... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL REVISION APPLICATION NO.62 OF 2008 Shri Krishnanath Gopal Matodkar, son of Gopal Matodkar, occupation: Peon, Department of Agriculture, Government of Goa, resident of 383, Bhakatwadd, Chorao, Tiswadi, Goa. ... Petitioner v e r s u s S T A T E CBI, ACB/Goa, Altinho, Panaji, Goa. ... Respondent Mr. S. G. Dessai, Senior Advocate with Mr. S. Kalshavkar, Advocate for the petitioner. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. ... 2 ... CORAM: A. P. LAWANDE, J. JUDGMENT RESERVED ON: 11.11.2008. JUDGMENT PRONOUNCED ON:17.11.2008. JUDGMENT: Heard Mr. S. G. Dessai, learned Senior Counsel for the petitioner and Mr. C. A. Ferreira, learned Public Prosecutor for the respondent. Rule. By consent heard forthwith. 2. By this revision, the petitioner/accused no.4 in Special Case No.2/2007 takes exception to the order dated 11.07.2008 passed by the Special Judge, North Goa, Panaji, by which the Special Judge has directed framing of charge against the petitioner for offences under section 120-B r/w 420, 477-A of the Indian Penal Code and Section 13(2) r/w 13(1)(d) of ... 3 ... the Prevention of Corruption Act 1988. 3. The petitioner alongwith four other accused namely, Vilas Vasudev Kunkolienkar, Peter Vincent Pereira, Mrs. Viyashree V. Kunkolienkar and Romeo J. Pereira have been charge sheeted by the respondent for the above referred offences. 4. Briefly, the prosecution case is that the petitioner entered into criminal conspiracy alongwith accused no.1, 2, 3, and 5 and withdrew cash from Savings Bank Account No.3008 of accused no.2 and 5 and thus cheated Dena Bank, Arpora. It is the case of the prosecution that accused no.1/Vilas Kunkolienkar acting as the Manager of Dena Bank granted loans to his own wife accused no.3/Viyashree Kunkolienkar, accused no.2/Peter Pereira and accused no.5/Romeo Pereira without executing proper documents ... 4 ... and in pursuance to the criminal conspiracy granted loans to the extent of over Rs.95 lakhs which were never repaid by the accused no.2, 3 and 5 and pursuant to the said conspiracy, the petitioner withdrew and amount of Rs.4,10,000/-. Learned Special Judge by the impugned order has ordered framing of charge against the petitioner under the above referred sections. Aggrieved, the petitioner has filed the present revision. 4. Mr. Dessai, learned senior counsel appearing on behalf of the petitioner submitted that a valuable right accrues under section 239 of the Criminal Procedure Code to the accused to satisfy the Court that no case is made out for framing of charge against him. The learned counsel further submitted that the FIR initially filed only implicated the other accused and there was ... 5 ... absolutely no reference to any role played by the petitioner. According to the learned counsel, the petitioner being a peon in Agriculture Department, no charge could have been framed under section 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act in as much as the acts alleged against the petitioner are not in connection with the discharge of duties and there is absolutely no finding recorded by the Special Judge as to how the petitioner can be charged under the Prevention of Corruption Act. According to the learned counsel, simple withdrawal of the amounts on the basis of cheques and withdrawal slips duly signed by the accused no.2 and 5 does not establish any offence against the petitioner. According to the learned counsel, there is absolutely no material on record to establish prima facie offence under section 120-B of the Indian Penal Code. According to learned counsel, sanctioning of loans to the petitioner by ... 6 ... accused no.1 is an independent transaction and at the most it can be terms as an irregularity but at no stretch of imagination, the same can be termed as amounting to cheating the bank. According to the learned counsel, the material on record does not implicate the petitioner in any offence and therefore, there is absolutely no case for framing of charge against the petitioner. The learned counsel relied upon the same authorities, which were relied upon before the Special Judge. 5. Per contra, Mr. Ferreira, learned Public Prosecutor submitted that the material on record prima facie makes out the offences for which charge has been ordered to be framed by the learned Special Judge. Learned Public Prosecutor submitted that prima facie the role of the petitioner in the conspiracy hatched by all the accused to cheat Dena ... 7 ... Bank, Arpora is made out. Learned Public Prosecutor further submitted that though in the original FIR, no role has been attributed to the petitioner, the role played by the petitioner in the conspiracy with the other accused to cheat the bank has been unearthed during the course of investigation as is clear from the supplementary charge sheet filed by the respondent. According to the learned Public Prosecutor, the statement of the witnesses more particularly Shri Ramchandra Behere (clerk cum cashier), Milan Pednekar, (clerk), Shri Ulhas Bhivshet, (Bank Manager) and Ashrafali Zecria Sayed clearly make out the offence against the petitioner for which he has been charged. According to the learned Public Prosecutor, charge can be framed on the basis of not only the material on record but also on the basis of strong suspicion. Reliance has been placed in support of this submission, on the judgment ... 8 ... of the Apex Court in Soma Chakravarty v. State through CBI reported in (2007) 5 Supreme Court Cases 403. By placing reliance upon the judgment of the Apex Court in Onkar Nath Mishra and ors. v. State (NCT of Delhi) and another reported in (2008) 2 Supreme Court Cases 561, the learned Public Prosecutor submitted that at the stage of framing of charge, the Court is not expected to go deep into the probative value of the material on record but it has to accept the existence of factual ingredients constituting the offence alleged. In so far as the offence under section 13 (2) of the Prevention of Corruption Act is concerned learned Public Prosecutor submitted that prima facie, the material on record discloses criminal misconduct in terms of section 13 (1) (d) (i) of the Act in as much as there is material on record that the petitioner by corrupt and illegal means withdrew the amount pursuant to the ... 