Andhra Pradesh High Court - Amravati
The State Of A.P., Rep By Pp Cbi Cases, vs P.K. Chattopadhyay , on 6 February, 2020
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL REVISION CASE No.77 of 2008
ORDER:
Challenging order dated 22.09.2007 in Crl.M.P.No.816 of 2005 in C.C.No.13 of 2003 passed by learned Special Judge for C.B.I Cases, Visakhapatnam, allowing the petition filed under Section 239 of Cr.P.C by the respondent/A-5 seeking to discharge him from the offences under Sections 120-B, 420 of IPC and Section 13(2) r/w.Sec.13(1)(d) of the Prevention of Corruption Act, 1988 ( for short 'PC Act'), the instant Criminal Revision Case is filed by the petitioner/CBI under Section 397 r/w 401 of Cr.P.C.
2. The prosecution case, succinctly is thus: The A1 worked as Director (Commercial) in Steel Authority of India Limited (for short, 'SAIL') during October, 1994 and March, 1995. The Steel plants of SAIL produce the sophisticated irons and steel products i.e., plates etc., and export part of those high quality products to abroad. Most of the steel products including plates are exported through Visakhapatnam Port Trust. After completion of shipment of the plates, the left over material (export surplus/export rejected), will be reclassified confirming to Bureau of Indian Standards before disposal in home sales and the material will be sold through Branch Sales office and Branch Transport and Shipping office after completion of Excise formalities for effecting home sales through its branches. The Central Marketing Organization will fix the ex-stock yard prices from 2 time to time at various locations after due approval of competent authority. During July, 1994, the Branch Sales Office, Visakhapatnam with the approval of highest authorities, floated a tender through bidding backed by refundable EMD for the sale of 5200 metric tonnes plates lying in different lots arrived between January, 1993 and April, 1994 and obtained prices ranging between Rs.15,789/- to Rs.17,679/- for different lots by 22 bidders including accused No.4. However, the then Director (Commercial) felt that the rates offered by H1 tenderer were lower by Rs.750/- to Rs.3000/- per metric tonne from the stock yard prices and shelved the proposal and return the refundable security to the tenderer.
(b) The further case of prosecution is that during 1994, A-1, A-2 - the then Regional Manager, Transport and Shipping Department, SAIL Visakhapatnam; A-3 - the then Regional Manager, Central Marketing Organization, SAIL, New Delhi; A-4 - General Manager (Marketing) in the Director (Commercial Secretariat), New Delhi and A-5 - Chief (Marketing) Transport and Shipping, Head Quarters, Central Marketing Organization, SAIL, Kolkatta entered into a criminal conspiracy in order to obtain wrongful gain to them and to cause corresponding wrongful loss to SAIL in the disposal of export surplus / rejected plates without reclassification and without free sale notice system. Pursuant to said criminal conspiracy and in violation of existing guidelines dated 08.10.1993 and 20.06.1994, they have given wrong orders vide letter dated 23.11.1994 for sale of about 6000 metric tonnes of unclassified export surplus / rejected plates at 3 Rs.12,000/- per MT to A-4 firm on as is where is basis, which includes defective bent and rusted plates as per A-2 and dispatched the plates as old plates and in that process caused wrongful loss to the SAIL organization to a tune of Rs.98,65,688/-. The allegation against respondent/A-5 is that he dishonestly and fraudulently issued offer letters dated 17.12.1994 on his own to the firm of the A-4 and thereafter issued delivery orders containing the quality of the plates and on the strength of those delivery orders, A-4 received the material and pursuant thereof, excise duty was paid and delivery was effected from BTSO yard. Hence the charge sheet.
(c) The respondent/A-5 filed Crl.M.P.No.816 of 2005 under Section 239 Cr.P.C to discharge him. His main contention is that pursuant to the CBI investigation, a departmental enquiry was conducted against respondent/A-5 for the same charges and the investigating officer Sri U.V.Bhaskara Rao (L.W.33) Sri Prabeer Dan, Branch Manager, BTSO, Visakhapatnam (L.W.8) and Sri Ramjee (L.W.1) were examined and one Sri U.Sambamurthy was examined as a defence witness therein. The disciplinary authority with the concurrence of the Central Vigilance Commission exonerated the respondent/A-5 of all the charges of misconduct, which are in pari materia with the charges alleged in this case. The documentary and oral evidence in the departmental enquiry as well as in the criminal case are one and the same. Even otherwise, the allegations in the criminal case do not disclose dishonest or fraudulent intention on his part and there is no direct or circumstantial evidence of payment of 4 illegal gratification to respondent/A-5 by any person interested in the contract or that respondent/A-5 cause unlawful loss to the SAIL or allowed any person in the contract to gain unlawfully on account of his acts. No conspiracy can be attributed against him by any stretch of imagination. The instruction was received from the Regional Manager (ER), who received instructions from Executive Director (Marketing) both of whom are not part of conspiracy but the conspiracy is attributed against the respondent/A-5 with Director (Commercial) who did not instruct the respondent/A-5 directly. The instruction was received by the Branch Sales Office (BSO) through normal hierarchal channel from Regional Manager (ER), who was the direct reporting officer of the respondent/A-5, hence the conspiracy is beyond comprehension.
(d) The petitioner/CBI opposed the petition by filing counter.
