Bombay High Court
Dr. Padamsinha B. Patil vs Central Bureau Of Investigation And Anr on 6 March, 2020
Equivalent citations: AIRONLINE 2020 BOM 589
Author: N. J. Jamadar
Bench: N. J. Jamadar
1-CRIREVN534-19.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 534 OF 2019
Dr. Padamsinh B. Patil
Age 79 years, Occu. Agriculturist
having his permanent residential
address At/post. Ter, Tal. Osmanabad,
Dist.Osmanabad.
At present residing at Cannaught ...Applicant/
Mansion, Colaba, Mumbai Accused no.1
Versus
1 Central Bureau of Investigation
having its offce at A-2 Wing, 8th Floor,
CGO Complex, CBD Belapur,
Navi Mumbai - 400 614
2 The State of Maharashtra
...Respondents
Mr. Dhairyasheel Patil, a/w Mr. Bhushan Mahadik, i/b
Mahadik and Associates, for the Applicant.
Mr. H. S. Venegavkar, Special P.P. for Respondent no.1/CBI.
Mrs. M. H. Mhatre, APP for the State/Respondent no.2.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 4th DECEMBER, 2019
PRONOUNCED ON: 6th MARCH, 2020
JUDGMENT :-
1. This revision application assails the legality, propriety and correctness of an order passed by the learned Special Judge, CBI for Grater Mumbai, on an application for summoning the defence witnesses (Exhibit-1581) in Sessions Case No.1146 of 2013, whereby the learned Special Judge was persuaded to partly allow the application to the extent of examination of one 1/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC witness, namely, Abhay Suresh Pandit, out of 39 witnesses, who were cited by name and/or designation, by the applicant - accused no.1.
2. The revision application arises in the backdrop of the following facts:
(a) The applicant is facing prosecution alongwith eight other co-accused for the offences punishable under Sections 302, 120B of the Indian Penal Code, 1860 and Sections 3, 25 and 27 of the Arms Act, 1959 for having committed murder of one Pawanraje Nimbalkar (the deceased) in pursuance of a criminal conspiracy. Initially the crime was registered at Kalamboli Police Station vide CR No.I-220 of 2006. The widow of deceased, namely, Anandibai (PW-76) fled Writ Petition No.81 of 2008 before this court. Pursuant to an order passed by this Court the investigation came to be transferred to CBI, SCB, Mumbai - respondent no.1 herein. CBI registered crime vide CBI Case No.BS-1/2009/S/0001. The investigation commenced.
Charge-sheet came to be lodged against the accused.
(b) At the trial, the prosecution had cited 185 witnesses. The prosecution has examined 127 witnesses including Anadibai (PW-76). After the prosecution closed its evidence and the statement of the accused under Section 313 of the Code of 2/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC Criminal Procedure (the Code) came to be recorded, the applicant - accused no.1 preferred an application (Exhibit-1581) to examine the defence witnesses and seek production of the documents through those cited witnesses, under the provisions of Section 233 of the Code.
(c) The applicant asserted that the examination of those 39 witnesses, and production of the documents sought through those witnesses, were necessary for a just decision of the case. Anandibai (PW-76), who was confronted with the questions and documents pertaining to the prosecution initiated against the deceased and his family members, the various scams in which the deceased was involved; and the persons with whom the deceased had inimical relations, gave false and evasive replies. The applicant thus desired to bring all those facts to demonstrate the position in life of the deceased, Anandibai (PW-
76) and their family members. The said facts have a material bearing on the veracity of the prosecution case and the innocence of the accused. The Central Bureau of Investigation has recorded the statements of few of the witnesses (proposed to be examined by the accused). However, those witnesses were dishonestly withheld by the prosecution. Hence, the applicant be permitted to examine those witnesses in his defence. 3/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 :::
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(d) The prosecution resisted the application. It was contended that the application was fled with ulterior motive to delay the trial and thereby defeat the ends of justice. None of the witnesses, whom the applicant intended to examine, nor any of the documents, of which the applicant sought production, is relevant for the determination of the guilt of the applicant and co-accused. It was asserted that the application was vague and ambiguous as well. The prosecution endeavoured to demonstrate that each of the witnesses sought to be examined and doucments produced has no relevance whatsoever with the facts in issue. Thus, the prosecution prayed for rejection of the application.
