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2008 DIGILAW 1175 (BOM)

Shaligram Parita s/o. Kanhaiyalal Parita v. Central Bureau of Investigation

2008-08-19

A.P.BHANGALE

body2008
JUDGMENT :- Rule. Heard forthwith by consent of parties. Heard Mr. A. C. Dharmadhikari, learned counsel for applicant and Mr. Shyam Ahirkar, learned Assistant 2. Applicant is accused No.2 along with one Jagdishprasad Pannalal facing prosecution for the offences punishable under Sections 120-B, 409 of the Indian Penal Code read with Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 in Special Case No.59 of 2003 before the Judge, Special Court for CBI at Nagpur. 3. The facts leading to the prosecution of applicant are that officers of respondent had taken surprise check of the Central Depot Stores of Central Public Works Department (CPWD) on 30-9-1997 in presence of certain officers of the CPWD and it was noticed that there was short supply of 746 MT of cement by M/s. Balaghat Cement Private Limited. CPWD had indented 1800 MT of cement, but the actual supply made was of 1054 MT only and by using blank consignee receipt certificate supplied by accused No.1 Jagdish Prasad, Assistant Engineer working with CPWD, payment for entire indented quantity of 1800 MT was claimed and thereby Government was put to loss of more than Rs.11 lacs in connivance with each other by both the accused. 4. Learned counsel for the applicant submits that from the FIR and other material relied upon by the prosecution, no case, muchless prima facie case, has been made out against the applicant and that the delay of three years in lodging FIR is also fatal. He further contends that FIR mentions the name of M/s. Balaghat Cement Private Limited and the name of applicant does not figure in conspiracy. He submits that there is no allegation that the applicant had caused any kind of inducement. Mr. Dharmadhikari referred to some correspondence to urge that there was dispute regarding quality of cement and transportation of goods. According to learned counsel, it could be the case of breach of contract. Learned counsel urges that the prosecution being false and it being an abuse of the process of law, entire proceedings in Special Case No.59 of 2003 including FIR and charge-sheet need to be quashed and set aside. In the alternative, he prays that applicant may be permitted to apply for discharge before the Special Court and the Special Court may be directed to hear that application for discharge. 5. In support of his submissions, Mr. In the alternative, he prays that applicant may be permitted to apply for discharge before the Special Court and the Special Court may be directed to hear that application for discharge. 5. In support of his submissions, Mr. Dharmadhikari relied upon State of J. & K. Vs. Romesh Chander & Ors. reported in (1997)1 SCC 90 , to urge that charge-sheet constitutes prima facie evidence constituting the offence for proceeding further in the matter. In the said case, the Trial Court and the High Court had discharged the accused. The Apex Court while remanding the matter to the High Court, held that the Court has necessarily to look into the relevant law and the allegations made in the' charge-sheet and then consider whether any offence has been committed so as to frame charges for the trial; before the Court may discharge the accused. Mr. Dharmadhikari also relied upon the judgment of the Apex Court in M/s. Indian Oil Corporation Vs. M/s. NEPC India Limited and Ors. reported in AIR 2006 SC 2780 , to urge that when remedy lies in civil law, to curb unnecessary harassment to innocent party like the applicant, the criminal prosecution initiated against the applicant be quashed and set aside. My attention was invited to observations of the Apex Court made in paragraph 10 of the said judgment. It is observed by the Apex Court that there is growing tendency in business circles to convert purely civil disputes into criminal cases and such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. 6. In reply, Mr. Ahirkar strenuously submitted that accused No.1 Jagdish Prasad handed over 30 blank signed consignee receipt certificates to the applicant and applicant managed to obtain payments for entire material of 1800 MT cement on the basis of those certificates. He stated that the applicant conspiring with accused No.1 has caused wrongful loss of above Rs.11 lacs to the Government. He submits that there is ample evidence to show that there was existence of element of cheating and dishonesty and this is a fit case for trial according to law. He further submits that charge has already been framed in the special case and the case is now due for fixation of trial programme. He submits that there is ample evidence to show that there was existence of element of cheating and dishonesty and this is a fit case for trial according to law. He further submits that charge has already been framed in the special case and the case is now due for fixation of trial programme. He further submits that since charge has already been framed in the special case, applicant cannot be permitted to file application for discharge before the Special Court. 7. Learned APP has pressed into service calender of evidence to be adduced before the Special court. He submitted that as many as 26 witnesses will be examined in the trial to prove goods receipt sheets, bin cards, procedure to be followed in stores, transportation of material, warehousing of the material, maintenance of documents, entries in measurement book, running bills and payments procured fraudulently by the applicant etc. He contended that application needs to be dismissed. 8. In the present case, charge also contains accusation of criminal conspiracy, punishable under Section 120-B of the Indian Penal Code. When two or more persons agree to do, or cause to be done an illegal act or act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object. It is very difficult to establish conspiracy by direct evidence as it would be necessary to establish that there was agreement between the accused fall doing unlawful act. In this case it is evident that charge has already been framed and accused have pleaded not guilty and claimed to be tried. It is required to be considered that proceedings in a criminal case (including FIR and charge" sheet) can be quashed only in a rare case. In the case at hand the applicant has not established that ex-facie no offence has been made out on a bare perusal of FIR and other material placed on record. The truthfulness or otherwise of the submissions of Mr. Dharmadhikari that remedy lies in civil law; applicant could be used as a witness and that the prosecution is false etc. cannot be gone into at this stage. The truthfulness or otherwise of the submissions of Mr. Dharmadhikari that remedy lies in civil law; applicant could be used as a witness and that the prosecution is false etc. cannot be gone into at this stage. The FIR has to be read on its face value and the allegations made therein are required to be accepted as they stand prima facie for the purpose of deciding the issue. If on a bare reading of the complaint, no offence is made out, then certainly this Court can exercise inherent jurisdiction vested in it under Section 482, Cr.P.C. and can quash the FIR at the same time, if some offence is made out on a bare perusal of the FIR, then such FIR cannot be quashed by invoking inherent jurisdiction under Section 482, Cr.P.C. The sufficiency of evidence or material cannot also be gone into at this stage. Considering the above position, I am of the view that on a bare perusal of the FIR it cannot be said that no offence is made out against the applicant and consequently, the special case in question cannot be quashed qua the applicant. Scope of interference in this case is extremely limited. Powers vested with this Court under Section 482, Cr.P.C. are extraordinary and wide and are to be exercised sparingly with great caution to prevent abuse of process of law and to secure ends of justice. In this case, considering the prima facie material collected by the prosecution, it cannot be said that accusations are groundless or that there is no sufficient ground to proceed further in the case. 9. For all these reasons, the Trial Court must be allowed to proceed further in the matter to reach logical conclusion. Application is dismissed. Record be sent back to the Special Court on priority.