IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 Crl.Rev.Pet.No. 758 of 2008() ----------------------------- AGAINST THE ORDER IN CRMP.1026/2003 IN CC.4/2001 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... REVN. PETITIONER(S): ACCUSED ---------------------------- RAJ KUMAR, S/O.VENKITESAN, (WAS THE AUTHORISED SIGNATORY, M/S.M.V.R.EXPORTS MADRAS - BLOCK NO.B, 603, KESHAV DUGAR APARTMENT NO.1 EAST AVENUE, KESHAV PERUMALPURAM, R.A.PURAM, CHENNAI - 600 028. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS SRI.SUJESH MENON V.B. RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. VINOD B. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 758 of 2008 * * * * * * * * * * * * * * * * * * Dated: 24-11-2009 ORDER The revision petitioner (Raj Kumar) who was the sole accused in C.C. No. 4 of 2001 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, challenges the order dated 4-10-2007 passed by the Special Judge dismissing his petition for discharge. The revision petitioner who was not an accused in the F.I.R. originally registered on 9-12-1991 was the 3rd accused in the final report dated 14-6-1995. 2. The case of the prosecution can be summarised as follows:- During the period between September 1990 and 11-10- 1990 A1 (Amitabh Bhatacharya) who was the Managing Director of the Kerala State Cashew Development Corporation (KSCDC for short), A2 (Krishna Menon), Commercial Manager of KSCDC, A3 (Sivaraman Nair) Crl.R.P. No. 758 of 2008 -:2:- Internal Audit Officer of KSCDC and A4 (Bhaskara Pillai) Group Manager of KSCDC entered into a criminal conspiracy with intent to secure wrongful gain to M/s. M.V.R. Exports, Madras and wrongful loss to KSCDC and as a result of the criminal conspiracy in spite of the agreement dated 15-9-1990 for purchasing 7000 metric tons of Ivory coast and Benin origin cashew nuts of good quality, on 17-10-1990 KSCDC purchased 2760 metric tons of Nigerian cashew nuts of inferior quality for a value of Rs. 16/- per kg. without doing the cutting test to determine the quality and as a result of the said purchase of inferior quality raw cashew nuts the KSCDC incurred a loss of Rs. 20,42,045.26 being the price of the rejected nuts of 1,27,627.84 kg which was more than 10% of the quantity purchased and as a result MVR Exports obtained pecuniary advantage to the above extent and KSCDC sustained wrongful loss to an equal extent and that on 13-11-1990 by way of a sum of Rs. 54,46,640/- which was due to MVR Crl.R.P. No. 758 of 2008 -:3:- Exports being the value of cashew nuts was given on 13- 11-1990 a cheque for Rs. 54,46,640/- without deducting the loss sustained by the KSCDC and it was made to appear that the payment was made on 5-11-1990 by creating false document by the aforementioned public servants abusing their official position. The accused have thereby committed offences punishable under Sections 120B, 420, 468 and 477 A I.P.C. and an offence under Section 13 (1) (d) punishable under Sec. 13 (2) of the Prevention of Corruption Act, 1988 (P.C. Act for short). 3. Originally the Special Court took cognizance of the offences and took on file the case as C.C. No. 7 of 1995 against Krishna Menon, Bhaskara Pillai and the revision petitioner herein. Consequent on the revision petitioner making himself not available for trial, the case against him was split up and subsequently re-filed as C.C. No. 4 of 2001. In C.C. No. 7 of 1995 Krishna Menon and Bhaskara Pillai alone faced the trial. In that trial Crl.R.P. No. 758 of 2008 -:4:- altogether 29 witnesses were examined by the prosecution and 91 exhibits were marked and the Special Court, after trial, as per judgment dated 6-9-1997 acquitted both Krishna Menon and Bhaskara Pillai on the merits. 4. After the re-filing of the case as C.C. No. 4/2001 against the revision petitioner herein namely, Rajkumar, he filed Crl.M.P. No. 1026 of 2003 for discharge. The said petition was dismissed as per the impugned order. 5. I heard Advocate Sri. Raman Pillai, the learned counsel appearing for the revision petitioner and Adv. Sri. Vinod. B., the learned Public Prosecutor who defended the State. 6. The learned Public Prosecutor made the following submissions in support of the impugned order:- Eventhough it is not shown as to whether M.V.R. exports is a proprietary concern or a firm or a company the fact remains that the revision petitioner who was the authorised signatory of the said concern was Crl.R.P. No. 758 of 2008 -:5:- representing the said concern in the original agreement dated 15-9-1990 as well as in the supplementary agreement dated 13-11-1990. As per the original agreement dated 15-9-1990 M.V.R. Exports was to supply 7,000 metric tonnes of raw cashew nuts of good quality at the rate of Rs. 16.75 per kgm. with an out turn of 18.50. But 2,990 metric tonnes alone were supplied by MVR exports. At a time when the commitments under the original agreement were still alive and unexecuted, on 13-11-1990 a supplementary agreement ante-dating the date as 13-9- 1990 was executed reducing