<<A:^ HIGHCOURT OF CHHATTISGARH. BILASPUR ^ -I o (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha, J) W.P.(C) No. 6345 of 2007 Raj Kumar Kedia Vs. Central Bureau of Investigation & Another And (Connected matters i.e. W.P.(C) No. 6319/2007; W.P.(C) No. 6872/2007 & W.P.(C) No. 6874/2007) JUDGMENT <;... ^ Post for Judgment; ^ /04/201 1 __JI_—— Sd/- Sunil Kumar Sinha Judge F^ HIGH COURT OF CHHATTISGARH.BILASPUR (Single Bench: Hon'ble Shri Sunil Kumar Sinha. J) PETITIONER ^; W.P.(C) No. 6345 of 2007 Raj Kumar Kedia, S/o Bajrang Lal Kedia, aged about 40 years, R/o Vidya Nagar, Bilaspur, Chhattisgarh, through its Power of Attorney Holder, Shri T.P. Chandel S/o Shri C.P. Chandel, aged about 38 years, R/o Kanti Nagar, Bilaspur RESPONDENTS 1 Versus Central Bureau of Investigation, Through Superintendent of Police Jabalpur, Bhilai, District Durg (Chhattisgarh Area) South Eastern Coalfields Limited, Head Quarter, Bilaspur, Through its Chairman Cum Managing Director, SECL, Seepat Road, Bilaspur lf-L1-H ^ PETITIONER W.P.(ClNo.6319of2007 Rajendra Kumar Agarwal S/o Satyanarayan Agarwal, aged about 44 yrs., R/o Darri Road, Korba, Chhattisgarh, Through its Power of Attorney Holder Shri T.P. Chandel S/o Shir C.P. Chandel, aged about 38 yrs., R/o Kanti Nagar, Bilaspur (C.G.) RESPONDENTS 1 Versus Central Bureau of Investigation, Through Superintendent of Police Jabalpur, Bhilai, District Durg (Chhattisgarh Area) South Eastern Coalfields Limited, Head Quarter, Bilaspur, Through its Chairman Cum Managing Director, SECL, Seepat Road, Bilaspur W.P.fCT Nos. 6345/2007:6319/2007:6872/2007 & 6874/2007 PETITIONER f'-!^ RESPONDENTS 1 •^:^ W.P.(C) No. 6872 of 2007 Rekha Garg, W/o Shri Sushil Agarwal, Aged about 32 years, Through Power of Attorney Holder Sushil Kumar Agarwal S/o Shri Kishori Lal Agarwal, R/o Darri Road, Korba, Chhattisgarh Versus Central Bureau of Investigation, Through Superintendent of Police Jabalpur, Bhilai, District Durg (Chhattisgarh Area) South Eastern Coalfields Limited, Head Quarter, Bilaspur, Through its Chairman Cum Managing Director, SECL, Seepat Road, Bilaspur ^ ^ PETIT10NER And W.P.(C) No. 6874 of 2007 Mangeram Agarwal S/o Late Shri M.C. Agarwal, Aged about 85 years, R/o Korba, Through Power of Attorney Holder Mr. Sadhu Ram Agarwal, R/o T.P. Nagar,Korba, Chhattisgarh RESPONDENTS 1 Versus Central Bureau of Investigation, Through Superintendent of Police Jabalpur, Bhilai, District Durg (Chhattisgarh Area) South Eastern Coalfields Limited, Head Quarter, Bilaspur, Through its Chairman Cum Managing Director, SECL, Seepat Road, Bilaspur (Writ Petitions under Article 226 of the Constitution of India) W.P.CC') Nos. 6345/2007: 6319/2007: 6872/2007 & 6874/2007 Appearance: Mr. Surendra Singh, Sr. Advocate with Mr. B.P. Sharma & Mr. N.K. Mehta, Advocates for the petitioners. Mrs. Fouzia Mirza, Assistant Solicitor General for the CBI/ respondent No.1. Dr. N.K. Shukla, Sr. Advocate with Mr. Shailendra Shukla, Advocate forthe S.E.C.L./respondent No.2. JUDGMENT (11.04.2011) (1) The petitioners are transporters. They are accused in Case No. 3/2007 (CBI -Vs- M.C. Ghosh & others) pending in the Court of Special Judge (CBI), Raipur. They have filed these petitions for quashing of the charge-sheet No. 9 dated 28.6.2007 filed by the CBI (subject matter of the aforesaid case) in F.1.R. No. RC-4(A) 2004/CBI/JBR dated 31.3.2004. ^^ (2) The facts, briefly stated are as under:- (1) CBI has filed a charge-sheet against 35 accused persons, including thepetitioners, u/ss 120-B, 420, 471 read with 468 IPC and Section 13(1) (d) & 13 (2) ofthe Prevention of Corruption Act, 1988 (for short 'Special Act'). The matter is pending before Special Judge (CBI), Raipur. There are 3 categories of the accused persons in the charge-sheet. They are, officers and employees of the South Eastern Coalfields Limited (S.E.C.L.); contractors/transporters/vehicles owners; and authorities and staffs of the transport Department i.e. R.T.O's., A.R.T.O's. and dealing clerks etc. The allegations are that the vehicles which were deployed for coal transportation in the concerned projects of S.E.C.L., \y W.P.rci Nos. 6345/2007:6319/2007: 6872/2007 & 6874/2007 were of the carrying capacity of 25 metric tones (MT), whereas they were shown to be of the carrying capacity of 28-30 Metric Tones