Bombay High Court
Pradeep Kumar Lenka vs Central Bureau Of Investigation on 15 November, 2019
Author: N. J. Jamadar
Bench: N. J. Jamadar
CRIREVN372-18.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
REVISION APPLICATION NO. 372 OF 2018
Pradeep Kumar Lenka
Age : 46 years, Occu. : Business,
R/at: 19-A, 203, Sarvodaya Society,
Bhimbisar Nagar, Goregaon (E), Mumbai ...Applicant
- 400 065. (Ori.Accused no.1)
Versus
1. Union of India (Through Central Bureau
of Investigation Anti-Corruption Bureau,
Mumbai)
2. The State of Maharashtra
...Respondents
Mr. Vivek Patil, i/b Vivek Patil & Asso. for the Applicant.
Mr. H. S. Vegaonkar, for Respondent no.1/UOI.
Mr. N. B. Patil, APP for the State/Respondent no.2.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 6th NOVEMBER, 2019.
PRONOUNCED ON: 15th NOVEMBER, 2019.
JUDGMENT:-
1. With the consent of the learned Counsels for the parties, heard fnally at the admission stage.
2. This application is directed against the order dated 25 th June, 2018, passed by the learned Special Judge, CBI Special Court, Greater Bombay, on an application (Exhibit-21) for discharge under Section 227 of the Code of Criminal Procedure, 1973, ('the Code', for short), preferred by the applicant - accused no.1, whereby the said application came to be rejected. 1/12 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:49 :::
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3. Shorn of superfuities the background facts necessary for determination of this revision can be summarised as under:
(a) Applicant - accused no.1 is arraigned along with accused nos.2 to 5 for the offences punishable under Sections 120-B, 409, 420, 468, 470 of the Indian Penal Code ("IPC") and Sections 7, 12, and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 ("the Act", for short).
(b) The gravamen of indictment against the accused, including the applicant, is that a proceeding was initiated against M/s. World Series Hockey Private Limited, a subsidiary of M/s. Nimbus Communication Ltd., of which accused no.1 is a General Manager (Finance) for evasion of service tax. The Anti-
Evasion section of Service Tax-VI, Mumbai Commissionerate, with which Mr. Sachin Deo, accused no.4, was then posted, had assessed the liability of M/s. World Series Hockey Pvt. Ltd. at Rs.5.07 Crores. After payment and adjustment of CENVAT credit, the total outstanding service liability of M/s. World Series Hockey Pvt. Ltd. was quantifed at Rs.2.08 Crores. On 12th May, 2014, under Section 87(b) of the Finance Act, 1994, a notice was addressed to the Axis Bank, Lokhandwala Branch, Andheri (W), Mumbai, directing it to remit the amount standing to the credit of Current Account No.912020016109216, of M/s. 2/12 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:49 :::
CRIREVN372-18.DOC World Series Hockey Pvt. Ltd. to the Service Tax Department and not to allow any withdrawal from the said account.
(c) On 17th October, 2014, while, said notice was still operative, an amount of Rs.46,00,870/- was credited to the account of M/s. World Series Hockey Pvt. Ltd. by way of income tax refund. It is alleged that a conspiracy was hatched to withdraw the said amount from the above numbered account of M/s. World Series Hockey Pvt. Ltd., by and between the public servant, Mr. Sachin Deo (A4), the applicant, Mr. Sunil R. Manocha (A2) and Akash Khurana (A3), the directors of M/s. World Series Hockey Pvt. Ltd. (A5). In pursuance of the said conspiracy, Mr. Sachin Deo (A4) the public servant prepared a false and forged letter purported to be issued by the Deputy Commissioner (Anti Evasion), Service Tax-IV, Mumbai and addressed to the Axis Bank thereby indicating that the direction to freeze the account of M/s. World Series Hockey Pvt. Ltd. stood withdrawn. The bank was induced to believe that the account thus stood de-freezed. Thereafter, the applicant and accused nos.2 and 3 fraudulently withdrew Rs.45,75,500/- from the said account on 16th January, 2015 and 17th January, 2015. After the fraud was unearthed, the offcer of the Service Tax Department lodged the report.