(e) The learned Special Judge, after hearing the learned Special Prosecutor and the advocate for the accused, partly allowed the application of accused no.1 (Exhibit-1581). The learned Special Judge was of the view that the trial being for the offences punishable under Section 302 and 120B of the Code, the witnesses proposed to be examined and documents sought were not at all relevant. The endeavour of the applicant was to delay the trial. The thrust of the applicant on bringing the antecedents of the deceased, on the record of the Court, was of no assistance to advance the defence of the accused. It was 4/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC further observed that since most of the documents, the production of which was sought, were in the nature of the public documents like, copies of the FIR and charge-sheet lodged against the deceased and the reports of enquiries conducted against the deceased, the applicant could produce those documents on record. For that purpose, the examination of the witnesses was not warranted. The learned Special Judge, however, noted that the statement of Mr. Abhay Suresh Pandit was recorded by Kalamboli Police. However he was not examined by the prosecution. As there was an element of the said person being a witness to the occurrence, he could throw light on the occurrence. Hence, the learned Special Judge allowed the application to the extent of examining Mr. Abhay Suresh Pandit as a defence witness. Thus, witness summons was directed to be issued to Mr. Pandit.
3. Being aggrieved by and dissatisfed with the impugned order, the applicant - accused no.1 has invoked the revisional jurisdiction of this Court.
4. I have heard Mr. Patil, the learned Counsel for the applicant, Mr. Venegavkar, the learned Special PP for respondent no.1/CBI and Mrs. Mhatre, the learned APP for respondent no.2/State, at some length. Perused the material on record. 5/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 :::
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5. Mr. Patil, the learned Counsel for the applicant, strenuously urged that the learned Special Judge has committed a manifest errer in rejecting the prayer of the applicant to examine witnesses in his defence. The impugned order runs counter to the basic cannon of criminal jurisprudence of fair trial. The rejection of the prayer of the applicant to examine witnesses in his defence effectually deprives the applicant of the right to defend him. There is no other principle which is so fundamental and non-negotiable than the right to defend. The impugned order is in complete derogation of indefeasible statutory right of the accused enshrined in Section 233 read with Section 311 of the Code, urged Mr. Patil. The provisions of Sub-section (3) of Section 233 are peremptory in the sense that the examination of the witnesses in defence by the accused is not as a matter of grace but in exercise of a right which is fundamental.
6. The reasons ascribed by the learned Special Judge to deprive the applicant of an opportunity to show his innocence, according to the learned Counsel for the applicant, are neither borne out by the record nor justifable. The ground of causing delay, with which the application is stated to be actuated is, in the circumstances of the case, totally unsustainable. The 6/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC prosecution took nine long years to examine 127 witnesses. When the turn of the accused came to lead evidence in his defence, the door cannot be shut on the premise that it would cause delay.
7. The rejection of the prayer on the score of the evidence proposed to be led being irrelevant was also stated to be equally infrm. Mr. Patil would urge that during the course of cross- examination the accused made endeavour to confront the prosecution witnesses with the documents. The accused had also sought production of documents for that purpose. The efforts of the accused were then stonewalled on the premise that it was not the proper stage to seek the production of the documents at the instance of the accused. The accused assailed one of such orders before this court in Criminal Application No.1122 of 2016. The application came to be rejected by this court by an order dated 23 rd April, 2018, on the ground that the entitlement of the accused to seek production of documents under Section 91 of the Code ordinarily does not arise till the stage of defence. Mr. Patil, urged with a degree of vehemence that the accused was not permitted to seek the production of documents and confront the witnesses when the prosecution was leading its evidence and now the accused is 7/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC deprived of the opportunity to lead the said evidence even when the accused entered upon his defence. In effect, the accused is totally precluded from leading evidence in defence.
8. To lend support to the aforesaid submission, especially on the mandate of Section 233 of the Code, the learned Counsel for the applicant placed a strong reliance on the judgment of the Supreme court in the case of Harbhajan Singh vs. State of Punjab,1 wherein the Supreme Court had, inter alia, observed that the right of the accused to fle a written statement as envisaged by sub-section (2) of Section 256 of the Code (old) cannot be scuttled on the premise that the written statements are prepared on the advice of the legal practitioner. In the said case, the accused therein had given a list of 328 witnesses and sought production of large number of documents. The Supreme Court held that it cannot be laid down as a general rule that the written statement fled by the accused person should not receive the attention of the Court because it is likely to have been infuenced by legal advice.
