1 THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION NO. 2116 OF 2008 Shri Dnyanoba Vaijanath Boyane, aged about 46 years, Occupation : Deputy Superintendent of Police, R/o Nagpur, Tahsil and District Nagpur. .. APPLICANT .. Versus .. Anti Corruption Bureau, through its Superintendent, Amravati, Tahsil and District Amravati. .. NON-APPLICANT ..... Mr. P.C. Madkholkar, Advocate for Applicant. Mr. P.D. Kothari, APP for Non-applicant. ..... CORAM : P.D. KODE, J. DATE OF RESERVING THE ORDER : JULY 18, 2009 DATE OF PRONOUNCING THE ORDER : OCTOBER 16, 2009 ORDER 1. The applicant suspended Deputy Superintendent of Police had approached under Section 482 of the Code of Criminal Procedure for quashing and setting aside first information report in Crime No. 89 of 2008 registered at Police Station Frezarpura, district Amravati against him for commission of offences under Sections 120-B, 465 , 471 , 409 of the Indian Penal Code read with Section 13 (1) (d) , 13 (2) of Prevention of Corruption Act, 1988; along with six other co-accused, 2 upon complaint lodged by PSI Abhay Ramrao Panhekar of Anti Corruption Bureau, Nagpur and so also final report/charge sheet submitted after investigation of the same by Dy.S.P., Anti Corruption Bureau, Amravati to the effect of said charge sheeted accused having committed such offences. 2. The facts bereft of unnecessary details leading to registration of said crime and submission of charge sheet impugned in present application are as under: One Shri Acchyut Janardan Inamdar, then Inspector of Police Motor Transport Division (hereinafter for short described as MT), Nasik had made the complaints regarding corruption occurred in 18 police MT falling under Police Central Motor Transport Workshop, Nagpur about spare parts used for repairs of police motor vehicles, firstly with DIG, MT, Maharashtra State at Pune and thereafter with MT Nasik City. State CID Division Nashik was conducting inquiry regarding said matter complained. 3. Shri Inamdar had lodged Writ Petition No.502 /2004 in High Court of Judicature at Bombay on the count of State CID Nashik not properly conducting said inquiry. In the said writ petition, three months' time was granted for completing inquiry and submitting the report. However, under order dated 10.7.2006 given by Home Department, State CID had transferred said matter to Anti Corruption Bureau and accordingly Anti Corruption Bureau, Nagpur had completed 3 the said inquiry and PSI Abhay Ramrao Panhekar of the said Bureau has lodged written complaint dated 12.4.2008 with Frezarpura Police Station, district Amravati against applicant and six co-accused for commission of offences disclosed in inquiry, about user of spare parts in repairing police vehicles at Motor Transport Department of Amravati under State Reserve Police Force, Division No.9. Upon said complaint, FIR impugned in the present petition was registered. The investigation of the same was taken up by Dy.S.P. Anti Corruption Bureau, Amravati. 4. The said complaint lodged amongst other matter mainly disclosed that : (i) for repairs of defective police vehicles following procedure was required to be followed : a) firstly the driver in-charge of police vehicle has to intimate in writing to in-charge of Police Motor Transport Department regarding defects/repairs required for police vehicle either by making an entry in Repair Book or by giving separate application; b) in-charge of Police Motor Transport Department with his remarks and signature thereon has to forward same to Chief Mechanic; c) the Chief Mechanic thereon has to open a job for vehicle to be repaired; d) in accordance with nature of work involved, Chief Mechanic has to hand over defective vehicle to Junior Mechanic under 4 him; e) Junior Mechanic thereon has to report about the defects in vehicle and spare parts required for the same through driver to the Inspector of MT; f) mechanic was required to prepare indent in event of requirement of spare parts for the repairs and as per said indent, Inspector of MT has to either use spare parts as per availability or has to purchase same by requisitioning them from dealers authorized by DIG/Special DIG, MT, Maharashtra State, Pune; g) after repairs vehicle was to be handed over back to driver for the same after making an entry in the job register; h) entire repairs were to be carried out under the supervision of Chief Mechanics. Inspector of Police, MT, Chief Mechanic, Assistant Mechanic and Storekeeper were bound to examine whether spare parts were necessary for repairs and accordingly whether old parts were received back and whether the entries about the same were properly effected. (ii) In spite of such a procedure being required to be followed, during the period from 24.5.2004 to 3.6.2004 in all 21 vehicles were repaired at MT Workshop at SRPF Group