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(d) During the course of investigation, the applicant made a statement before the competent offcer that the public servant had issued false and forged de-freezing communication for an illegal gratifcation of Rs.5,00,000/-. It further transpired that the applicant had also approached the offcers of the bank and made them to believe that he was in the process of obtaining communication from the Service Tax Department regarding removal of the restraint on operation of the above numbered account, by M/s. World Series Hockey Pvt. Ltd., and persuaded them not to credit the amount lying therein to the account of Service Tax Department, in adherence to the directions in the notice dated 12th May, 2014. After fnding complicity of the accused, including the applicant, the charge- sheet came to be lodged against them for the aforesaid offences.
4. The applicant fled an application for discharge under Section 227 of the Code. It was, inter alia, averred that the applicant had no nexus with M/s. World Series Hockey Pvt. Ltd.. The applicant was, in fact, an employee of Nimbus Communication Ltd. There was no mens rea, in as much as there was no wrongful gain to the applicant. The statement of the applicant, wherein the applicant had made incriminating assertions, was stated to be obtained under duress and the applicant had retracted the said statement by fling an affdavit 4/12 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:49 ::: CRIREVN372-18.DOC dated 12th February, 2015. The telephonic conversion with the public servant Mr. Sachin Deo (A4), was of no conclusive tendency and, thus, does not incriminate the applicant.
5. The learned Special Judge was not persuaded to accede to the submissions on behalf of the applicant. The learned Sessions Judge was of the view that there was suffcient material which, prima facie, indicated the complicity of the applicant in the offences alleged. The learned Special Judge further observed that the question as to whether the statement of the applicant was obtained under duress and the applicant had justifably retracted the incriminating statement was a matter for trial. Likewise, the claim of the applicant that he had telephonic conversion with the public servant in the capacity of the General Manger of Nimbus Communication and there was no intention to deceive either the Government or the Bank was also a matter for trial. The statements of the offcers of the bank, in the opinion of the learned Special Judge, were, at this stage, suffcient to warrant a fnding that there were grounds to presume that the applicant is guilty of the offences. Thus, the learned Special Judge was persuaded to reject the application.
6. Being aggrieved by and dissatisfed with the impugned order of rejection of the prayer for discharge, the applicant has 5/12 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:49 ::: CRIREVN372-18.DOC invoked revisional jurisdiction of this Court.
7. I have heard Mr. Vivek Patil, the learned Counsel for the applicant and Mr. Venegaonkar, the learned Counsel for the respondent/UOI. I have also perused the material on record including the report under section 173 of the Code and documents annexed with it.
8. Mr. Patil made an earnest endeavour to draw home the point that the learned Special Judge was not justifed in rejecting the prayer of discharge. Mr. Patil strenuously urged that the applicant was not at all involved in the preparation and transmission of the allegedly forged communication by the public servant Mr. Sachin Deo (A4). Nor the applicant had withdrawn the amount from Axis Bank on the strength of the aforesaid communication. In this backdrop, the mere fact that the applicant has approached either the said public servant or the offcers of the bank, in his capacity as the General Manager of M/s. Nimbus Communication-holding Company of M/s. World Series Hockey Pvt. Ltd., is not by itself suffcient to make the applicant face the prosecution. Drawing the attention of the Court to the resolution dated 22nd September, 2014, appointing the signatories for operating the above numbered account maintained with the Axis Bank, it was urged that the 6/12 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:49 ::: CRIREVN372-18.DOC prosecution of the applicant is wholly groundless and, therefore, the applicant deserves to be discharged.
9. In opposition to this, Mr. Venegaonkar, the learned Counsel for the Union of Inida would urge that there is suffcient material against the applicant to warrant the framing of charge. It was further urged that in exercise of the revisional jurisdiction, which is extremely limited, this Court may not interfere with a reasoned order passed by the learned Special Judge to arrive at the conclusion that the material on record warrants framing of charge against the applicant.
10. Before adverting to deal with the rival submissions, it may be apposite to consider the scope of enquiry envisaged by the provisions contained in Section 227 of the Code. Though the Court would be within its rights to sift the material collected by the prosecution, yet the object of the said exercise is to fnd out whether there is prima facie case against the accused. The only satisfaction that is required to be arrived at is whether there is ground for presuming that the accused has committed the offence. However, the enquiry is not with the objective to fnd out whether the case set upon by the prosecution will entail conviction.
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11. The legal position in this context is well neigh settled. Yet, a proftable reference can be made to the judgment of the Supreme Court in the case of State of Bihar vs. Ramesh Singh, 1 which reads thus:
"At that stage, the Court is not to see whether there is suffcient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no suffcient ground for proceeding against the accused."
