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2011 DIGILAW 1063 (KAR)

Ravi S. Krishna v. State By Cbi/Acb

2011-11-02

V.JAGANNATHAN

body2011
ORDER V. JAGANNATHAN, J.—Following the application filed under Section 227 of Cr.P.C. for discharge being dismissed by the trial Court, accused No. 1 has preferred this revision petition. 2. The facts in brief necessary for the purpose of this order are that, one Kaveri Ranganathan, Additional General Manager of Aircraft Division, HAL, Bangalore, filed a complaint alleging commission of the offences punishable under Section 120B read with Section 420 of IPC and also under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and the complaint allegations in short were that this petitioner acted as an agent of the HAL and thereby was responsible for huge loss occasioned to the HAL on account of the quotations which were received from various suppliers was found, to be at higher price and the petitioner, it is alleged in the complaint, mislead the suppliers stating that he is the agent of HAL and received the quotations from the suppliers and then fabricated the quotations and finally, they were sent to HAL as if quotations were received from the suppliers themselves. 3. The request for quotations (RFQ) was for the supply of steel sheets on limited tender basis and according to the complainant, the suppliers were required to directly deal with the HAL without involving any Indian agent or representative in any form and the RFQ which were sent to the different suppliers which included M/s. Paris Saint Denis Aero, 5-BIS AV Georges Betaille, France, and the said supplier had reported that, they have received letter from M/s. Metalloys, of which the petitioner is the proprietor and the petitioner also informed the supplier to send the quotation directly to M/s. Metalloys adding 5% agency commission. On account of these acts on the part of the petitioner, it is alleged in the complaint that HAL suffered huge loss as it had paid Rs. 11,90,030.85/- to the supplier which was actually in excess of the actual cost, of material procured. It is also the complaint, allegation that A2 the former employee of the HAL had joined hands with the petitioner and thus the HAL was put to loss. The said complaint ultimately led to the filing of charge sheet against the petitioner and another for the aforementioned offences. An application filed by the petitioner for discharge came to be rejected and hence, this revision petition by him. 4. Learned Senior Counsel Sri. The said complaint ultimately led to the filing of charge sheet against the petitioner and another for the aforementioned offences. An application filed by the petitioner for discharge came to be rejected and hence, this revision petition by him. 4. Learned Senior Counsel Sri. Padmanabha Mahale for the petitioner at the outset, contended that the very document produced by the CBI along with, the charge sheet would go to show that the dispute is mainly one of civil nature and this is also very clear from the very policy that is invoked in respect of the purchase of various materials and referring to one such document, it, is argued that even as per the circulation maintained by the HAL itself, the contractual, matter between the HAL and for the foreign suppliers is purely civil in nature and any infringement would entitle civil consequences upon the foreign suppliers who breach their contractual obligations. Referring to clause 18 of the internal policy of the HAL, it is submitted that HAL has the right to terminate the contract and even can recover any commission fee paid by the foreign suppliers to any agent. In view of the aforesaid nature of the contractual obligation between the parties, the entire matter is one which could be grasped out in a civil Court, but no offence of either under the IPC or under the P.C. Act gets attracted. It is his further submission that the petitioner was not an agent of the HAL, but he was representing the foreign suppliers and there can be no impediment for a foreign supplier to have his own agent to assist the suppliers when the commission is paid by the foreign suppliers to its agent and he is nothing to do with the contractual obligation between the supplier concerned and the HAL. The trial Court, therefore, lost sight of this vital aspect, of the matter and as such, the order of the trial Court refusing to discharge the petitioner is liable to be set aside. 5. Learned Senior Counsel further argued that no offence under Section 120B of IPC can be said to be attracted and the trial Court’s reasoning that: some of the erstwhile employees of the HAL had joined M/s. Metalloys is not a factor to be considered to infer that there was conspiracy element involved in the entire transaction. 5. Learned Senior Counsel further argued that no offence under Section 120B of IPC can be said to be attracted and the trial Court’s reasoning that: some of the erstwhile employees of the HAL had joined M/s. Metalloys is not a factor to be considered to infer that there was conspiracy element involved in the entire transaction. Referring to the trial Court’s reasoning in this regard, the case to be found at para 33 of the trial Court’s order. It is, therefore, submitted that the question of the witnesses namely Mohan Rao, Nandini and Anand becoming the material witnesses with regard to offence of conspiracy between A1 and A2 does not arise. 