9. Reliance was also placed on the judgments of the Supreme Court in the cases of Dudh Nath Pandey vs. State of U.P.2 and 1 1966 Supreme Court 97.
2 AIR 1981 Supreme Court 911.
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1-CRIREVN534-19.DOC State of Haryana vs. Ram Singh 3 in support of the submission that the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution witnesses.
10. The learned Counsel for the applicant thus submitted that the impugned order is neither sound in law nor well grounded on facts. The concern of expeditious completion of the trial can be addressed by prescribing a time-limit for examination of the witnesses by the accused. However, the accused cannot be totally denied the opportunity to defend, concluded Mr. Patil.
11. In opposition to this Mr. Venegaonkar, the learned Special PP, submitted with tenacity that the instant application, on its bare perusal, leads to no other inference than that of it being actuated by a design of delay and vexation. Taking the Court through the list of witnesses and the documents sought to be brought on record through those witnesses, the learned Special PP urged that the application is full of vague, omnibus and contingent statements. A sort of roving inquiry into a multitude of subjects, which have no concern whatsoever with the guilt or otherwise of the accused, is sought by the applicant. The application is open ended in the sense that the applicant seeks the examination of witnesses and production of documents to 3 2002 Supreme Court Cases (Cri) 350.
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1-CRIREVN534-19.DOC decide, at a future point of time, whom to examine in his defence. In the circumstances, according to Mr. Venegavkar, the learned Special Judge was well within his rights in rejecting the prayer of examination of witnesses.
12. The provisions of the Code contain in-built safeguards to ensure a fair trial. At every stage, right from the arrest and production of the accused before the Court to the pronouncement of judgment, the Code makes provisions to ensure that no prejudice is caused to the accused. In a Sessions Trial, post the closure of the prosecution evidence, the accused has the right and opportunity to enter on his defence. Section 233 of the Code reads as under:
"233. Entering upon defence.
(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall fle it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."
13. Sub-section (1) of Section 233 ordains the Court to call upon the accused to enter on his defence. It in terms provides that the accused may adduce any evidence he may have in 10/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC support thereof. Sub-section (2) enables the accused to put in a written statement explaining the circumstances and evidence which may appear against him. Sub-section (3) empowers him to compel the attendance of the witnesses or the production of the documents through the process of the Court, lest, the right to examine the witnesses would become illusory in the absence of the provisions to seek presence of the witnesses and production of documents before the Court. Ordinarily, the right of the accused to examine witnesses in his defence cannot be curbed. No fetters can be put on the said right. The discretion is, however, vested in the Judge to refuse the prayer of the accused to seek attendance of witnesses and production of documents, if the Judge comes to the conclusion that the prayer is made for the purpose of vexation or delay or to defeat the ends of justice.
14. In the backdrop of the aforesaid provisions, the sole question that wrenches to the fore is whether, in the facts of the instant case, the learned Special Judge correctly exercised the discretion to reject the prayer to examine the witnesses, and seek production of documents through them, on the ground that it would result in vexation or delay or otherwise defeat the ends of justice.
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15. For an answer, frst and foremost, recourse to the application (Exhibit-1581) fled before the learned Special Judge by the applicant becomes indispensable. The application is fled under the caption of 'list of defence witnesses and documents on behalf of accused no.1'. The learned Special Judge has extracted the list of witnesses, proposed to be examined by the applicant, in the impugned order. It may not be necessary to extract the said list again. It is, however, necessary to note that the application contains numerous documents and references and cross-references which the witnesses proposed to be examined, were expected to depose to.
A] By way of illustration, the frst witness, Mr. Shrikant More, the Special Auditor was sought to be examined for the reason that he had conducted special audit and thereafter fled a complaint against the deceased and others for committing fraud in Osmanabad District Central Co-operative Bank ('ODCC Bank') for a sum of Rs.29 Crore, leading to registration of Crime No.106 of 2002.
