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2014 DIGILAW 2076 (BOM)

Ashok Suri v. CBI, ACB, Mumbai

2014-09-29

A.M.THIPSAY

body2014
ORDER : The applicant is the accused No. 2 in CBI Special Case No. 82 of 2010 pending before the Court of the Special Judge (CBI) for Greater Mumbai. There are three other accused in the said case i.e. one Dhananjay Kumar (accused No. 1), one Rajesh Shah (accused No. 3) and one Nitin Vyas (accused No. 4). The allegation against the applicant and the other accused is in respect of offences punishable under section 120B of the IPC and section 12 of the Prevention of Corruption Act, 1988. The applicant had made an application for discharge, but the learned Special Judge rejected the said application by an order dated 15th June, 2013. Being aggrieved by the said order, the applicant has approached this Court, invoking the inherent powers of this Court, and praying that the order dated 15th June, 2013 be set aside and the applicant be discharged from the said case. 2. The case arose on the basis of the First Information Report registered by the Superintendent of Police, CBI, ACB Mumbai on reliable information. 3. I have heard Mr. Shrikant Bhat, learned counsel for the applicant. I have heard Ms. Rebecca Gonsalves, learned counsel for the CBI respondent No. 1. I have heard the learned Addl. P.P for the State of Maharashtra. With the assistance of the learned counsel for the applicant, and the learned counsel for the CBI, I have gone through the application and the copy of the charge-sheet that is annexed thereto. I have also carefully gone through the impugned order. 4. The facts alleged in the police report are as follows : That the accused No. 1 Dhananjay Kumar and the applicant both were posted as Deputy Directors of Income Tax (Investigation) at the material time. That, in the month of September, 2006, the applicant submitted a proposal for conducting search at the office premises of M/s. Niru Impex, (a firm doing the business of dealing in diamonds) and the residential premises of the partners thereof. This proposal was approved and pursuant thereto, the search of the office premises of M/s. Niru Impex commenced at 03.50 hours on 4th October, 2006. This proposal was approved and pursuant thereto, the search of the office premises of M/s. Niru Impex commenced at 03.50 hours on 4th October, 2006. While the search was going on, one Bhagwanbhai Ramdas Patel, who was working as the delivery man with M/s. Somabhai Ramdas Angadia entered the office premises of M/s. Niru Impex at about 9.00 hours on 4th October, 2006 for delivering of three packets (containing diamonds) belonging to M/s. Niru Impex. As the search operation was going on, the Income Tax official detained the said delivery man and found total 21 packets with him, including the three which were for M/s. Niru Impex. The remaining were for other diamond merchants. The delivery man was released in the late night of 4th October, 2006 when Nitin Vyas (accused No. 4) intervened in the matter. All the 21 packets were kept under prohibitory order issued u/S.132 (3) of the Income-tax Act on 4th October, 2006 by Shri P. R. Meena, Income Tax Officer. That on 7th October, 2006, at about 04.00 hrs, an employee of M/s. Somabhai Ramdas Angadia, (hereinafter referred to as the Angadiafor short) one Rakesh Patel received a phone call that the Income Tax Officers had called the persons from the Angadia to the office of M/s. Niru Impex. Shri. Rakesh Patel informed this to Shri. Vishnubhai Patel, one of the partners of the Angadia and thereafter, Vishnu Patel, Nitin Vyas, (Accused No. 4), Rakesh Patel and Narayan Patel, also working with the Angadia went to the office of M/s. Niru Impex. Nitin Vyas and Vishnu Patel went inside the premises and met the applicant and Dhananjay Kumar (Accused No. 1) there. Dhananjay Kumar asked Vishnu Patel to convey the message to the owners of the 18 packets that they should appear before him along with documents pertaining to the said packets such as account books, the bills, purchase details etc. At that time, Shri Dhananjay Kumar wrote down the name and phone number of Rajesh Shah (accused No. 3), a Chartered Accountant, on a piece of paper, and handed over the same to Vishnu Patel/Nitin Vyas directing them to contact the said person for further instructions, in the presence of the applicant. 5. The case of the Investigating Agency is that, thereafter, the accused No. 4 Nitin Vyas contacted the accused No. 3 Rajesh Shah on telephone. 