the value to Rs. 16/- from Rs. 16.75 per kgm. In fact, in the business sub-committee of KSCDC which had met in November 1990, the only decision taken was to re-negotiate the price. But not only the price was brought down but even the bank guarantee clause was deleted. It was at a time when Amithab Bhattachariaya, (A1- the Managing Director of KSCDC) had information that the quality of the goods purchased on Crl.R.P. No. 758 of 2008 -:6:- 17-10-1990 was very low that the supplementary agreement was executed ante-dating it as 13-9-1990 so as to render the purchase of poor quality of goods a fait accompli. The result was heavy loss to the KSCDC and a corresponding wrongful gain to MVR exports. The order passed by the court below does not call for any interference. 7. I am afraid that I cannot agree with the above submissions. It is pertinent to note that the revision petitioner figured in the two agreements only as the authorised signatory of MVR exports. He is only an employee of MVR exports and the persons who were at the helm of affairs of the said concern whether it is Company or partnership firm were never made as accused in the case. Even the revision petitioner was not made an accused in the FIR which was registered on 9-12-1991. It was only in the final report dated 14-6-1995 that the name of the revision petitioner figured for the first time. Even Crl.R.P. No. 758 of 2008 -:7:- there he was not described as the Managing Director but as the authorised signatory of M.V.R. Exports the legal status of which is still a mystery. Eventhough the first information report would allege that the purchase of inferior quality of raw cashew nuts of 2760 metric tonnes on 17-10-1990 resulted in pecuniary advantage to MVR Exports, nobody from M.V.R. Exports was made an accused at any point of time till the final report was filed in which also the petitioner was described as the former authorised signatory. What exactly is the status of the petitioner in M.V.R. Exports is also not explained. By the time the final report was filed, Amithab Bhattachariya , the Managing Director of KSCDC and Sivaraman Nair, the audit officer of the KSCDC who were A1 and A3 in the FIR had expired. The petitioner is sought to be roped in only by recourse to Sec. 120 B I.P.C. on the ground that he along with the other three persons hatched a criminal conspiracy. The charge against Amitab Bhattacharya and Sivaraman Nair Crl.R.P. No. 758 of 2008 -:8:- abated by reason of their death. Krishna Menon and Bhaskara Pillai who alone faced trial in C.C. No. 7 of 1995 were acquitted on merits after trial. No charge was framed against them for offences punishable under Sections 420 and 468 I.P.C. The Court below framed charge against them only for offences punishable under Sections 477 A I.P.C. and 13 (1) (d) read with Sec. 13 (2) of the P.C. Act and under Sec. 120 B I.P.C. This means that they were discharged for offences punishable under Sections 420 and 468 I.P.C. With regard to the offences for which they faced trial, the court below, after trial, acquitted them of those offences including the offence punishable under Section 120 B I.P.C. Now at this distance of time, it is legally impermissible for the Court to frame charge against Krishna Menon and Bhaskara Pillai for an offence punishable under Sec. 120 B I.P.C. If so, the petitioner also cannot be said to have entered into a criminal conspiracy with the rest of the three accused persons Crl.R.P. No. 758 of 2008 -:9:- including Krishna Menon and Bhaskara Pillai who stands acquitted of the charge of criminal conspiracy. If the criminal conspiracy is to be confined to the petitioner and Amithab Bhattacharya then the Court will have to re- construct a new case which was never put forward by the prosecution. The prosecution has no case that the revision petitioner had conspired with Amithab Bhattacharya and Sivaraman Nair alone. Under these circumstances, no useful purpose will be served by compelling the petitioner to stand trial for those offences, particularly, when the prosecution has no case as to whether it was the petitioner who ultimately encashed the cheque for Rs. 54 lakhs or that it was the petitioner who was the ultimate beneficiary of the said amount covered by the cheque dated 5-11-1990. On the contrary, the case of the prosecution is that it was M.V. R. Exports which obtained pecuniary advantage of the wrongful loss sustained by the KSCDC. In this state of affairs the possibility of a conviction against the petitioner Crl.R.P. No. 758 of 2008 -:10:- herein is very remote. Such being the position, the court below was not right in holding that the petitioner has to face the trial for which a charge is to be framed. The impugned order is accordingly set aside and Crl.M.P. No. 1026/03 filed by the revision petitioner before the court below shall stand allowed and he shall stand discharged of the offences referred to above. This Crl. Revision Petition is allowed as above. Sd/- V. RAMKUMAR, (JUDGE) ani. /true copy/ P.A to Judge