IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 58 of 2004 1. Harish Gupta S/O Sri Satpal Gupta, R/O 407, The Mall, Ludhiana, Punjab, 2. Hukum Chand Kansal S/O Late Sri Dhani Ram R/O 407, The Mall, Ludhiana-Punjab. … Revisionists. Versus State of Uttaranchal through C.B.I. Dehradun … Respondent. Mr. L.K.Tiwari, Advocate learned counsel for the revisionists. Mr. Arvind Vashist, Advocate, learned counsel for the respondent-C.B.I. Date December 13, 2011. Hon’ble B.S.Verma, J. (Oral) This revision has been preferred against the order dated 5-2-2004 passed by the Special Judge (C.B.I.) Dehradun in CBI Case No. 03 of 2002, CBI Vs. Deepak Kumar Hazarika and others, whereby the application moved by the revisionists for discharge, wrongly transcribed under Section 245 Cr.P.C. has been rejected. Briefly stated, the facts giving rise to the present revision are that a case was registered before the Special Judge CBI on 21-11-1999 under Sections 120-B/420 of the Indian Penal Code and Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The case was investigated by Inspector J.B. Singh of C.B.I., Dehradun and the charge-sheet was submitted against the accused persons including the revisionists, namely, Deepak Kumar Hazarika, Sri Govind Chand, Sri Shiva Dutta, Sri Mohan Rao, Sri Harish Gupta and Sri H.C.Kansal on the grounds that during the course of joint surprise check-cum-weighment of wagons on 20-11-1999, which was conducted by a team of C.B.I. and Northern Railway officials jointly, a total excess of 424.8 Tonnes coal was found, which was over and above the carrying 2 capacity as well as permissible capacity of 58.8 tonnes in each wagon. According to the prosecution case, Sri Deepak Kumar Hazarika, Govind Chand, Shiva Dutta and Mohan Rao, while posted and working as Senior Goods Clerks, N.E.F. Railway, Ledo, Goods Train Deiver, N.E.F. Railway, Tinsukia, Loading Inspector, Tirap Colliery, Tirap and Weighbridge Operator, NEC, CIL, Ledo respectively entered into a criminal conspiracy with Sri Harish Gupta, Proprietor of M/s Longowalia Coal Traders, Dhandarikalan and Sri H.C. Kansal, representative of M/s Longowalia Coal Traders, Dhandarikalan to cheat the Railways and Coal India Limited by way of abusing their official capacity as public servants. The accusation against these persons is that by excess loading of coal in rakes thereby caused wrongful loss to the tune of Rs. 22,20,874/- to the Railways and corresponding wrongful gain to the said Sri Harish Gupta of M/s Longowalia Coal Traders, Dhandarikalan Ludhiana and themselves. After the cognisance was taken by the Special Judge (C.B.I.) but before framing of charge against the revisionists, who have been arrayed as accused nos. 5 and 6 in the criminal case, moved an application for their discharge in the case stating therein that the firm M/s Longowalia Coal Traders Ludhiana was informed that the coal in question was reweighed by C.B.I. officials at Laksar on 20-11-1999 and they found over-weight of 424.8 M.T. and the M/s Longowalia Coal Traders was directed to deposit a sum of Rs. 2220874/-. On receipt of the demand letter, the said firm requested the Railway Authorities to re-weigh the wagons containing the coal in question in presence of representative of the firm at the cost of M/s Longowalia Coal Traders Ludhiana but the request of the firm was declined. Then the said firm filed a writ petition bearing C.W.P.No. 5938 of 1999 in the High Court of Gauhati. The said writ petition was ultimately allowed vide order dated 29-11-1999 and directed the respondents in that petition including C.B.I. to re- 3 weigh 40 B.C.N. boxes booked from Ledo on 14-11-1999. For that purpose the revisionists also deposited Rs. 2,66,400/- on 6.12.1999. In compliance of the order passed by the Gauhati High Court, the re-weighment was made on 24-12-1999 at Laksar Junction and coal worth 109.7 tons was found in excess, for which the firm M/s Longowalia Coal Traders Ludhiana is liable to pay for the excess coal. It has also been stated that in the charge-sheet it is recorded that M/s Longowalia Coal Traders has paid the excess charges for 81.7 tons of coal and thus the difference is only of 28 M.T. and the payment of difference of 28 M.T. coal was not paid. Learned counsel for the revisionists has contended that if any liability is there, the same is of civil nature in view of the provision of Section 73 of the Railways Act and that there is nothing in the charge-sheet from which it could be inferred that the revisionists are prima facie guilty of criminal conspiracy with any of the public servants as alleged by the prosecution, therefore, the revisionists are liable to the discharged. A perusal of the record shows that after hearing the learned counsel for revisionists and C.B.I., the learned Special Judge (CBI) gave a categorical finding that even after re- weighment, 109.7 Tonnes of coal was found in excess and advance payment was made for 81.7 tonnes and thus, even then, excess coal of 28 tonnes still remains there. The trial Court has observed that it clearly shows that the contention of the C.B.I. has not been completely falsified by the second re-weighment. After the order passed by the Gauhati High Court, the charge-sheet was filed by the Investigating Officer and the charge has to be framed on the basis of evidence available in support of the charge-sheet and other evidence, which would come before the Court at that stage would be considered before framing of the charge. 4 So far as the question of conspiracy is concerned, the evidence has to be adduced by the prosecution before the trial Court, therefore, in my view the learned Judge has rightly held that at this stage, it is not a case in favour of the revisionists for their discharge. Having considered the submissions made on behalf of the revisionists and the respondent and having perused the impugned order dated 5-7-2004, I find no illegality in the impugned order, since the evidence is yet to be adduced before the Judge concerned. The revision has no merit and is liable to be dismissed outright. The revision is dismissed. (B.S.Verma, J.) RCP