Case: Ajoy Acharya Vs. State Bureau Of Inv.Against Eco.Offence

process in the meeting of the Cabinet Review Committee dated 28.1.1994, as also, the resolution of the Board of Directors of the MPSIDC dated 31.1.1994. The charge against the appellant is based on the fact, that the appellant allowed the Board of Directors of the MPSIDC to pass the resolution dated 19.4.1995, inspite of the earlier decisions at the hands of the Cabinet Review Committee (in meeting dated 18.1.1994) and the consequential resolution of the Board of Directors (dated 31.1.1994). We, therefore, reject the submission advanced at the hands of the learned counsel for the appellant based on Section 141 of the NI Act. All the same, it would be relevant to notice, that the second proviso under Section 141(1) of the N.I. Act is inapplicable to the facts of this case, because the appellant was not nominated as a Director of the MPSIDC on account of holding the office of Industries Commissioner, Government of Madhya Pradesh. The appellants appointment as nominee Director of the MPSIDC was based on the determination of the Governor of Madhya Pradesh under clause 89 of the Memorandum and Articles of Association of the MPSIDC. If the factual position alleged against the appellant is correct, the culpability of the appellant would emerge from sub-Section (2) of Section 141 of the N.I. Act. The instant inference is inevitable, because it is not disputed on behalf of the appellant, that he had actually participated in the Cabinet Review Meeting dated 28.1.1984, as well as, in the meetings of the Board of Directors leading to the passing of the resolutions dated 31.1.1994 and 19.4.1995. In the facts of the present case, the accusation implicating the appellant, is directly attributable to the appellant, as nominee Director of the MPSIDC. The aforesaid inference has been drawn by us, to negate the submission of the learned counsel for the appellant based on Section 141 of the N.I. Act. In our view, the instant issue does not arise for adjudication in the present controversy in view of the conclusions already drawn hereinabove, that the culpability of the appellant, lies in the mischief of passing the resolution dated 19.4.1995. The implementation of the said resolution is the consequential effect of the said mischief. 20. For the last contention advanced on behalf of the appellant, learned counsel placed reliance on a decision rendered by this Court in C.K. Jaffer Sharief vs. State (through CBI), (2013) 1 SCC 205. Our pointed attention was drawn to the following observations recorded therein:- 17. It has already been noticed that the appellant besides working as the Minister of Railways was the Head of the two public sector undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under Section 161 Cr.P.C. show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the appellant as a public servant can arise. As a Minister it was for the appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC 1116 while considering the provisions of Section 5 of Act of 1947. (emphasis is ours) Based on the aforesaid determination, it was the contention of the learned counsel for the appellant, that the allegations levelled against the appellant do not lead to the inference, that the appellant had adopted corrupt or illegal means, or had abused his position as a public servant to obtain any valuable thing or pecuniary advantage, either for himself or for the industries to whom the MPSIDC extended short term loans (including ICDs). We are of the view, that the last contention advanced at the hands of the learned counsel for the appellant is a mixed question of fact and law. Determination of the instant issue would be possible only after the rival parties have adduced evidence to establish their respective claims. At the said juncture, it would be possible to record factual conclusions. It would then be possible for the concerned Court(s) to draw inferences on the basis of the established factual position, whether the accused is guilty of the accusation levelled against him. Therefore, it is neither proper nor possible for us to deal with the last contention advanced at the hands of the learned counsel for the appellant, at the present juncture. 21. No further contention was advanced at the hands of the learned counsel for the appellant. 22. For the reasons recorded hereinabove,

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We are of the view, that the appellants reliance on Section 141 of the NI Act, as also, the judgment rendered by this Court in National Small Industries Corporation Ltd. (supra), is misconceived. The appellant is not being blamed for the implementation of the resolution of the Board of Directors of the MPSIDC dated 19.4.1995. The appellant is being blamed for having allowed the aforesaid resolution dated 19.4.1995 to be passed despite the earlier decision taken in the Cabinet Review Meeting held on 28.1.1994, as also, the earlier resolution of the Board of Directors of the MPSIDC dated 31.1.1994. It is not a matter of dispute before us, that the appellant had participated in the decision making process in the meeting of the Cabinet Review Committee dated 28.1.1994, as also, the resolution of the Board of Directors of the MPSIDC dated 31.1.1994. The charge against the appellant is based on the fact, that the appellant allowed the Board of Directors of the MPSIDC to pass the resolution dated 19.4.1995, inspite of the earlier decisions at the hands of the Cabinet Review Committee (in meeting dated 18.1.1994) and the consequential resolution of the Board of Directors (dated 31.1.1994). We, therefore, reject the submission advanced at the hands of the learned counsel for the appellant based on Section 141 of the NI Act. All the same, it would be relevant to notice, that the second proviso under Section 141(1) of the N.I. Act is inapplicable to the facts of this case, because the appellant was not nominated as a Director of the MPSIDC on account of holding the office of Industries Commissioner, Government of Madhya Pradesh. The appellants appointment as nominee Director of the MPSIDC was based on the determination of the Governor of Madhya Pradesh under clause 89 of the Memorandum and Articles of Association of the MPSIDC. If the factual position alleged against the appellant is correct, the culpability of the appellant would emerge from sub-Section (2) of Section 141 of the N.I. Act. The instant inference is inevitable, because it is not disputed on behalf of the appellant, that he had actually participated in the Cabinet Review Meeting dated 28.1.1984, as well as, in the meetings of the Board of Directors leading to the passing of the resolutions dated 31.1.1994 and 19.4.1995. In the facts of the present case, the accusation implicating the appellant, is directly attributable to the appellant, as nominee Director of the MPSIDC. The aforesaid inference has been drawn by us, to negate the submission of the learned counsel for the appellant based on Section 141 of the N.I. Act. In our view, the instant issue