Delhi District Court
Cbi vs . M/S. Rathi Steel & Power Ltd. on 26 July, 2016
CC No.01/15, RC No.219 2013 (E) 0007
IN THE COURT OF SH. BHARAT PARASHAR, SPECIAL JUDGE
(PC ACT) (CBI)-7, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0033732015
CC No.01/15
RC No. 219 2013 (E) 0007
Branch : CBI/EO-I/New Delhi
CBI Vs. M/s. Rathi Steel & Power Ltd.
Under Section 120-B/420 IPC
Date of filing of charge sheet : 20.02.2015
Date of framing of charge : 19.05.2015
Date of final arguments : 21.04.2016
Date of judgment : 26.07.2016
In re:
Central Bureau of Investigation (CBI)
Vs.
1. M/s Rathi Steel & Power Ltd. (M/s RSPL) (Convicted)
Regd. Address, 1/3, Khirki Village,
Malviya Nagar, New Delhi.
2. Pradeep Rathi (Convicted)
S/o Sh. Punam Chand Rathi
(Managing Director, M/s RSPL)
R/o 26-A, Sadhana Enclave,
Malviya Nagar, New Delhi
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 1 of 107
CC No.01/15, RC No.219 2013 (E) 0007
3. Udit Rathi (Convicted)
S/o Pradeep Rathi
(Chief Executive Officer, M/s RSPL)
R/o 26 A, Sadhana Enclave,
Malviya Nagar, New Delhi
4. Kushal Agrawal (Convicted)
S/o Udai Prakash
AGM (Project & Finance) of M/s RSPL
R/o A-3, Industrial Area,
South GT Road, Gaziabad, U.P.
Another Address: 507, Ridhi Apartment,
Mahagunpuram, Ghaziabad, U.P.
APPEARANCES
Present : Ld. Special P.P., Sh. R.S. Cheema, alongwith,
Ld. Senior P.P., 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.
Ld. Senior Advocate Sh. N. Hariharan and Ld. Senior
Advocate Ms. Rebecca M. John alongwith
Ld. Counsels Sh. P.K. Dubey, Sh. Tanmaya Mehta and
Sh. Shivam Singh for accused persons.
JUDGEMENT
1. The present case pertains to allocation of "Kesla North Coal Block" to M/s Rathi Steel Pvt. Ltd. (M/s RSPL) {Earlier known as M/s Rathi Udhyog Ltd. (M/s RUL)} by Ministry of Coal (MOC), Govt. of India. However, when the allegations of wrong doing and corruption CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 2 of 107 CC No.01/15, RC No.219 2013 (E) 0007 were levelled against the public servants in the allocation of various coal blocks to private companies, then all the cases were examined by the Central Vigilance Commission (CVC). Upon finding sufficient material liable to be looked into further the CVC chose to make a reference to CBI. The CBI accordingly registered a preliminary inquiry in the matter. Thereafter, when sufficient incriminating material came on record during the course of preliminary enquiry warranting further investigation, the CBI chose to register a regular case against M/s RSPL, Directors of M/s RSPL, Udit Rathi, CEO M/s RSPL and members of 36th Screening Committee and against various other unknown persons for the offences u/s 120-B/420 IPC and Section 13(1) (d) PC Act, 1988.
2. Upon completion of investigation, CBI however filed a final report charge-sheeting only two accused persons i.e. company M/s Rathi Steel Pvt. Ltd. and Udit Rathi, CEO M/s Rathi Steel Pvt. Ltd.. No other director or officer of M/s RSPL were charge-sheeted. As regard the public servants i.e. the officers of Ministry of Coal, it was observed that as procedural lapses were noticed as having been committed by them so departmental action has been recommended against K.S. Kropha the then Joint Secretary, Ministry of Coal and Sanjiv Mittal the then Director, Ministry of Coal. As regard H.C. Gupta the then Secretary, Ministry of Coal and Chairman 36th Screening Committee, it was stated that no action could be recommended as he had since retired from government service.
3. Upon receipt of aforesaid final report this Court however vide order dated 02.03.2016 proceeded to take cognizance of the offence CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 3 of 107 CC No.01/15, RC No.219 2013 (E) 0007 u/s 120-B/420 IPC against four accused persons i.e. M/s RSPL, Sh. Udit Rathi, CEO M/s RSPL, Sh. Pradeep Rathi, Managing Director M/s RSPL and Sh. Kushal Aggarwal, AGM M/s RSPL. After all the accused persons put in their appearance copy of charge-sheet was supplied to them u/s 207 Cr.P.C.. Thereafter arguments on charge were heard at length and vide a detailed order dated 19.05.2015 charge for the offences u/s 120-B/420 IPC was framed against all the four accused persons i.e. M/s RSPL, Udit Rathi, Pradeep Rathi and Kushal Aggarwal. Separate charge for the substantive offence i.e. u/s 420 IPC was also framed against accused Udit Rathi and company M/s RSPL. All the accused persons however pleaded not guilty to the charges so framed against them and claimed trial. The accused persons were thereafter called upon u/s 294 Cr.P.C. to either admit or deny the genuineness of various documents as were sought to be relied upon by the prosecution. Accordingly, the genuineness of various documents was either admitted or denied by the accused persons. (I shall be referring to the stand taken by the accused persons qua various such documents at a later stage of the judgment)
4. The prosecution, thereafter in order to prove its case examined 20 witnesses. Accused persons were thereafter examined u/s 313 Cr.P.C.. They were also given liberty to file their written statements u/s 313 (5) Cr.P.C. but they chose not to file any such statements. They however examined 4 witnesses in their defence.
5. Final arguments in the matter were thereafter heard. On behalf of prosecution final arguments were addressed by Ld. Senior P.P. Sh. V.K. Sharma. On the other hand, Ld. Senior Advocate Sh. N. CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 4 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Hariharan and Ld. Senior Advocate Ms. Rebecca M. John led the final arguments on behalf of accused persons. Certain additional arguments were also addressed by Ld. Counsel Sh. P.K. Dubey and by Ld. Counsel Sh. Tanmaya Mehta. However joint written submissions were filed on behalf of all the accused persons by Ld. Counsel Sh. Tanmaya Mehta.
6. However, before I advert on to the evidence led by the prosecution or by the accused persons in their defence, it will be worthwhile to briefly mention the facts which led to filing of present charge-sheet and the summoning of the four accused persons. The said facts were mentioned in detail by me in my summoning order dated 02.03.2015. For the sake of brevity the necessary portion of the said order from para 3 to para 14 is being reproduced hereunder:-
Order dated 02.03.2015 (Para 3 to 14)
3. "..........During the course of investigation, it was found that pursuant to advertisement issued by MOC inviting applications for allotment of various Coal Blocks for captive use to private companies, M/s. RSPL also applied beside various other companies for allotment of "Kesla North Coal Block". As per the procedure being adopted by MOC, the applications were received in five sets. After retaining one set of application with it MOC forwarded the remaining four sets of the applications to different Administrative Ministries, State Governments where either the proposed Coal Block whose allocation was sought for was situated or the proposed end use project of the company was situated and to Central Mine Planning & Design Institute Limited, (CMPDIL) for their views/comments. Upon receipt of views/comments as above the Screening Committee of MOC which was authorised to make recommendation for allotment of Coal Blocks gave an opportunity to all applicant companies for presenting their cases. In order to make its recommendation for allotment of various Coal Blocks to different applicant companies either CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 5 of 107 CC No.01/15, RC No.219 2013 (E) 0007 singly or jointly the following factors were taken into consideration by the Screening Committee.
• "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 SPV/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 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."
4. Though the company M/s RSPL was not having any existing capacity but had stated its proposed capacity of production of Sponge Iron to the tune of 0.3 million metric tonne or more and proposed capacity of 0.5 million metric tonnes or more of pig iron up to December 2010. The Ministry of Steel (MOS) thus in accordance with the criteria laid down by it for categorizing various applicant companies in six different categories recommended M/s. RSPL under category-VI. The State of Chattisgarh where the proposed Coal Block was situated however did not make recommendation in respect of any of the Coal Block situated in the State. Thereafter, when the applications were taken up by the Screening Committee of MOC then all the applicant companies were invited for making a presentation before the Screening Committee and to submit a feedback form titled "Latest Status of end use plant for which applications for Coal Block has been made".
5. At the time of presentation before the Screening Committee on 07.02.2008 Sh. Pradeep Rathi, MD, M/s. RSPL Sh. Udit Rathi, CEO, M/s. RSPL and Sh. Kushal Aggarwal, AGM of M/s. RSPL appeared though the feedback form was signed by Sh. Udit Rathi only. It will be also worthwhile to mention that as per the Board Resolution dated 31.10.2006 of CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 6 of 107 CC No.01/15, RC No.219 2013 (E) 0007 M/s. RSPL three officers namely Sh. A.K. Sehgal, General Manager and/or Sh. Udit Rathi, CEO and/or Kushal Aggarwal, AGM, project and finance were authorised on behalf of the company to submit applications and other documents/papers and to do all other acts and deed as may be required in respect of acquiring Iron Ore Mines, Coal Mines, Lime Stone Mines, Manganese Ore Mines and any other mines as may be needed by the company. Thus on 07.02.2008 as per the attendance sheet of the meeting of Screening Committee as signed by the representatives of M/s. RSPL three persons namely Sh. Pradeep Rathi, Managing Director, Sh. Udit Rathi, Chief Executive Officer and Sh. Kushal Aggarwal, AGM were present.
6. As already mentioned, upon completion of investigation only accused M/s RSPL and Udit Rathi, CEO were charge- sheeted for the offence u/s 120-B/420 IPC and as regard other directors of M/s RSPL or the members of the 36 th Screening Committee, it has been mentioned that the allegations against them could not be substantiated so as to launch their prosecution. Though it has also been mentioned that on account of procedural lapses noticed on the part of MOC officers, action has been recommended against them to the Government.
7. During the course of investigation it was found that in the initial application dated 12.01.2007 made to MOC M/s. RSPL had projected a total requirement of 500 acres of land for its proposed end use project at Orissa. The company had further claimed that it was already in possession of 51.40 hectare of land and was in the advance stage of acquisition of 49.77 hectare of land and had applied for the remaining 101.18 hectare.
8. However, in the feedback form signed and submitted by Sh. Udit Rathi, CEO of M/s. RSPL on 07.02.2008 in the presence of Sh. Pradeep Rathi, M.D. and Kushal Aggarwal, AGM, it was claimed that 250 acres of land has already been acquired for Phase-I and Phase-II of the project and 400 acres of land was shown under the process of acquisition for Phase- III.
9. However, during the course of investigation, it was found that as on the date of application i.e. 12.01.2007 M/s. Rathi Udyog Ltd. was having possession of approximately 51.40 Hectares of land only (127.09 Acres) and at the time of submission of feed back form i.e. on 07.02.08 the company was having a total of 164.68 acres of land only. It was found CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 7 of 107 CC No.01/15, RC No.219 2013 (E) 0007 that from out of the total land measuring 164.68 acres, 74.06 Acres of land was acquired by the company vide lease deed dated 08.12.2005 between Orissa Infrastructure Development Corporation and M/s. Rathi Udyog Ltd. Another set of 53.03 acres of land was acquired vide lease deed dated 18.07.2006 between Orissa Infrastructure Development Corporation and M/s. Rathi Udyog Ltd. Yet, another 33.45 acres of land was found to have been acquired vide lease deed dated 29.06.2007 between Orissa Infrastructure Development Corporation and M/s. Rathi Udyog Ltd. Apart from the above 4.14 Acres of private land was also found to have been acquired by M/s. Rathi Udyog Ltd. Thus as on the date of submission of feedback form i.e. on 07.02.2008 M/s. RSPL had acquired and was in possession of only 164.68 acres of land (74.06 acres + 53.03 acres + 33.45 acres + 4.14 acres = 164.68 acres) . Thus it was found that in order to support the claim of M/s RSPL before MOC a false representation was made by (the three representatives of the company M/s RSPL) Sh. Udit Rathi, CEO, Sh. Pradeep Rathi, MD and Kushal Aggarwal AGM, that 250 acres of land has already been acquired by the company even though actual land acquired and in possession of the company was only 164.68 acres. It was also found during the course of investigation that though the Government of Orissa had made an assurance to M/s. Rathi Udyog Ltd. vide MOU dated 04.05.2004 that it would be handed over 250 acres of land free from all encumbrances but till 07.02.2008 i.e. the date of submission of feedback form no such land was handed over and M/s. RSPL was in possession of only 164.68 acres of land.
10. Thus M/s. RSPL and its officers on the basis of the said misrepresentation about actual land in its possession, which was an important factor regarding the progress made towards establishing the end use project or its state of preparedness, deceived MOC authorities in recommending allotment of impugned "Kesla North Coal Block" in its favour. It is thus prima facie clear that Sh. Pradeep Rathi, Managing Director, Sh. Udit Rathi, Chief Executive Officer and Sh. Kushal Aggarwal, AGM of M/s. RSPL, who all appeared before the Screening Committee for making presentation and submitting a feedback form on 07.02.2008 on behalf of M/s RSPL prima- facie conspired together to submit a highly inflated claim about the actual land in its possession with a view to cheat the concerned MOC authorities who were having dominion over the nationalised natural resources of the country i.e. Coal. Though one may argue that feedback form was signed only by Sh. Udit Rathi, CEO so the other two persons cannot be prima facie held liable for submission of false information in the feedback CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 8 of 107 CC No.01/15, RC No.219 2013 (E) 0007 form. However in the overall facts and circumstances of the case coupled with the fact that Sh. Pradeep Rathi the Managing Director, M/s. RSPL and Sh. Kushal Aggarwal, AGM M/s. RSPL, both were present alongwith Sh. Udit Rathi, CEO at the time of submission of the said feedback form then certainly none of the three persons so present can prima facie claim to be not aware of the area of land actually in possession of the company as on the date of presentation and filing of feedback form. Moreover both Udit Rathi CEO and Kushal Aggarwal AGM beside one A.K. Sehgal (since deceased) were authorised persons on behalf of M/s RSPL as per Board Resolution dated 31.10.06 and the said Board Resolution was duly signed by Sh. Pradeep Rathi. Thus prima facie the three officers of M/s RSPL namely Managing Director, Sh. Pradeep Rathi, CEO Sh. Udit Rathi and AGM Sh. Kushal Aggarwal and M/s RSPL conspired together so as to submit a highly inflated claim about land actually in possession of the company M/s RSPL. Thus not only Sh. Udit Rathi who signed the feed back form but also Sh. Pradeep Rathi the Managing Director of M/s RSPL and Sh. Kushal Aggarwal, AGM M/s RSPL also can not prima facie claim that either they were not aware of the actual land in possession of the company or that they were not aware as to what information is being furnished by Sh. Udit Rathi in the feed back form or as to what was the objective of furnishing the said false information.
11. At this stage, it will be worthwhile to quote certain observations with regard to the offence of criminal conspiracy 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 CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 9 of 107 CC No.01/15, RC No.219 2013 (E) 0007 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."
12. Undoubtedly evidence qua the offence of criminal conspiracy is hard to come up but the same is to be ascertained from the overall facts and circumstances of a given case. Thus if the entire process of submission of initial application and the subsequent feedback form submitted by the representatives of M/s RSPL alongwith the presentation made before the Screening Committee is seen then the same speak volumes about the malafide intention of the three representative of M/s RSPL i.e. Sh. Pradeep Rathi, Managing Director, Sh. Udit Rathi, Chief Executive Officer and Sh. Kushal Aggarwal, AGM, in dishonestly inducing MOC authorities on the basis of false claim made by them with respect to actual land acquired and in their possession, so as to procure allotment of a coal block in favour of M/s RSPL. Undoubtedly land was an important factor indicating the stage of progress made and that of preparedness of the proposed end use project,
13. In view of my aforesaid discussion, it is thus prima facie clear that not only M/s RSPL and Sh. Udit Rathi, Chief Executive Officer who have been charge-sheeted for the offences u/s 120-B/420 IPC and the substantive offences thereof but also Sh. Pradeep Rathi, Managing Director, M/s RSPL and Sh. Kushal Aggarwal, AGM, M/s RSPL also conspired with them so as to cheat MOC authorities in order to procure allotment of a coal block in favour of M/s RSPL.
14. I accordingly direct that summons of the case be issued to M/s RSPL, Sh. Pradeep Rathi, Managing Director, M/s RSPL, Sh. Udit Rathi, Chief Executive Officer, M/s RSPL and Sh. Kushal Aggarwal, AGM, M/s RSPL for the offence u/s 120- B/420 IPC and the substantive offences thereof.........."
7. It is in the aforesaid factual matrix that before proceeding 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.
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 10 of 107
CC No.01/15, RC No.219 2013 (E) 0007
PROSECUTION WITNESSES
S. Name and Deposition/Role of the witness in the present
No designation of the case.
Witness
1. PW1 Ram Naresh He was Section Officer CA-1 section, Ministry of Coal
from June 2009 till October 2014. On the request of CBI he had handed over various documents/ files of Ministry of Coal to Dy. SP S.P. Rana.
2. PW2 L.S. Janoti He was posted initially as Assistant and thereafter as Section Officer in MOC during the period 1995 to 2012. During his posting in CA-1 section, MOC from May 2008 till April 2009, he was dealing with post allocation matters. He had dealt with a letter dated 12.09.2008 received from A.K. Sehgal, General Manager, M/s RSPL vide which it was informed to Ministry of Coal that the name of their company has since been changed from M/s Rathi Udyog Ltd. to M/s Rathi Steel and Power Ltd.. Alongwith the said letter number of documents beside Memorandum and Articles of Association of M/s Rathi Steel and Power Ltd. was received. He subsequently also conveyed to M/s RSPL about acceptance of their request regarding change in the name of company vide letter Ex. PW2/C dated 03.10.2008. He also stated that on 05.08.2008 on the basis of 'letter of authorization' written by accused Pradeep Rathi authorizing one Sanjay Kumar the allocation letter of "Kesla North Coal Block" in favour of M/s RSPL was handed over to said Sanjay Kumar.
