sec.
409/420 IPC and Section
13 (1) (c) and 13 (1) (d)
P.C. Act, 1988
3 H.C. Gupta (i)120-B IPC (i) Sec. 409 Convicted for the offence
IPC (ii) 13 u/s 13(1)(d)(ii)/ 13(1)(d)
(ii) u/s 120-B IPC r/w Sec. (1) (c) / (iii) r/w 13(2) P.C. Act,
409/420 IPC and Section 13 (1) (d) 1988; section 120-B IPC;
13 (1) (c) and 13 (1) (d) P.C. Act, section 120-B IPC r/w
P.C. Act, 1988 1988 section 13(1)(d)(ii)/13(1)
(d)(iii) r/w 13(2) P.C. Act,
1988;
Acquitted for the offence
u/s 409 IPC; section 13(1)
(c) P.C. Act, 1988.
4 Basant (i) 120-B IPC Acquitted for all offences
Kumar
Bhattacharya (ii) u/s 120-B IPC r/w Sec. 13 (1) (d) 409/420 IPC and Section P.C. Act, 13 (1) (c) and 13 (1) (d) 1988 P.C. Act, 1988 5 Bipin Bihari (i) 120-B IPC 13 (1) (d) Acquitted for all offences Singh P.C. Act,
(ii) u/s 120-B IPC r/w Sec. 1988 409/420 IPC and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 428 of 429 6 Ashok (i) 120-B IPC 13 (1) (d) Convicted for the offence Kumar Basu P.C. Act, u/s 13(1)(d)(ii)/ 13(1)(d)
(ii) u/s 120-B IPC r/w Sec. 1988 (iii) r/w 13(2) P.C. Act, 409/420 IPC and Section 1988; section 120-B IPC;
13 (1) (c) and 13 (1) (d) section 120-B IPC r/w
P.C. Act, 1988 section 13(1)(d)(ii)/13(1)
(d)(iii) r/w 13(2) P.C. Act,
1988;
7 Madhu Koda (i) 120-B IPC 13 (1) (d) Convicted for the offence
P.C. Act, u/s 13(1)(d)(ii)/ 13(1)(d)
(ii) u/s 120-B IPC r/w Sec. 1988 (iii) r/w 13(2) P.C. Act,
409/420 IPC and Section 1988; section 120-B IPC;
13 (1) (c) and 13 (1) (d) section 120-B IPC r/w
P.C. Act, 1988 section 13(1)(d)(ii)/13(1)
(d)(iii) r/w 13(2) P.C. Act,
1988;
8 Vijay Joshi (i) 120-B IPC 420 IPC Convicted for the offence
u/s 120-B IPC; 120-B IPC
(ii) u/s 120-B IPC r/w Sec. r/w section 13(1)(d)
409/420 IPC and Section (ii)/13(1)(d)(iii) r/w 13(2)
13 (1) (c) and 13 (1) (d) P.C. Act, 1988.
P.C. Act, 1988
Acquitted for the offence
u/s 420 IPC.
9 Navin Kumar (i) 120-B IPC --- Acquitted for all offences
Tulsiyan
(ii) u/s 120-B IPC r/w Sec.
409/420 IPC and Section
13 (1) (c) and 13 (1) (d)
P.C. Act, 1988
ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR)
TODAY ON 13.12.2017 SPECIAL JUDGE, (PC ACT)
(CBI)-7, NEW DELHI DISTRICT
PATIALA HOUSE COURTS
NEW DELHI
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Judgment dated 13.12.2017) Page No 429 of 429