Delhi District Court
Cbi vs Deepak Gupta on 18 January, 2011
RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI RC2(S)/05 CBI/SCRIII/N.D CBI V/s Deepak Gupta 18.01.2011 Present: Shri Anil Tanwar, Ld.Special PP for CBI. Accused on bail alongwith counsel Shri Vijay Aggarwal, Advocate. ORDER ON CHARGE: The arguments advanced at bar at length by both the sides were heard on 10.01.2011. The entire material on record has been perused. 2. In nutshell, the facts of the case relevant for the present are that Delhi SC/ST/OBC/Minorities and Handicapped Financial and Development Corporation Limited, Govt. of Delhi (hereinafter referred to as "Corporation"), vide its advertisement in newspapers dated 25.04.2002 invited applications from computer institutes/firms for imparting training in "O" Level Computer Software Development Training to the Corporation's sponsored students for the year 20022003. The important conditions which were stipulated in the advertisement for the computer institutes/firms, interalia were as under: CBI V/s Deepak Gutpa ("Discharged") Page 1 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 (i) The Institute must be registered with DOEACC. (ii) The institute must have atleast 30 computers of Pentium III configuration. (iii) The institute must have experience in imparting training for atleast three years. (iv) If an institute has more than one branch and it was desirious of applying for both, then the proposals should be submitted separately alongwith individual Accreditation Certificate and Security Deposit. 3. The last date for submitting the proposal in sealed cover was mentioned as 10.05.2002. 4. In response to the aforesaid advertisement, 68 institutes submitted their proposals, which were examined by a Committee, comprising of four officers of the Corporation, namely: (i) Shri O.M Solanki, Director (NonOfficial), (ii) Shri Nathu Singh, General Manager, (iii) Shri Raj Kumar, Dy. Manager (TSD) and, (iv) Shri A.P Singh, Asst. Manager (F&A). 5. However, no specific formal orders for constitution of the above committee, the work to be carried out by the committee, the procedure to be CBI V/s Deepak Gutpa ("Discharged") Page 2 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 followed by it and instructions regarding scrutiny of the proposals and verification of facts/documents given/attached with the proposals were issued. The entire work of scrutiny and infrastructure inspection was carried out as per the directions of Shri Raj Kumar, Dy. Manager (TSD). It has also come on record that the aforesaid committee did not verify the original DOEACC Accreditation Certificate/letter issued by the DOEACC Society of the respective institutes, as no specific directions for the same were given to the committee and no personal interviews of the officials of the concerned institutes were conducted. After scrutiny/verification of the institutes, the committee on 30.05.2002 recommended 46 institutes for allocation of students. The Chairman of the Corporation also approved the said list of 46 institutes on 05.06.2002. The list also included the name of M/s KCC Software Limited, E79, South ExtensionI, New Delhi (hereinafter referred to as "South Extension Firm"). On 10.06.2002, the actual allocation of the students to the shortlisted institutes was also approved by the Chairman of the Corporation. It appears that allocation of 328 students was also made to South Extension Firm for imparting "O" Level computer training to the SC students during the year 20022003. However, it happened only on papers as no Memorandum of Understanding was signed by the Corporation with regard to South Extension Firm, as it came to the notice of the Corporation later on that a forged document with regard to Accreditation of this firm was submitted alongwith the proposal. Similarly, in the cases of number of other institutes, some discrepancies were found with the documents and it came to CBI V/s Deepak Gutpa ("Discharged") Page 3 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 fore that there was a conspiracy among the officers of the Corporation and some of the institutes in getting contract for imparting training. 6. On the basis of a source information, on 28.01.2005, the FIR in the matter was registered U/s 120 B IPC r/w Sections 420/468/471 IPC and 13(1)(d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 against the following persons: (i) Shri O.M Solanki, Director, (ii) Shri Nathu Singh, General Manager, (iii) Shri Raj Kumar, Dy. Manager (TSD), (iv) Shri A.P Singh, Asst. Manager (F&A), (v) Shri M.M Khinchi, Manager, (vi) Shri Sanjeev Sharma, Dy. Manager and, (vii) Shri Sunil Sachdeva, Assistant Manager. 7. The allegations against the aforesaid accused persons in the FIR were that they had conspired among themselves and with the officials of computer training institutes for imparting "O" Level Computer Software Development Training and caused wrongful loss to the Corporation to the tune of Rs.4.50 Crores approximately and made wrongful gain for themselves. After investigation, the chargesheet was filed in the matter on 26.02.2008, interalia absolving all the aforesaid accused persons on the ground that no irregularity in the entire process of shortlisting of firms was found attributable to them. However, the officials of various computer institutes were chargesheeted in different chargesheets by CBI for the reasons best known to them. During the course of arguments, it has also come to the CBI V/s Deepak Gutpa ("Discharged") Page 4 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 notice of this court that the CBI and Corporation has already settled the matter with almost all the officials of other institutes through the process of pleabargaining. 