.........
"If the scales as to the guilt or innocence of the accused are even at the conclusion of the trial, then on the theory of beneft of doubt the case must end in the acquittal of the accused; but if, on the other hand, the scales are even at the initial stage of making an order under section 227 or section 228, then in such a situation, ordinarily and generally the order will have to be made under section 228 and not under section 227."
12. It would be contextually relevant to keep in view the nature of the revisional jurisdiction under the Code. The revisional jurisdiction is limited and discretionary. In a case, where the trial court has passed a reasoned order to frame charge, the revisional Court should be loathe to interfere with the said order, unless it fnds that the prosecution was false, frivolous or vexatious and amounted to abuse of the process of law.
1
1977 SCC (4) 39.
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13. In the case of Amit Kapoor vs Ramesh Chander and others,2 the Supreme Court after considering the scope of jurisdiction under Sections 397 and 482 of the Code and the subtle jurisdictional distinctions culled out certain principles. The principles relevant to the question under consideration are as under:
"27.1 Though there are no limits of the powers of the court under Section 482 of the code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2 The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfed then the Court may interfere.
27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. ............"
14. Re-adverting to the facts of the case, in the backdrop of the aforesaid twin limitations, namely, the scope of enquiry envisaged under Section 227 of the Code and the limited revisional jurisdiction under Section 397 of the Code, it is 2 (2012) 9 SCC 460.
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CRIREVN372-18.DOC pertinent to note that there is strong prima facie case as regards the preparation and transmission of allegedly false and forged communication by Mr. Sachin Deo (A4), the public servant, thereby purporting to communicate the lifting of restriction on the operation of the account of M/s. World Series Hockey Pvt. Ltd., though the said public servant was shifted out of the Anti Evasion Cell of the Service Tax Department. The said fraudulent communication is alleged to be in pursuance of a conspiracy; of which the applicant was one of the confederates. The material against the applicant is three-pronged; (i) the applicant had telephonic conversions with the public servant Mr. Sachin Deo (A4); the CDR lends, prima facie, support to the said allegation,
(ii) the applicant had made a statement, which incriminates him as well, to the effect that the public servant had assured to arrange such false communication and did arrange the same for an illegal gratifcation of Rs.5,00,000/- and (iii) the applicant had approached the offcers of the bank, namely, Smt. Sheetal Bijoor and Satish Annasaheb Thorat (whose statements have been recorded) and persuaded them not to credit the amount to the Service Tax Department (which was received by way of income tax refund in the account of M/s. World Series Hockey Pvt. Ltd.) as he was in the process of obtaining the release order from the Service Tax Department. It is alleged that on the date 10/12 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:49 ::: CRIREVN372-18.DOC the forged release order was received by the Axis Bank, the applicant had called Smt. Sheetal Bijoor on her cell-phone twice.
15. The aforesaid material is, prima facie, suffcient to draw a legitimate inference that the applicant was a privy to the alleged conspiracy. The question whether the telephonic conversions between the applicant and the public servant, Mr. Sachin Deo (A4), were without an element of criminality; whether the incriminating statement of the applicant was recorded under duress and the statement of the offcers of the bank attributing specifc acts to the applicant lack incriminating tendency, are the matters for trial. The endeavour on the part of the applicant to wriggle out of the situation by asserting that he was not directly concerned with the affairs of M/s. World Series Hockey Pvt. Ltd., a subsidiary company of M/s. Nimbus Communication, of which he was indisputably General Manager (Finance), in the face of the aforesaid material, does not merit countenance at this stage.
16. The learned Special Judge was, therefore, well within his rights in arriving at the conclusion that there was material which if un-rebutted would warrant the conviction of the applicant. In the totality of the circumstances, I am impelled to hold that the learned Special Judge has applied the correct test, 11/12 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:49 ::: CRIREVN372-18.DOC envisaged by Section 227 of the Code, and in exercise of the limited jurisdiction under Section 397 of the Code there is no justifable reason to interfere with a reasoned order passed by the learned Special Judge.
17. The upshot of the aforesaid consideration is that the application is devoid of substance and deserves to be dismissed.
18. Hence, the application stands dismissed.
[N. J. JAMADAR, J.] 12/12 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:49 :::