3. PW-3 Ved Prakash He also was working as Section Officer CA-1 section, Sharma Ministry of Coal from October 2007 till 30.06.2013.
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 Dy. SP S.P. Rana CBI and who seized them vide various production-cum-receipt memos.
4. PW-4 V.S. Rana He was posted as Under Secretary, Ministry of Coal from August 2005 till December 2013. He was associated with the processing of applications of various private companies received by Ministry of Coal seeking allocation of coal blocks including that of M/s RSPL. He accordingly proved various files/ CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 11 of 107 CC No.01/15, RC No.219 2013 (E) 0007 notings/ documents as were prepared in Ministry of Coal either by him or by other officers/ officials of Ministry of Coal during that period.
5. PW-5 Sanjay He was posted as Director, PMO in August Lohiya 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. PW-6 N.R. Dash He was posted as Director Ministry of Steel from October 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 RSPL as were received in Ministry of Steel from Ministry of Coal for obtaining their views/ comments regarding allotment of captive coal blocks.
7. PW-7 Jeet Singh, He examined various documents containing Senior Scientific signatures of accused/ suspected persons with the Officer-cum- admitted/ specimen signatures as were made Assistant Chemical available by the IO of the case. He accordingly Examiner, CFSL proved various reports prepared by him in this CBI, New Delhi regard.
8. PW-8 Y.K. From May 2008 till September 2014 he was working Aggarwal as President (commercial) of M/s RSPL. During the course of Investigation of the present case he had handed over various documents to CBI as were asked for by the IO vide notice(s) u/s 91 Cr.P.C..
9. PW-9 Vinod Kumar In March 2008 he was posted as Senior Manager in Kukreja Corporate Financial Services (CFS) Branch Bank of Baroda, Parliament Street, New Delhi. He proved an account opening form vide which an account was opened in his branch in the name of M/s Rathi Udyog Ltd. and on which accused Pradeep Rathi, accused Udit Rathi, Sh. Punam Chand Rathi, Sh. Saurab Rathi and Sh. Shrivardhan Rathi had signed as Directors. He also proved that as per the resolution filed one Kushal Aggarwal and Sant Lal were authorized on behalf of company to undertake correspondence with the bank. He also stated that cheque book issued against the said cash credit account was handed over to one Sanjay Kumar an employee of M/s Rathi Udyog Ltd..
10 PW-10 Ms. Vinni She was initially posted as Director and thereafter as Mahajan Joint Secretary in PMO from 2006 to 2008. She was CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 12 of 107 CC No.01/15, RC No.219 2013 (E) 0007 also associated with the processing of various files in PMO regarding Coal Block Allocation matters and accordingly proved the same.
11 PW-11 Rajiv Singh In September 2013, he was posted as Assistant Manager, State Bank of Patiala, Shastri Bhawan, New Delhi. He was a public independent witness who accompanied CBI officer i.e. PW-15 Insp. Suresh Kumar at the time of seizure of certain documents from Ministry of Coal and he accordingly proved the seizure memo which was prepared in his presence in the Ministry of Coal office, Shastri Bhawan and the documents so seized.
12. PW-12 Sanjay He was an employee of M/s RSPL and was working Kumar as Field Executive since 2006. He stated that upon being authorized by Sh. Pradeep Rathi he had collected allocation letter Ex. PW2/E (D-8) from Ministry of Coal and had made an endorsement to that effect in the records of Ministry of Coal. He also deposed about having received other correspondence too from Ministry of Coal on behalf of M/s RSPL.
13. PW-13 Sanjay From year 2007 onwards he was posted as Under Kankane Secretary Department of Mineral Resources, Govt. of Chattishgarh. He was associated with the processing of various applications of private companies including that of M/s RSPL as were received by Govt. of Chattishgarh from Ministry of Coal, Government of India for allotment of captive coal blocks.
14. PW-14 Piyush He was posted as Technical Director, Incharge NIC Goyal Computer Centre in Ministry of Coal. He had uploaded on the website of MOC various documents regarding coal block allocation process as were requested to be uploaded by the Ministry of Coal officers. He accordingly proved the printout of all such documents alongwith certificate U/s 65-B Evidence Act.
15. PW-15 Inspector He was the CBI officer who was associated with the Suresh Kumar, EO- preliminary enquiry initially registered by CBI. Upon 1 CBI, Delhi directions of Senior Officers he had collected various documents from Ministry of Coal relating to coal block allocation matters.
16. PW-16 R.N. Singh He was posted as Section Officer, Ministry of Coal from 1996 till July 2008. He was also associated with the processing of applications of various private CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 13 of 107 CC No.01/15, RC No.219 2013 (E) 0007 companies including that of M/s RSPL for allotment of captive coal blocks as were received in MOC. He was also associated with the holding of 36th Screening Committee meeting and the subsequent preparation and processing of minutes of the meeting.
17. PW-17 Dy. SP He was the CBI officer who was initially entrusted Samar Pal Rana, with preliminary enquiry no.219 2012 E 0002 EO-III Branch, CBI, registered by CBI with respect to Coal Block New Delhi Allocation matters. He collected various files/documents from MOC during the course of preliminary enquiry and deposited them in the malkhana of EO-1 CBI.
18. PW-18 HC Krishan He was Incharge Malkhana, EO-1, CBI. He proved Pal Singh, CBI, EO- the relevant entries of register maintained in the 1, New Delhi malkhana by 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.
19. PW-19 U.P. Singh He was Joint Secretary, Ministry of Steel and was thus a member of 36th Screening Committee. He had attended the 36th Screening Committee meetings on behalf of Ministry of Steel and had put forward the views/ comments of Ministry of Steel.
20. PW-20 Inspector He was the investigating Officer of the case. He Manoj Kumar, CBI, deposed extensively about the investigation carried EO-1 Branch, New out by him and also about the collection of various Delhi documents from different authorities by him during the course of investigation.
DEFENCE WITNESSES
S. Name and Deposition/Role of the witness in the present
No designation of the case.
Witness
1 DW-1 Baidyanath He was an official of the office of directorate of
Majhi printing, Stationary and Publication, Govt. of Odisha.
He produced certified copies of 2 gazette
notifications dated 01.11.2007 and 03.11.2007. However as both the notifications were in Oriya language so on the request of Ld. Counsels for the accused persons the two notifications were got translated in English language from the witness CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 14 of 107 CC No.01/15, RC No.219 2013 (E) 0007 himself and the same were placed on record as Ex. DW-1/A1 and Ex. DW-1/B1 2 DW-2 Akshay Bapat He was Chief Manager, Mining and Projects in Planning Department of South Eastern Coal Fields Ltd. (SECL). He had produced a map whereby a portion of the Kesla North coal block area as was allocated in favour of M/s RSPL and M/s Monnet Ispat was found to be earlier notified in favour of M/s SECL 3 DW-3 Kishore He was posted as Under Secretary, Ministry of Coal Kumar since 2014. He had produced photocopy of feed back form of 10 other companies who too were alloted captive coal blocks by 36th Screening Committee as were available in the Ministry of Coal records and proved them as Ex. DW-3/A1 to Ex. DW- 3/A10.
4 DW-4 Prafulla He was working as land Officer IDCO Kumar Swain Bhubaneshwar. He produced record pertaining to a meeting held by Managing Director IDCO wherein it was mentioned that 160.54 acres of land has already been transferred to M/s RSPL and that Tehsildar Sambhalpur stated that proclamation for another 55.80 acres of land shall be made within a weeks time.
ARGUMENTS OF PROSECUTION
8. It was vehemently argued by Ld. Sr. P.P. Sh. V.K. Sharma that accused persons hatched a criminal conspiracy amongst themselves with a view to cheat MOC, Government of India on the basis of false representations. It was stated that admittedly as on the date of submission of feed back form i.e. 07.02.08, the company M/s RSPL was not in possession of 250 acres of land and thus they had no reason to mention such a wrong statement of fact in the feed back form and the presentation so made. It was also submitted that even the alleged MOU which was entered into by M/s RSPL with State of CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 15 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Odisha was subsequently cancelled since company M/s RSPL did not fulfill its obligations as it never had any intention to do so. It was also submitted that as per the guidelines issued by MOC coupled with interse guidelines governing allocation of coal blocks the status/stage of progress of end use project was an important criteria to be considered by the Screening Committee in arriving at its recommendation for allotment of a coal block. It was also submitted by Ld. Sr. P.P. that company M/s RSPL was in fact a closely held family company and accused Pradeep Rathi who was the Managing Director of the company was well aware that the company has not yet acquired 250 acres of land but still he alongwith accused Kushal Aggarwal and Udit Rathi chose to mention in the feed back form submitted on behalf of M/s RSPL that 250 acres of land has already been acquired. It was also submitted that the purpose of seeking information in the feed back form was only to know further progress which has been made by an applicant company towards establishing its end use project from the time of submission of initial application form. Based on the said information the Screening Committee and thereby MOC was to objectively decide its recommendation for allotment of a coal block in favour of a given company from out of many applicant companies. Thus it was stated that accused persons on the basis of false information submitted as regard the latest status/stage of progress of their end use project cheated Screening Committee and thereby MOC, Government of India inducing them to allot a coal block in favour of M/s RSPL. The prosecution was thus stated to have been successful in proving its case against all the accused persons beyond shadows of all reasonable doubts. Accused CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 16 of 107 CC No.01/15, RC No.219 2013 (E) 0007 persons were thus prayed to be convicted for the offences u/s 120- B/420 IPC and also for the substantive offence u/s 420 IPC.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS
9. As the arguments addressed by Ld. Counsels for all the accused persons were almost on similar lines raising identical issues so I shall be discussing them in common.
It was submitted by Ld. Senior Advocate Sh. N. Hariharan and Ld. Sr. Advocate Ms. Rebecca M. John that prosecution has miserably failed in proving its case against all the accused persons. It was stated that admittedly in the application form submitted on behalf of company M/s RSPL to MOC seeking allotment of a captive coal block, no wrong information of any nature whatsoever was furnished. As regard the feed back form in which it is being stated that accused Udit Rathi mentioned wrong facts as regard the actual land acquired by the company, it was submitted that not only the same was not a misrepresentation but even otherwise the same never formed either a part of the decision making process of the Screening Committee or that of MOC or formed a basis of the decision of PMO. It was submitted that from the deposition of various prosecution witnesses examined during the course of trial, it has come on record that one copy of the said feed back form was only available and that too was submitted outside the meeting hall of Screening Committee meeting on 07.02.2008 and admittedly on that day no decision as regard the recommendations to be made by the Screening Committee was taken. It was also pointed out that subsequently when on 03.07.2008 CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 17 of 107 CC No.01/15, RC No.219 2013 (E) 0007 the final meeting of 36th Screening Committee took place and in which meeting recommendation for allotment of a coal block was made by the Screening Committee, the said feed back form as per the deposition of various prosecution witnesses themselves was never placed before the members of Screening Committee. It was also pointed out that while sending the file containing the recommendation of Screening Committee, the feed back form of none of the applicant companies was sent to Prime Minister as Minister of Coal and thus once again while according approval to the recommendations of the Screening Committee, the said feed back form was never considered. It was also submitted that though prosecution has tried to improve upon its case during the course of trial by stating that 25 copies of the feed back form were produced by the representatives of the applicant companies and one copy thereof was supplied to each of the members of the Screening Committee, but no such document was filed alongwith the final report by the CBI and even otherwise no such document or such copies of feed back forms were recovered during the course of investigation. It was also pointed out that PW-14 Sh. Piyush Goyal, Technical Director, Incharge, NIC Computer Centre (MOC) though produced printout of one such letter containing directions to applicant companies to produce 25 copies of feedback form, and which letter he claimed to have uploaded on the website of MOC but the Certificate u/s 65-B, Evidence Act, produced by him in support thereof was defective. PW- 14 Sh. Piyush Goyal in his deposition admitted that subsequent to the uploading of such information on the website of MOC the website of MOC was revamped. He also stated that during the process of such CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 18 of 107 CC No.01/15, RC No.219 2013 (E) 0007 revamping, the data from the website of MOC was downloaded and preserved on a separate Computer system in NIC Coal Computer Centre, MOC. He further stated that the information or the printouts now brought by him were from the said data as was so preserved on the Computer. It was thus submitted that in these circumstances, the certificate u/s 65-B, Evidence Act produced by the witness does not meet the requirements of law as are provided under section 65-B Indian Evidence Act, 1872 and accordingly the documents produced by this witness can not be taken into consideration.
10. It was also submitted that even otherwise the direction to applicant companies to produce 25 copies of feed back form was contained under the heading "Information to power sector companies"
and thus there was no reason for M/s RSPL to open the said link as the company M/s RSPL did not propose to engage in power sector. It was thus submitted that no presumption can be drawn in this regard either in favor of the prosecution or against the accused persons that the applicant companies who were called to appear before 36 th Screening Committee were having information to produce 25 copies of the feed back form.
11. As regard the claim of 250 acres of land having been acquired by the company as stated in the feed back form submitted under the signatures of accused Udit Rathi, it was pointed out that company M/s RSPL had admittedly entered into an MOU with Government of Odisha and the said MOU was being continuously acted upon by the State of Odisha. It was pointed out that under the said MOU State of Odisha had agreed to hand over through Industrial Development CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 19 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Corporation of Odisha (IDCO), 250 acres of land free from all encumbrances to the accused company for setting up of a steel plant. It was thus submitted that not only part of land from out of said 250 acres of land was already made available to the company by Government of Odisha but consistent efforts were being made by Government of Odisha to acquire further land in favour of the company and there was thus no reason for the company M/s RSPL to doubt the assurance of the State of Odisha. It was also submitted that in fact under the said MOU, State of Odisha had provided all necessary sanctions as were required for power, water etc. It was also pointed out that as on the date of submission of feed back form i.e. on 07.02.08, possession of about 160 acres of land was already handed over to company M/s RSPL by State of Odisha through IDCO and further steps for acquisition of 90-100 acres of additional land was being made by State of Odisha.
12. It was submitted that from out of the said 100 acres of additional land necessary notifications u/s 6 of Land Acquisition Act for acquiring 45 acres of land for M/s RSPL were already published in Odisha Gazette by State of Odisha on 01.11.07 and 03.11.07 i.e. well before the date of submission of feed back form. It was thus submitted that on account of publication of said notifications Ex. DW 1/A and Ex. DW 1/B, it was clear that acquisition process of said 45 acres of land was at an advanced stage of acquisition and the other procedure to be followed thereafter were mere formalities.
13. As regard another 55 acres of land, it was submitted that prior to submission of feedback form, a meeting was held between the CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 20 of 107 CC No.01/15, RC No.219 2013 (E) 0007 representatives of M/s RSPL with Managing Director, IDCO and Revenue Officers on 18.01.08 and wherein it was decided that necessary proclamation of 55 acres of balance Government land shall be issued by the Tehsildar shortly. It was also submitted that apart from the aforesaid land which was already acquired or was in advanced stage of acquisition from State of Odisha through IDCO, the company M/s RSPL itself had also purchased 4 acres of land privately. It was thus submitted that as on the date of submission of feed back form i.e. 07.02.08, company M/s RSPL was in possession of 164 aces of land and there was no reason to doubt that another 100 acres of land would also be made available to it by State of Odisha. Thus it was submitted that in the aforesaid facts and circumstances, the company M/s RSPL under bonafide belief chose to mention that 250 acres of land has been acquired.
14. As regard the contention of Ld. Sr. P.P. that no further land was ever acquired by M/s RSPL from State of Odisha even till date or that the MOU itself was cancelled by the Government, it was submitted by Ld. Sr. Advocate that though the said issue is not relevant to the present case but even otherwise no further land could be acquired by company M/s RSPL as Government of Odisha had arbitrarily enhanced the cost of land by almost 9 times and instead of a sum of Rs. 66.66 lacs which was to be the initial cost of 44.86 acres of land a sum of Rs. 5.82 crores were now being asked and the said amount would have made the entire project economically unviable. It was thus submitted that in these circumstances, no further land could be acquired though M/s RSPL continued to make its own efforts and CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 21 of 107 CC No.01/15, RC No.219 2013 (E) 0007 acquired another 5 acres of land privately.
15. In the aforesaid facts and circumstances, it was submitted that the claim of 250 acres of land having being acquired was made by accused Udit Rathi on behalf of M/s RSPL as on account of MOU entered into with State of Odisha they had a sufficient cause to believe and thereby a reason to believe as defined u/s 26 IPC that 250 acres of land shall be made available to the company by State of Odisha.
16. It was also submitted that even otherwise the word "Acquired" has been used in the feedback form in a generic sense and it was never claimed that possession of 250 acres of land has been obtained by the company. The intention was only to convey the capacity of the company to acquire 250 acres of land. It was also submitted that while in the main application information about land was sought under different columns in as much as separate information was sought as regard land which has been applied for acquisition. However on the other hand in the feed back form, the said information was sought only under two headings i.e. "total land required" or "land already acquired". It was further submitted that even otherwise at no point of time either MOC or Ministry of Steel which were the concerned Administrative Ministries specified availability of land as a pre-condition for allotment of a coal block much less any minimum requirement of land with a company. It was also submitted that during the course of prosecution evidence it has come on record that Ministry of Steel also did not consider the availability of land as a criteria for sending its recommendation to CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 22 of 107 CC No.01/15, RC No.219 2013 (E) 0007 MOC, for it made its recommendation based only on the existing or the proposed capacity of the end use project and the likely date of achieving the said capacity. It was pointed out by Ld. Sr. Advocate that feed back form was never considered either by MOC or by Ministry of Steel for otherwise on the basis of information furnished in the feed back form, the category-VI in which M/s RSPL was put by Ministry of Steel would have been shifted to category-II. It was also pointed out that neither while processing the applications nor subsequently when the recommendations of Screening Committee were forwarded to Prime Minister as Minster of Coal, the networth of company M/s RSPL as mentioned in the feed back form was ever considered and it thus again shows that the feed back form never formed the basis of any decision either that of Screening Committee or that of MOC much less that of Ministry of Steel. It was also submitted that even the minutes of 36th Screening Committee meeting does not reflect that feed back form was ever considered by the Committee in arriving at its decision. It was thus submitted that prosecution has been unable to show any direct nexus between decision to allocate a coal block to M/s RSPL by MOC and representation made in the feed back form as regard the actual land acquired by the company. It was thus submitted by Ld. Sr. Advocate that there was neither any dishonest nor any fraudulent intention on the part of the accused persons in stating in the feedback form that 250 acres of land has been acquired.
