Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 2616 (RAJ)

Dinesh Kumar Bangad v. State

2011-11-29

MEENA V.GOMBER

body2011
Hon'ble Dr. GOMBER, J.—This criminal revision petition under Section 397 read with 401 of the Code of Criminal Procedure (hereinafter referred to in short as 'the Code') is directed against the order dated 10.4.2010 passed by learned Special Judge (P & S) & CBI Cases, Jaipur in criminal case no. 43/08 (11/05) whereby charges framed against the revisionist for offence under Secs.420,467, 468, 471 IPC and Sec.13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to in short as' the Act of 1988'). 2. Briefly stated the facts of the case, in so far relevant for the purpose of disposal of this revision petition, are that the revisionist, while working in the capacity of Appraiser in ICD, Jaipur during the year 1998 had entertained 44 shipping bills submitted by Delhi based firms namely M/s. Victor International Pvt. Ltd., Delhi, M/s. CMC Exims Pvt. Ltd., New Delhi, M/s. Globus Equipments Pvt. Ltd., New Delhi, for the purpose of customs clearance of the ready-made garments for export under Duty Drawback Scheme. It is alleged that he had facilitated the afore-mentioned Delhi based firms and the persons running them to claim and obtain duty drawback amount which were not due to them, thereby caused loss of revenue to the tune of Rs.6410532/-. The charge against the revisionist was that he had failed to maintain absolute integrity shown utter lack of devotion to duty and displayed a conduct unbecoming of a Govt. servant and thereby contravened Rule 3(1)(i)(ii) & (iii) of CCS (Conduct) Rules, 1964. Alongwith the revisionist, four other custom officials were also charged with the same accusation of assessing and facilitating the above mentioned five Delhi based firms in getting excess duty drawback from the Govt. against exports through their various acts of omission and commission. 3. The accusations against the revisionist as also against the other custom officials were that they, in connivance with each other had allowed export of garments by the above named firms without physical verification of the goods/garments. It was alleged that fraudulent export was made/allowed by falsely showing the rags as garment and costing Rs.500/- per piece but on account of examination by DRI and SIIB, the said items were found as old and used/imported/stitched from very old and torn out sarees, the average cost of which could not be more than Rs.30/- per piece during the relevant period. Export for total value of Rs.158275642/- was made involving therein duty drawback of Rs.2,69,02,837/-, out of which Rs.64,10,532/- was actually paid to two firms against five shipping bills in respect whereof export had been completed and the goods had reached the destination. 4. A regular departmental enquiry into the charges was held against the revisionist and also the other custom officials involved in the transaction. Alongwith the departmental enquiry against them, CBI also registered a criminal case against the revisionist for his involvement in the fraudulent export by the above mentioned firms. In the departmental enquiry held against the revisionist, he was exonerated of charges against him by the Enquiry officer vide detailed report dated 28.8.08 running into 54 pages (Annex.4 at pages 42-95 of the paper book). The report of the Enquiry Officer exonerating him of the charges was accepted by CVC/DG (Vig) and also received the concurrence of the then Finance Minister and finally by the President of India. However, administrative warning was issued to the revisionist and he was warned to be more careful in future. Relevant portion of the final report dated 4.11.09 is extracted below: 4. The report of the IO was examined in the directorate of Vigilance and with the approval of the Hon'ble Finance Minister, it was decided to accept the same and the matter was referred to CVC for 2nd stage advice. The CVC vide its advice dated 8.9.09 has observed that while no direct evidence of collusion or mala fide has been established in inquiry preponderance of probability is the test in departmental proceedings. The charged officer was aware of alleged over valuation, and its impact on admissibility and quantum of duty drawback. Hence, it was necessary that the exercised greater control in ensuring that the market enquiry was conducted scrupulously by the Inspector, especially in view of huge quantum of revenue interests of Rs.64 lacs. This rationale taken by IO in his report in respect of Shri Bangad, Appraiser, that it could at best be alleged that the CO failed to exercise supervisory control and accepted the market enquiry report of the Inspectors" has been accepted by the Commission, and hence the official cannot be completely absolved of negligence which resulted in fraudulent drawback sanction of Rs.64.10 lacs. Commission, therefore, has advised issue of Administrative Warning to Sh. D.K. Bangard, the then Appraiser. 