5. The case of the Investigating Agency is that, thereafter, the accused No. 4 Nitin Vyas contacted the accused No. 3 Rajesh Shah on telephone. At that time, the mobile telephone number of Rajesh Shah had been kept under technical surveillance, (in connection with some other matter) and as such, the conversations were intercepted. It transpired that Dhananjay Kumar had referred the partners of the Angadia to Rajesh Shah for conveying a demand of illegal gratification in return for the release of the 18 packets of diamonds that had been kept under the prohibitory orders. 6. The other details contained in the police report need not be mentioned here, and what needs to be mentioned is that the substance of the case of the Investigating Agency is that Dhananjay Kumar had referred the partners of the Angadia to Rajesh Shah (Accused No. 3) for the purpose of conveying a demand for illegal gratification, and that Rajesh Shah did make the demand of Rs. 50,000/- per packet (which was conveyed by saying half kg per packet). The conversations intercepted and recorded indicate Rajesh Shah informing Dhananjay Kumar about having conveyed the demand to the Angadia. 7. This is the case of the Investigating Agency. The allegation against the applicant is that he had conspired with Dhananjay Kumar and others to make a demand for illegal gratification in return for the release of the said diamond packets. 8. Mr. Srikant Bhat, learned counsel for the applicant advanced a number of contentions and attempted to create a doubt about the version of the Investigating Agency i.e. of Dhananjay Kumar having given the name and phone number of Rajesh Shah to Vishnu Patel/Nitin Vyas of the Angadia, directing them to contact Rajesh Shah for further instructions. He submitted that no chit on which number of Rajesh Shah was allegedly written by Dhananjay Kumar, was recovered in the course of investigation. From this, his contention appears to be that the story of Dhananjay Kumar giving a chit containing the name & phone number of Rajesh Kumar should not be believed. He also raised a number of contentions about the reliability of the material that has been collected in the course of investigation. However, in the view that I am taking that it is not necessary to go into those aspects and discuss all the contentions raised by Mr. Bhat, learned counsel for the applicant. He also raised a number of contentions about the reliability of the material that has been collected in the course of investigation. However, in the view that I am taking that it is not necessary to go into those aspects and discuss all the contentions raised by Mr. Bhat, learned counsel for the applicant. It is because, it appears to me that even if the material contained in the police report and accompanying documents is taken at face value and accepted as reliable, still, the accusation against the applicant, which is that he had conspired with accused No. 1 Dhananjay Kumar to make a demand for illegal gratification appears to be groundless. 9. It must be noticed that, admittedly, the delivery boy of the Angadia had entered into the office of M/s. Niru Impex by sheer chance and accident. It is nobodys case that such an entry by the delivery man with packets of diamonds was contemplated either by the applicant or the accused No. 1 Dhananjay Kumar, or any of the other Income tax Officers who were doing the search operation in the premises of M/s. Niru Impex. 10. Admittedly, the packets were kept under the prohibitory orders not by the applicant, or the said Dhananjay Kumar, but by Shri. P. R. Meena. 11. Admittedly, when the delivery boy entered the premises of M/s. Niru Impex and when 21 packets were taken charge of from him, the applicant or even the said Dhananjay Kumar, for that matter was not present in the premises. 12. It is nobodys case that the authority to return the diamond packets was with Accused No. 1 Dhananjay Kumar, or with the applicant. It is not in dispute that the packets ultimately came to be released as per the instructions of the superior of the applicant and the said Dhananjay Kumar one Shri C.S. Parthasarthy who was at the material time, working as Addl. Commissioner of Income tax. 13. Admittedly, the chit on which name of Rajesh Shah and this telephone number was written, was handed over to Nitin Vyas/Vishnu Patel of the Angadia by Accused No. 1 Dhananjay Kumar and not by the applicant. 14. Commissioner of Income tax. 13. Admittedly, the chit on which name of Rajesh Shah and this telephone number was written, was handed over to Nitin Vyas/Vishnu Patel of the Angadia by Accused No. 1 Dhananjay Kumar and not by the applicant. 