8. In this case, accused Deepak Gupta, the owner of South Extension Firm has been chargesheeted for offences punishable U/s 120 B IPC r/w Section 420/468/471 IPC on the allegations that alongwith the proposal submitted by him to the Corporation, he had submitted copy of forged Accreditation Certificate. The admitted position on record is that the accused had applied for two institutes, one for South Extension Firm and another for his firm M/s KCC Software Limited, B1, 2627, Community Centre, Janakpuri (hereinafter referred to as "Janakpuri firm"). There is no dispute with regard to Janakpuri firm that the students were duly allocated for Janakpuri firm and training to them was imparted as per the instructions of the Corporation and no dispute with regard to that ever arose. It is also admitted position that later on Corporation awarded contract to South Extension firm also, which was also performed by the said firm as per the directions of Corporation. 9. The learned Special PP for CBI, Shri Anil Tanwar emphasized that on 07.05.2002, the accused submitted his proposal with regard to South Extension firm, annexing copy of a forged Accreditation Certificate, bearing No.DOEACC/OPROV01142, as such, he is guilty of using forged document CBI V/s Deepak Gutpa ("Discharged") Page 5 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 as genuine. The learned Special PP, however, conceded to the dropping of Section 468 IPC against the accused, as there is no material to substantiate the the said charge. It was further argued that on the strength of aforesaid forged documents, the Corporation allocated 328 students for South Extension firm, but before the Memorandum of Understanding could be executed between the Corporation and South Extension firm, it came to the fore that the accused had used a forged Accreditation Certificate with regard to South Extension firm. It was, therefore, argued that charge U/s 420 IPC is liable to be framed against the accused. It was next argued that since the Government officials against whom the FIR in the matter was registered were absolved by the prosecuting agency and they have not been chargesheeted, therefore, charge U/s 120 B IPC was also not pressed by the prosecution. Accordingly, the learned Special PP stressed for framing of charges U/s 420 and 471 IPC only against the accused. 10. It was further argued by the learned Special PP that at this stage, this court cannot meticulously judge the evidence collected by the prosecuting agency, as the same can be judged only during a full fledged trial. 11. The learned Special PP further submitted that the accused had filed a Criminal Misc. Case bearing No.1825/09, titled as, "Deepak Gupta V/s CBI" in the Hon'ble High Court of Delhi against the order of summoning which was dismissed by the Hon'ble High Court vide judgment dated CBI V/s Deepak Gutpa ("Discharged") Page 6 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 15.07.2010. He has further contended that the arguments of the accused before the Hon'ble High Court were similar to the one which have been raised before this court and as such, the charges in the matter are liable to be framed. 12. Per contra, the learned defence counsel Shri Vijay Aggarwal, Advocate, has very vehemently argued that the alleged photocopy of the Accreditation Certificate was never filed by the accused alongwith proposal of South Extension firm. He has taken me through the entire bunch of documents, which were filed and has argued that every other document (collectively document No.32 of the chargesheet) bear the signatures and stamp of the accused, except this document, which creates doubt in the prosecution story. The learned defence counsel has emphasized that as per the guidelines issued by Chief Vigilance Commission (in short "CVC") with regard to public procurements, each page of the tender document should be initialed with date by the officers while opening the tenders. The guidelines of CVC have admittedly not been followed in this case, which vitiates the entire tender process in respect of the South Extension firm. 13. The next limb of arguments of the learned defence counsel was that the prosecution is relying only upon a photocopy of the alleged Accreditation Certificate placed on record by the accused, which is not admissible in evidence for want of its original and as such, the accused cannot be charged for using a forged document as genuine. He has relied upon a CBI V/s Deepak Gutpa ("Discharged") Page 7 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 number of judgments on this point, which I will advert to in the later part of the order. 14. It is next contended that offence U/s 420 IPC is not made out against the accused, as there is no allegation of dishonest intention or inducement, resulting into delivery of property, either to the complainant or to any of the witnesses, as such, the ingredients of Section 420 IPC are not made out. The learned counsel has again referred to several judgments on this point, which I will advert to in the later part of the order. 