No.9, Amravati by sending mobile unit from Central Workshop of MT, Nagpur, (iii) During said period, applicant was working as in-charge Deputy Superintendent of Police, MT Central Workshop at Nagpur. As per his orders Police MT, Central Workshop, Nagpur has sent spare 5 parts of value Rs.8,61,000/- along with the mobile unit, (iv) Out of same, some spare parts were shown to have been fixed in 21 vehicles at State Reserve Police Force Unit No.9 inclusive of one DCM Toyota 407 vehicle, (v) During said period excepting driver of one vehicle, having informed about existence of minor repairs for vehicle, none of drivers for rest of the vehicles had informed about vehicles under each of them requiring any repairs, (vi) During the said period one Anil Madhukar Deshmukh (chargesheeted accused no.2) was then working as Inspector at Motor Transport Department of State Reserve Police Force, Group No.9, (vii) 8 vehicles out of 21 vehicles said to have been repaired had not at all been at headquarters of State Reserve Police Force, Group No.9 during relevant period, (viii) details about the place and dates on which the said vehicles were sent and the defects with repairs shown to have been effected for respective vehicle together with value of spare parts used for the repairs and total value of spare parts required for all of them amounting to Rs.41,206/-, (ix) details about other 13 vehicles which were at the headquarters with details of repairs and expenditure for the same made for each of the vehicle in spite of only driver of one vehicle having shown his vehicle having defect and thus requiring repair, (x) all accused mentioned therein by conspiring having shown repairs work as detailed of value of Rs.7,90,002/- being effected on 6 said 12 vehicles, in spite of the driver of none of the said vehicles having shown any defects or repairs being required for them, (xi) thus during the relevant period on the paper expenditure of Rs.8,31,208/- for repairs being shown, (xii) it was virtually impossible to carry out all such repairs and used such spare parts for such repairs by obtaining necessary office sanction within a period of ten days, (xiii) maintenance mechanic on duty at mobile unit of M.T. Nagpur, applicant chargesheeted accused no.1 and then Inspector of M.T. SRPF Group 9, Amravati Shri Kachrulal Mahadeo Gaure, Motor Mechanic Class-I by conspiring has shown on paper all such repairs being effected. The said repairs shown to have been effected do not reveal prevailing procedure for the repairs being followed for the same. 5. The said complaint in penultimate part depicts in all seven accused persons including the applicant being involved in corruption and commission of the offences with specific narration of acts committed and/or thus role played by each of said accused in said episode. Without unnecessary reciting acts committed/role played by the others, the act committed/role played by the applicant along with role/acts connected with the same and played by Anil Madhukar Deshmuh, PI MT SRPF Group No.9, Amravati (chargesheeted accused no. 2) as disclosed from the complaint is to the effect that : i) applicant without PI M.T. SRPF Group 9, Amravati making 7 any demand for mobile unit from MT Nagpur for defects/repairs, within ten days of demand for sending mobile unit for ascertaining whether mechanics at said place were competent to repair said vehicles, has sent mobile unit from MT Central Workshop, Nagpur along with spare parts amounting to Rs.8,61,858/-, ii) at the instance of applicant Shri Moreshwar Shankarrao Madankar, A.S.I PC MTW, Nagpur (chargesheeted accused no.3) and mechanics under him Rajeshwar Munishwar Thaur, Giridhari Raghuji Deokar and Rohitdas Rangdas Wagh (respectively chargesheeted accused no.4, 5 & 6 respectively Naik Welder, Hawaldar Mechanic and Naik Welder all from MTW, Nagpur) had shown utilization of said spare parts for repairs 21 police vehicles, (iii) no assistance of mechanics from SRPF Group No.9 at Amravati was taken for the same and so also no spare parts were returned nor all were utilized, nor were deposited in the workshop, (iv) thus applicant had conspired with the other accused for misusing their official position for making wrongful gain for them of value of said spare parts amounting to Rs. 8,61,858/-, (v) Anil Madhukarrao Deshmukh, PI, MT SRPF Group No.9 Amravati (chargesheeted accused no.2) with intent of showing utilization of spare parts without attributing a special reason had sent nominal letter for calling mobile unit from MT Central Unit at Nagpur. 