9 ... conspiracy entered into alongwith accused no.1, 2 and 5. According to the learned Public Prosecutor, it is necessary that a public servant should commit the offence qua his office to make out an offence under Section 13 (1) (ii) of the Act, which is punishable under Section 13 (2) of the Act. 6. I have considered the submissions made by the counsel for the petitioner and the learned Public Prosecutor and perused the record. 7. It is settled by a catena of decisions by the Apex Court that at the stage of framing of charge, the Court is not expected to go deep into the probative value of material on record and it has to find out whether a prima facie case is made out against the accused. No doubt, at the stage of framing of charge, the Court cannot act merely as a ... 10 ... Post Office or mouth piece of the prosecution, but has to consider the broad probabilities of the case, total effect of evidence and the documents produced before the Court as held in Union of India v. Prafulla Kumar Samal and anr. reported in (1979) 3 Supreme Court Cases 4. It is also well settled that charge can be framed against the accused if the Court forms an opinion that the accused might have committed the offence as as been held in Soma Chakravarty (Supra). The order passed by the Special Judge has to be tested on the touchstone of the above principles. The material placed on record clearly discloses that the petitioner knew well accused no.1, 2 and 5 for sufficient time and he withdrew the cash of Rs.4,10,000/- on the basis of withdrawal slips and cheques signed by the accused no.2 and 5 to whom the accused no.1 acting as a Manager of the bank had advanced loans without ... 11 ... executing proper documents, which loans were not repaid. This fact is borne out from the evidence of Shri Behere and Milan Pednekar whose statements have been recorded during the Course of investigation. Moreover, the records also disclose that in the year 2002, the petitioner had obtained loan without submitting any application form and security documents in the bank in connivance with accused no.1. It is also on record that while releasing the loan to accused no.4, accused no.1 had mentioned a security which did not belong to the present petitioner. Thus, the materials on record prima establish the role of the present petitioner in the conspiracy entered into alongwith the other accused to cheat the bank. I am unable to accept the submission of Mr. Dessai that it is a simple case of withdrawal of amounts on the basis of withdrawal slips and cheques duly signed by the accused no.2 and ... 12 ... 5. There is material on record to show that on several occasions, the accused no.1 asked the clerks working in the bank to make payment to the petitioner on the basis of the signed withdrawal slips and cheques even without obtaining his signature. Moreover, it is also pertinent to note that at the relevant time, the petitioner was serving as a peon in Agriculture Department, Government of Goa, Panaji. The act of the petitioner in withdrawing large sums of money from the accounts of the accused no.2 and 5 on the basis of withdrawal slips and cheques signed by them from Dena Bank, Arpora raises a strong suspicion and prima facie establishes his complicity in the commission of the offence of conspiracy and other offences under the Penal Code for which he has been charged. As stated above, at the stage of framing of charge, the probative value of the material on record cannot be gone into. ... 13 ... 8. It is also well settled that to prove the offence of conspiracy, ordinarily the prosecution can hardly lead any direct evidence since the same is hatched in secrecy and the offence of conspiracy can be established on the basis of legitimate inferences to be drawn from the facts on record. 9. In so far as the offence under Section 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act is concerned, I find merit in the submission of Mr. Ferreira that the material on record prima facie establishes that the petitioner has committed an offence under Section 13 (1) (d) (i) which is punishable under section 13 (2) of the Act. Mr. Ferreira is right in contending that to make out an offence under section 13 (1) (d) (i) of the Act, it is not necessary that a public servant must commit an ... 14 ... offence by making use of his position as a public servant. It is clear from the bare perusal of Section 13 (1) (d) (ii) that in order to make out an offence under Section 13 (1) (d) (ii), the prosecution must establish that the public servant has abused his position as a public servant which is not necessary to make out the offence under section 13 (1) (d) (i). I am therefore, unable to accept the submission of Mr. Dessai that the petitioner cannot be prosecuted for the offence under section 13 (2) of the Act. 10. As stated above, the material collected by the Investigating Agency during the course of the investigation, prima facie establishes the offence under section 120-B r/w 420 and 477-A of the Indian Penal Code and Section 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act. Therefore, the ... 15 ... impugned order passed by the Special Judge, directing framing of charge against the petitioner for the above referred offences cannot be faulted. 11. For the reasons aforesaid, I do not find any merit in the Revision Application and is hereby dismissed. Rule is discharged. There shall be no order as to costs. A. P. LAVANDE, J. lh/.