B] Under Item-2, the witnesses proposed to be examined were the Managing Director of the ODCC Bank and the concerned offcers of the ODCC Bnak. They were proposed to be examined to identify the signatures of the deceased and 12/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC other concerned persons and to lead evidence on the following documents, which are required to be produced before the Court:
i) In respect of FIR in crime no.106/2002 (Home Trade Scam) (Exh. 997) FIR, Chargesheet in Home Trade scam, all documents and records of ODCC Bank pertaining to sanction and payment of Rs. 29 Crores paid by MSC Bank on the approval/consent given by ODCC Bank to Home Trade frm while the deceased Pavanraje was the Chairman of the ODCC Bank (refer para 31 of PW - 76 Anandibai pg 14, also referred by PW - 47 in para 7,8,9 on pg 4 & 5 )
ii) In respect of FIR in crime no. 211/2002 (Exh. 790) FIR, Chargesheet all documents and records of ODCC Bank While the deceased Pavanraje was the Chairman of the ODCC Bank and his wife and the deceased Pavnaraje's parents were also shown as accused (referred by PW -47 in para 42) including any civil proceedings initiated by ODCC Bank Bank for recovery of dues against deceased Pavan raje and his family members and the current status of the loan account with ODCC Bank.
iii) In respect of FIR in Crime No.198/2003 (Exh 791), FIR, Chargesheet and all documents and records pertaining to opening of bank accounts, bank statements, applications, fnancial records of the directors, memorandum and articles of associations of the companies, board resolutions of the companies, security records offered by the companies as collateral, bank guarantees of the directors, bank statements of companies and directors, audit reports, balance sheet & proft & loss account and IT returns of the companies and directors at the relevant time, records with regard to sanction and disbursement of loan to Heramb Infrastructure Pvt. Ltd.
and Om Jai Sai Infra Impex Pvt. Ltd., whilst the deceased Pavanraje was the Chairman of ODCC Bank and was also Director of Heramb Infrastructure Pvt. Ltd. and Om Jai Sai Infra Impex Pvt. Ltd. along with his wife PW-76 and his parents Santajiraje and Shkuntaladevi (refer para 33 of PW- 76 Anandibai pg 14-15) along with circulars/resolutions of Reserve Bank of India by-laws of ODCC Bank and necessary compliances in accordance with the provisions of MCS Act, 1960 and rules thereunder including any civil proceedings initiated by ODCC Bank for recovery of dues against deceased Pavanraje and his family members and the current status of the loan account with ODCC Bank.
iv) In respect of FIR in Crime no. 242/2003 (Exh. 792) with regard to all documents and records pertaining to opening of bank accounts, bank statements, applications, fnancial records of the directors, memorandum & articles of associations of the companies, boards resolutions of the companies, security records offered by the companies as 13/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC collateral, bank guarantees of the directors, audit reports, bank statements of companies and directors, balance sheet & proft & loss account and IT returns of the companies and directors at the relevant time, records with regard to sanction and disbursement of loan to Heramb Infrastructure Pvt. Ltd. In relation to misappropriation of Rs. 10.76 Crores by the deceased Pavanraje while he was the Chairman of ODCC Bank and was also Director in the benefciary company along with his wife PW - 76 and her brother Appasaheb Patil and the deceased Pavanraje's Parents Santajiraje jand Shakuntaladevi (refer para 33 of PW - 76 Anandibai pg 15-
16) along with circulars/resolutions of Reserve Bank of India by-laws of ODCC Bank of necessary compliances in accordance with provisions of MCS Act, 1960 and rules thereunder including any civil proceedings initiated by ODCC Bank for recovery of dues against deceased Pavan raje and his family members and the current status of the loan account with ODCC Bank.
v) Records pertaining to opening of bank accounts, bank statements, applications, fnancial records of the directors, memorandum & articles of associations of the companies, board resolutions of the companies, security records offered by the companies as collateral, bank guarantees of the directors, audit reports, bank statements of companies and directors balance sheet & proft & loss account and IT returns of the companies and directors at the relevant time, records with regard to sanction and disbursement of loan to Om Jai Sai Infra Impex Pvt. Ltd., Heramb Infrastructure Pvt. Ltd., Om Jai Trading, Anandibai Manufacturing Company, Sai Engineering Company, Lambodar Infrastructure Ltd.(refer to para 71 of PW - 119, Om Raje pg 26) and Omkar Infrastructure Ltd., along with circulars/resolutions of Rese4rve Bank of India by-laws of ODCC Bank and necessary compliances in accordance with provisions of MCS Act, 1960 and rules thereunder including any civil proceeding initiated by ODCC Bank for recovery of dues against deceased Pavan Raje and his family members and the current status of the account with ODCC Bank.