in their registration certificates, which were forged documents, and huge amount of excess payments were taken by the transporters/ contractors/vehicle owners on account of entry of such inflated carrying capacity in the registration certificates and other relevant documents relating to the vehicles. According to Clause 43 of the general terms and conditions of the Contract, the coal was to be loaded into Tipper(s)/truck(s) maximum upto the registered carrying capacity only and the same was to be checked on trip basis. Transportation charges for the quantity of coal loaded beyond the registered carrying capacity was not to be allowed as a penalty. The CBI received source information that the transporters, in connivance with the authorities of the R.T.O. and S.E.C.L, have submitted the registration certificates of the vehicles in which there are entries of their carrying capacity as 28-30 Metric Tones, whereas their actual carrying capacity was 25 Metric Tones, thus excess payments were taken by the transporters. This was investigated by the CBI. CBI came to the conclusion that actual carrying capadty of the vehicles deployed were 25 Metric Tones, whereas their registration certificates were issued showing them of the carrying capacity of 28-30 Metric Tones which were issued on the basis of manipulating/falsely making relevant entries in the sale certificates of the vehicles. Since it was not possible without the connivance or collusion of the accused persons and there was sufficient evidence against them, they were liable to be prosecuted under the aforementioned Sections of the IPC and the Special Act. CBI found that the employees (.'^ W.P.rci Nos. 6345/2007; 6319/2007:6872/2007 & 6874/2007 9 ,.r)(5 (II) of the S.E.C.L., by corrupt and illegal means or by otherwise abusing their official position as public servants obtained for themselvesand other persons along with the transporters, pecuniary advantage to a very high tune. It was found that the employees of S.E.C.L. entered into criminal conspiracy with the contractors and transporters and they fraudulently and dishonestly facilitated the transporters in getting payments of excess transportation charges of coalat the rate of 28-30 Metric Tones per trip per vehicle on the basis of inflated carrying capacities mentioned in their registration certificates, whereas, the actual carrying capacities of the vehicles were 25 Metric Tones. CBI found that the contractors and transporters dishonestly got prepared the forged sale letters of the vehicles showing excess carrying capacity and submitted them to the R.T.Os. and succeeded in getting RC Books from the concerned R.T.O's showing the carrying capacity of 28-30 Metric Tones. Thereafter the RC Books were submitted to the S.E.C.L. by the contractors With an ulterior motive to overcome Clause 43 of the contract and to get excess payments from S.E.C.L. CBI further found that R.T.O. officials, knowing fully well that gross capacity of 10 wheeler truck is 25 Metric Tones, got those vehicles registered showing gross capacity as 28- 30 Metric Tones. Therefore all the accused persons were liable for prosecution. On 24.9.2001 R.T.O., Bilaspur issued a memo to the vehicle owner (page 72 in W.P.(C) No. 6345/2007) that RLW 28,000 Kgs have been wrongly mentioned in registration certificates of the vehicles concerned which are in fact 25,000 Kgs, therefore, all the documents i.e. 't W,P.{C) Nos. 6345/2007:6319/2007; 6872/2007 & 6874/2007 registration certificates, permits etc. should be brought to their office for necessary corrections. This order was chaltenged by 2 vehicle owners (one petitioner herein) in W.P. No. 2486/2001. In this writ petition an interim order was passed on 8.12.2001 and it was directed that until further orders the impugned order dated 24.9.2001 shall remain stayed and the petitioners shall be allowed to run their vehicles. hlowever, this writ petition and many other connected writ petitions were dismissed in terms of order dated 6.7.2006 passed in W.P. No. 944/2006 and connected writ petitions. The writ petitions were filed on the premise that the principles of natural justice were not followed before passing the order by the concerned R.T.O., and without affording opportunity of hearing, the aforesaid order was passed. They were