6. Learned Senior Counsel also contended that as the petitioner is not an employee of the HAL, the question of any of the offence under the P.C. Act also being applicable to the petitioner does not arise. As far as the offence under Section 420 of IPC is concerned, referring to the nature of transaction and the petitioner being an agent of the foreign supplier and being entitled to have his own commission paid by the foreign supplier, the question of any of the ingredients of Section 420 of IPC also getting attracted will have to be ruled out. Thus, the order of the trial Court is a clear example of the non-application of mind to the very documents produced by the CB1 itself. In this connection, it was also pointed out that as per the notification issued by the Ministry of Defence engaging an agent, is not a serious lapse and, therefore, the trial Court could not. have opined that it is a matter of evidence as to whether the official memorandum issued by the Ministry of Defence would prevail over the notification issued by the HAL, Bangalore and as such, the said reasoning of the trial Court cannot be sustained in law. 7. In the light of the aforesaid submissions, learned Senior Counsel sought for setting aside the order of the trial Court and to discharge the petitioner because there is no material placed to show that any of the offences alleged are made out against. the petitioner. 7. In the light of the aforesaid submissions, learned Senior Counsel sought for setting aside the order of the trial Court and to discharge the petitioner because there is no material placed to show that any of the offences alleged are made out against. the petitioner. In the alternative, learned Senior Counsel also submitted that the matter be remanded to the trial Court to consider all the documents on which the petitioner also relies and the trial Court thereafter shall consider the matter and pass the order, 8. On the other hand, learned Counsel Sri. C.H. Jadhav for respondent-CBI at the outset pointing to the Document No. 3 forming part of the charge sheet material contended that in view of the said document rather Circular No. 14 dated 31.8.1998, there is complete ban on dealing with the Indian agents/agent of foreign suppliers and, therefore, on the date of the specific ban of engaging an agent, the question of the petitioner acting as an agent even for the foreign suppliers will not arise. As far as the notification of the Ministry of Defence, Government of India is concerned, it is submitted that there are various notifications and circulars applicable to different materials. As far as the present quotations are concerned, they relate to supply of steel sheets and the internal policy of the HAL, therefore, conies into picture which will have to be narrating the light of Document No. 3 referred to above. 9. It is then argued by learned Counsel for the respondent that the statements of the two witnesses namely Mohan Rao and Nandini would go to show that A2 while he was in service as an officer of the HAL and being incharge of the purchase department, used to visit M/s. Metalloys and discuss with the petitioner and several documents and papers of HAL used to be handed over to the petitioner and petitioner in turn used to get the quotations from the foreign suppliers and modified them and sent the said quotations to HAL by adjusting and reprogramming the fax machines in such a way that the quotations were given the impression of directly submitted by the respective foreign supplier to the HAL. Therefore, while referring to the statements of these two witnesses, it. Therefore, while referring to the statements of these two witnesses, it. is argued that, there is sufficient material against the petitioner to proceed in respect of the offences with which he has been charge sheeted. Another submission made is that the HAL was put to loss on account of the acts of the petitioner and but for the petitioner’s role in modifying the quotations by including the commission fee and raising the price quoted earlier by the foreign suppliers, HAL, in turn suffered huge loss as it deals with the several suppliers for various materials required by Aircraft division. 10. Therefore, the trial Court has considered the aforesaid aspects and has come to the conclusion that there is sufficient material to frame charge-against the accused persons and as such, the impugned order does not call for any interference. 11. In the light of the aforesaid submissions put forward, by the learned senior counsel for the petitioner and the learned counsel for the respondent-CBI, whether the order of the Court below declining to discharge the petitioner can be held to be sustainable in law is the only point for consideration. 12. Since this revision petition arises out of an order passed by the Court below on an application filed under Section 227 of the Cr.P.C., it is, therefore, necessary to keep in view the principles of law laid down by the Apex Court with regard to the scope of Section 227 of the Cr.P.C. 13. The Apex Court, in the case of Sajjan Kumar vs. Central Bureau of Investigation, reported in (2010) 3 SCC (Crl.) 1371, has culled out the principles on consideration of the authorities about the scope of Sections 227 and 228 of the Cr.P.C., which are at paragraph 21, are as under: “21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act. merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot, be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might, have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court: must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out. the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it. cannot be expected even at that initial stage to accept all that, the prosecution, states as gospel truth even if it is opposed to common sense or the board probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from, grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 14. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from, grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 14. It is, therefore, clear from the aforesaid principles laid down by the Apex Court that, at, the stage of Sections 227 and 228 of the Cr.P.C the Court is required to evaluate the material on record with a view to find out whether there exist ingredients of the offence alleged. Keeping the aforesaid principles in view, the impugned order has to be examined. 15. It is the specific submission of the learned senior counsel for the petitioner that the petitioner is an agent of foreign suppliers and he is not an agent of the H.A.L. Though the learned senior counsel referred to the relevant clauses of the circular document No. 3 to contend that the matter between the H.A.L. and its foreign suppliers is one of purely civil nature and would entail civil consequences and further, the HAL also has the right to recover the commission fee from the foreign suppliers. 16. At the same time, document No. 3 referred to by the learned counsel for the respondent which is circular No. 14 dated 31.8.1998 also mentions that there is a complete ban on dealing with Indian agents/agents of foreign suppliers and the said circular also reiterating the policy of non-involvement of Indian agents and further, there should not be contact: with Indian agents at any stage. What, therefore, remains to be examined, is as to whether which of the two circulars actually applies to the instant case. The learned trial Judge has referred to this aspect at paragraph 35 of the impugned order. As at the stage of considering the application for discharge the Court is not expected to evaluate the material in depth, the trial Court, therefore, has opined that it is a matter of evidence. 17. The learned trial Judge has referred to this aspect at paragraph 35 of the impugned order. As at the stage of considering the application for discharge the Court is not expected to evaluate the material in depth, the trial Court, therefore, has opined that it is a matter of evidence. 17. As far as the offences of conspiracy and cheating are concerned, it is the specific case of the respondent-CBI that the petitioner herein had misled the firms which the HAL had engaged and it is also the prosecution case that the petitioner is also suspected to have stage-managed the tendering procedure and it is also suspected to have fabricated the quotations received from the foreign firms and on account of all these alleged acts, the HAL is put to wrongful loss and considering the raw materials procured from the Aircraft Division to the tune of 40 to 50 crores of rupees a year, it is the case of the prosecution that the acts of the petitioner has costed HAL very dearly. 18. All these aspects can only be gone into at the stage of trial and the statements of Mohan Rao as well as Nandini, which have been placed for my perusal by the learned counsel for the C.B.I., also have been taken into consideration by the trial Court to prima facie hold that there appears to be acts of conspiracy between A-1 and A-2. Having considered the statement of Nandini, who worked with M/s. Metalloys, wherein she has stated that the petitioner herein used to meet the officials of the HAL, and the further statement of the said witness that this petitioner was submitting the quotation on the letter heads of foreign principals prepared in his office and submitting them to the H.A.L. by adjusting and reprogramming the fact machine in such a way that the quotations were given the impression of being received directly from the foreign principals by the H.A.L. and the statement of Mohan Rao also indicating that one Mr. Nanjappa, Deputy Manager, was visiting this petitioner’s office and another witness Anand also visiting the office of the petitioner’s office to handover papers, the trial Court, therefore, has opined that, at this stage, there is enough material to proceed against the accused persons. In my view, the trial Court has not committed any error in arriving at the said prima facie view at this stage. In my view, the trial Court has not committed any error in arriving at the said prima facie view at this stage. 19. As the prosecution has also produced voluminous documents in support of the charge sheet apart from citing more than 30 witnesses, the trial Court has considered the entire material to satisfy itself as to whether there are sufficient grounds to proceed with the case. Therefore, it cannot be said that the view taken by the trial Court at this stage is perverse in nature. 20. As far as the contention put forward by the learned senior counsel for the petitioner that the C.B.I. ought to have informed the C.V.C. before proceeding with the investigation is concerned, he drew my attention to the Apex Court decision in the case of Vineet Narain vs. Union of India, reported in (1998) 1 SCC 226 . It is for the Court to consider this ground as well at a later stage. However, as the impugned order does not suffer from any infirmity so as to interfere in this revision having regard to the limited scope of the revision and as the Court, is not-expected to consider the material in great detail, the order of the trial Court, therefore, does not call for any interference by this Court at this stage. 21. Though the learned senior counsel for the petitioner also made an alternate prayer for remanding the case to the trial Court for reconsideration, in my view, no case is made out for such an action on the part, of this Court as I have already held that there is no perversity of finding in the view taken, by the Court below. 22. For the aforesaid reasons, the revision petition is rejected. It is also made clear that the rejection of the revision shall not in any way influence the trial Court in considering the contentions now raised at the stage of trial on merits.