vi) Loan statement of Terna SSSK Ltd from 2006 till 2016 along with circulars/resolutions of Reserve Bank of India, bye-laws of ODCC Bank and necessary compliances in accordance with provisions of MCS Act, 1960 and rules thereunder including any civil proceedings initiated by ODCC bank for recovery of dues and the current status of the loan accounts with ODCC Bank.
vii) Board resolutions and account opening form of the year 2000 for operation of bank accounts of Terna SSSK Ltd. along with circulars/resolutions of Reserve Bank of India, bye-laws of ODCC Bank and necessary compliances in accordance with provisions of MCS Act, 1960 and rules thereunder, including any civil proceedings initiated by 14/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC ODCC Bank for recovery of dues and the current status of the loan accounts with ODCC Bank.
viii) Stock register/extract and documents of sugar stock, molasses by products, RS, SDS, etc from 2006 till 2016.
ix) Records pertaining to NABARD restructuring package of Terna SSSK Ltd., Bank statements of Terna SSSK Ltd., from 2009 till date, records of mortgage and hypothecation of immovable and movable properties of Terna SSSK Ltd. (Sugar stock, molasses, rectifed spirit, alcohol, etc) records of sugar stock rectifed spirit, molasses, alcohol, etc and production and sale of stocks and other relevant records on fle in respect of Terna SSSK Ltd. of ODCC Bank (referred to PW-47 Bibhishan Kale para no.22 wherein PW-47 had informed the Hon'ble Court that he will produce the record of Terna SSSK Ltd since 2007 however till date the PW-47 has not produced any record till date as stated in para 26 of PW-47. Oral request was made on behalf of the advocate of the Accused No.1 who sought leave of the Hon'ble Court to recall PW-47 as witness subsequently after the production of records).
x) All orders, records (including inquiry proceedings under Sections 83 & 88 of MCS Act) reports, photographs of plant and machinery, etc Report of state govt., valuer, inspection agency, Vasantdada Sugar Institute, Pune pursuant to liquidation proceedings initiated against Terna SSSK Ltd."
C] The third witness sought to be examined was again by designation, namely, Regional Director, Sugar, Nanded-Aurangabad, with all records pertaining to Terna Sahakari Sakhar Karkhana Ltd.
"i) Records of appointment of Rizwana Samad Kazi in Terna School run and operated by Terna SSK Ltd. by Anandibai Nimbalkar.
ii) Audit reports, annual reports, special audit reports for the period from 2006 till date.
iii) Records pertaining to dissolution of board of Terna SSSK Ltd.,
iv) Scrap material records, stock register of sugar-
molassess-bagasie-RS-SDS from 2010 to 2017.
v) Bank statements of all new accounts opened by Anandibai from the date of opening till date.
vi) Records pf appointment of administrator/liquidator of
Terna SSSK Ltd.,
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vii) Liquidation proceeding records
viii) Inspection reports
ix) Register of movable and immovable properties of Terna
SSSK Ltd
x) Records of unpaid sugarcane price due and payable to
farmers
xi) Records of payments made to sugarcane harvesting
and transportation contractors
xii) Records of unpaid salary & wages of employees of
Terna SSSK Ltd till 2006 to 2017
xiii) Election records of panel formed by Anadibai in respect
of Terna SSSK in the year 2006
xiv) Minutes books, attendance register, board resolutions
for the period from 2006 to 2016
xv) Letters of authority, board resolutions and records of
Terna SSSK Ltd for operation of new bank accounts from 2006 to 2017 xvi) Applications made by Terna SSSK while Anandibai was Chairman for extension of elections, and govt/ministers orders passed thereon xvii) Records of resignation of Accused No.1 i.e. Dr. Padmasinha Patil from the post of Chairman of Terna SSSK Ltd xviii) Attendance record of Accused No.1 (from 1996 to 2002) while he was Chairman and director of Terna SSSK Ltd.
xix) Resignation letters dated 13-2-2010 of 5 directors addressed to Chairman, Terna SSSK Ltd (Anandibai Nimablakar) xx) Resignation letter dated April 2014 of directors addressed to Chairman, Terna SSSK Ltd (Anandbai Nimbalkar) xxi) Account records fled at the time of opening of Pavanraje Nagrik Credit Society alongwith bank statements from the date of opening till 2016. xxii) Letter dated 4-12-2015 addressed by RJD (Sugar) addressed to Anandibai, Chairman of Terna SSSK Ltd. xxiii) Order dated 14-10-2015 passed by the Minister for Co-
operation, Maharashtra Govt., sent to Chariman (Anandibai Nimbalkar) xxiv) Applications fled by management of Terna SSSK Ltd for extension e board from the year 2012.
xxv) Board Resolution dated 8-5-2000 of Terna SSSK Ltd., for operation of ODCC Bank account.