17. As an alternative argument it was also submitted that even if there was an inadvertent wrong claim made in the feed back form CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 23 of 107 CC No.01/15, RC No.219 2013 (E) 0007 than also prosecution failed to bring any evidence on record to show that the said claim led to any inducement or that any person be it in Ministry of Steel or MOC got deceived. The basic ingredients of the offence of cheating were thus stated to be not made out.
18. As regard the specific role stated to have been played by various accused persons it was submitted that while the feed back form was signed by accused Udit Rathi, CEO, M/s RSPL but accused Pradeep Rathi had not played any role what so ever in the entire allocation process. It was submitted that as per the prosecution case itself three officers of the company M/s RSPL i.e. Udit Rathi, CEO, A.K. Sehgal, General Manager and Kushal Aggarwal, AGM (Project and Finance) were authorised to act on behalf of the company. Accused Pradeep Rathi who was though Managing Director of M/s RSPL had however only gone to Screening Committee on 07.02.08 with a view to pay respect to senior Government officers present in the Screening Committee and had thereafter left the Screening Committee meeting. It was thus submitted that mere presence of accused Pradeep Rathi at the time of Screening Committee meeting can not impute any criminal liability upon him either that of a criminal conspiracy or that of the offence of cheating. As regard the other allegations levelled against accused Pradeep Rathi that after allocation of a coal block was made by MOC then he authorised one official Sanjay Kumar of the company M/s RSPL to collect the letter of allocation from MOC, it was submitted that the same was an innocuous act and even otherwise the said act having been committed after the alleged criminal conspiracy was over in as much CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 24 of 107 CC No.01/15, RC No.219 2013 (E) 0007 as allocation of a coal block was already made in favour of M/s RSPL by MOC so can not be considered as an incriminating evidence against accused Pradeep Rathi so as to rope him in the alleged criminal conspiracy. It was also submitted that accused Pradeep Rathi had no knowledge of the facts stated in the feedback form. Similarly it was submitted that accused Kushal Aggarwal was though authorised by the company M/s RSPL to deal with the application of the company as submitted to the MOC but he also admittedly did not sign any documents or played any other role. It was submitted that he being an officer of the company was merely present at the time of presentation in the Screening Committee on 07.02.08 alongwith co-accused Udit Rathi and thus the said fact in itself can not lead to a conclusion that he too was involved in the alleged criminal conspiracy.
19. It was thus submitted that clearly there was no dishonest or fraudulent intention on the part of the accused persons in mentioning in the feed back form that 250 acres of land has been acquired by the company. The accused persons had sufficient cause and thereby every reason to believe that State of Odisha in pursuant to the MOU entered into with M/s RSPL shall make available 250 acres of land to the company. It was also submitted that even otherwise the said wrong statement did not in any manner induce either Ministry of Steel or Screening Committee or even the MOC in making any recommendation for allotment of a coal block in favour of M/s RSPL. The prosecution was thus stated to have miserably failed in proving its case against the accused persons and they were thus prayed to be acquitted.
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 25 of 107 CC No.01/15, RC No.219 2013 (E) 0007
20. As regard the allegations that u/s 294 Cr.PC accused persons wrongly denied the genuineness of certain documents, it was submitted that though genuineness of certain documents was denied by the accused persons but later on when the prosecution proved the said documents during the course of trial then the authenticity of said documents was never questioned by the accused persons. It was submitted that Section 294 Cr.PC was only a procedural section introduced with a view to cut short the trial and even if there is a wrong denial by an accused of a document u/s 294 Cr.PC no adverse inference can be drawn against him. It was submitted that the only intention of the accused persons in denying the genuineness of certain documents at the initial stage of the matter was to ensure that prosecution discharges its burden of proving its documents beyond shadows of all reasonable doubts. It was also submitted by Ld. Sr. Advocate that admittedly no coal could be extracted from the impugned coal block allotted to M/s RSPL and thus neither any wrongful gain was caused to the company M/s RSPL or to any other person nor any wrongful loss was caused to MOC. It was also submitted that on account of arbitrary escalation of price of land by Government of Odisha i.e. to Rs. 5.82 crores from the initial estimation of Rs. 66.66 lacs for 44.86 acres any further acquisition of land under the MOU would have made the project economically unviable. It was also submitted that though company M/s RSPL was allotted Kesla North coal block but it has come on record that 80% of the land falling in said coal block fell under the jurisdiction of M/s South Eastern Coal Field Ltd. (M/s SECL) and which dispute could be finally resolved in February 2012 only. It was thus submitted that on CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 26 of 107 CC No.01/15, RC No.219 2013 (E) 0007 account of the said fact the impugned coal block could not be developed. It was also submitted that as admittedly 80% of the land falling in Kesla North coal block was with M/s SECL so MOC in fact was not even competent to allot the said coal block to M/s RSPL as it was not having any dominion over the same. Accused persons were thus prayed to be acquitted as prosecution was stated to have miserably failed in proving its case.
21. In support of their submissions reliance was placed on the following case law by Ld. Counsels for the accused persons:
S. TITLE CITATION
No
1. Hiralal Mundra vs. Asok Kumar Rasiklal and 39 (1973) CLT 597
Company through Ramniklal Dholkia
2. Neelam Lata vs. State of Jharkhand and Anr. 2008 (56) BLJRI 352
3. Gurcharan Singh vs. Suresh Kumar Jain and 1988 CRI.L.J.823
Ors.
4. M.M.S.T. Chidambaram Chettiar vs. A.I.R. 1938 Madras 129
Shanmugham Pillai
5. Harendra Nath Das vs. Jyothish Chandra Datta 1925 ILR 52 CAL 188
6. Mata Prasad vs. Emperor AIR 1920 All 66
7. Shri Manoj Ranjan Nayak vs. State of Orissa 97 (2004) CLT 753
8. Gobar Dhan Chandra Mandal vs. Kanai Lal (1953) ILR 2 Cal 133
Mandal
9. Jibrial Diwan vs. State of Maharashtra AIR 1997 SC 3424
10. Mohammed Ibrahimi vs. State of Bihar (2009) 8 SCC 751
11. G. Anji v. Sunanda Kar @ Gora Babu 46 (1978) CLT 560
12. Emperor vs. Debendra Prasad 2 Ind. Cas. 601
13. Queen-Empress vs. Haradhan alias Rakhal (1892) ILR 19 Cal 380
Dass Ghosh
14. A.S. Krishnan vs. State of Kerala 2004 (11) SCC 576
15. Jyoti Prasad vs. State of Haryana 1993 (30) ACC 101
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 27 of 107
CC No.01/15, RC No.219 2013 (E) 0007
16. Vimal Suresh Kamble vs. Chaluverapinake Apal (2003) 3 SCC 175 S.P. And Another
17. State of Kerala vs. P. Sugathan and Anr. (2000) 8 SCC 203
18. Leo Roy Frey vs. Superintendent, District Jail, AIR 1958 SC 119 Amritsar and Anr.
19. G.L. Chawla and Ors. vs. State (CBI) 2011 VIII AD (Delhi) 700
20. CBI, Hyderabad vs. K. Narayanan Rao 2012 (9) SCALE 228
21. Subramanian Swamy vs. A. Raja AIR 2012 SC 3336
22. Kehar Singh and Ors. vs. State (Delhi (1988) 3 SCC 609 Administration)
23. Rakesh Kumar and Ors. vs. State 163 (2009) DLT 658
24. K.R. Purushothaman vs. State of Kerala (2005) 12 SCC 631
25. Mirza Akbar vs. Emperor 1941 (43) BLR 20
26. V.C. Shukla vs. State (Delhi Administration) (1980) 2 SCC 665
27. Sudhdeo Jha Utpal vs. State of Bihar AIR 1957 SC 466
28. Raj Kumar Singh vs. State of Rajasthan Criminal Appeal 931-932 of 2009, Judgment dated 06.05.2013.
29. Vithalbhai Devjibhai Patel vs. State of Gujrat Crl. Appeal No.61 of 1998
30. Sunil Kumar Sambhudayal Gupta (Dr.) and (2011) 2 SCC (Cri.) 375 Others vs. State of Maharashtra
31. Balaka Singh and Others vs. The State of AIR 1975 SC 1962 Punjab
32. State of Karnataka vs. M. Muniswamy 2004 SCC (Cri.) 1151
33. Hate Singh Bhagat Singh vs. State of Madhya AIR 1953 SC 468 Bharat
34. Bishan Das vs. State of Punjab & Anr. 2014 (4) Crimes 181 (SC)
35. Wolfgang Reim & Ors. vs. State & Anr. 2012 (3) JCC 2042
36. Dr. Vimla vs. Delhi Administration AIR 1963 SC 1572
37. Raj Kumar Singh @ Raju @ Batya vs. State of (2013) 5 SCC 722 Rajasthan
38. Sarwan Singh vs. State of Punjab AIR 1957 SC 637
39. Krishna Janrdhan Bhat vs. Dattatraya G. Hegde (2008) 4 SCC 54
40. Koli Trikam Jivraj & Anr. vs. State of Gujarat AIR 1969 Guj. 69 CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 28 of 107 CC No.01/15, RC No.219 2013 (E) 0007
41. Shabbir Mohammad vs. State of Rajasthan 1996 Cri. L.J. 2015
42. Ramaiah @ Rama vs. State of Karnataka (2014) 9 SCC 365
43. Shabbir Mohammad vs. State of Rajasthan 1996 Cri. L.J. 2015.
44. Dr. S. Dutt. Vs. State of Uttar Pradesh AIR 1966 SC 523 ARGUMENTS OF PROSECUTION IN REBUTTAL
22. It was submitted by Ld. Senior P.P. Sh. V.K. Sharma that the accused persons had clearly misrepresented in the feedback form that 250 acres of land has been acquired by them and now as an afterthought it was being stated that the word "acquired" has been used in generic sense indicating their capacity to acquire 250 acres of land. It was submitted that the meaning of the word "acquired" as used by the accused persons in the feedback form is the same as is usually understood in common parlance. It was also submitted that it is not the case of accused persons that the words "already acquired"
qua which information was sought by MOC in the feedback form were understood by them in any context different from the one in which the said phrase is commonly understood.
23. As regard the contention that the information furnished in the feedback form was never considered either by the Screening Committee or by MOC or even by PMO, it was submitted that from a perusal of the minutes of Screening Committee, it is clear that the data furnished by the applicants was clearly taken note of and considered by it. It was submitted that the information submitted by way of presentation as made by the representatives of applicant companies could not have been different from the information CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 29 of 107 CC No.01/15, RC No.219 2013 (E) 0007 furnished in the feedback forms and thus when presentation was considered before arriving at a decision by the Screening Committee so it can not be stated that information furnished by way of feed back forms was not considered. It was also submitted by Ld. Senior P.P. that the accused persons not only denied the feedback form u/s 294 Cr.PC but even during the course of trial i.e. in the cross-examination of PW-15 Insp. Suresh Kumar who had seized the said feedback form from MOC, it was suggested that the first page of the feedback form has been substituted with his connivance. It was thus submitted that accused persons have been continuously taking contradictory false stands during the course of trial in order to wriggle out of the misrepresentation made by them in the feedback form. It was also submitted by Ld. Senior P.P. that if accused persons had no knowledge that feedback form was to be submitted then they failed to explain as to why they brought at least one copy of the feedback form to the Screening Committee meeting.
24. It was also pointed out by Ld. Senior P.P. that though during the course of trial accused persons stated that as on the date of submission of feedback form i.e. on 07.02.2008 company M/s RSPL was only having 164.68 acres of land and not 250 acres of land but in response of question number 78 in their statement u/s 313 Cr.PC, this fact was stated to be incorrect. It was thus submitted that reliance by accused persons upon Section 26 IPC i.e. "Reason to believe" was completely misplaced.
25. It was thus submitted by Ld. Senior P.P. that accused persons cheated MOC, Government of India in pursuance to a criminal CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 30 of 107 CC No.01/15, RC No.219 2013 (E) 0007 conspiracy hatched by them by inducing Screening Committee and thereby MOC to believe their false representation and to allot "Kesla North coal block" in favour of M/s RSPL. The prosecution was thus stated to have been successful in proving its case and accused persons were thus prayed to be convicted of the offences for which charges have been framed against them.
26. Ld. Senior PP Sh. V.K. Sharma further placed reliance upon the following case law in support of his submissions:
S. TITLE CITATION
No.
1. K. Satwant Singh vs. State of Punjab 1960 (2) SCR 89
2. C.I.T., Andhra Pradesh vs. M/s Taj Mahal Hotel, 1971 (3) SCC 550
Secunderabad
3. Delhi Judicial Service Association, Tis Hazari Court, 1991 (4) SCC 406 Delhi vs. State of Gujrat
4. Chief Education Officer vs. K.S. Palanichamy 2012 (2) MWN (cr.) 354
5. REG vs. Hanmanta 1877 ILR 1 BOM 610
6. Common Cause, a Registered Society vs. UOI & 1999 (6) SCC 667 Ors.
7. Krishnan & Anr. vs. Krishnaveni & Anr. 1997 (4) SCC 241
8. Shivnarayan Laxminarayan Joshi and Ors. vs. (1980) 2 SCC 465 State of Maharashtra
9. State of Punjab and Another vs. Gurdial Singh and (1980) 2 SCC 471 Others
27. I have carefully perused the record.
28. The case of the prosecution primarily rests on a short and simple issue that accused persons in pursuance to a criminal conspiracy hatched amongst themselves misrepresented to MOC CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 31 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Government of India about the actual land acquired by them and that the said misrepresentation was made by them with a view to present a higher status/stage of progress made by company M/s RSPL towards establishing its end use project. It has been also alleged that accused persons thereby deceived MOC, Government of India so as to dishonestly induce it to allocate a coal block to company M/s RSPL for its captive use in its proposed sponge iron plant.
Thus what is important to be first seen is as to whether there was a misrepresentation made by the accused persons. If yes, whether it was a dishonest misrepresentation. If the answer to the second question is in affirmative then it is required to be seen whether the said dishonest misrepresentation was intentionally made with a view to deceive, MOC, Government of India so as to procure allotment of a captive coal block. Lastly it will be required to be seen as to whether on account of said dishonest misrepresentation, MOC Government of India stood deceived or not in as much as it proceeded ahead to allocate a captive coal block i.e. Kesla North Coal Block to M/s RSPL. It also needs to be seen as to whether the said act of cheating was in pursuance to a criminal conspiracy hatched by all the accused persons whose object was to secure allocation of a captive coal block in favour of M/s RSPL or not.
(A) WHETHER A MISREPRESENTATION WAS MADE BY
COMPANY M/S RSPL OR NOT.
29. I may state at the outset itself that not only during the course of trial but even at the time of final arguments as well as in the written submissions filed it has not been denied by the accused persons that CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 32 of 107 CC No.01/15, RC No.219 2013 (E) 0007 as on the date of submission of feed back form before the Screening Committee i.e. on 07.02.08, the company M/s RSPL had not yet acquired 250 acres of land. It has been however strenuously argued that the accused persons had sufficient cause and thereby had a reason to believe that 250 acres of land shall be acquired by them in pursuance to a MOU entered into by M/s RSPL with Government of Odisha. It has also been stated that the said MOU was being continuously acted upon by the State of Odisha and necessary steps by way of issuance of notifications u/s 6 Land Acquisition Act were being taken by State of Odisha so as to procure land in favour of company M/s RSPL. It has also been argued that the word "acquired" has been used in the feedback form in a generic sense in as much as the capacity of the company to acquire 250 acres of land was being indicated.
30. In this regard it will be worthwhile to first mention the information as was furnished by company M/s RSPL initially in its application dated 12.01.07 and subsequently in the feed back form dated 07.02.08 with respect to land. In the application form in column 18 titled "Project Status", the following information was furnished by the company.
V PROJECT STATUS 18 Land Yes No Remarks if any
i) Requirement (Sq. km/Hectare) 202.35 Hectare or 500 Acres for the entire project
ii) Identified 202.35 Hectare
iii) Applied for Acquisition 202.35 Hectare
iv) Partly Acquired 51.40 Hectare CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 33 of 107 CC No.01/15, RC No.219 2013 (E) 0007
v) Likely date of full possession 31 December 2007
vi) In Possession 51.40 Hectare (as Attached Lease Deed and Letter of Allotment)
vii) Others 49.77 Hectare in the advance stage of acquisition. Rest 101.18 Hectare has been applied for.
31. In the feed back form titled "Latest status of end use plant which application for block has been made. Feed back form to be filled up separately if more than one end use plant is proposed", the information regarding land has been mentioned at point No. 5 as under:
5 Land
(a) Total requirement: i) Phase I & II - 250 Acres
ii) Phase III - 400 Acres
(b) Already acquired: i) 250 Acres for Phase I & II acquired
ii) 400 Acres for Phase III under acquisition
32. Thus the short question which needs to be seen is as to whether the claim made by the accused persons in the feed back form dated 07.02.08 that 250 acres of land has been acquired by them was a bonafide claim or in other words whether there was a sufficient cause for them to believe about the existence of said fact.