dismissed on the ground that it was the common case of all that the maximum gross vehicle weights fixed by the concerned Regional Transport Officers initially were in excess of the maximum gross vehicle weights specified /I by the Central Government in the'hotification issued u/s 58 (1) of the Motor Vehicles Act and if corrective measures are undertaken by the concerned Regional Transport Officers, the order cannot be interfered on the ground that the pre-decisional notices were not issued to the petitioners before maximum gross vehide weights were amended by the Regional Transport Officers in the certificates of Registration. (III) It is after all this, the CBI came to the above conclusion and filed the charge-sheet against 35 accused persons mainly on the grounds referred to above. 9 f)\J •k^.elr.,S. "v'^.sy W.P.f'Q Nos. 6345/2007: 6319/2007: 6872/2007 & 6874/2007 ^ ^ (3) Mr. Surendra Singh, learned Sr. counsel appearing on behalf of the petitioner in W.P.(C) No. 6345/2007, argued that the petitioners/purchasers/transporters are innocent. They were not knowing that the actual carrying capacity of the vehicles were 25 MTs. They believed on the sale certificates issued by the dealers to them showing the carrying capacity of 28-30 Metric Tones. Accordingly the sale certificates were produced before the concerned R.T.Os. and registration certificates were issued of 28-30 Metric Tones. It came in the knowledge of the petitioners, for the first time, on 24.9.2001 when the said order was issued by the R.T.O. Thereafter the writ petition was filed and onthe strength of the interim order dated 8.12.2001 the vehicles were being plied. Thisshows the bonafides of the petitioners. Therefore, in absence of mens rea no prima facie case is made outagainst the petitioners. ^. (4) Mr. B.P. Sharma, learned counsel appearing on behalf ofthe petitioners in 3 writ petitions, argued that the above charge-sheet is an outcome of malafides. In fact, the CBI has been instigated by the rival groups of the petitioners who are their business competitors. There is no prima facie case against the petitioners. The CBI has deliberately left many other transporters who could also be the accused persons of such offences as are alleged in this matter. He mainly relied on the judgments of State of Harvana and Others - Vs- Bhaian LaL and Others. 1992 SURR. (1) SCC 335 and Stete IE- W.P.CQ Nos. 6345/2007; 6319/2007; 6872/2007 & 6874/2007 of Madhva Pradesh -Vs- Sheetla Sahai and Others, (2QQ9) 8 SCC 617 fParas- 52 & 53). (5) Per contra, Mrs. Fouzia Mirza, learned Assistant Solicitor General appearing on behalf ofthe CBI, opposed these arguments. She argued that according to the statements of the employees of the dealers, no sale certificates were issued to the purchasers showing carrying capacity of 28-30 Metric Tones. She referred tq that part of their statementsin which they have said that the sale certificates are issued in a format in triplicate and in the 3 copy which is retained by the dealers, there is simply mention of 25 Metric Tones as carrying capacity. These office copies of the sale certificates are not tallying with the sale certificates produced for obtaining registration certificates which shows that sale certificates were forged and registration certificates of inflated carrying capacities were obtained with an intention to illegally earn the transportation charges as per inflated carrying capacities of the concerned vehicles. Apart from the oral statement of these witnesses, she also referred to the hand-writing expert's reports in this regard. (6) I have heard learned counsel for the parties at length and have also perused the records of the writ petitions. (7) In Bhajan Lal (supra), the Supreme Court held that the power \ of quashing a criminal proceeding should be exercised very W.P.fQ Nos. 6345/2007:6319/2007; 6872/2007 & 6874/2007 sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary or inherent powers do not eonfer an arbitrary jurisdiction on the court to act according to its whim or caprice. The court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made inthe FIR or the complaint. It was further held that the following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends ofjustice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: '•..ka (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the firstinformation report and other materials, if any, accompanying the FIRdo not disclose a cognizable offence, justifying an investigation by polfce officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) or the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the W.P.CQNos. 