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1-CRIREVN534-19.DOC xxvi) Recent photographs of the plaint, machinery and sugar mill of Terna SSSK Ltd., xxvii) Inward/Outward register of Terna SSSK Ltd. for the period from 2007 to 2016.
xxviii) Audit reports for the period from 2006-2007 to 206- 2017, xxix) Records pertaining to sugar export scam i.e. advertisements given by MD R.C. Karwa of Terna SSSK Ltd for inviting quotations of export of Sugar, tenders invited, correspondence exchanged, offce note prepared by then MD R.C. Karwa, minutes and resolutions of board meeting, show cause notice issued by vice chairman Mangalatai patil of Terna SSSK Ltd to then MD R.C. Karwa. Reply of R.C. Karwa, complaint fled by Mangalatai Patil Vice-chairman against Karwa in Osmanabad Police Station, FIR registered in respect of sugar export scam, chargesheet fled therein, etc. (refer to para 10 PW-119 pg 5 & 6).
xxx) Records in respect of resignation letters of directors of board of Anandibai, minutes of board meetings, resolutions passed, offce notes, correspondence pertaining to fve board of directors of Terna SSSK Ltd as stated hereunder:
a) Sanjay Prakash Nimbalkar
b) Trimbakrao Mohal Shelke
c) Vikram @ Rambhau Shamrao Padwal
d) Shrihari Sadashiv Lomate
e) Bhimrao Dattu Salunkhe
(Note : Referred by PW-76 in para 37 page 17-18) xxxi) Records with regard to sugar export scam including the FIR and chargesheet including the court proceedings on record before the Chief Judicial Magistrate Osmanabad in respect of Sugar Export Scam of sugar export scam) xxxii) Records containing the register of movable and immovable property of Terna SSSK Ltd. including the title deeds of the immovable property (PW 76 para 40 page 90) xxxiii) Records to inquiry under Sections 83 and 88 initiated by Registrar of co-operative societies against the board of directors of Anandibai (PW 76) and others (PW 47 para 15, 16) xxxiv) All records pertaining to legal action taken by ODCC Bank against Terna SSSK Ltd an its management including notices given under SARFAESI Act, court records, orders till date on record.
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1-CRIREVN534-19.DOC xxxv) All bank records pertaining to sanctioning and disbursement in home trade scam and various other companies of the deceased Pavanraje and other fraudulent of loans sanctioned to the deceased Pavanraje and his family members.
xxxvi) All Audit reports, annual reports, RBI inspection reports, NABARD reports and other relevant records etc pertaining to home trade scam.
xxxvii) Minutes of meetings, offce notes, etc in respect of decisions taken for home trade scam, loans given to family members/companies/frms belonging to the deceased Pavanraje and his family members. xxxviii) Board resolutions, correspondence, complaints, etc fled by ODCC Bank in respect of home trade scam, Heramb Infrastructure pvt. Ltd., Om Jai Sai Infra Impex Pvt. Ltd., Om jai trading ltd, Anandabai Manufacturing Company, Lambodar Infrastructure Ltd. and Omkar Infrastructure Pvt. Ltd.
xxxix) Chargesheet fled in FIR in crime in relation to Home Trade scam, Heramb Infrastructure Pvt. Ltd., Om jai Sai Infra Impex Pvt. Ltd., Om Jai Trading Ltd., Anandibai Manufacturing Company, Lambodar Infrastructure Ltd., and Omkar Infrastructure Pvt. Ltd. XI) Election records of ODCC Bank from 1994 to 2002 when the deceased Pavanraje was elected as Director and then was appointed as a Chairman of ODCC Bank (para no.3, 4, 5, 6, 7 of PW-76 deposition).
XIi) Complaint fled by the then Divisional Deputy Registrar of co-operative societies in Home Trade Scam.
Xiii) Bank statement of all account of Pavanraje's family and his family companies/frms with ODCC bank from the date of opening till date.