5. Commission, therefore, has advised issue of Administrative Warning to Sh. D.K. Bangard, the then Appraiser. 5. The Competent Authority after carefully considering the facts and circumstances of the case, the findings of the IO and the advice of the CVC has concluded that ends of justice would be met if the advice of the CVC in the matter is accepted, being just and fair, and the disciplinary proceedings initiated against Sh. D.K. Gangard, the then Appraiser are dropped, with the issue of an Administrative Warning to him for negligence. 6. And therefore, the President of India hereby drops the disciplinary proceedings against Sh. D.K. Bangard, the then Appraiser, and he is warned to be more careful in future while dealing with such matters." 5. Although in departmental enquiry, the revisionist had been exonerated of charges arising out of alleged fraudulent export in question, charges were framed against him in the criminal case by the court below for offences under Sec. 420, 467, 468, 471 IPC and Sec. 13(2) read with 13(1)(d) of the Act of 1988. It is aggrieved by this order of framing of charges against him, that the revisionist has preferred the present criminal revision petition. 6. I have heard the arguments of learned counsel for both the parties and have perused the entire record to appreciate their rival arguments. 7. Sh. R.N. Mathur, learned Senior Counsel appearing on behalf of revisionist has placed reliance on two judgments of the Hon'ble Supreme Court and they are (i) Radhey Shyam Kejriwal and ors. vs. State of West Bengal-(2011)3 SCC 581; and (ii) P.S. Rajya vs. State of Bihar- (1996) 9 SCC 1 . 8. On the strength of these two judgments, learned Senior counsel has argued that if a public servant is exonerated on merits in the departmental proceedings, then he cannot be prosecuted in a criminal case on the same set of imputations. It was argued that when the department did not establish the charges against the delinquent public servant in departmental enquiry which is decided on preponderance of probability, then how the department can prove similar imputations against the public servant in a criminal trial where the burden of proof is of a much higher degree as the charges have to be proved beyond reasonable doubt. The submission of the learned Senior counsel was that the court below has completely overlooked the legal position while framing charges against the revisionist. He has prayed for setting aside of impugned order of framing of charges against the revisionist and for dropping the criminal proceedings pending against him. 9. Sh. Tej Prakash Sharma, learned counsel appearing on behalf of State/ CBI has argued that the nature of two proceedings i.e. Departmental enquiry and criminal trial though on same imputations, is distinct and both can proceed simultaneously. According to the learned counsel appearing on behalf of the State even when a public servant is exonerated of charges in the departmental enquiry, criminal trial against him on same imputations can still proceed against him. His submission was that prosecution must be given opportunity to prove its charges against delinquent public servant even after termination of departmental proceedings in favour of the delinquent public servant. It was urged that there is no error in the impugned order which requires rectification in exercise of revisional jurisdiction of this court. Learned counsel for the State has prayed for dismissal of this revision petition. 10. I have given my anxious thought to the above rival arguments advanced by the counsel for the parties but I am sorry I could not persuade myself to agree with the contentions advanced before me on behalf of the State for the reasons to follow hereinafter. 11. In P.S. Rajya's case (supra), it was held by Hon'ble Apex Court that if the charges which are identical could not be established in departmental proceedings then criminal prosecution on same charges cannot continue. In that case the appellant being a public servant was accused of possessing assets disproportionate to his known sources of income. The basis of criminal charge against him was the valuation of his house by the CBI fixed at 7,69,300/- as against the earlier valuation by the IT department at Rs.4,67,000/-. A departmental enquiry was held against the appellant in that case for his being found in possession of disproportionate assets and simultaneously a criminal proceeding for the same charge was also launched against him. In the departmental enquiry conducted by CVC, the Commissioner submitted report exonerating the appellant from all the charges. This report of the CVC exonerating the appellant of the charges was concurred by Union Public service Commission. In the departmental enquiry conducted by CVC, the Commissioner submitted report exonerating the appellant from all the