15. It was next contended by the learned defence counsel that the accused did not have any fraudulent intention at the time of submitting proposals for his two firms, namely South Extension firm and Janakpuri firm, as he had submitted copy of his genuine Accreditation Certificate bearing No.DOEACC/ OPROV 01337, which is clearly reflected from the documents placed on record by the prosecuting agency. The only ignorance, which could be attributable to the accused is that he did not go through the advertisement correctly and submitted single "Accreditation Certificate" in respect of both his firms and the aforesaid action of the accused only attracts Section 417 IPC, which is noncognizable and admittedly the permission of the Magistrate U/s 155 (2) Cr.P.C was not obtained before investigating the matter qua him, as such, the chargesheet qua him is bad in law. On this point also, the learned defence counsel has relied upon a number of judgments, which I will advert to in the later part of the order. CBI V/s Deepak Gutpa ("Discharged") Page 8 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 16. It was also contended that the FIR in this case, which was under sections of Prevention of Corruption Act r/w the offences of IPC was filed in the court of Special Judge, whereas the chargesheet was filed in this court and this court has no jurisdiction to entertain the same. In support of his contention, the judgment reported as, "1995 JCC 641", titled as, "M.S Lamba V/s CBI" was referred to. 17. Before adverting to the rival contentions of the parties, it would be appropriate to note that the order framing the charges substantially affects the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173 Cr.P.C, considers it proper to institute the case. The responsibility of framing the charges is that of court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record, it must not blindly adopt the decision of the prosecution (reference, "Century Spinning & Mfg. Company Limited V/s State of Maharashtra", reported as, "1972 (3) SCC 282"). 18. It is also well settled that at the time of consideration on charge, the court has to shift the material to know that a grave suspicion exists about the commission of offence in the matter. CBI V/s Deepak Gutpa ("Discharged") Page 9 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 19. With a view to appreciate the contentions with regard to the documents filed by the accused alongwith the proposal dated 07.05.2002 with regard to South Extension firm, I have carefully gone through the said documents. The said proposal (document No.32/1 to 32/6) is in six pages, excluding the Demand Draft of Rs.25,000/, which was filed along therewith. A perusal of these documents would reveal that each page of the proposal bears the signatures and stamp of the firm of the accused, but the alleged forged Accreditation Certificate (D32/6) does not bear, either the signatures or the stamp of the accused. It creates doubt whether the accused had submitted this document alongwith his proposal. A perusal of document D32/4 would reveal that alongwith this application, the accused had furnished his Accreditation Certificate bearing No.DOEACC/PROV01337, which admittedly was genuine and the accused had the Accreditation from the requisite authorities. The allegations against the accused with regard to aforesaid forged Accreditation Certificate are that after the South Extension firm was shortlisted on 13.06.2002, accused A.P Singh, Assistant Manager (not chargesheeted by CBI), received a telephonic call on 13.06.2002 from a person who did not disclose his identity and informed him that the "O" Level Accreditation Certificate submitted by South Extension firm was false. The CBI did not record the statement of any other witness, accusing the accused of filing a false certificate alongwith his proposal. A perusal of the proposal of accused, juxtaposed with the guidelines of CVC with regard to opening of the tender is considered, then it would show that the officers of Corporation, CBI V/s Deepak Gutpa ("Discharged") Page 10 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 who were accused in the case FIR, did not adopt a reasonable procedure with regard to consideration of the proposal and the actual verification of the credentials of the institute, which gives rise to a suspicion that the officers of the Corporation were not acting bonafide and they had their own axe to grind. The prosecuting agency adopted a very different criteria with regard to prosecuting them, as they were outrightly exonerated from this case, leaving the accused alone to be chargesheeted for having conspired with the said persons in getting South Extension firm shortlisted for allocation of students, which is paradoxial. In my opinion, there is no evidence worth the name which could prima facie establish that the accused had filed a copy of forged document alongwith his proposal. I am further fortified in my aforesaid view from a close scrutiny of the entire documents (documents No.32/1 to 32/6), which would reveal that accused had categorically mentioned about his original Accreditation Certificate and had nowhere mentioned the number appearing on the so called copy of forged Accreditation Certificate. It was incumbent upon the Scrutiny Committee to have checked the same and would not have shortlisted him for allocation of students, but the reasons as to why the "Committee" did not scrutinise his application properly would remain a mystery, as in its wisdom or the reasons best known to the prosecuting agency, it exonerated all the six officers of the Corporation in this regard. 