33. Though Ld. Counsels for the accused persons argued both at the time of charge and also at the time of final arguments that the CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 34 of 107 CC No.01/15, RC No.219 2013 (E) 0007 word "acquired" has been used in a generic sense but nothing was elaborated at any stage of the arguments as to what is the meaning of the word "acquired" in generic sense. It was however stated in the written submissions filed that the capacity of the company to acquire 250 acres of land was being only indicated. It was also submitted that accused persons never claimed to be in possession of 250 acres of land and thus the use of the word acquired should be understood as alienated from the use of word acquired coupled with possession.
34. At the outset, I may however state that this explanation is a feeble attempt made by the accused persons in order to wriggle out of the said false representation made by them in the feedback form. My subsequent discussion shall show that there could not have been any other meaning of the word "acquired" as used in the feedback form different from the one in which it is usually understood in common parlance. In other words its literal meaning vis-a-vis its generic meaning can not be different. The word "acquired" as is usually understood and as has been explained and defined in Oxford English Dictionary is "to buy or obtain something (an asset or object)". Free Dictionary defines the word "acquired" as "to gain possession of". The legal Dictionary defines it as "to come into possession of". Thus the word "acquired" both in its common use as well as in generic sense conveys same meaning i.e. "having obtained something or gained possession of". It does not refer to any process of obtaining something or process of gaining possession thereof.
35. There are in fact number of reasons which clearly show that the word "acquired" has been used in the feedback form by the CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 35 of 107 CC No.01/15, RC No.219 2013 (E) 0007 accused persons in the same manner in which it is usually understood. The format of feed back form was admittedly prepared by MOC and was uploaded on the website of MOC. The accused persons admittedly downloaded the same from the website of MOC. In the said form information was sought from the applicant companies specifically about the total requirement of land and land already acquired. It is however not the case of accused persons that MOC used the phrase "already acquired" in the feed back form in some other sense different from the one in which it is usually understood or that they understood the use of said phrase "already acquired" in the blank proforma in some other sense different from the one in which it is usually understood. As earlier also mentioned, the information provided by the accused persons in the feedback form against the words "already acquired" was as follows:
(b) Already acquired: i) 250 Acres for Phase I & II acquired
ii) 400 Acres for Phase III under acquisition
36. Thus if the two information provided in the feed back form about land "acquired" or land "under acquisition" is seen then it is crystal clear that the word "acquired" under (b) (i) has been used in the same context in which it is usually understood and is used in common parlance. The intention of the accused persons in conveying necessary information by use of two different words i.e. "acquired" and "under acquisition" is thus writ large on the face of record. The use of the two words "acquired" and "under acquisition" clearly shows CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 36 of 107 CC No.01/15, RC No.219 2013 (E) 0007 that the same were used in different context and intended to convey different meanings. As is apparent, the word "under acquisition"
clearly shows that land measuring 400 acres for Phase III of the project was in the process of being acquired meaning thereby that 400 acres of land was under acquisition. A necessary corollary which therefore arises is that 250 acres of land for Phase-I and Phase-II was already acquired. It thus becomes crystal clear that while submitting the feed back form under the signatures of accused Udit Rathi, it was claimed before the Screening Committee, MOC that the company M/s RSPL has already acquired 250 acres of land for Phase-I and Phase-II of their end use project. It was rather also claimed that 400 acres of land for Phase-III was under acquisition. Even if for the sake of arguments it is presumed that there was no intention of conveying that physical possession of 250 acres of land was not with M/s RSPL but still constructive possession thereof was sought to be conveyed. However accused persons have failed to show even constructive possession over 250 acres of land much less physical possession. Moreover as earlier also stated that if the intention was to use the word "acquired" as different from "acquired coupled with possession" then this fact ought to have been clarified in the feedback form itself. In fact it is also not the case of the accused persons that in the subsequent presentation made by them this aspect was clarified. (At a later stage of the present judgment, I shall be also discussing as to how the presentation made by the accused persons which the accused persons have claimed to be in the nature of interaction only could have been on the basis of information furnished in the feedback form only). A bare reading of the information CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 37 of 107 CC No.01/15, RC No.219 2013 (E) 0007 provided in the feedback form vis-a-vis the one provided in the initial application clearly belies the claim of accused persons that the word "acquired" was used in the feedback form by them in a different context. Merely because in the feedback form information was sought only under two headings so it cannot be even presumed much less inferred that the information sought was in different context. Rather the feedback form shows that after the information was furnished by the applicant companies in the initial application form about total land required, identified, applied for acquisition, partly acquired, likely date of full possession or in possession, it was the further status of land which finally stood acquired was sought. The title of the feedback form clearly stated that information about latest status of end use plant is to be furnished, left no doubt that progress made by the applicant company since the date of submission of initial application form was to be submitted. There was clearly no room for any kind of doubt as regard the nature of information being sought by MOC in the feedback form.
37. It is in these circumstances the submissions of Ld. Counsels for accused persons that pursuant to a MOU entered into with State of Odisha, the company M/s RSPL had already acquired some portion of land and had reason to believe or had sufficient cause to believe that State of Odisha will honour its commitment and will certainly make available 250 acres of land to it, needs to be considered. In fact this process of acquisition of balance land under MOU can more appropriately be referred to the second claim of company M/s RSPL in its feed back form that 400 acres of land for Phase III was under
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 38 of 107 CC No.01/15, RC No.219 2013 (E) 0007 acquisition. As per the claim of accused persons themselves in their written submission 160 acres of land was already acquired by them through IDCO and 4 acres of land was privately purchased by them and thereafter steps were being taken by State of Odisha to clear another 100 acres of land under the MOU.
Section 6 notifications qua 45 acres of land was stated to have been already issued and decision to issue notification for remaining 55 acres of land was also stated to have been made by the Managing Director, IDCO in a meeting held with Revenue Department Authorities and the representatives of M/s RSPL. Thus the total land which could have been available to the accused persons would have been 264 acres of land. Thus if the argument of Ld. Counsels for accused is viewed from yet another angle that they had sufficient cause to believe or had a reason to believe that 250 acres of land shall be available to them through IDCO then they would have mentioned 264 acres of land and not 250 acres of land. Even if 4 acres of land privately acquired by them is taken out of consideration then the total land acquired would have been 260 acres and not 250 acres. This fact again goes to show that the claim made by the company in the feed back form that 250 acres of land for Phase I and Phase II has been acquired was made completely independent of the acquisition proceedings which were being initiated by the State of Odisha under the MOU. It was a clear cut bald assertion by the company that 250 acres of land has been acquired by them. The contention of Ld. Counsels for accused persons to the contrary is thus per se not tenable.
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 39 of 107 CC No.01/15, RC No.219 2013 (E) 0007
38. In view of my aforesaid discussion, there is no doubt left that company M/s RSPL misrepresented before the Screening Committee in the feed back form that it has already acquired 250 acres of land for Phase I and Phase II. In fact the aforesaid discussion also shows that acquisition proceedings qua 45 acres of land was only in progress and qua another 55 acres of land such proceedings were even yet to be initiated.
39. From the aforesaid facts it is also clear that whatever steps were being taken towards acquisition of land and at whatever stage they were, the same were qua 100 acres of land only and not even towards 400 acres of land as claimed in the feedback form. Nothing has been even shown by the accused persons as to on what basis the claim that 400 acres of land for Phase-III was under acquisition was made by them in the feedback form. Thus even the claim made by the company that 400 acres of land for Phase III of its end use project was under acquisition was also false.
40. It however stands concluded beyond shadows of all reasonable doubts that a false representation was made in the feedback form submitted on behalf of M/s RSPL as regard the land already acquired by it. It also stands concluded that accused persons had no reason to believe that 250 acres of land has been already acquired.
41. Thus if the accused persons had any reason to use the word "acquired" in a different context assigning it some meaning different from the one in which it is usually understood then it ought to have been clarified in the feed back form itself. Giving of such an CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 40 of 107 CC No.01/15, RC No.219 2013 (E) 0007 explanation now that the word "acquired" was used in a generic sense is nothing but an articulation sought to be introduced as an afterthought.
(B) WHETHER THE MISREPRESENTATION WAS MADE
DISHONESTLY
42. After having concluded that there was clear misrepresentation in the feed back form submitted on behalf of company M/s RSPL, the next issue to be considered is whether the said misrepresentation was made dishonestly.
43. Section 24 IPC defines the word "dishonestly" as under:
"24. "Dishonestly". - Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"."
However, in order to arrive at a finding in this regard it will be important to first see as to what could have been the purpose of making such a false representation by the accused persons. Admittedly MOC while inviting applications by way of an advertisement had also advertised the guidelines which would govern the decision of the Screening Committee in making allocation of a coal block in favour of a given company. The said guidelines read as under:
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 SPV/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 the application;
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 41 of 107 CC No.01/15, RC No.219 2013 (E) 0007 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.
44. The very first guideline shows that the status (stage), level of progress and state of preparedness of the projects will be one of the factors to be considered by the Screening Committee. The guidelines also says that the track record and financial strength of the company shall also be a relevant consideration. It has been strenuously argued by Ld. Counsels for accused that land was never specified as a criteria to be considered either by Screening Committee or by MOC. It was also argued that no minimum quantity of land was specified for seeking allocation of a captive coal block in favour of a company. It was also pointed out that there were number of instances wherein Screening Committee proceeded to make recommendation for allotment of captive coal block in favour of different companies which were either having no land in their possession or land available with them was much less than the land available with M/s RSPL.
45. I may however state at the outset that all such contentions of the accused persons are not at all tenable.
The very first guideline titled "status (stage), level of progress and state of preparedness of the projects" clearly shows that level of progress made towards establishing the end use project or the state of preparedness of the project was a relevant consideration.
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 42 of 107 CC No.01/15, RC No.219 2013 (E) 0007 By necessary implication the said condition includes in itself the amount of land available with a company on which the project was proposed to be established. Thus, to say that land does not form part of "status (stage), level of progress and state of preparedness of the projects" is completely a fallacious argument. It is in this regard only that another guideline titled "track record and financial strength of the company" gains material importance. The very fact that a company was capable enough to acquire sufficient land for its proposed end use project would show the financial strength of the company. In fact it has been argued by the accused persons and also mentioned in the written submissions filed that by stating in the feed back form that 250 acres of land has been acquired by them they only intended to convey their capacity to acquire this much of land. However it was also claimed by the accused persons themselves that subsequent to allocation they could not acquire any further land under the MOU from State of Odisha as the rate of land was increased manifold by Government of Odisha and which would have made the project economically unviable. It is in this context only that the net worth of the applicant companies gains material importance. Admittedly mining of a given coal block would have followed subsequent to establishing of the end use project, be it cement manufacturing plant or plant for generation of power or establishing a sponge iron plant. All such activities require huge investment and thus the net-worth of the applicant companies or the track record or financial strength of the companies gains material importance. It would be thus a complete fallacy to even presume that the various guidelines as chalked out by MOC to govern the allocation of coal blocks to different applicant CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 43 of 107 CC No.01/15, RC No.219 2013 (E) 0007 companies had no interse relation. In fact each of the factor was closely inter-related with the other factors. Moreover the basic factors i.e. the net worth of the applicant company or the track record or financial strength of the company had a direct co-relation with the status (stage), level of progress and state of preparedness of the projects.
46. The aforesaid circumstances rather also explains as to what prompted the accused persons to present highly inflated claims with respect to their status (stage), level of progress and state of preparedness of the projects. The accused persons intended to put forward highly inflated claims about land already acquired or under acquisition in order to not only highlight their financial strength and track record but also to show a higher status/stage of progress made by them towards establishing the end use project. In fact at a subsequent stage of the present order I shall be also showing that there were other changes also made in the information supplied in the feedback form in order to meet the criteria laid down by Ministry of Steel and MOC and that the claim of having already acquired 250 acres of land required for Phase-I & II of the project was consciously made by the accused persons. As regard the arguments that Screening Committee, MOC chose to also recommend allocation of coal blocks to other applicant companies who were either having no land with them or land in their possession was much less than that of company M/s RSPL, it would be suffice to state that Hon'ble Supreme Court in the case Manohar Lal Sharma V. Union of India, (2014) 9 SCC 516 has already observed that the procedure adopted by the CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 44 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Screening Committee in allocating various coal blocks was grossly arbitrary and in violation of the guidelines governing such allocation.
47. It was observed that there was no transparency or objective criteria, nay no criteria for evaluation of comparative merits of the applicant companies. Order dated 25.08.2014 of Hon'ble Supreme Court of India passed in the case Manohar Lal Sharma (Supra) in this regard speak volumes about such arbitrary allocation of important nationalized natural resources of the country i.e. coal to various undeserving applicant companies. The present Court is already having number of other cases in which various private parties to whom different coal blocks were allotted by 36th Screening Committee itself are facing trial. In fact, in a number of cases the MOC officers were also found to be prima facie hands in glove with the private parties and are facing trial. However, as the present case is at the stage of final judgment so I do not intend to delve into the said aspect i.e. the role of MOC officers in making allotment of Kesla North coal block in favour of M/s RSPL but even in the final report, CBI has stated that departmental action has been recommended against officers of MOC. It has been stated that while Chairman Screening Committee has already retired so no action could be recommended against him but as regard other officers of MOC who were still in Government service recommendation has been made for initiation of departmental action against them. Moreover, accused persons can not claim that since similar arbitrary decisions have been made with respect to other coal blocks also in favour of other applicant companies so no fault should be found with the allocation CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 45 of 107 CC No.01/15, RC No.219 2013 (E) 0007 made in favour of M/s RSPL. Moreover another important aspect which may have to be considered in such other cases is whether the said other applicant companies having either no land or land less than that of M/s RSPL also misrepresented in this regard to MOC or not. Whether the said other companies were truthful in their submissions made to MOC, or not.
From the aforesaid discussion it is however crystal clear that the mis-representation as regard the amount of land already acquired or land under acquisition was made in the feedback form consciously by the accused persons with a view to present a higher status or stage of progress made by them towards establishing their end use project. Thus, the said false representation made by them was clearly a dishonest misrepresentation.
(C) WHETHER THE FALSE INFORMATION SO FURNISHED HAD THE EFFECT OF DECEIVING SCREENING COMMITTEE AND THEREBY MOC.
48. At this stage, it will be appropriate to consider as to what is the meaning of the phrase "deceiving any person" as used in the definition of cheating as provided in Section 415 IPC.
49. In the case Swami Dhirendra Brahamchari Vs. Shailendra Bhushan, 1995 Cr. L.J. 1810 (Delhi), Hon'ble Delhi High Court while dealing with the word deceiving as used in Section 415 IPC, observed that generally speaking "deceiving" is to lead into error by causing a person to believe what is false or to disbelieve what is true and such deception may be by words or by conduct. A fraudulent representation can be made directly or indirectly.
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 46 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Hon'ble Allahabad High Court in the case P.M. Natrajan Vs. Krishna Chandra Gupta, 1975 Cr. L.J. 899 (All.) explained the word "deceive" as indicating inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine.
Hon'ble Supreme Court in the case Ellerman & Bucknall Steamship Co. Ltd. vs Sha Misrimal Bherajee, AIR 1966 SC 1892, explained "deceit" as a false statement of a fact made by a person knowingly or recklessly with the intent that it shall be acted upon by another who does act upon it and thereby suffers damage.
50. It was stated that in all such cases of deception, the object of the deceiver is fraudulent. He intends to acquire or retain wrongful possession of that to which some other person has a better claim. Thus where a person parted away with a property while acting on such a representation of an accused believing in the truth thereof, it clearly amounts to deceiving the person. However, it is also important that the person practicing the deceit knows or has reason to believe the said representation to be false. Though in the true nature of things, it is not always possible to prove dishonest intention by direct evidence. It can be however proved by number of circumstances only from which a reasonable inference can be drawn.
Further the explanation to Section 415 IPC i.e. cheating states that a dishonest concealment of facts is a deception within the meaning of this section.
51. Coming to the facts of the case in hand, it is clear from the discussion made above that the accused persons had no reason to CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 47 of 107 CC No.01/15, RC No.219 2013 (E) 0007 believe that 250 acres of land has been acquired by M/s RSPL. In fact they actually knew that the claims made by them qua the actual land acquired by them or steps taken to acquire any further piece of land were false. It is also clear that the accused persons knowing fully well that the said facts were false represented them to be true or as existing facts and thus misled Screening Committee and thereby Ministry of Coal, Government of India to believe in the existence of said facts as true and thereby inducing it to part with the important nationalized natural resources of the country i.e. coal in favour of M/s RSPL.
The Screening Committee and thereby MOC, Government of India thus clearly stood deceived on the basis of said false and dishonest representation.
(D) EFFECT OF DISHONEST MISREPRESENTATION
52. The next issue to be considered now is what was the effect of said dishonest misrepresentation made by the accused persons. Though it has been argued by Ld. Counsels for the accused persons that no mens-rea or criminality can be attributed to such misrepresentation and more so it was not made with an intention to deceive MOC and thereby to induce it to allot a captive coal block to company M/s RSPL. The minutes of 36th Screening Committee were extensively referred to by Ld. Counsels for the accused persons to show that the feed back form as was submitted by accused Udit Rathi on behalf of M/s RSPL was never placed before the Screening Committee and was thus not considered by the Screening Committee CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 48 of 107 CC No.01/15, RC No.219 2013 (E) 0007 while making its recommendation. It was also pointed out that in the deposition of PW-4 Sh. V.S. Rana, it has clearly come on record that the said feed back form was never sent to PMO while seeking approval of the recommendation of the Screening Committee. While referring to the deposition of PW-6 Sh. N.R. Dash, Director, Ministry of Steel and PW-19 Sh. U.P. Singh, Joint Secretary, Ministry of Steel, it was also pointed out that even Ministry of Steel did not take into consideration the availability of land with any applicant company while making its recommendation to MOC by categorizing them under different categories. It was submitted that admittedly the seven categories as chalked out by Ministry of Steel were primarily based on the existing or proposed capacity of the end use project by the applicant companies and the same has nothing to do with the availability of land with the applicant companies. It was thus submitted that land was never a criteria considered either by Ministry of Steel or by MOC much less by Screening Committee and therefore even if there was some false statement in the feed back form submitted on behalf of M/s RSPL then the same did not in any manner either induce Screening Committee and thereby MOC or deceived them in any manner much less to allocate a coal block in favour of M/s RSPL.