6. The said complaint in ultimate part depicts that inquiry having revealed that depicted seven accused persons (inclusive of the 8 applicant) instead of utilizing spare parts amounting to Rs.8,31,208/- for the vehicles by preparing false documents with intent to cause wrongful loss to the government and wrongful gain to them having conspired and misappropriated government money and had shown on papers of such an expenditure having incurred; the complainant was lodging the said complaint against applicant and other accused persons for commission of offences as stated in earlier part of this order. 7. The reference to charge summary given by Dy.S.P. Anti Corruption Bureau, Amravati in chargesheet submitted as a result of investigation of said FIR handed over to the said Bureau after registration, reveals the matters in consonance with the matter stated in the first information report having transpired during investigation with following additional features : i) that applicant while being in-charge at MT Central Workshop at Nagpur in year 2004 had by issuing written order dated 22.5.2004 has sent on 24.5.2004 the police mechanics under him i.e. chargesheeted accused nos.3, 5, 6 & 7 along with mobile repair unit van with spare parts amounting to Rs. 8,61,858/- as per voucher no. 193 and 194 for repairs of the vehicles at MT, SRPF Group No.9, Amravati, ii) within a period of 11 days i.e. from 24.5.2004 to 3.6.2004 carrying out repairs on 21 vehicles at the said place was shown on the papers, 9 iii) out of said 21 vehicles 7 vehicles were sent for duty for naxal bandobast at Gadchiroli district during the said period while one vehicle was sent for taking trainee police employees to Solapur while remaining 13 vehicles were deployed for duty and were in working condition, iv) in spite of said vehicles being in working condition applicant by conspiring along with accused no.2 PI Shri Deshmukh and accused no.4 mechanic Gaure from MT SRPF Group No.9 Amravati had prepared false documents regarding utilization of spare parts of value Rs.8,31,208/- for repairs of 21 vehicles in spite of the same being in use; v) applicant was responsible to ascertain whether spare parts sent of specified value were fitted to respective vehicle; vi) after fitting new spare parts to the vehicle old parts were required to be deposited back in the stores but the same had not happened during the said repairs; vii) the log book, history sheet and job register were seized during the investigation and the same were got inspected from two engineers from mechanical department of PWD i.e. witness described at Sr. No.27 and 28 and their written opinion was obtained; viii) the said written opinion reveals of change of engine for vehicle no.MH-12-Q-9359 being falsely shown on paper; ix) the driver in-charge of concerned vehicle was required to give written report of the vehicle being sent in defect but such thing had not occurred and 20 out of 21 drivers during their statement 10 recorded having told of the vehicle in-charge of him being in working condition and being not reported to be in defect; x) out of new spare parts sent, spare parts amounting to Rs.6,85,341/- had been shown to be “condemned” at store and accordingly the entries had been effected in condemn register. Some of spare parts shown to be condemned were found to be new parts when same were seized as per the order of Adjutant, SRPF group no.9 Amravati; xi) the entire repairs having been effected as per the orders of applicant by police mechanics accused no.3, 5, 6 and 7 under him and so also accused no.2 and accused no.4 from Amravati, in furtherance of their common intention, all of them being responsible for the same; xii) role in detail played by each of the accused in pursuance of conspiracy in preparing false documents, and/or entries in the registers as described in the said chargesheet for showing on paper of repairs being effected on 21 police vehicles and spare parts of Rs. 8,31,208/- being utilized in the same without in fact any such repairs being effected or any such parts being fitted to any of the vehicles; xiii) applicant and chargesheeted accused no.2 having misused their official position for showing spare parts at Central MT Nagpur being used in contravention of the rules from Police Manual deliberately without following the said rules and the prevailing procedure and thus the said accused along with the other accused having committed the offences for causing wrongful loss to the State; xiv) accused no.2 and accused nos. 3 to 7 having not got an 11 opportunity to dispose of certain spare parts out of spare parts sent along with mobile unit Nagpur; on 8.6.2007 the same were seized from the stores of SRPF Group No.9 at Amravati but even the said spare parts have been shown as utilized for the repairs of the vehicle, similarly some of the seized new spare parts have been shown to have been declared as condemned parts. New spare parts are never condemned. Condemned parts should be either used parts or outlived parts or old parts, Thus the same denotes motive of the accused in disposing such