(e) The trial Court discharged the respondent/A-5 on the prime observations that as per the circular guidelines, which are available in Circular No.023/NCO/SL No.1 dated 08.10.1993, the classification and other functions have got to be done by BTSO, but not by BSO to which respondent/A-5 was Manager at Visakhapatnam. Further, as per LD No.9 which is the note dated 23.11.1994 of the A-1, the Executive Director (Marketing) and Regional Manager (ER) were directed by A-1 to advice the Branch Manager, BSO, Visakhapatnam i.e. respondent/A-5 to issue the offer letter and comply with all the commercial formalities before giving deliveries. It was further observed that there is a direction from the top brass of the company, 5 which an officer in the cadre of respondent/A-5 cannot have any alternative than to obey and execute. It was also observed that from note of A-1, it was further revealed that A-1 understood from A-2 that about 6000 tonnes of unclassified export surplus/rejected plates were still lying for quite sometime, which include bent, rusted, damaged, defective, OG plates also and that those plates were not reclassified, no certificates can be issued and therefore, from that part of the note, the role of respondent/A-5 was not at all seen. The trial Court further observed that from the statement of A-1 in the said note (LD-9) mentioning that M/s Sri Thana Steel Industries Ltd. was agreeable to lift the entire quantity of 6000 tonnes unclassified export surplus/rejected plates on "as is where is basis" from Visakhapatnam Port at a price of Rs.12,000/- (per tonne) (excluding sales tax) and they were agreeable to lift the entire quantity within 30 days with a grace period of 15 days from the date of issuing of offer by the Visakhapatnam Branch, it is prima facie evident that the decision to sell away the said material as unclassified to the A-4 basing on their letter dated 10.11.1994 addressed to A-1 (Page No.3 of LD-9), had been taken by A-1 only and in such a situation, the respondent/A-5 being a direct subordinate of A-1, was duty bound to obey the said decision taken by A-1. Thus, on all the aforesaid observations the trial Court held that respondent/A-5 has no role of conspiracy in the matter of issuing offer letter to A-4, but being a subordinate officer he was obligated to follow the directions of A-1 and accordingly, 6 allowed the petition and discharged respondent/A-5 from C.C.No.13 of 2003.
Hence, the criminal revision case.
2. Heard the learned Special Public Prosecutor for CBI Cases, representing the petitioner and Sri J.Prabhakar, learned counsel for respondent/A-5.
3. Fulminating the impugned order, learned Special P.P would argue that the trial Court failed to notice that as per settled principles of law mere suspicion is sufficient to frame the charges and in the instant case, there is sufficient material to prove the charges against the respondent/A-5, however the trial Court erroneously discharged him from the offence. He would argue that there is ample material to hold that the respondent/A-5 was part of criminal conspiracy along with other accused. He would argue that the respondent/A-5 directly issued the offer letter in favour of A-4 without classification of the material, thereby the department sustained heavy financial loss. He would submit that even assuming that the respondent/A-5 followed the directions of A-1, still he was not supposed to sell the entire stock without classifying the old and new stock. He placed reliance on the judgments of the Apex Court in Sheoraj Singh Ahlawat & Ors. Vs. State of U.P. & Ors1 and Asim Shariff Vs. National Investigation Agency (Criminal Appeal No.949 of 2019, decided on 01.07.2019). He thus prayed to allow the criminal revision case. 1 AIR 2013 SC 52 = MANU/SC/1011/2012 7
4. Per contra, learned counsel for respondent/A-5 would argue that the respondent/A-5 being a subordinate officer had to follow the directions of A-1 and when A-1 knowing that the stock was unclassified, still directed to issue offer letter, he had no other go except obliging the direction. Therefore, the trial Court rightly held that the respondent/A-5 cannot be found fault. He would further submit that in respect of same charges, the respondent/A-5 was exonerated in the departmental enquiry.
5. The point for consideration is:
Whether there are merits in the criminal revision case to allow?
6. POINT:
I gave my anxious consideration to the above respective submission of learned counsel. As per LD Note No.9 dated 23.11.1994 of A-1, the Executive Director (Marketing) and Regional Manager (ER) were directed by A-1 to advice the Branch Manager, BSO, Visakhapatnam i.e. respondent/A-5 to issue the offer letter and comply with all the commercial formalities before giving deliveries.
As rightly observed by the trial Court, it was a direction from top officer of the company, which could not be disobeyed by the respondent/A-5. In the LD-9 A-1 further noted that M/s Sri Thana Steel Industries Ltd., was agreeable to lift the entire quantity of 6000 tonnes unclassified export surplus/rejected plates on 'as is where is' basis from Visakhapatnam Port at a price of Rs.12,000/- per tonne. The said note would indicate that the decision to sell the material as in 8 an unclassified state to A-4 was taken by A-1 and respondent/A-5 has to execute the orders of A-1. Therefore, this Court is of the considered view that the trial Court has rightly come to conclusion that the respondent/A-5 cannot be found fault for the offences with which he was charged. I find no illegality in the order impugned. The decision cited by the learned Special P.P will not help the cause of the petitioner.
7. Accordingly, the criminal revision case is dismissed. No costs.
As a sequel, Interlocutory Applications pending if any, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J 6th February, 2020 pvd