20. The learned defence counsel has referred to following judgments to establish that no offence of forgery having been committed by the accused. CBI V/s Deepak Gutpa ("Discharged") Page 11 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 (i) "Employees State Insurance Corporation V/s Kanti Moulding Machine & Anr.", reported as, "2007 (II) DLT (Crl.), page No. 6"; (ii) "Shashi Lata Khanna V/s State of Delhi", reported as, "2005 (II) JCC 1220"; (iii) "KVR Iyyenger V/s State of AP", reported as, "1988 (2) Crime Vol.VIII 882", (iv) "Kartonzen K.O.F AB V/s CBI", reported as, "2004 (1) JCC 218" and; (v) "Srichand P Hinduja V/s CBI", reported as, "2005 Vol.II JCC 1153". I am not referring to the law laid down in the aforesaid judgments for the simple reason that learned Special PP for CBI honestly conceded that there was no evidence of forgery against the accused in the matter. 21. I further find substance in the arguments of learned defence counsel that the ingredients of offences of cheating are also not getting satisfied in this case, as the prosecuting agency has miserably failed in prima facie establishing existence of any fraudulent or dishonest induction on part of accused to deceive somebody to deliver any property to him. Admittedly, in this case, although on paper allocation of 328 students was made to South Extension firm, but the students were never sent to his institute. The argument of learned Special PP that on account of copy of forged Accreditation Certificate being submitted by accused with his proposal, he induced the Corporation to allocate 328 students and as such, the ingredients CBI V/s Deepak Gutpa ("Discharged") Page 12 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 of offence of cheating are complete in the matter. I am afraid, I cannot agree with this submission of the learned Special PP. As has already been held that submission of photocopy of forged Accreditation Certificate cannot be attributed to the accused for want of evidence and it is also apparent from a careful analysis of the chargesheet that it was on account of the fault of the Committee of the Corporation that the South Extension firm was shortlisted and subsequently allocated 328 students. The learned defence counsel very candidly argued that the accused could at the most be said to be inadvertent in not going through the advertisement properly and in annexing same Accreditation Certificate in respect of both his firms and that by any stretch of imagination cannot be termed to be a "fraudulent or dishonest attempt" to deceive the Corporation; that inadvertence could at the most attract Section 417 IPC, which is a noncognizable offence. 22. In "Hotline Teletubes & Components Limited V/s State of Bihar", reported as, "2005 SCC (Crl.) 151", it was held by the Hon'ble Supreme Court that for committing the offences of criminal breach of trust and cheating, the essential requirement is that since the very inception of contract between the parties, there must be an intention to cheat; whereas in this case even a contract between the parties never saw the light of the day. CBI V/s Deepak Gutpa ("Discharged") Page 13 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 23. In judgments titled as, (i) "S. Ghasi Ram V/s State", reported as, "2000 (86) DLT 609"; (ii) "Surinder Kumar & Ors. V/s State", reported as, "1996 (64) DLT 620" and; (ii) "Ajit Singh V/s State", reported as, "1989 (39) DLT 468"; the law laid down is that if at the time of consideration of charge the court comes to the conclusion that commission of cognizable offence is not made out, although the accused stood chargesheeted for cognizable as well as noncognizable offences, then the accused cannot be charged, for prosecuting agency having not obtained the permission of the court, as contemplated U/s 155 (2) Cr.P.C. 24. It is also an admitted position on record that subsequently the accused also obtained Accreditation for South Extension Institute on 27.05.2002 and he was duly awarded the contract by the Corporation itself. 25. As regards the argument of learned Special PP for CBI that the accused had already agitated the point taken before this court in the Hon'ble High Court of Delhi in Criminal Misc. case filed by him against his summoning and as such, the charges are liable to be framed in the matter. In my opinion, the argument of learned Special PP is not sustainable in the eyes of law. A perusal of judgment dated 15.07.2010, passed by the Hon'ble High CBI V/s Deepak Gutpa ("Discharged") Page 14 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 Court of Delhi in the aforesaid Criminal Misc. Case reveals that it was held that at the stage of summoning the accused, after taking cognizance of the offence, the Magistrate takes notice of the offence and at the stage of taking notice of cognizance of the offence, the Magistrate is not required to undertake a elaborate enquiry and is not supposed to pass a detailed reasoned order, as to what is the evidence disclosed in the chargesheet about the commission of the offence. It was further held that the scrutiny of the offence is done by the Magistrate later on, after taking cognizance and after summoning of the accused persons, as after summoning, the accused is provided a copy of the chargesheet. It