53. I may however state that the aforesaid contentions of Ld. Counsel for the accused persons are not at all tenable.
(i) Whether information about the latest status/stage of End Use Project was relevant to Ministry of Steel.
54. A perusal of office memorandum dated 06.12.07 Ex. PW 4/L (colly) (D-8) vide which the recommendation of Ministry of Steel were CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 49 of 107 CC No.01/15, RC No.219 2013 (E) 0007 sent to MOC categorizing various applicant companies under different categories would show that it was specifically mentioned in it at point-10 that "Nearly one year has passed after submission of applications, the current status of the respective projects should be taken into consideration by Screening Committee". Point 6 of the said office memorandum further read as under:
"6.0 The Screening Committee may like to discuss and consider on the following parameters:-
(i) Progress made in respect of the steel capacity projects for which the application for coal block has been submitted.
(ii) Potential and credibility of the applicants in setting up capacity addition in steel sector.
(iii) Efforts made towards development of natural resources allocated earlier."
55. Thus from the aforesaid Office Memorandum as communicated by Ministry of Steel to MOC, it is clear that the current status of the end use project was an important factor for Ministry of Steel and the same was accordingly requested to be taken into consideration by the Screening Committee.
56. PW-19 Sh. U.P. Singh in his cross-examination stated that in the meeting of Screening Committee held on 03.07.08 he was carrying Office Memorandum dated 06.12.07. He also stated that in the Screening Committee meeting he represented the views of Ministry of Steel qua each of the applicant companies only on the basis of Office Memorandum Ex. PW 4/L (colly). Thus it is completely fallacious to conclude that the current status of the end use project was of no relevance to the Screening Committee or that it was of no concern either to the Ministry of Steel or to Ministry of Coal. It is in this CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 50 of 107 CC No.01/15, RC No.219 2013 (E) 0007 light only, the contention of Ld. Counsels for accused persons that if the feed back form would have been considered then the categorization of M/s RSPL would have been shifted to Category-II from Category-VI, needs to be seen.
57. It is clearly evident from record that the feed back form which in fact was titled "Latest status of end use plant" was primarily meant to obtain information from the applicant companies as to the progress made by them in establishing the end use project since from the time of submission of initial application by them more than a year had elapsed. In other words, it offered an opportunity to the applicant companies to further update their claims made in the application so that the Screening Committee may on the basis of the inter-se guidelines, objectively decide the allocation of a given coal block in favour of an applicant company. Thus, neither any exercise of upgrading the category of any applicant company based on the criteria used by Ministry of Steel was adopted nor Ministry of Steel was ever called upon to submit its comments afresh upon receipt of feed back forms.
58. At this stage, it will be also worthwhile to mention that though as per the initial application submitted on behalf of M/s RSPL, Phase-I of sponge iron plant of capacity 0.15 MTPA was to be commissioned by 31.03.2007 and Phase-II, again of 0.15 MTPA was to be commissioned by 31.03.2008 with Phase-III of 0.45 MTPA by 31.05.2009. However, as per the feed back form submitted on 07.02.08, Phase-I was only yet commissioned and as regard Phase-II and Phase-III, it was stated that the same will be completed by CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 51 of 107 CC No.01/15, RC No.219 2013 (E) 0007 December 2010. It is thus clear that there was an admitted delay in the commissioning of the end use project. [In fact in the written submissions it has been stated by the accused persons that for a variety of reasons Phase-II and Phase-III of their end use project could never be commissioned].
59. The aforesaid facts gain material importance as from the overall facts and circumstances of the case coupled with the criteria adopted by Ministry of Steel, it is crystal clear that the proposed commissioning date of Phase-II and Phase-III was consciously stated in the feedback form as December 2010. In order to appreciate the aforesaid fact it will be worthwhile to have a glance over the criteria adopted by Ministry of Steel in making its recommendations to MOC. The said criteria was conveyed to MOC by Ministry of Steel vide office memorandum dated 14.12.2007 Ex. PW-4/M (colly) (D-7).
"Guidelines to be followed for the consideration of allotment of Coal Block • 0.3mT (million metric Ton) or more capacity of production of sponge iron either existing or proposed up to December, 2010.
• 0.5mT (million metric Ton) or more capacity of production of pig iron either existing or proposed up to December, 2010.
• Background of the company-whether associated with steel, sponge, iron, pig iron or mining activity. • Financial status of the company and the extent of financial tie up.
• Coal washery should be envisaged in the project. • Capacity of the company to quickly undertake development of coal mines based on experiance or any credible effective steps.
2. While the above criteria will determine eligibility, following priorities may be considered for allocation of coal blocks up to 50% satisfaction level which are mentioned CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 52 of 107 CC No.01/15, RC No.219 2013 (E) 0007 below:-
Category I: Companies having existing eligible capacity (0.3 mT or 0.5 mT as the case may be)
(a) No coal linkage, no captive coal block.
(b) Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block.
Category II: Companies having existing capacity less than eligible capacity (0.3 mT or 0.5 mT as the case may be) but their proposed expansion capacity which is likely to be commissioned by Dec, 2010 will enable them to have eligible capacity.
(a) No coal linkage, no captive coal block.
(b) Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block.
Category III: Any group of companies or consortium whose individual existing capacities are ineligible, make a viable joint venture and which joint venture enables it to have eligible capacity and the application is submitted in the name of joint venture.
(a) No coal linkage, no captive coal block.
(b) Partial coal linkage, no captive coal block.
(c) With coal linkage, no captive coal block.
Category IV: Companies having existing eligible capacity (0.3 mT or 0.5 mT as the case may be)
(a) No coal linkage, captive coal block with less than 50% satisfaction level.
(b) Partial coal linkage, captive coal block with less than 50% satisfaction level.
Category V: Companies having existing capacity less than eligible capacity (0.3 mT or 0.5 mT as the case may be) but their proposed expansion capacity which is likely to be commissioned by Dec, 2010 will enable them to have eligible capacity.
(a) No coal linkage, captive coal block with less than 50% satisfaction level.
(b) Partial coal linkage, captive coal block with less than 50% satisfaction level.
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 53 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Category VI: Companies having no existing capacity, but proposes eligible capacity to be commissioned by December, 2010.
Category VII: Any group of companies or consortium which forms a Joint Venture and such Joint Venture has Ineligible existing capacity but proposed expansion capacity of the Joint Venture enables it to have eligible capacity and the application is submitted in the name of Joint Venture."
(Emphasis supplied by me)
60. From the aforesaid criteria, it is clear that Ministry of Steel had fixed December 2010 as the cut-off date for achieving the minimum production capacity of 0.3 MTPA of sponge iron. Thus, if in the light of admitted delay in commissioning of Phase-II and Phase-III of the project, the information provided in the feedback form is seen then it is crystal clear that the same was consciously made. Admittedly the schedule of commissioning of end use project as given in the application dated 12.01.2007 was not being adhered to. Thus if as per the claim of accused persons themselves the information provided by way of feed back form was not considered than there is no explanation by the accused persons as regard the delay in commissioning of Phase-II of the end use project. Thus it was rather incumbent upon the accused persons to explain to the Screening Committee that even though the schedule given in the initial application form was not being adhered to but still they will be able to meet the criteria laid down by Ministry of Steel by having 0.3 MT capacity production of sponge iron by December 2010. Thus if the feed back form so submitted or the consequent presentation is taken out of consideration than M/s RSPL was clearly ineligible for allotment of any coal block, for it had clearly failed to meet the eligibility criteria CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 54 of 107 CC No.01/15, RC No.219 2013 (E) 0007 of Ministry of Steel by not adhering to the schedule of commissioning of its end use project as was mentioned in the application form.
61. The question of revising the category of company M/s RSPL from category VI to category II thus does not arise. Rather it was necessary for the accused persons to ensure that the information provided by them by way of feedback form and the subsequent presentation is considered by the Screening Committee, for otherwise on account of delay in complying with the schedule of commissioning the end use project as mentioned in the initial application they would have become ineligible as per the criteria adopted by Ministry of Steel.
In the said eventuality the concealment of facts about not being able to meet the eligibility criteria of Ministry of Steel would have in itself amounted to dishonest concealment of facts and thereby a deception within the meaning of Section 415 IPC i.e. cheating. The explanation to Section 415 IPC read as under.
"Explanation - A dishonest concealment of facts is a deception within the meaning of this Section."
62. Admittedly as per the initial application dated 12.01.2007 the total land required for the project was stated to be 500 acres. As per feedback form dated 07.02.2008 the total land required for Phase-I and Phase-II was 250 acres and for Phase-III it is stated as 400 acres. Thus, the intention on the part of accused persons in showing advanced stage of preparedness in establishing their end use project is writ large on the face of record. By stating that 250 acres of land CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 55 of 107 CC No.01/15, RC No.219 2013 (E) 0007 has already been acquired and another 400 acres of land was under
acquisition a picture was thus sought to be presented before the Screening Committee that the company M/s RSPL is at an advanced stage of establishing their end use project. The said delay in commissioning of Phase-II of the project was not explained in any other manner by the accused persons. Thus if no such progress qua establishing Phase-II of the project would have been shown beside stating that Phase-II shall be commissioned by December 2010, the company M/s RSPL would have straight away become ineligible as per the criteria adopted by Ministry of Steel for being not able to achieve 0.3 MT capacity by December 2010. Thus, the said representation with respect to land already acquired can not be by any stretch of imagination termed to have been made either under any bonafide mistake or that there was sufficient cause for the accused persons to reasonably believe that 250 acres of land is available with them. The dishonest intention in making such a misrepresentation on the part of accused persons is thus once again clearly evident.
63. Moreover, from the Office Memorandum dated 06.12.07 of Ministry of Steel Ex. PW 4/L (D-8), it is also clear that the current status of the end use project was very much a relevant criteria for Ministry of Steel. As already mentioned, in point 6 of the said office memorandum, the progress made in respect of the end use project and the potential and the credibility of the applicants were also stated to be relevant aspects to be considered by the Screening Committee. It is thus clear that the progress made in establishing the end use CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 56 of 107 CC No.01/15, RC No.219 2013 (E) 0007 project was directly related to the financial capability of the applicant companies and their intention in establishing the end use project.
From the aforesaid discussion it is thus crystal clear that information about the latest status/stage of End Use Project was very much relevant both to Ministry of Steel and to Ministry of Coal.
64. It is in this context the claim of the accused persons that subsequently they could not acquire any further land under MOU entered into with State of Odisha as rate of land was increased manifold by the Government needs to be seen. They stated that the said increase in the rate of land would have made the entire project economically unviable. It was also stated by the accused persons in their written submission that the coal block could not be developed by them as the satisfaction level from the said coal block would have been only 21.37%. It was stated that they had applied for allotment of two coal blocks but only one was alloted to them by MOC. If that was the situation and company M/s RSPL had found itself incapable of progressing further with establishing its Phase-II and Phase-III of the end use project and thereby in mining the coal block which was for their captive use only, then they ought to have surrendered back the said nationalized natural resource of the country. However the accused persons admittedly continued to represent before MOC with respect to their claim in the said coal block allotted to them. In the year 2012 they even participated in a meeting with MOC officers and that of M/s SECL to settle the boundary dispute of the coal block allotted to them. Thus if the accused persons had failed in meeting the eligibility criteria fixed by Ministry of Steel and thereby that of CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 57 of 107 CC No.01/15, RC No.219 2013 (E) 0007 MOC by being not able to commission Phase-II of the project by December 2010 then they ought to have informed MOC in this regard and ought to have surrendered back the coal block. Similarly if the allotment of "Kesla North coal block" resulted in low satisfaction level than instead of holding on to the nationalised natural resources of the country they ought to have surrendered it back.
65. The reason for highlighting the aforesaid events post allocation is only to show that even the subsequent conduct of the accused persons show that they never had any intention of fulfilling the claims made by them either in the application form or in the feed back form. The malafide intention of the accused persons in making false representation before the Screening Committee is thus once again evident.
66. Thus if in the light of aforesaid discussion the information provided in the application form and thereafter in the feedback form is seen then it will be crystal clear that the false information as was provided in the feedback form was consciously made with a view to present a higher status/stage of preparedness towards establishing the end use project.
(ii) No minimum criteria of land specified by Ministry of Coal.
67. As regard the claim that MOC did not specify any minimum criteria of land, I may state that MOC rightly did not specify any minimum criteria of land. In fact the accused persons themselves stated in their application and the feed back form that 250 acres of land will be required for establishing Phase-I and Phase-II of the end CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 58 of 107 CC No.01/15, RC No.219 2013 (E) 0007 use project. Thus MOC primarily was concerned with establishing of the end use project and the progress made in that direction by the applicant companies. It was the progress shown by the applicant companies towards establishing the end use project which was important to MOC. Moreover since various applicant companies intended to establish different kinds of end use projects with varying capacity so there could not have been any threshold limit of land to be specified by MOC. As earlier mentioned, Ministry of Steel also rightly decided to fix minimum production capacity by a given date to be the criteria while making its recommendation. Thus the contention of Ld. Counsels for the accused persons that as no minimum requirement of land was specified by MOC so even if there was a false statement by the company with respect to actual land acquired by it then also it did not have the effect of inducing MOC in any manner is completely not tenable.
(iii) Whether the data furnished by way of Feedback Form and subsequent presentation was considered by Screening Committee, Ministry of Coal, Government of India.
68. As regard the contention of Ld. Counsels for accused persons that the Screening Committee minutes does not reflect that any reliance was placed on the feed back form submitted or the data mentioned over there, I may state that the said contention is also contrary to the records. A perusal of the minutes of 36th Screening Committee meeting clearly shows that the inter-se priority amongst the applicant companies was to be determined on the basis of various factors i.e. suitability of coal blocks to the requirement of end use projects, techno-economic viability of the project, level of progress in CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 59 of 107 CC No.01/15, RC No.219 2013 (E) 0007 setting up of end use project, track record and financial strength of the company and recommendation of the Administrative Ministry and the State Government concerned etc. Thus it is clear that the level of progress in setting up of the end use project by the applicant companies apart from the track record and financial strength of the company were important factors, considered by the Screening Committee. The minutes also says that the applicants would be given an opportunity to present their case and thereafter the Committee would discuss and make its recommendation. In the later part of the minutes it is also mentioned that Joint Secretary, Ministry of Steel also emphasised that coal blocks should be allocated to those companies which are technically and financially sound to take up the project and where capacity addition is expected to be accomplished by the year 2010. Thus as earlier also mentioned various factors considered by the Screening Committee were inter-related and acquisition of land towards establishing of end use project was one major factor to show not only progress made in establishing the end use project but to also demonstrate the financial strength of the company in having acquired so much of land. It clearly was also an indication of the company in achieving capacity addition by December 2010.
69. At this stage it will be worthwhile to reproduce certain relevant paras of the minutes of 36 th Screening Committee. The same read as under:
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 EARMAKRD FOR NON-POWER SECTOR.
1. . . . . . .
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 60 of 107 CC No.01/15, RC No.219 2013 (E) 0007
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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 3rd 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 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, alongwith 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 project. 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 CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 61 of 107 CC No.01/15, RC No.219 2013 (E) 0007 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 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 the range of 0.3-1.0 MTPA (for DRI route) and 0.5-1.5 MTPA (for Blast Furnace route). 9 . . . .
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10 . . . .
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11 . . . .
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12 . . . .
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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 the 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 CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 62 of 107 CC No.01/15, RC No.219 2013 (E) 0007 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;
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, 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:
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(Emphasis supplied by me)
70. Thus from the minutes as reproduced above it is crystal clear that the data furnished by the applicant companies in their application forms and during the presentations and subsequently were considered by the Screening Committee in arriving at its decision.
71. It has been also argued by Ld. Counsels for the accused persons that no presentation was in fact made before the Screening Committee on 07.02.08. It was rather stated that only an interaction took place with the members of Screening Committee.
72. I may however state that the aforesaid submission of Ld. CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 63 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Counsels for the accused persons also does not hold ground for a variety of reasons.
73. In order to appreciate the aforesaid issue, it will be worthwhile to mention question Nos. 24 and 35 as were put to accused Udit Rathi in his statement u/s 313 Cr.PC and the response given by him.
"Q. 24 It is further in evidence against you that the applications of various applicant companies as invited vide advertisement Ex. P-1 for allocation of various coal blocks coupled with subsequent information furnished by the companies either by way of presentation or by feed back form were to be considered by the Screening Committee and on the recommendation of the Screening Committee, the final allocation of coal blocks was to be made. What have you to say?
Ans. It is incorrect. The feedback form was never considered or deliberated or acted upon by the screening committee members, or by the Ministry of Coal. No data has been taken from the feedback form. The submission of feedback form was inconsequential and was not a factor in allocation of coal block. It was an irrelevant document which was not even forwarded to the decision making authority i.e. Minister of Coal / PMO. Based on the subsequently furnished feedback form, no person or authority carried out any revision in category or comments that had previously been given on the basis of application form. The feedback form did not form the basis of decision making.