charges. This report of the CVC exonerating the appellant of the charges was concurred by Union Public service Commission. The report of the UPSC was finally accepted by the President of India and the appellant thereby was exonerated of charges of possessing disproportionate assets in the departmental enquiry held against him. However, he was charged in criminal case filed by the CBI for offence under Sec.5(2) read with 5(1)(e) of the P.C. Act, 1947 notwithstanding the fact that on an identical charge he was exonerated in the departmental proceedings in the light of report submitted by CVC and concurred by UPSC. The challenge to the order of framing of charge preferred by the appellant was accepted by the Hon'ble Apex Court and it was held as under: "The standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. In the instant case the charge in the departmental proceedings and in the criminal proceedings is one and the same. If the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the values one wonders what is there further to proceed against the appellant in criminal proceedings." 12. In Radhey Shyam Kejriwal's case (supra), it was also held by Hon'ble Apex Court that where a person has been exonerated of allegations against him on merits and not on technicality then criminal prosecution, on the same set of facts and circumstances, cannot be allowed to continue against him, underlying principle being the higher standard of proof in criminal cases. 13. In State of Haryana vs. Bhajan Lal reported as 1992 Supp.(I) SCC 335, the Hon'ble Supreme Court has laid down the following guidelines in relation to quashing of FIR or a criminal complaint. (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the code except under an order of a Magistrate within the purview of S.155(2) of the code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 14. Now if we look at the facts of the present case, on the touchstone of law laid down by Hon'ble Apex Court in aforementioned cases, the only inescapable conclusion that can be drawn is in favour of dropping of criminal proceedings pending against the revisionist by setting aside the impugned order of charge. Now if we look at the facts of the present case, on the touchstone of law laid down by Hon'ble Apex Court in aforementioned cases, the only inescapable conclusion that can be drawn is in favour of dropping of criminal proceedings pending against the revisionist by setting aside the impugned order of charge. The learned counsel appearing on behalf of the State does not dispute that the department could not establish its charge against the revisionist for his aiding or assisting the business firms in getting excise duty drawbacks in the alleged fraudulent export transaction. If the department could not establish the charge against the revisionist in the departmental proceedings which are to be decided on the basis of preponderance of probabilities, then one wonders how the department could establish the same charge based on same imputation of facts in a criminal trial where the burden of proof is much higher as the charge has to be proved beyond reasonable doubt. This court is of the opinion that mere issuance of administrative warning by the department to the revisionist for lack of supervision on his part cannot be a ground for the continuance of criminal proceedings pending against him. 15. I am of the view that negligence on the part of public servant by no means can be equated with criminal intent required for prosecuting him in a criminal case. An employee may be negligent in the performance of his duty but this ipso facto does not lead to an inference of criminal bent of mind so as to constitute mens rea being one of the essential constituents to proceed against him in a criminal trial. Hence issuance of administrative warning to the revisionist for alleged lack of supervision is of no legal consequence in a criminal trial on same imputations against him. 16. No useful purpose is going to be served by continuing with the criminal proceedings which are based on the same set of imputation for which the revisionist is already exonerated with the concurrence of CVC as also the Finance Minister and finally by the President of India. 17. 16. No useful purpose is going to be served by continuing with the criminal proceedings which are based on the same set of imputation for which the revisionist is already exonerated with the concurrence of CVC as also the Finance Minister and finally by the President of India. 17. In view of the foregoing and having regard to the peculiar facts and circumstances of the case, this court is of the considered opinion that the impugned order of court below whereby charges had been framed against the revisionist is not legally sustainable and has to be set aside. Accordingly, the impugned order is hereby set aside. The revision petition is allowed but with no order as to costs.