does not arise for adjudication in the present controversy in view of the conclusions already drawn hereinabove, that the culpability of the appellant, lies in the mischief of passing the resolution dated 19.4.1995. The implementation of the said resolution is the consequential effect of the said mischiefIn the facts and circumstances of this case, we are of the view, that answer to the instant question has also to be in the negative. Our aforesaid determination is based on the fact that the appellant remained a nominee Director of the MPSIDC from 1993 to 1998. The first charge sheet in the matter was filed on 24.9.2007. Well before the filing of the first charge sheet, the appellant had relinquished charge of the office which he is alleged to have abused/misused (i.e. the office of nominee Director of the MPSIDC). In the above view of the matter, since the appellant was not holding the public office which he is alleged to have abused, when the first charge sheet was filed, in terms of the law declared by this Court (referred to in the judgments extracted in paragraph 13 above), there was no need to obtain any sanction before proceeding to prosecute the appellant, for the offences alleged against him16. It would be relevant to mention, that during the course of hearing learned counsel for the appellant placed emphatic reliance on the judgment rendered by this Court in State of Madhya Pradesh vs. Sheetla Sahai & Ors., (2009) 8 SCC 617. It is not necessary for us to refer either to the factual position in the judgment relied upon, or even the conclusions recorded thereon. We say so because, the issues canvassed and determined in the aforesaid judgments were not the ones on the basis whereof we have recorded our conclusions, in the foregoing paragraphs. It is sufficient for us to note, that the judgment rendered by this Court in State of Madhya Pradesh vs. Sheetla Sahai & Ors. (supra), does not carve out any exception, to the two propositions relied upon for the conclusions drawn by us, from the judgments referred to in paragraph 13 aboveIt was the vehement contention of the learned counsel for the appellant, that sanction to prosecute anotherd similarly situated as the appellant, having been obtained, it was not permissible to treat the appellant differently. We find no substance in the second contention advanced at the hands of the learned counsel for the appellant. Having concluded on the basis of the law declared by this Court, that prior sanction for prosecuting the appellant was unessential, it is futile to suggest that sanction ought to have been obtained all the same. The instant submission needs no further consideration in view of the deliberations recorded by us hereinabove. Parity in law can be claimed only in respect of action rightfully executed. And not otherwise. Having concluded that sanction was not required in the case of the appellant, it is not possible for us to accept on the analogy of the submission advanced at the hands of the learned counsel for the appellant, that merely because sanction was obtained in respect of another, it needed to have been obtained in the appellants case as well19. We have given our thoughtful consideration to the contention advanced at the hands of the learned counsel for the appellant, as has been noticed in the foregoing paragraph.We are of the view, that the appellants reliance on Section 141 of the NI Act, as also, the judgment rendered by this Court in National Small Industries Corporation Ltd. (supra), is misconceived. The appellant is not being blamed for the implementation of the resolution of the Board of Directors of the MPSIDC dated 19.4.1995. The appellant is being blamed for having allowed the aforesaid resolution dated 19.4.1995 to be passed despite the earlier decision taken in the Cabinet Review Meeting held on 28.1.1994, as also, the earlier resolution of the Board of Directors of the MPSIDC dated 31.1.1994. It is not a matter of dispute before us, that the appellant had participated in the decision making process in the meeting of the Cabinet Review Committee dated 28.1.1994, as also, the resolution of the Board of Directors of the MPSIDC dated 31.1.1994. The charge against the appellant is based on the fact, that the appellant allowed the Board of Directors of the MPSIDC to pass the resolution dated 19.4.1995, inspite of the earlier decisions at the hands of the Cabinet Review Committee (in meeting dated 18.1.1994) and the consequential resolution of the Board of Directors (dated 31.1.1994). We, therefore, reject the submission advanced at the hands of the learned counsel for the appellant based on Section 141 of the NI Act. All the same, it would be relevant to notice, that the second proviso under Section 141(1) of the N.I. Act is inapplicable to the facts of this case, because the appellant was not nominated as a Director of the MPSIDC on account of holding the office of Industries Commissioner, Government of Madhya Pradesh. The appellants appointment as nominee Director of the MPSIDC was based on the determination of the Governor of Madhya Pradesh under clause 89 of the Memorandum and Articles of Association of the MPSIDC. If the factual position alleged against the appellant is correct, the culpability of the appellant would emerge fromn (2) of Section 141 of the N.I. Act. The instant inference is inevitable, because it is not disputed on behalf of the appellant, that he had actually participated in the Cabinet Review Meeting dated 28.1.1984, as well as, in the meetings of the Board of Directors leading to the passing of the resolutions dated 31.1.1994 and 19.4.1995. In the facts of the present case, the accusation implicating the appellant, is directly attributable to the appellant, as nominee Director of the MPSIDC. The aforesaid inference has been drawn by us, to negate the submission of the learned counsel for the appellant based on Section 141 of the N.I. Act. In our view, the instant issue does not arise for adjudication in the present controversy in view of the conclusions already drawn hereinabove, that the culpability of the appellant, lies in the mischief of passing the resolution dated 19.4.1995. The implementation of the said resolution is the consequential effect of the said mischiefWe are of the view, that the last contention advanced at the hands of the learned counsel for the appellant is a mixed question of fact and law. Determination of the instant issue would be possible only after the rival parties have adduced evidence to establish their respective claims. At the said juncture, it would be possible to record factual conclusions. It would then be possible for the concerned Court(s) to draw inferences on the basis of the established factual position, whether the accused is guilty of the accusation levelled against him. Therefore, it is neither proper nor possible for us to deal with the last contention advanced at the hands of the learned counsel for the appellant, at the present juncture21. No further contention was advanced at the hands of the learned counsel for the appellant.