Q. 35 It is further in evidence against you that on 07.02.2008 presentation was made on behalf of your co accused company by you and your co-accused Pradeep Rathi, Managing Director of your co-accused company and co-accused Kushal Aggarwal Manager (Project & Finance). What have you to say? Ans. It is incorrect. No presentation was made. Only general interaction took place between myself and the Screening Committee members. Since the Screening Committee meeting was to be conducted by very senior government functionaries, Pradeep Rathi, being the Managing Director of the Company and being elder in age, had only attended the Screening Committee meeting as a mark of respect to the senior Government functionaries. Mr. Pradeep Rathi had no knowledge of any matter relating to allocation of coal block as the Board of the Company CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 64 of 107 CC No.01/15, RC No.219 2013 (E) 0007 already delegated authority in the matter to me, Kushal Agarwal and A.K. Sehgal. Pradeep Rathi did not have any knowledge of the contents of the various documents pertaining to coal block matter. There was no participation from him, and after the formal introduction and greeting the members, he sought permission and left."
74. Thus in question No. 24, it was not at all disputed that information furnished during the presentation was not considered. It rather lends support to the facts mentioned in the minutes of 36th Screening Committee itself. However in response to question No. 35, it was stated for the first time that no presentation was made on behalf of M/s RSPL or that only an interaction with Screening Committee members took place. However during the cross- examination of none of the prosecution witnesses it was either put by way of a question or suggestion that no such presentation was made on behalf of M/s RSPL or that only interaction took place with Screening Committee members.
75. Moreover, at no point of time during the entire trial anything has been explained by the accused persons as to what type of interaction took place on that day. In these circumstances it will be completely logical and legal to presume that even if an interaction had taken place on that day than also the same must have pertained to the latest status/stage of establishing the end use project. While accused persons have not claimed that they stated any fact contrary to the one mentioned in the feedback form but even otherwise their stand during interaction could not have been any different. It has also come on record that the purpose of calling various applicant companies before the Screening Committee was to know the latest status/ stage of CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 65 of 107 CC No.01/15, RC No.219 2013 (E) 0007 progress made by them towards establishing their end use project. Thus, the said presentation/interaction could have been only on the basis of the claims initially made in the application form and as subsequently updated by way of feed back form. The accused persons must have explained the progress made by them in establishing the end use project. Admittedly as per the initial application form Phase-II of the project was to be commissioned by January 2008 i.e. before the date of their appearance before the Screening Committee. Thus it would be completely logical and legal to conclude that during the alleged interaction the accused persons must have explained the delay in adhering to the schedule specified in the application form or the progress made by them in establishing the end use project. The said information also could not have been other than the one furnished in the feed back form. As earlier also mentioned, if the accused persons had not disclosed facts about the latest status/stage of preparedness towards establishing the end use project then their act would fall under the explanation to Section 415 IPC i.e. dishonest concealment of facts amounting to deception. They were rather duty bound to explain the delay in adhering to the schedule of commissioning of the end use project as mentioned in the application. It will be thus completely natural to conclude that in the presentation/interaction made by the accused persons they conveyed all the information to the Screening Committee members as was mentioned in the feedback form.
76. It thus can not be stated that the Screening Committee did not consider the information about the latest status/stage of the end use CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 66 of 107 CC No.01/15, RC No.219 2013 (E) 0007 project submitted by the company by way of its feedback form and thereafter reiterated by way of presentation/ interaction made before the Screening Committee. The aforesaid circumstances rather also shows that even if the feedback form submitted by the accused persons to officials of MOC outside the meeting room of 36th Screening Committee in the meeting held on 07.02.08 was never placed before the Screening Committee as claimed by the accused persons then also the said information duly stood conveyed to Screening Committee members by way of subsequent presentation/interaction made by the accused persons. As mentioned above the information/data supplied by way of presentation was duly deliberated upon and discussed by the Screening Committee members.
77. It is in the aforesaid scenario that when the aforesaid recommendations of the Screening Committee were only to be considered and approved by the Prime Minister as Minister of Coal that sending of feed back forms to PMO with the recommendation of Screening Committee becomes completely insignificant. Moreover, a perusal of notings made in file Ex. PW 5/B (colly) (D-11) of PMO wherein recommendation of Screening Committee were processed would show that Principal Secretary to Prime Minister discussed the matter with Secretary Coal and Secretary Steel and they 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. It is on the basis of such a note dated 16.07.08 put up by Ms. Vini Mahajan, Joint Secretary, PMO that the CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 67 of 107 CC No.01/15, RC No.219 2013 (E) 0007 recommendation of Screening Committee were approved by Prime Minister as Minister of Coal.
78. In these circumstances, nothing adverse can be read against the case of prosecution even if feed back forms submitted by the companies were not sent to PMO. It can not be inferred that while granting approval to the recommendation of the Screening Committee, the PMO did not consider the information furnished by way of feed back form and as supplemented by way of presentation/interaction by the applicant companies. The Prime Minister as Minister of Coal primarily considered the recommendation of the Screening Committee which as demonstrated above was based on the overall facts and circumstances including the information as furnished by way of feed back forms and the consequent presentation/interaction made.
79. Thus it is clear that the said dishonest misrepresentation had the effect of dishonestly inducing Screening Committee and thereby Ministry of Coal, Government of India to make allotment of a coal block in favour of M/s RSPL.
(E) CONTRADICTORY STANDS TAKEN BY ACCUSED
PERSONS DURING TRIAL.
80. At this stage, I would also like to deal with yet another issue pertaining to contradictory stands taken by the accused persons during the course of entire trial. At the stage of arguments on the point of charge, it was vehemently argued that no wrong information was submitted in the feed back form. It was stated that the word "acquired"
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 68 of 107 CC No.01/15, RC No.219 2013 (E) 0007 has been used in a generic sense in as much as accused persons had sufficient cause to believe that 250 acres of land would be available to them. However, when subsequent to framing of charges various documents of prosecution were put for admission/denial as regard their genuineness to the accused persons u/s 294 Cr.PC then the accused persons denied the genuineness of not only the feedback form itself but also of the application initially submitted. Thereafter, when recording of prosecution evidence commenced then in the cross-examination of PW-15 Insp. Suresh Kumar who had seized the feedback form Ex. PW 1/F (D-16) from MOC, it was suggested to him that page no. 1 of the said document has been prepared subsequently in his connivance and was annexed with page no. 2. Thereafter, in the statement u/s 313 Cr.PC and also at the time of final arguments, it was stated that the information about 250 acres of land having been acquired was mentioned in the feed back form as the accused persons had a reason to believe that 250 acres of land would be available to them. However, in response to question No. 78 as put in the statement of accused persons u/s 313 Cr.PC, it was stated to be incorrect that on 07.02.08 M/s RSPL was in possession of only 164 acres of land and not 250 acres of land.
81. Though, as regard the said contradictory stands, it has been now argued by Ld. Counsels for the accused persons that the procedure provided under S. 294 Cr.PC for admitting or denying the genuineness of documents is only a procedural provision provided with a view to cut short the litigation. The Section obliterates the necessity of proving all such documents by the prosecution, the CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 69 of 107 CC No.01/15, RC No.219 2013 (E) 0007 genuineness of which is admitted by the accused persons. It was submitted that the genuineness of feedback form at that stage was denied only with a view to ensure that the prosecution discharges its burden of proving the said document as per law but subsequently when the prosecution proved the said document than it was not questioned. It was also submitted that in view of the protection against self incrimination available to accused under Article 20 (3) Constitution of India, no adverse inference can be drawn against them for having denied the genuineness of a document put forward by the prosecution.
82. In this regard I may however state that the aforesaid conduct of the accused persons can neither be permitted or justified legally nor ethically. It is not a case where the accused persons have chosen to refuse to carry out admission/denial of documents u/s 294 Cr.PC seeking to exercise their right to silence under Article 20 (3), Constitution of India. The said situation would have presented an entirely different situation to be considered by the Court i.e. whether such a right of silence under Article 20 (3) Constitution of India is available to the accused persons vis-a-vis Section 294 Cr.PC or not. However, since the said issue is not involved over here so I am not delving into that aspect of the matter. On the other hand, we have a situation where accused persons voluntarily chose to admit or deny the genuineness of various documents sought to be relied by the prosecution. It is in those circumstances that the genuineness of not only the feedback form but even that of the initial application form submitted to MOC was denied. The bigger question which arises for CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 70 of 107 CC No.01/15, RC No.219 2013 (E) 0007 consideration in such a situation is whether in the name of calling upon the prosecution to prove each and every document being relied upon, the accused persons can choose to wrongly deny the genuineness of certain documents and especially when the genuineness of some other documents also relied by the prosecution has been admitted. It thus clearly shows that the entire plea of defence now taken by the accused persons that 250 acres of land was stated to have been acquired under a bonafide mistake of fact or that accused persons had sufficient cause to believe in this regard is clearly an afterthought and as earlier stated by me an articulation devised during the course of trial.
83. Be that as it may, even if the explanation of the accused persons in denying the genuineness of certain documents u/s 294 Cr.PC is presumed to be true then also there is no explanation as to under what circumstances it was suggested to PW-15 Insp. Suresh Kumar that page no. 1 of the feedback form has been prepared subsequently in his connivance and was annexed with page no. 2 of the feedback form. If the accused persons had some reasonable reason to put the said suggestion then it was incumbent upon the accused persons to show as to what information the original page No. 1 of the feed back form contained. Putting of said suggestion in itself contradicts the entire plea of defence taken by the accused persons. It also shows that even during the course of trial the genuineness of feedback form was denied/disputed.
84. The aforesaid contradictory stands however have been taken by the accused persons not only with respect to the feedback form CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 71 of 107 CC No.01/15, RC No.219 2013 (E) 0007 but with respect to other documents also. As already discussed the information furnished in the feedback form regarding land already acquired was even otherwise found to be completely false and also that there was no reasonable basis for the accused persons to make any such wrong claim in that regard. However, the aforesaid contradictory stands taken by the accused persons certainly goes to suggest that there is not even a single iota of truth in the various plea of defence taken by the accused persons during the course of trial.
85. In this regard it will be apt to quote certain observations of Hon'ble Supreme Court as regard the quest for truth which alone can lead to true justice.
"Hon'ble Supreme Court in the case Chandra Shashi Vs. Anil Kumar Verma", (1995) I SCC 421, observed that to enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, pre-variation and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in Courts when they would find that truth alone triumphs in Courts.
In Mohan Singh V. State of M.P., (1999) 2 SCC 428, the Hon'ble Supreme Court held that effort should be made to find the truth; this is the very object for which Courts are created. To search it out, the Court has to remove chaff from the grain. It has to disperse the suspicious, cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, could and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the Court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could not be concretised. It would depend on the evidence of each case CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 72 of 107 CC No.01/15, RC No.219 2013 (E) 0007 including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
In A. Shanmugam V. Ariya Kshatriya, (2012) 6 SCC 430, the Hon'ble Supreme Court held that the entire journey of a judge is to discern the truth from the pleadings, documents and arguments of the parties. Truth is the basis of justice delivery system. The Hon'ble Supreme Court laid down the following principles:
On the facts of the present case, following principles emerge: It is the bounden duty of the Court to uphold the truth and do justice.
Every litigant is expected to state truth before the law Court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law Courts. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the Court should be truthful. Once the Court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the Court should in addition to full restitution impose appropriate costs. The Court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process."
(Emphasis supplied by me) (F) WHETHER 25 COPIES OF THE FEEDBACK FORM WERE REQUIRED TO BE SUBMITTED BY THE APPLICANT COMPANIES.
86. It was argued by Ld. Counsels for the accused persons that the prosecution has clearly failed in proving on record that applicant companies were required to submit 25 copies of the feedback form before the Screening Committee. The alleged letter dated 16.11.07 containing such a direction was stated to have been introduced during CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 73 of 107 CC No.01/15, RC No.219 2013 (E) 0007 the course of trial by the prosecution as a major improvement. It was submitted that no such letter dated 16.11.07 was either uploaded on the website of MOC or sent otherwise to applicant companies by post. It was also stated that the certificate u/s 65-B Indian Evidence Act, 1872 produced in this regard by PW-14 Piyush Goyal was also defective and thus the printout of various letters produced by him cannot be held to be admissible in evidence.
87. In this regard I may again state that this contention of Ld. Counsels for the accused persons also does not hold ground. PW-14 Piyush Goyal clearly stated that in January 2015 the website of MOC was revamped. The website which earlier was working on Window based operating system was shifted to Linux based operating system. He further stated that while carrying out the said revamping of the website, the entire contents of the website as were there before the processing of revamping started was downloaded after obtaining backup from NIC servers to the Computers at NIC Centre in MOC office i.e. in his office. He stated that the printout of various documents as brought by him was thus from the said Computer in his office only. In the certificate u/s 65-B Evidence Act also similar facts were mentioned by him. It is the aforesaid revamping of website of MOC and taking up of backup data from the NIC servers that has been questioned by Ld. Counsels for the accused persons stating that no certificate from the person who was operating the server has been produced and thus information furnished by the said witness is not admissible being hit by Section 65-B Evidence Act.
88. In this regard, it will be worthwhile to first have a glance over CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 74 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Section 65-B Indian Evidence Act, 1872.
"[65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein or which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the functions of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computer, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 75 of 107 CC No.01/15, RC No.219 2013 (E) 0007 period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers.
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if
it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 76 of 107 CC No.01/15, RC No.219 2013 (E) 0007
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]"
89. Thus from a bare perusal of Section 65-B Evidence Act, it is clear that when over any period the function of storing or processing information was being regularly performed by Computers either by a combination of Computers or by different Computers operating in succession or in any other manner involving successive operation then for the purposes of S. 65-B Evidence Act they shall be construed as constituting a single Computer. It is common knowledge that NIC is the main Nodal Agency of Central Government which is providing all necessary services relating to website of each and every Government department. In fact even the website of Courts is run and maintained by NIC. Thus, any information uploaded on the website has a back-up in NIC servers. Thus, if the deposition of PW-14 Piyush Goyal is seen coupled with the certificate u/s 65-B Evidence Act produced by him, it is clear that any information which was uploaded on the website of MOC through the NIC Computer Centre at MOC office Shastri Bhawan was having a backup in NIC servers. Undisputedly the servers are also nothing but yet another set of Computers having larger storage capacity. Thus, if during the course of revamping of MOC website, the information was downloaded and saved on one computer in the office of PW-14 Piyush Goyal himself from the backup available at NIC servers then it cannot be stated that the CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 77 of 107 CC No.01/15, RC No.219 2013 (E) 0007 certificate produced by PW-14 was not in compliance with S. 65-B Evidence Act.
90. Apart from the aforesaid circumstances, I may also state that the aforesaid issue is even otherwise irrelevant as it is the admitted case of accused persons as stated in the written submissions itself that the blank feedback form was downloaded by them from the website of MOC as there was a separate link in that regard. It is thus clear that the letter dated 16.11.07 which contained the said link was indeed uploaded on the website of MOC and it did come to the notice of the accused persons.
It has been however pointed out by Ld. Counsels for the accused persons that in the said letter there was no direction to produce 25 copies of the feedback form. As regard the contention of prosecution that another letter dated 16.11.07 containing directions to applicant companies to produce 25 copies of the feedback form was in fact hyper-linked to point (ii) titled "letter to applicants for power blocks", it was stated that since M/s RSPL had not applied for coal blocks reserved for power sector so there was no need for them to click on the said link and thus no presumption can be drawn that accused persons were aware that 25 copies of the feedback form were to be produced.
91. In order to appreciate the aforesaid issue, it will be worthwhile to first have a brief glance on the said office memorandum dated 16.11.2007. The same read as under:
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 78 of 107 CC No.01/15, RC No.219 2013 (E) 0007 "No.38011/2/2007-CA-1 Government of India Ministry of Coal .....
New Delhi, the 16th November, 2007 Office Memorandum Subject : 36th Meeting of the Screening Committee for screening proposal relating to captive mining of coal blocks for Non-Power Blocks scheduled to be held from 7th and 8th December and 17th and 18th December, 2007.
The undersigned is directd to say that notice for the meeting as in subject above, is required to be placed on web site of Ministry of Coal. Following papers are required to be hyperlinked below the notice in format indicated below:
NOTICE 36th meeeting of the Screening Committee for Non-Power Blocks scheduled from 7th and 8th December and 17th and 18th December, 2007.
For detail click below.
(i) Letter to members of Screening Committee.
(ii) Letter to applicants for power blocks.
(iii) Venue/ Schedule of meeting.
(vi) Feed back format.
Sd/-
(R.N. Singh) Section Officer Shri P. Goyal, T. Director.
NIC, Coal"
92. The letter which was hyper-linked to point (ii) titled "Letter to applicants for power blocks", however read as under:
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 79 of 107 CC No.01/15, RC No.219 2013 (E) 0007 MOST IMMEDIATE MEETING NOTICE No.38011/2/2007-CA-1 Government of India Ministry of Coal .....
New Delhi, November, 2007 To, All applicants for Non-Power Blocks.
Subject : 36th Meeting of the Screening Committee for screening proposal relating to captive mining of coal blocks for Non-Power Blocks scheduled to be held from 7th and 8th December and 17th and 18th December, 2007.
Sir, I am directed to say that the 36th Meeting of the Screening Committee will be held from 07.12.2007 to 08.12.2007 and 17.12.2007 to 18.12.2007 for consideration of the application for coal blocks earmarked for Non-Power Sector in the following manner:-
Date Time Venue 07.12.2007 10:00 AM to Scope Minar, Laxmi Nagar Distt.
05:30 PM Centre, Laxmi Nagar, Delhi-110092. 08.12.2007 09:30 AM to Scope Minar, Laxmi Nagar Distt.