6345/2007; 6319/2007: 6872/2007 & 6874/2007 ^^' -/o ''c. '^ same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a potice officer without an order of a Magistrate as contemplated under Section 155 (2) ofthe Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (8) In Sheetla Sahai (supra), the 2 Paragraphs referred to by Mr. Sharma i.e. 52 & 53 are quoted as under- "52. In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as \ true at this stase.It is true that at this stage even a defence of an accused cannot be considered. But, ^F^^ !1 ^*2!, X.. %"•€/ ~Vt^.3.^ey' 11 W.P.CC'lNos. 6345/2007; 6319/2007; 6872/2007 & 6874/2007 we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the charge-sheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour ofthe accused. 53. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless." (9) In light of the principles laid down by the Supreme Court in above cited cases and in many other cases referred to by learned counsel for the parties during the course of arguments, let us firstly examine as to what are the materials in the charge-sheet which if accepted at their face value and entirety would make out a prima facie case against the petitioners. $^ \ (10) Mrs. Fouzia Mirza has referred to the statements of the representatives/employees of the dealers. Mr. S.S. Bisht is the General Manger of M/s Shivan Motors. He has stated about the ^SSStasSt 12 W.P.fQNos. 6345/2007: 6319/2007; 6872/2007 & 6874/2007 l^ ^ procedure of sale of vehicle. He stated that the sale letters of 26 vehicles which were shown to him were not issued by his Company, as the signature, address and gross vehicle weights appeaing on these sale letters were not tallying with the office copies of the sale letters and signature of issuing authority also was not that of any staff/employee of their concerned. He very specifically stated in the last Para of his statement as - "On being asked 1 have to say that we have got the printed sale letter Forms which bear the name and address of the company along with phone numbers, Chhattisgarh State Sales Tax & Central Sales Tax numbers etc. Other informations are written in the sale letter at the time of sale of vehicle as per the format of FORM-21 Rule 47 (A & B) of Motor Vehicle Act. Until and unless these informations are not written in the prescribed sale letter and not signed by the dealer, the printed format of sale letter available in the company does not have any value. As the sale letters of above mentioned vehicles submitted in the RTO for registration do not tally with .our records, in my view these sale letters are forged and might have prepared by some one. Further I confirm that the gross vehicle weight capacity of TATA LPK Tipper is 25 MT and the tare weight of this vehicle is about 9.5 MT". (11) Almost similar type of statements are there of Mrs. Sandhya Dixit, Mr. Paul Thomas and many other witnesses of the above category. On the statements of the above witnesses, prima facie it appears that the sale letters which were produced before /. /SSs- 13 W.P.I:C)Nos. 6345/2007:6319/2007; 6872/2007 & 6874/2007 registration authorities for obtaining registration certificates were not the sale letterswhich were, in fact, issued by the dealers as the dealers keep a triplicate copy, and contents of the triplicate copy kept in the records of the dealer were different from the contents of the sale letters produced by the purchasers for obtaining registration certificates before the registration authorities. Since the purchasers would be the beneficiary, and the documents were produced before the registration authorities from their possessions are prima facie forged documents as contended by the CBI by collecting above evidence, there was a prima facie case against the purchaser of the vehicles concerned. $ (12) Mr. Sharma has argued that according to Sheetla Sahai (supra), the entire materials on record are to be seen. He referred to the return