parts for obtaining illegal financial gain; xv) thus accused being involved commission of offences under Sections 120(B), 465, 471, 409 of Indian Penal Code r/w under Section 13(1)(C) r/w under Section 13(2) of the Prevention of Corruption Act, 1988, they have been chargesheeted accordingly for dealing them in accordance with the law. 8. The learned counsel for the applicant prayed for quashing and setting aside FIR as well as charge sheet submitted against the applicant on the count of both of them even on apparent consideration failing to reveal involvement of applicant in commission of any of the offences alleged therein; by urging that : a) applicant had applied for furnishing information/documents under right of information act and accordingly documents were furnished to him of which copies have been annexed by him along with the petition. The matters from said documents of opponent belies prosecution case against applicant; 12 b) at least the matters from said documents clearly reveals that none of the act committed by applicant would amount commission of offence alleged against him by the prosecution or even otherwise as the said act failed to satisfy/fulfill ingredients necessary for constituting commission of offence alleged or even otherwise, c) the observations made in paragraph no.15 in a judgment in a case of R.Kalyani .vs. Janak C. Mehta and others reported in (2009) 1 SCC 516 relied by the learned APP itself reveals that in exceptional circumstances the documents relied by the defence can be looked by the Court in an application under Section 482 of the Code; d) having regard to the same and in light of the peculiar facts and circumstances of the present case, there would be no bar for looking in said documents furnished by the non-applicant to the applicant, e) even bare glance to the rules regarding repairs and spare parts contained in Police Manual (annexed with the petition) makes it apparently clear that: (a) applicant had no right to purchase any of the spare parts, (b) applicant was not possessing any single rupee of the Government in his custody which he can be said to have spent for purchase of said parts, (c) applicant had no right to place any purchase order, (d) applicant had no right to sell anything, f) the matters stated in the letter dated 15.5.2004 written by 13 PI MT SRPF Group No. 9, Amravati to applicant and in letter dated 20.5.2004 written by applicant in reply to the said letter and of which copy was marked to D.I.G. MT Pune and Adjutant, SRPF Group No.4, 13 Nagpur and Group No. 9 Amravati makes it abundantly clear that applicant on his own had not sent mobile unit from MT Central Nagpur but has sent the same in accordance with discussion taken place on 15.5.2004 with Superintendent of Police, MT MS Pune, g) similarly the matters stated in order dated 22.5.2004 issued by applicant to Mechanics under him at Central Workshop Nagpur also makes it abundantly clear that by the same amongst other applicant then having directed them to report along with mobile unit sent to PI MT SRPF Group No.9, Amravati and for effecting repairs as per his guidance, h) similarly the matters stated in the documents received i.e. vouchers of spare parts and report of KIT Committee (signed by four persons including Commandant of SRPF Group No.9, Amravati heading the same reveals that spare parts from MT Central Unit, Nagpur send by applicant for repairs were after verification by the Committee were found suitable, i) thus prosecution case against the applicant of commission of the alleged offences cannot be accepted as the same has been belied by said documents furnished by opponents in response to application under RT Act preferred by him, j) hence taking into consideration all the aforesaid facets it is difficult to accept that applicant can be said to have committed any 14 offence or played role as alleged by prosecution or himself being involved in the conspiracy alleged, k) such a conclusion is obvious as applicant has not played any role while repairs being effected at the said vehicles at Amravati, he was not party to the episode of spare parts which were condemned and thus merely on the basis of himself having sent mobile unit with parts upon receiving of requisition and in accordance with discussion with DIG MT Pune would be insufficient circumstance for drawing the conclusion of his involvement in commission of offences alleged by the prosecution. l) such a conclusion is inevitable as even accepting commission of such act on part of applicant the same will fall short of satisfying the ingredients of the offences alleged to have been committed by him, m) the matters from FIR itself reveals situation in which the same was filed, reasonably giving legitimate impression that in view of the occurrence of misappropriation, only for the purposes of window dressing unnecessarily police officer of higher rank has been implicated without there existing any material to show his involvement in commission of the crime. 