05:30 PM Centre, Laxmi Nagar, Delhi-110092. 17.12.2007 09:30 AM to Scope Complex, Lodhi Road, New 05:30 PM Delhi-110003.
2. The presentation by applicants shall be brief and focused on information furnished in the application/data base format. The applicant shall be required to furnish any other information as desired by the Screening Committee. The updated information in respect of each application is required to be furnished by the applicant at the time of presentation in a feedback format (25 copies) placed on the Web-site.
3. The presentation shall be heard in alphabetical order of the name of applicants. In case the applicant company has applied for more than one coal block, it would be required to CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 80 of 107 CC No.01/15, RC No.219 2013 (E) 0007 make one common presentation only. Accordingly, a list indicating the order of applicant companies to be called for hearing, schedule of presentation for each applicant company etc. has been placed on the web-site of Ministry of Coal.
Applicants are requested to visit the web-site of Ministry of Coal (Address: www.coal.nic.in).
-sd-
16.11.07 (K.C. Samria) Director
93. Undoubtedly there was a mistake in the title of point (ii) as it says "Letter to applicants for power blocks". However my subsequent discussion shall show that irrespective of the mistake in the title the accused persons did click on it and read the letter dated 16.11.07 which was hyper-linked to point (ii). In fact the facts and circumstances disclosed in the said letter so hyper-linked to point (ii) coupled with the subsequent actions undertaken by the accused persons shall show that the feeble plea of defence to the contrary has been taken up by the accused persons only with a view to somehow deny the submission of 25 copies of feedback form by them. Unfortunately, the accused persons have miserably failed in this regard. As earlier mentioned and as also admitted by the accused persons themselves there was a separate link on the website of MOC for downloading the blank feedback form. Thus, the blank feedback form was downloaded by clicking on the said link. If that was so then the accused persons have not explained as to under what circumstances they brought one copy of the filled up feedback form to the Screening Committee. A perusal of letter dated 16.11.2007 containing link to download the feedback format was clearly not containing any further direction as to what was to be done with the CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 81 of 107 CC No.01/15, RC No.219 2013 (E) 0007 said feedback form. The said course of action was in fact mentioned in the second letter dated 16.11.2007 only (also reproduced above) which was hyper-linked to point (ii). From the said hyper-linked letter only the action to be taken with respect to the feedback form so downloaded could have been known to the applicant companies.
94. Moreover if the initial letter dated 16.11.2007 containing various links as regard the venue/schedule of meeting or feedback format was not received by the accused persons then it was for them to explain as to how they got information about the venue/schedule of Screening Committee meeting. Thus in the absence of any such explanation it stands proved beyond shadows of all reasonable doubts that the initial letter dated 16.11.2007 containing various links was indeed received by the accused persons.
95. Similarly if the subsequent letter dated 16.11.07 as was hyper- linked to point (ii) was not seen by the accused persons then it was again for the accused persons to explain as to how they got to know as to what action was to be undertaken with the said feedback form. Accused persons have admitted that one copy of the feedback form was brought by them and deposited outside the meeting hall. They only denied having brought 25 copies thereof. However the second letter dated 16.11.2007 hyper-linked to point (ii) contained both directions i.e. to make a presentation and to bring 25 copies of the feedback form. The accused persons thus not only appeared to make a presentation before the Screening Committee but also admittedly brought one copy of the filled up feedback form. Thus it will be completely logical to conclude that accused persons must have also CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 82 of 107 CC No.01/15, RC No.219 2013 (E) 0007 brought 25 copies of the filled up feedback form.
96. In the written submissions, accused persons however have admitted having received office memorandum dated 16.11.07 Ex. PW 4/R whereby the schedule of meeting of Screening Committee was conveyed to all the applicants. They also admitted having received another letter dated 21.01.08, Ex. PW 4/R-6 whereby the changed schedule of meeting of Screening Committee was intimated to all the applicant companies. A bare perusal of the said two letters admitted to have been received by the accused persons however shows that in both letters applicants were requested to visit the website of MOC for further details. Thus it cannot be even presumed for the sake of arguments that despite receipt of aforesaid two letters, the accused persons did not care to visit the website of MOC for further detailed information. As I have already mentioned the course of action to be adopted with the feedback form so downloaded was only mentioned in the letter dated 16.11.07 which was hyper-linked to point (ii) in the initial letter also dated 16.11.07 uploaded on the website of MOC. The two letters i.e. letter Ex. PW 4/R and letter Ex. PW 4/R-6 did not make any reference to the feedback form. Thus again it was for the accused persons to explain as to how they came to know about the course of action to be adopted qua the feedback form or as to why they brought one copy of the filled up feedback form to the Screening Committee meeting.
97. However, as I have already discussed that irrespective of the fact that 25 copies of feedback form were brought or not by the accused persons, the information about the latest status/stage of CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 83 of 107 CC No.01/15, RC No.219 2013 (E) 0007 progress made towards establishing the end use project was even otherwise made available to the Screening Committee by the accused persons by way of presentation/interaction and admittedly by at-least one copy of feedback form.
(G) WHETHER ISSUANCE OF LETTER OF ALLOTMENT OF COAL BLOCK AMOUNTED TO DELIVERY OF PROPERTY.
& (H) WHETHER WRONGFUL GAIN WAS CAUSED TO ACCUSED PERSONS BY ALLOTMENT OF COAL BLOCK.
98. Another important issue raised by Ld. Counsels for accused persons was that mere issuance of allotment letter can not amount to delivery of any property as mentioned in Section 420 IPC. In this regard, the observations of Hon'ble Supreme Court of India as made in its orders dated 25.08.14, passed in the Manohar Lal case (Supra) in para 61, 69, 70 and 71, will be worth referring to.
"61. There seems to be no doubt to us that allocation letter is not merely an identification exercise as is sought to be made out by the learned Attorney General. From the position explained by the concerned State Governments, it is clear that the allocation letter by the Central Government creates and confers a very valuable right upon the allottee. We are unable to accept the submission of the learned Attorney General that allocation letter is not bankable. As a matter of fact, the allocation letter by the Central Government leaves practically or apparently nothing for the State Government to decide save and except to carry out the formality of processing the application and for execution of the lease deed with the beneficiary selected by the Central Government. Though, the legal regime under the 1957 Act imposes responsibility and statutory obligation upon the State Government to recommend or not to recommend to the Central Government grant of prospecting license or mining lease for the coal mines, but once the letter allocating a coal block is issued by the Central Government, the statutory role of the State CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 84 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Government is reduced to completion of processual formalities only. As noticed earlier, the declaration under Section 1A of the CMN Act does not take away the power of the State under Section 10(3) of the 1957 Act. It is so because the declaration under Section 1A of the CMN Act is in addition to the declaration made under Section 2 of the 1957 Act and not in its derogation. 1957 Act continues to apply with the same rigour in the matter of grant of prospecting license or mining lease of coal mines but the eligibility of persons who can carry out coal mining operations is restricted to the persons specified in Section 3(3)
(a) of the CMN Act.
. . . . . .
. . . . . .
. . . . . .
69. Assuming that the Central Government has competence to make allocation of coal blocks, the next question is, whether such allocation confers any valuable right amounting to grant of largesse? Learned Attorney General argues that allocation of coal blocks does not amount to grant of largesse since it is only the first statutory step. According to him, the question whether the allocation amounts to grant of largesse must be appreciated not from the perspective whether allocation confers any rights upon the allocatee but whether allocation amounts to conferment of largesse upon the allocatee. An allocatee, learned Attorney General submits, does not get right to win or mine the coal on allocation and, therefore, an allocation letter does not result in windfall gain for the allocatee. He submits that diverse steps, as provided in Rules 22A, 22B, and 22(5) of the 1960 Rules and the other statutory requirements, have to be followed and ultimately the grant of prospecting license in relation to unexplored coal blocks or grant of mining lease with regard to explored blocks entitles the allocatee/licensee/lessee to win or mine the coal.
70. We are unable to accept the submission of the learned Attorney General that allocation of coal block does not amount to grant of largesse. It is true that allocation letter by itself does not authorize the allottee to win or mine the coal but nevertheless the allocation letter does confer a very important right upon the allottee to apply for grant of prospecting license or mining lease. As a matter of fact, it is admitted by the interveners that allocation letter issued by the Central Government provides rights to the allottees for obtaining the coal mines leases for their end-use plants. The banks, financial institutions, land acquisition authorities, revenue authorities and CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 85 of 107 CC No.01/15, RC No.219 2013 (E) 0007 various other entities and so also the State Governments, who ultimately grant prospecting license or mining lease, as the case may be, act on the basis of the letter of allocation issued by the Central Government. As noticed earlier, the allocation of coal block by the Central Government results in the selection of beneficiary which entitles the beneficiary to get the prospecting license and/or mining lease from the State Government. Obviously, allocation of a coal block amounts to grant of largesse.
71. Learned Attorney General accepted the position that in the absence of allocation letter, even the eligible person under Section 3(3) of the CMN Act cannot apply to the State Government for grant of prospecting license or mining lease. The right to obtain prospecting license or mining lease of the coal mine admittedly is dependant upon the allocation letter. The allocation letter, therefore, confers a valuable right in favour of the allottee. Obviously, therefore, such allocation has to meet the twin constitutional tests, one, the distribution of natural resources that vest in the State is to sub-serve the common good and, two, the allocation is not violative of Article 14."
99. Thus in view of the aforesaid observations of Hon'ble Supreme Court, the allocation letter issued by MOC in favour of accused company M/s RSPL clearly amounts to delivering of property i.e. rights qua valuable and natural resource of the country. It amounts to grant of largesse. The letter of allocation was thus a valuable security in itself much less a document which was capable of being converted into a valuable security.
100. It was also argued by Ld. Counsels for the accused persons that no wrongful gain was caused to the accused persons by the said allotment of coal block as no coal was at all extracted and thus no wrongful loss was caused to anyone. In this regard it will be suffice to state and as also observed by Hon'ble Supreme Court in Manohar Lal Sharma's case (Supra) that allocation of coal blocks amounted to grant of largesse in favour of applicant companies and thus it CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 86 of 107 CC No.01/15, RC No.219 2013 (E) 0007 cannot be stated that no wrongful gain was caused to the applicant companies. The observations of Hon'ble Supreme Court in the said case in para 70 and 71 (as reproduced above) will be worth referring to.
101. In so far as loss which occurred to the nation as a whole it will be suffice to state that had coal been extracted upon being allocated to a genuine and deserving company in an objective manner then it would have certainly added to the infrastructural development of the country. This in itself has resulted in wrongful loss to the country in its economic development and the said loss is difficult to be accounted for in terms of money. Thus it is again a fallacious argument that no wrongful loss or gain has been caused on account of allocation of said coal block to M/s RSPL.
(I) WHETHER THE DISHONEST MISREPRESENTATION CONTINUED BEFORE PRIME MINISTER AS MINISTER OF COAL AND THEREBY CHEATING MOC, GOVERNMENT OF INDIA.
102. In this regard it will be also worthwhile to refer to certain observations of Hon'ble Supreme Court in the case Kanumukkala Krishnamurthy @ Kaza Krishnhamurthy Vs. State of Andhara Pradesh, AIR 1965 SC 333. The issue involved in the said case and the present case in hand are almost similar.
103. In the said case accused Kanumukkala Krishnamurthy had applied for appointment of Assistant Surgeon in Madras Medical Services in pursuant to notification published by Madras Public Service Commission inviting applications. However, later on, it was CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 87 of 107 CC No.01/15, RC No.219 2013 (E) 0007 found that the accused had misrepresented himself by impersonating as some other person and also misrepresented about his parentage and place of birth. It was also found that accused was not even holding minimum educational qualification i.e. degree of MBBS and thus he misled the Public Service Commission Authorities to believe the said misrepresentation to be true. Upon final conviction of the accused for the offence U/S 419 IPC i.e. cheating by impersonation by Hon'ble High Court of Madras, the accused challenged his conviction before Hon'ble Supreme Court by way of Special Leave Petition. The issue as to whether by way of said case of misrepresentation/impersonation, the accused deceived Government of Madras or not came up for consideration. While discussing various aspects of the offence of cheating and thereby that of cheating by impersonation, the observations made by Hon'ble Supreme Court will be worth referring to:
"11. The only other question to determine now is whether the appellant deceived the Government of Madras and dishonestly induced it to deliver something in the form of salary to the appellant. It is urged that the appointment to the post lay with the Government and not with the Service Commission and that 'the Government would not have appointed him to the post in the Medical Service if it had not believed that the appellant possessed the necessary qualifications which, in his case, would be a degree of M.B., B.S., and that such a belief was entertained by the Government on account of the deception practised by the appellant in misrepresenting in his application that he held such a degree. On the other hand, it is contended for the appellant that the delivery of 'property' is to be by the person deceived, in view of the language of Section 415 I.P.C., and that the person deceived, if any, was the Service Commission and not the Government, the application containing the misrepresentation having been made to the Service Commission and not to the Government.
12. We accept the contention for the respondent. The CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 88 of 107 CC No.01/15, RC No.219 2013 (E) 0007 appointments to the Medical Services are made by Government. The Service Commission simply selected the candidates and recommends their names to Government for appointment. This is clear from letter Exhibit P. 47 from the Secretary to the Service Commission to the Surgeon-General with the Government of Madras. The letter refers to the enclosing of a list containing the names and other particulars of the candidates who were successful at the examination, their names being arranged in order of merit. It refers to the relaxing of a certain rule in view of the paucity of candidates and states that they may be appointed, if necessary, pending receipt of the certificate of physical fitness and a further communication from the commission.
13. This is also clear from the provisions of the Government of India Act, 1935. Section 241 provided that appointments in connection with the affairs of a Province will be made by the Governor of the Province. Sub-Section (1) of Section 266 makes it a duty of the Provincial Public Service Commission to conduct examinations for appointments to the Services of a Province. Clause (a) of sub-s. (3) provides that the Provincial Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services and for civil posts and cl.
(b) provides that it shall be consulted on the principles to be followed in making appointments to civil services and posts and on the suitability of candidates for such appointments. The Public Service Commission is constituted in pursuance of the provisions of Section 264. It is thus a statutory body and independent of the Government. This aspect of a Public Service Commission was emphasized in State of U.P. v. Manbodhan Lal Srivastava when considering the corresponding provisions of Article 320 of the Constitution. This Court said:
"Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services".
It is in view of these provisions that the Public Service Commission invites applications for appointment to the various posts under the Government and subsequently makes a selection out of the candidates for appointment to those posts.
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 89 of 107 CC No.01/15, RC No.219 2013 (E) 0007 The selection may be after holding a written examination or after interviewing candidates or after doing both. Names of the candidates selected are arranged in order of merit and forwarded to the Government. The Government is expected, as a rule, to make appointments to the posts from out of the list, in the same order. It has, however, discretion not to appoint any part of the persons so selected and securing a place in the order of merit which would have ordinarily led to his appointment.
14. Any representation made in an application for appointments is really a representation made to the Government, the appointing authority, and not only to the Public Service Commission to which the application is presented and which has to deal with that application in the first instance. up to the stage ,of selection. The object of the applicant was to secure an appointment and not merely to deceive the Public Service Commission and sit at the examination or to appear at the interview. The deception was practised for that purpose and therefore there seems to be no good reason for holding that the deception came to an end once the Service Commission was deceived and had taken action on it as a result of the deception. A false representation in an application to the Service Commission continues and persists to be so till the application is considered by the final authority responsible for making the appointments and must therefore be deemed to be made to that final authority as well. In the instant case, when the recommendation of the Service Commission was sent to the Government, the qualifications of the recommended candidates, including the fact that the appellant had passed the M.B.,B.S. examination were mentioned. The Government therefore believed that the appellant possessed the degree of M.B.B.S., that as the Service Commission had scrutinized the application in that regard and had satisfied itself that the appellant possessed that degree. The consequence of that is that the Government were led to believe that fact, which thus became a false representation.
We are therefore of opinion that the appellant's mis- representation to the Service Commission continued and persisted till the final stage of the Government passing an order of appointment and that therefore the Government itself was deceived by the misrepresentation he had made in his application presented to the Service Commission."
(emphasis supplied by me)
104. Thus it is clear that the dishonest misrepresentation as made by the accused persons continued even before Prime Minister as CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 90 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Minister of Coal when he approved the recommendation of Screening Committee. The Screening Committee was admittedly constituted to deal with all applications received for allotment of various coal blocks and to make its recommendation thereafter. The Prime Minister as Minister of Coal was thus to act upon the said recommendation only. Accordingly the dishonest misrepresentation made before the Screening Committee continued even before the Prime Minister as Minister of Coal when he approved the recommendation of the Screening Committee.
105. Thus as already discussed the various ingredients of the offence of cheating coupled with delivery of property stands proved beyond shadows of reasonable doubts. Ministry of Coal, Government of India thus clearly stood cheated on account of the aforesaid dishonest acts of accused persons resulting in allotment of "Kesla North Coal Block" in favour of company of accused persons i.e. M/s RSPL.
(J) WHETHER THE ACCUSED PERSONS ACTED IN PURSUANCE TO A CRIMINAL CONSPIRACY.
106. Having come to the conclusion that accused persons made dishonest misrepresentation about the latest status/stage of progress made by them towards establishing the end use project and thereby cheated MOC, Government of India inducing it to allot a captive coal block in favour of M/s RSPL, the next issue to be considered is whether such dishonest misrepresentation was made in pursuance to a criminal conspiracy hatched by the accused persons.