XIiii) Account opening forms, Memorandum of Association, Articles of Association, Board Resolutions and all documents submitted by the deceased Pavanraje's family companies including PW 76 in ODCC Bank. XIiv) Title Deeds and Deeds of Mortgages of all properties belonging to the deceased Avanade and his family members and his companies/frms offered as collateral securities for sanction of loans to the deceased Pavanraje's family and his family companies/frms. XIv) Deeds of mortgages in respect of securities offered by Terna SSSK Ltd for loans advanced by ODCC bank. XIvi) Records of all legal proceedings including SARFAESI records initiated by ODCC Bank against Terna SSSK Ltd."
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1-CRIREVN534-19.DOC D] The fourth witness was Principal Secretary/ authorised person of Maharashtra Legislative Assembly, Vidhan Bhavn, Mumbai, alongwith certifed copies of the transcripts of the legislative assembly and council proceedings recorded in the both Houses of the Legislature in the year 2002 in respect of Home Trade Scam.
E] The ffth item is the certifed copies of the Election Petition No.6 of 2004, written statement, roznama, orders, alongwith application of Om Raje Nimbalkr (PW-119) and evidence of Om Raje Nimbalkar recorded therein.
F] Item 9 reads as under:
"9) The Superintendent of Police, Osmanabad be called
upon to send the following offcers alongwith station diary during the investigation period of the following crimes registered against the deceased Pavanraje and his wife Anandibai and his parents:-
i) Investigating Offcer in respect of FIR in Crime no.106/2002 (Exh.997) along with chargesheet and station diary.
ii) Investigating Offcer in respect of FIR in Crime no.211/2002 (Exh.790) along with chargesheet and station diary.
iii) Investigating Offcer in respect of FIR in Crime No.198/2003 (Exh.791) along with chargesheet and station diary.
iv) Investigating Offcer in respect of FIR in Crime no.242/2003 (Exh.792) along with chargesheet and station diary."
16. The 15th Item goes by the description, "Farmers/ Agriculturists/Co-operative Societies being account holders in ODCC Bank".
19/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC H] Item 36 reads as under:
"36) Authorised persons along with certifed copies of all records from the offce of Registrar of Companies/Firms from the date of formation, incorporation till date including the list of board of directors till date, Memorandum and Articles of Association, Certifcate to commence business, audit reports fled till date, various forms fled from time to time from the date incorporation till date in accordance with the provisions of the Companies Act, 2013, balance sheet, proft & loss account in respect of the following companies:
a) Om Jai Sai Infra Impex Pvt. Ltd.
b) Heramb Infrastructure Pvt. Ltd.
c) Om Jai Trading Company
d) Anandibai manufacturing Company
e) Sai Engineering Company
f) Lambodar Infrastructure Ltd
(refer to para 9 of PW-119 at pg 4, 5)
g) Omakar Infrastructure Pvt. Ltd.
(Refer in para 1 of PW-115)"
17. The last paragraph of the application also deserves consideration. It reads as under:
"After perusal of records brought before this Hon'ble Court the Accused no.1 be permitted to examine the concerned person as witnesses along with documentary evidence if found crucial to the defence after going through the aforesaid records and evidences before this Hon'ble Court as per the provisions of Section 139 of the Indian Evidence Act, 1872, the Accused No.1 seeks leave to this Hon'ble Court to examine the persons called to produce documents and the said persons be allowed to be examined by the Accused No.1 as his defence witness in relation to matters contained in those documents and the Accused No.1 be also permitted to recall any prosecution witness and/or call any further witness to adduce evidence with permission of this Hon'ble Court."
18. The aforesaid assertions in the application have been extracted as a strenuous submission was made by Mr. Dhairyasheel Patil that the applicant is denied the most fundamental and indefeasible right to defend. Implicit in the right to defend is the right to lead evidence which is admissible 20/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC and has a bearing on the matter under adjudication. It would be contextually relevant to note of what facts evidence can be led. Section 5 of the Evidence Act provides that evidence may be given of the existence or non-existence of every fact in issue and relevant facts, and of no others. The right of the accused to examine the defence witnesses, though well recognised cannot be construed as so unbridled that the evidence can be led by the accused of facts which are neither in issue nor relevant. If the provisions of Section 233 of the Code are construed to confer upon an accused an unfettered right to lead evidence bereft of any semblance of relevancy to the facts in issue, the very administration of criminal justice would be jeopardised.