9. Contrary to the aforesaid the learned APP prayed for dismissing the application by vehemently contending that the same lacks any merit as : i) the decision in a case of R. Kalyani .vs. Janak C. Mehta 15 and others, reported in (2009) 1 Supreme Court Cases 516, clearly reveals that the Apex Court, after considering number of decisions regarding the parameters for exercising powers under Section 482 of Code of Criminal Procedure, has laid down proposition in paragraph no. 15 therein. The examination of the case of the applicant in light of the same clearly reveals of there being no merits in his application for quashing FIR as sought, ii) the said propositions itself reveal that save and except in very exceptional circumstances Court would not look to any document relied upon by the defence for considering question of exercising the powers under Section 482, iii) the case of the applicant not falling within the caption of exceptional circumstances, the documents sought to be relied by him being by way of his defence i.e. vouchers, letters relied by him, report of KIT Committee will be required to be left out of consideration, iv) even after taking into consideration the said documents , the same also do not support contention of the applicant of himself being not connected with the commission of the offences for which FIR was registered against him or thereafter he has been charge sheeted, v) the reliance cannot be placed upon the document pointed out by the applicant for inferring non-involvement of the applicant in commission of offence for which he has been charge sheeted, on the count of relevant document being from the records of non- applicant/State as the State itself has disputed same being genuine documents by initiating the prosecution on the count of such false 16 document being prepared by the accused persons involved in commission of an offence in pursuance of conspiracy to which applicant was party, vi) thus mere existence of such a false document challenged by the prosecution would not absolve the applicant from liability nor FIR or prosecution against the applicant will be liable to be quashed on the said count, vii) the issue regarding falsity of the said document being already under examination of the Court in a prosecution lodged, until the decision about the said issue, the State was liable to furnish the copies of the said document, the matters from the same cannot be accepted as a gospel truth or as a proof as of the events to which same relates as such issue being under examination/consideration at the trial. Hence existence of such a document without matters stated therein being established cannot be made basis for absolving the applicant of the liability, viii) the settled parameters for quashing FIR or charge sheet being failure of same to reveal commission of the offences by a particular accused and such a thing cannot be accepted either for FIR or for the charge sheet, due to the matters spelt from the same, there does not survive any question of quashing the same as prayed by the applicant, ix) the FIR itself reveal of the same being based upon matters reveal during inquiry conducted by Anti Corruption Bureau, Nagpur and the said facets being not disputed or at least having remained to 17 be refuted hardly there would be any case for quashing FIR as contended by the applicant, x) the applicant/accused vide FIR/charge-sheet is alleged of commission of offence of criminal conspiracy and offences for achieving object of the said conspiracy and since it is settled position that hardly direct evidence of criminal conspiracy is available and the same is required to be inferred from the circumstances established from the material collected by the prosecution having an effect of leading to sole inference of involvement of applicant in a conspiracy of which the object was to commit the offences as alleged by the prosecution, it would be fallacious to expect existence of direct material revealing involvement of the applicant in commission of such offences and his involvement would be required to be determining by considering the circumstantial evidence collected by the prosecution, xi) the material collected by the prosecution in terms prima facie reveals that : (a) the material in the charge sheet clearly reveals the offences as contended by the prosecution being committed, (b) the applicant while sending mobile unit has sent spare parts worth of Rs.8 lacs and more without the requisition received by him containing any details about the vehicles to be repaired and/or the parts of such type, quantity and value being required for the same, (c) the self prepared letters by the