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107. It has been vehemently argued by Ld. Counsels for the accused persons that in order to establish the charge of criminal conspiracy, the prosecution is required to prove that an agreement was entered into by the accused persons either for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. It was submitted that a few bits here and a few bits there cannot be relied upon by the prosecution in order to prove the charge of criminal conspiracy. It was submitted that even if no direct evidence may be available and the charge of criminal conspiracy is sought to be proved by way of circumstantial evidence then also each of the circumstance leading to such a conclusion must be independently explained and proved and the said circumstances should not be explainable on any other hypothesis or in other words should not lead to any other conclusion. It was thus submitted that prosecution has miserably failed in proving existence of any agreement amongst the accused persons and the mere presence of accused Pradeep Rathi and Kushal Aggarwal at the time of making presentation before the Screening Committee can not be held to be sufficient to construe that such an agreement was entered into by the accused persons so as to cheat MOC on the basis of false information submitted and thereby to induce it to allot a coal block in favour of M/s RSPL.
108. In order to appreciate the aforesaid submissions of Ld. Counsels for the accused persons vis-a-vis the case of prosecution, it will be appropriate to refer to the often quoted observations of Hon'ble Supreme Court in the case "State through Superintendent of Police, CBI/SIT Vs. Nalini", 1999 (5) SCC 235 as the same have CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 92 of 107 CC No.01/15, RC No.219 2013 (E) 0007 been consistently followed in all the cases till date.
109. 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 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 CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 93 of 107 CC No.01/15, RC No.219 2013 (E) 0007 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 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 CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 94 of 107 CC No.01/15, RC No.219 2013 (E) 0007 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 to take no active part in the crime."
110. Thus undoubtedly evidence qua the offence of criminal conspiracy is hard to come up but the same is to be ascertained from the over all facts and circumstances of a given case. Thus if the entire modus operandi adopted by the accused persons in procuring allotment of a coal block as discussed above is seen and analyzed, CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 95 of 107 CC No.01/15, RC No.219 2013 (E) 0007 the same speak volumes about the agreement arrived at by the accused persons amongst themselves so as to cheat MOC, Government of India in order to procure allocation of a coal block in favour of M/s RSPL.
111. As already discussed at length, it stands conclusively proved that a dishonest misrepresentation was made in the feedback form and thereafter on the basis of said information submitted in the feedback form a presentation/interaction took place as regard the latest status/stage of preparedness of the company M/s RSPL towards establishing its end use project.
112. In their statements u/s 313 Cr.PC, in reply to question Nos. 35 to 38, it has been the consistent stand of the accused persons that accused Pradeep Rathi was not having any knowledge of the information filled up in the feedback form. However knowledge on the part of accused Kushal Aggarwal has not been disputed. Thus accused Kushal Aggarwal who was one of the three authorised officer of M/s RSPL was admittedly having knowledge of the information being submitted in the feedback form. I have also already concluded that the subsequent presentation which the accused persons have termed as "interaction" also could not have been on any other facts then the one mentioned in the feedback form. It has also been proved that the claim in the feedback form was not only dishonest but was also consciously made with a malafide intention. The fact that knowledge of false claims as were made in the feedback form was also to accused Kushal Aggarwal has not been disputed by the accused persons. Thus, the existence of an agreement between CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 96 of 107 CC No.01/15, RC No.219 2013 (E) 0007 accused Udit Rathi and Kushal Aggarwal stands proved beyond shadows of any reasonable doubts. Though there is no need left to examine any other circumstance in this regard qua the role of these two accused persons but it will be worthwhile to mention that accused Kushal Aggarwal who was AGM (Project and Finance) of M/s RSPL must have been even otherwise aware of the actual land in possession of M/s RSPL or the progress made by the company M/s RSPL in establishing the end use project. In fact it has also not been the case of the accused persons that the nature of duties performed by accused Kushal Aggarwal in the company could not have warranted any such knowledge to him. Moreover accused Kushal Aggarwal was admittedly one of the three authorised officers of company M/s RSPL to deal with coal block allocation matter on behalf of company. Thus, these circumstances lead to only one conclusion i.e. the false information was consciously furnished by him and accused Udit Rathi, CEO of company M/s RSPL in the feed back form and the said circumstances are not explainable on any other hypothesis.
As already discussed the existence of such an agreement between the accused persons can be proved only by way of circumstantial evidence or in other words by the conduct of accused persons before, during and post the execution of alleged conspiracy.
Thus it can not be even presumed for the sake of arguments that accused Kushal Aggarwal or Pradeep Rathi were not having any knowledge of the information being furnished by accused Udit Rathi or the information provided by him in the subsequent CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 97 of 107 CC No.01/15, RC No.219 2013 (E) 0007 presentation/interaction which took place with the Screening Committee members.
113. As regard the role of accused Pradeep Rathi, I may state that though he as Managing Director of M/s RSPL had authorized three officers of the company to deal with the application to be submitted to MOC and its processing but from his conduct and from the overall facts and circumstances, it appears that the said authorization in favour of three officers of M/s RSPL was only a cover up act on the part of accused Pradeep Rathi. He admittedly accompanied accused Udit Rathi and Kushal Aggarwal to Screening Committee meeting on 07.02.2008 when the feedback form was to be submitted and the presentation was to be made. He duly signed the attendance sheet at the Screening Committee meeting as a representative of M/s RSPL. The attendance sheet of the Screening Committee was titled as under:
"Name of the Executives participating in the 36 th meeting of the Screening Committee for allocation of coal blocks for non-power sector to be held on 07.02.2008 under the Chairmanship of Secretary (Coal) at 09.30 A.M. in SCOPE Minar, Coal India Limited, Laxmi Nagar Distt. Center, Laxmi Nagar, Delhi"
(Emphasis supplied by me)
114. Thus, the stand taken by accused Pradeep Rathi that he had only gone to pay respect to senior officers of Screening Committee and had immediately thereafter left the Screening Committee meeting venue is clearly a lame excuse put forward as an afterthought in order to wriggle out from the said incriminating circumstance. Accused Pradeep Rathi who was the Managing Director of M/s RSPL and father of co-accused Udit Rathi can not claim that when they all three CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 98 of 107 CC No.01/15, RC No.219 2013 (E) 0007 went to the Screening Committee venue then neither the other two accused persons told him as to what facts were being stated in the feedback form or what information shall be conveyed in the presentation to be made before the Screening Committee. It also cannot be presumed that he even did not care to enquire from them anything in this regard. In fact no such stand has even been taken by the accused persons. Moreover, since he admittedly had gone to the Screening Committee meeting and had signed the attendance sheet as a representative of M/s RSPL who had gone to participate in the meeting so the bald claim or plea of defence that immediately after greeting the members he left the meeting venue can not be believed even for the purposes of preponderance of probabilities.
115. Also, if as per the accused persons themselves no presentation was made on that day and only interaction for only few minutes took place with the Screening Committee members then it is completely against natural human conduct that accused Pradeep Rathi who had accompanied his son Udit Rathi and another officer of the company would not have even chosen to remain present during the said interaction. Moreover it is not the case of accused Pradeep Rathi that the Senior Government Officers who were present in the Screening Committee meeting were already known to him so that immediately after extending his greetings to them he left the Screening Committee venue leaving the other two accused persons to interact with the Screening Committee members. However even if for the sake of arguments it is presumed that accused Pradeep Rathi left the meeting venue immediately after extending his greetings to the senior CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 99 of 107 CC No.01/15, RC No.219 2013 (E) 0007 Government officers present in the meeting then also he must have at least introduced himself to the Screening Committee members as being the Managing Director of M/s RSPL.
116. Thus it will be natural to presume that the Screening Committee members must have been doubly assured about the information being submitted in the feedback form and as given in the subsequent interaction that the said information to Screening Committee on behalf of M/s RSPL is being conveyed with the full knowledge of Managing Director of the company.
117. Though the aforesaid conclusions appears to be presumptive in nature but the same is necessary to be drawn because the accused persons are themselves calling upon this Court to draw a presumption as regard their conduct without there being any iota of evidence to support their assertion.
118. Be that as it may, the fact that accused Pradeep Rathi signed the attendance sheet on that day as representative of M/s RSPL clearly leads to only one irresistible conclusion that while as Managing Director he had authorized three officers of the company to represent the company before MOC but he himself also chose to represent the company on that day as its representative. There is no bar under the law that once some officers have been authorized by the Managing Director then he himself could not have appeared before the Screening Committee. This fact also gains material importance when PW-8 Y.K Aggarwal stated that more than 50% shares of M/s RSPL were held by Rathi family members. PW-12 Sanjay Kumar yet CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 100 of 107 CC No.01/15, RC No.219 2013 (E) 0007 another employee of M/s RSPL also stated in his examination-in-chief that accused Pradeep Rathi and Udit Rathi were the owners of the company. Though in his cross-examination he was asked questions as regard the share holding pattern of the company but he claimed ignorance in that regard. However his assertion in examination-in- chief that accused Pradeep Rathi and Udit Rathi were the owners of the company was not at all controverted either by way of any question or suggestion to the contrary. Thus from the deposition of PW-12 Sanjay Kumar who admittedly was the Field Executive of company M/s RSPL, it is clear that the actual functioning and control of the company's day to day business was being managed by accused Pradeep Rathi and Udit Rathi. Even if the use of words "Owner of the company" is considered to be loosely used words then also the inference or meaning or still the intention in using the said words by the witness is clearly apparent.
119. Apart from the aforesaid circumstances, the subsequent act of accused Pradeep Rathi in authorizing Sanjay Kumar to collect letter of allocation from MOC on 05.08.08 itself further shows his active participation in the processing of application of M/s RSPL in MOC. As earlier also mentioned the letter of allocation was signed by PW-4 V.S. Rana on 05.08.08 itself and such was the alacrity shown by accused Pradeep Rathi that on that very day itself he deputed an official of M/s RSPL to collect the letter of allocation from MOC. The stand taken by the accused persons that the said letter was signed by him in a routine manner thus again does not cut ice. If as per the claim of accused Pradeep Rathi himself three other officers of M/s CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 101 of 107 CC No.01/15, RC No.219 2013 (E) 0007 RSPL were authorized by the company to deal with the application of the company as submitted to MOC for allotment of a coal block then the question of signing of said letter of authorization in favour of PW- 12 Sanjay Kumar by him in routine manner does not arise. In fact this circumstance once again shows the nature of working of the accused persons in running the company. Though company M/s RSPL was a public limited listed company but as is evident from the facts and circumstances of the case its affairs were primarily controlled and run by Rathi family members only, for otherwise, it is not comprehensible as to how such an innocuous act of authorizing an official to collect letter of allocation from MOC would have been directly performed by the Managing Director. Thus from the overall facts and circumstances of the case, it is clear that it is not a case where some loose pieces are sought to be picked up from the case of the prosecution in order to arrive at a conclusion that the accused persons entered into an agreement to deceive MOC on the basis of false information furnished qua land acquired by M/s RSPL. The same was clearly in pursuance to an agreement entered into by the accused persons to achieve an act by illegal means i.e. to present a higher status/stage of their preparedness in establishing the end use project and to falsely claim their capability to achieve the requisite capacity addition by December 2010. The aforesaid facts and circumstances thus proves beyond shadows of all reasonable doubts that the accused persons hatched a criminal conspiracy so as to cheat MOC, Government of India in order to procure allocation of a coal block in favour of M/s RSPL.
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120. It was also submitted by Ld. Counsels for the accused persons that as the said act of signing the authorisation letter by accused Pradeep Rathi in favour of PW-12 Sanjay Kumar was committed after the alleged criminal conspiracy had come to an end so the same became completely inconsequential. It was stated that upon the approval of recommendation of the Screening Committee by Prime Minister as Minister of Coal, the alleged criminal conspiracy admittedly came to an end.
121. I may however again state that such a contention of Ld. Counsel for the accused persons does not hold ground. As already discussed the object of impugned criminal conspiracy was to procure allotment of a coal block in favour of company M/s RSPL. Thus it was not the approval of recommendation of Screening Committee by Prime Minister as Minister of Coal that the impugned criminal conspiracy came to an end. It was consequent to delivery of allocation letter to company M/s RSPL which resulted in achieving the final object of the impugned criminal conspiracy. Moreover even if for the sake of arguments, it is presumed that the impugned signing of authorisation letter in favour of PW-12 Sanjay Kumar amounts to an act committed after the alleged criminal conspiracy had come to an end then also the said act can always be referred to as a strong circumstance indicating the role being played by accused Pradeep Rathi in the allocation process on behalf of M/s RSPL and thereby a strong circumstance indicating the existence of an agreement amongst the accused persons leading to formation of a criminal conspiracy.
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(K) CONCLUSION
122. From the aforesaid discussion, it is thus crystal clear that the overall facts and circumstances of the case unerringly point out to one and only one hypothesis consistent with the guilt of the accused persons and are not explainable on any other hypothesis, much less one consistent with the innocence of the accused persons.
123. Thus, it is crystal clear that the accused persons with a dishonest intention and in pursuance to the common object of a criminal conspiracy hatched amongst themselves deceived, Screening Committee and thereby Ministry of Coal, Government of India on the basis of false representation qua the issue of land showing a higher status/stage of progress made by them towards establishing the end use project so as to procure allotment of a coal block in favour of M/s RSPL. The false representation thus continued to hold ground even when the file containing recommendation of Screening Committee went to Prime Minister as Minister-in-Charge, Coal, Government of India for final approval and thus it was primarily the Government which was deceived into making allotment of a coal block in favour of M/s RSPL while believing all such representation to be true, which in fact were not. All the necessary ingredients of the offence of cheating coupled with dishonestly inducing delivery of property having been carried out in furtherance of the common object of a criminal conspiracy hatched by the accused persons thus clearly stands proved beyond shadows of all reasonable doubts.
124. Accordingly offence u/s 120-B/420 IPC clearly stands proved CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 104 of 107 CC No.01/15, RC No.219 2013 (E) 0007 against all the four accused persons i.e. company M/s RSPL, Pradeep Rathi, Udit Rathi and Kushal Aggarwal.
125. However, charge for the substantive offence u/s 420 IPC was framed only against accused Udit Rathi and company M/s RSPL since the feedback form on behalf of company M/s RSPL was admittedly submitted by accused Udit Rathi under his own signatures. Accordingly, qua them the substantive charge for the offence u/s 420 IPC also stands conclusively proved beyond shadows of all reasonable doubts.
126. In view of my aforesaid discussion, I am thus of the considered opinion that prosecution has been successful in proving its case against all the four accused persons i.e. company M/s RSPL, Pradeep Rathi, Udit Rathi and Kushal Aggarwal for the offence u/s 120-B/420 IPC and as against accused Udit Rathi and company M/s RSPL the prosecution case also stands proved for the offence u/s 420 IPC. All the four accused persons i.e. company M/s RSPL, Pradeep Rathi, Udit Rathi and Kushal Aggarwal accordingly stands convicted of the offences u/s 120-B/420 IPC and accused Udit Rathi and company M/s RSPL also stands convicted for the offence u/s 420 IPC.
ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR)
TODAY ON 26.07.2016 SPECIAL JUDGE, (PC ACT)
(CBI)-7, NEW DELHI DISTRICT
PATIALA HOUSE COURTS
NEW DELHI
CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 105 of 107
CC No.01/15, RC No.219 2013 (E) 0007
CC No. 01/15
RC No. 219 2013 (E) 0007
Branch : CBI/EO-I/New Delhi
CBI Vs. M/s. Rathi Steel & Power Ltd.
U/S. 120-B/420 IPC
26.07.2016
Present: Ld. Sr. PP Sh. V.K. Sharma, Ld. Sr. P.P. Sh. A.P. Singh and
Ld. Sr. P.P. Sh. Sanjay Kumar for CBI.
Sh. Rakesh Kumar, AR of accused no. 1 company i.e M/s RSPL in person.
Accused Pradeep Rathi, Udit Rathi and Kushal Aggarwal in person.
Ld. Counsels Sh. P.K Dubey and Sh. Tanmaya Mehta for accused persons.
Vide my separate judgment all the four accused persons i.e. company M/s RSPL, Pradeep Rathi, Udit Rathi and Kushal Aggarwal have been convicted of the offences u/s 120-B/420 IPC and accused Udit Rathi and company M/s RSPL have also been convicted for the offence u/s 420 IPC.
Convict Pradeep Rathi, Udit Rathi and Kushal Aggarwal be accordingly taken into custody.
Ld. Counsels for the convict persons however submitted that they may be heard on the point of sentence today itself.
Heard. Allowed.
Convict Pradeep Rathi, Udit Rathi and Kushal Aggarwal be produced at 2.15 PM before this Court.
Put up for arguments on the point of sentence today i.e. 26.07.16 at 2.15 PM.
(Bharat Parashar) Special Judge, (PC Act) (CBI)-07, NDD/PHC 26.07.2016 CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 106 of 107 CC No.01/15, RC No.219 2013 (E) 0007 CC No. 01/15 RC No. 219 2013 (E) 0007 Branch : CBI/EO-I/New Delhi CBI Vs. M/s. Rathi Steel & Power Ltd.
U/S. 120-B/420 IPC 26.07.2016 (2.15 PM) Present: Ld. Sr. PP Sh. V.K. Sharma, Ld. Sr. P.P. Sh. A.P. Singh, Ld. Sr. P.P. Sh. Sanjay Kumar and Ms. Tarannum Cheema for CBI. Sh. Rakesh Kumar, AR of convict no. 1 company i.e M/s RSPL in person.
Convict Pradeep Rathi, Udit Rathi and Kushal Aggarwal present from custody.
Ld. Sr. Advocate Sh. N. Hariharan and Ld. Sr. Advocate Ms. Rebecca M. John alongwith Ld. Counsels Sh. P.K Dubey and Sh. Tanmaya Mehta for all the convict persons.
Arguments on point of sentence heard.
Put up for order on sentence on 27.07.2016.
(Bharat Parashar) Special Judge, (PC Act) (CBI)-07, NDD/PHC 26.07.2016 CBI Vs. M/s. Rathi Steel & Power Ltd. (Judgement dated 26.07.2016) Page No. 107 of 107