was further held that merely because the accused has been summoned after taking cognizance would not give right to the accused to assail the order of summoning. It was specific held: "It is different thing that the trial court may charge the accused or discharge the accused after considering the evidence collected by the police". From the perusal of the aforesaid judgment, it is apparent that the Hon'ble High Court did not hear the accused on merits of the case at all and further no opinion on the merits of the case were expressed, as it was not the stage to do so. As such, I do not find substance in the argument of learned Special PP that in view of the judgment passed by the Hon'ble High Court, the charges in the matter are liable to be framed. CBI V/s Deepak Gutpa ("Discharged") Page 15 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 26. In view of the above discussion, although charges U/s 420 IPC and 471 IPC are not liable to be framed against the accused and he is liable to be discharged, but I would like to quote the other judgments relied upon by the learned defence counsel to bring home a point that the chargesheet should have been filed before Special Court under Prevention of Corruption Act and not before this court. 27. In M.S Lamba's case (supra), the Hon'ble High Court of Delhi was faced with a situation wherein FIR was for offences punishable U/s of Prevention of Corruption Act as well as various sections of IPC, but the prosecuting agency (incidentally CBI) filed the chargesheet in the court of Learned Metropolitan Magistrate. The Hon'ble High Court of Delhi was pleased to hold: xxxxx "8. I have given my careful consideration to the arguments advanced by learned counsel for the parties. It is an admitted fact that the original R.C. Was filed under Sec.120B IPC and Sec.5 (2) read with Sec.5 (1) (d) of the Prevention of Corruption Act, 1947. I have carefully gone through the FIR. The facts stated therein allege an offence under the aforesaid provisions and the facts stated in the charge sheet which was filed in the Court of learned MM are similar. It is also the admitted case of the parties that the FIR was filed in the court of Special Judge designated to deal with cases under the provisions of Prevention of Corruption Act. Once that is admitted then it was the Special Judge who had the jurisdiction to deal with the matter. In view of these admitted facts, the authority cited by Mr. Lal in Chandrakant Vishwanath Jakkal's case (Supra) is of no help to the respondent. Petitioner has also challenged the competence of learned MM
that he did not have the jurisdiction in the grounds of petition with further prayer that the petitioner should be discharged. An application was specifically moved before the MM for discharging the petitioner as that Court had no jurisdiction. The learned MM however, dismissed the application on 30.07.1985 CBI V/s Deepak Gutpa ("Discharged") Page 16 of 18 RC2(S)/05: U/s 468/420/471/120B IPC DOD: 18.01.2011 on the ground that the prosecution has chosen to prosecute the accused for a graver offence under the Indian Penal Code. Thereafter, the learned MM proceeded to frame the charge on the basis of charge sheet filed and he framed the charge on 30.09.1985. Sec.173 Cr.PC. provides report of police officer on completion of investigation. Subsec.(5) of Sec.173 Cr.PC. further provides that when such a report in respect of case to which Sec.170 Cr.PC. applies the police officer shall forward to the magistrate alongwith the report all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the magistrate during investigation. This provision in the code makes it manifestly clear on the face of admitted facts that it was the prosecution which has invoked the jurisdiction of Special Judge to try the offences under the provisions of Prevention of Corruption Act as the FIR was sent to the Court of Special Judge. That being so the assumption of jurisdiction by the learned MM under General Law seems to be without jurisdiction".
xxxxx (emphasis supplied)
28. At the fag end, the learned defence counsel also cited recent judgment of our own Hon'ble High Court, reported as, "2007 (2) JCC 1415", titled as, "Sunil Bansal V/s State" to put forward a point that even at the stage of framing of charge, if there are two views which are possible, based upon the material available, the one favouring the accused is to be preferred.
29. If the law laid down in the above referred authorities is applied to the facts of the present case, then as an additional point, it would be apparent that the CBI should have filed the chargesheet before the learned Special Judge, as the FIR in the matter was filed before the learned Special Judge and as such, this court does not even have jurisdiction to try this case.
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30. As such, there is no legally sustainable material against the accused in the matter, he is accordingly discharged. His B/B stands cancelled, surety stands discharged. Endorsement(s), if any, either on the documents of surety or of accused be cancelled forthwith. Original documents, if any, either of surety or of accused be returned to its rightful owner forthwith. File be consigned to record room after completion of necessary formalities.
Announced in the open court (Vinod Yadav)
on 18.01.2011 Chief Metropolitan Magistrate:
Delhi
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