19. The aforesaid averments in the application betray both the purpose and intent of accused no.1. The purpose for which the witnesses are proposed to be examined and documents brought on record, nowhere indicates that the witnesses or documents bear upon the occurrence in any manner. It does not appear that aforesaid witnesses or documents would throw any light on either the alleged occurrence or the perpetrators of the alleged crime. Neither it is alleged that the evidence proposed to be led constitutes the occasion, cause or effect of the facts in issue or relevant facts. Nor it is alleged that the evidence reveals any 21/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC motive or conduct of any party to the extent it is relevant. On the contrary, the emphasis seems to be to demonstrate that the deceased was facing prosecutions for various offences; the deceased had indulged in many scams; there were numerous illegalities and irregularities in the management of ODCC and Terna Sahakari Sakhar Karkhana Ltd., of which the deceased was at the helm of affairs; the deceased had amassed huge wealth disproportionate to his known sources of income; and the deceased had, in the process, earned a number of enemies. It would be suffce to note that in a criminal trial, the accused is not obliged to prove that "if not me, who else had committed the crime".
20. The last paragraph of the application extracted above embodies the design with which the application is preferred. Accused no.1 seeks liberty to examine concerned persons as witnesses, if found crucial to the defence, seeks leave to examine the persons called to produce the documents and to recall any prosecution witnesses and/or call any further witnesses to adduce evidence. Under Item 15, extracted above, accused no.1 professed to examine an infnite number of persons, namely, the account holder farmers/agriculturist/co- operative societies of ODCC Bank. If accused no.1 has his way, 22/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC and the trial is conducted in the manner desired by the accused, there is no real prospect of conclusion of the trial.
21. In the aforesaid backdrop, the learned Special Judge was fully justifed in evaluating the application on the twin test of the relevancy of the witnesses and the documents, on the one hand, and the underlying purpose of obviating delay and vexation, on the other hand. In all fairness to the learned Counsel for the applicant that the fundamental principle of fair trial was being sacrifced deserves a worthy cause. In the instant case, no other inference than that of the one drawn by the learned Special Judge is possible.
22. The learned Special Judge, however, allowed the application to the extent of examination of Mr. Abhay Suresh Pandit, as a defence witness, as the learned Judge was of the view that since the statement of the said witness was recorded by Kalamboli Police, under Section 161 of the Code, his evidence may have the potentiality to throw light on the occurrence. If the prosecution does not examine the witnesses, who were interrogated during the course of the investigation and whose statements were recorded under Section 161 of the Code, and the defence alleges that the said witnesses have been deliberately withheld by the prosecution, the accused cannot be 23/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 ::: 1-CRIREVN534-19.DOC deprived of the opportunity to examine those witnesses, in his defence, if he chooses to. The order to issue witness summons to Mr. Abhay Suresh Pandit is thus impeccable. The learned Special Judge, however, seems to have lost sight of the fact that the accused intended to examine two more witnesses, namely, Hafz Sayyed Pasha (Serial no.28) and Brahmaprakash Jagdishprasad Bansal (Serial no.29) whose statement were also recorded by Kalamboli Police under Section 161 of the Code. If the accused asserts that the examination of those witnesses, who were interrogated during the course of investigation and whose statements are on record, would elucidate the matter, the accused should be given an opportunity to examine them. Thus, to this extent I am persuaded to hold that the learned Special Judge ought to have issued witness summons to Mr. Hafz Sayyed Pasha and Mr. Brahmaprakash Bansal. The impugned order thus deserves to be modifed to this extent. Rest of the impugned order does not warrant any interference. Resultantly, the revision application also deserves to be allowed to that extent.
23. Hence, the following order:
(i) The revision application stands partly allowed.24/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 :::
1-CRIREVN534-19.DOC
(ii) The learned Special Judge shall issue witness summons to Mr. Hafz Sayyed Pasha and Mr. Brahmaprakash Jagdishprasad Bansal.
24. The revision application stands disposed of.
[N. J. JAMADAR, J.] At this stage the learned Counsel for the applicant seeks stay to the order passed by this Court.
For the reasons which this Court has recorded and having regard to the nature of the application for issuance of summons to the witnesses and production of documents adverted to in the order, the prayer for stay does not merit acceptance. Hence, the oral application for stay stands rejected.
[N. J. JAMADAR, J.] 25/25 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 24/03/2020 20:41:29 :::