filed by the dealer in writ petition No. 2738/2004. In Paray of the said return, the dealer has admitted that the gross weight of the vehicles in the sale certificate were wrongly mentioned and as soon as the said mistake came to the notice of the dealer, the dealer wrote a letter on 5.9.2001 that correct weight was 25000 Kgs. explaining that the mistake pointed out by the letter of R.T.O. Bilaspur dated 30.8.2000 (Annexure-P/2 in the said writ petition) had crept-in in the sale letter due to oversight. He argued that this shows that the mistake was on the part of the dealers and not that of the purchasers, particularly the petitioner of writ petition No. 2738/2004 in which the above return was filed by the dealer (respondent No.7 14 W.P.CC') Nos. 6345/2007: 6319/2007; 6872/2007 & 6874/2007 9 &;' therein). There may be the defence of a particular dealer in one of the writ petitions of that nature, but that itself would not wipe out the statement of many witnesses who were employees of the dealers at the relevant time that the sale letters produced for registration were not tallying with the triplicate copies of the sale letters which were kept by the dealers. In Sheetla Sahai (supra), the Supreme Court held in Para-54 that the prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial. This was held as above referring to the decision of Sfate of Maharashtra -Vs- Som Nath Thapa. (1996} 4 SCC 659. (13) If we apply the above principles and assume that two views are possible, one that the sale letters were forged by the purchasers and other that the sale letters were not forged by the purchaser and wrong sale letters were issued to them by dealers, on the above principles, the charge-sheet filed against the petitioners cannot be quashed. fw^. s 15 W.P.fQ Nos. 6345/2007; 6319/2007; 6872/2007 & 6874/2007 ^^ ,KS ^ (14) Mr. B.P. Sharma has also contended that the charge-sheet is a consequence of motivated, unfair, biased and malafide investigation by CBI. He argued that the CBI has maliciously acted at the instance of rival business group of the petitioners as it has left many similarly situated transporters and has taken action against the petitioners alone. Though such arguments have been advanced and pleadings are also taken to that effect, but no such materials have been brought on record on which the above contentions could be accepted. In State of Bihar and another etc. etc. -Vs- Shri P.P. Sharma and another etc. etc., AIR 1991 SC 1260, it was held that mere allegations of malafide against the informant and jnvestigating officer cannot be basis for quashing of a criminal proceedings. The incidence that the investigating officer while conducting the investigation rules out certain documents as irrelevant would not be a ground to assume that he acted malafide. Mr. Sharma has tried to rely on certain documents which though are annexures in the writ petitions, but are not the part of charge-sheet. In P.P. Sharma (supra), the Supreme Court cautioned that by treating the annexures and affidavits as evidence and by converting itself into a trial Court the High Court cannot declare the accused to be innocent and quash the proceedings. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. The petitioners have not been able to show the malafides on the basis of \ any document being part ofthe charge-sheet filed by the CBI. 1 have .^ 16 W.P/Q Nos. 6345/2007:6319/2007: 6872/2007 & 6874/2007 s' --^ '^ examined the case of the petitioners with reference to the return filed by the dealer in an earlier writ petition, but in light of the view taken in Sheetla Sahai (supra), 1 have already rejected the said contentions. 1 am ofthe viewthat there is no material in the charge- sheet to hold that the proceeding is manifestly attended with malafide or is maliciously instituted with an ulterior motive for wreaking vengeance. Mr. Sharma has contended that other similarly situated transporters have been left by the CBI. If that is so, it may be a ground for the CBI to investigate the matter against them, but that cannot be a ground for quashing acharge-sheetagainst the persons for whom sufficient independent material has been collected during the course of investigation. This also cannot be taken as a ground to show that the charge-sheet and investigation was