14. Inspite of this, the applicant is sought to be involved in the alleged demand made and conveyed through Rajesh Shah on the basis that, that the chit in question was given by Dhananjay Kumar to partner of M/s. Somabhai Ramdas Angadia in the presence of the applicant. From this, it is contended that the demand was made not only by Dhananjay Kumar but also by the applicant. 15. Ms. Gonsalves, learned counsel for the CBI contended that such inference could legitimately be drawn from the fact that the applicant was present at the time when the chit was given to Vishnubhai Patel by Dhananjay Kumar. In view of this line of argument, the learned counsel for the applicant advanced arguments at quite some length, suggesting that the material in the charge-sheet falls short of showing that the applicant was physically by the side of Dhananjay Kumar when the chit was given by him to Vishnu Patel. He submitted that the mention of the presence of the applicant has been made only because the applicant was present in the premises of M/s. Niru Impex. It is submitted that the premises of M/s. Niru Impex were consisting of four rooms and the applicant being busy with the search operation had hardly any idle time to just be with Dhananjay Kumar. In the view that I am taking, it is not necessary to go into those contentions. The real question that requires determination is whether simply because the chit was handed over by Dhananjay Kumar in the presence of the applicant, and simply because the direction to contact Rajesh Shah was given by Dhananjay Kumar in the presence of the applicant, can the applicant be said to be a party to the act of Dhananjay Kumar? 16. The theory of the prosecution viz. 16. The theory of the prosecution viz. that the accused No. 1 Dhananjay Kumar and the applicant had entered into a conspiracy to make a demand for illegal gratification from the said Angadia as a consideration for releasing the diamond packets that were kept under the prohibitory orders, is based on the allegation that when instructions to contact Rajesh Shah (accused No. 3) (through whom the demand was to be conveyed), were given by Dhananjay Kumar (accused No. 1), the applicant was also present. Additionally, the prosecution is also relying on some tape recorded conversations (which were tapped by them in connection with some other matter). The transcripts of the recorded conversations have been included in the charge-sheet. I have been taken through these transcripts by the learned counsel for the parties. The transcripts that are relevant in the context of the involvement of the applicant in the alleged offences, are only a few of them. 17. The transcript marked as D-6 relates to conversation between accused No. 4 Nitin Vyas and accused No. 3 Rajesh Shah. In this conversation, neither Nitin Vyas nor Rajesh Shah refer to the applicant, though there are references to accused No. 1 Dhananjay Kumar. In fact, accused No. 4 Nitin Vyas is repeatedly pleading with the accused No. 3 to explain certain things to accused No. 1 Dhananjay Kumar. Not only this conversation does not implicate the applicant in any manner, but on the contrary, shows that the direction to contact Rajesh Shah was treated by the said Angadia as a direction given by Dhananjay Kumar. Undoubtedly, there is a reference to the applicant and Dhananjay Kumar both, but that is only in the initial part of the conversation where Nitin Vyas is saying to Rajesh Shah that he had met the applicant and Dhananjay Kumar both at the time of raid on M/s. Niru Impex. There is a statement by Nitin Vyas that they had given the telephone numbers of Rajesh Shah to him. The conversation is in Hindi, and the word denoting the plural expression is mUgksausa Thus, the case of the prosecution is that Nitin Vyas (Accused No. 4) was referring to the applicant and Dhananjay Kumar both, and was treating the number of Rajesh Shah as if given by both of them. The conversation is in Hindi, and the word denoting the plural expression is mUgksausa Thus, the case of the prosecution is that Nitin Vyas (Accused No. 4) was referring to the applicant and Dhananjay Kumar both, and was treating the number of Rajesh Shah as if given by both of them. In view of this, the learned counsel for the applicant submitted that the word mUgksausadoes not necessarily disclose a plural expression, and that the witness could very well be referring to Dhananjay Kumar alone. There is undoubtedly substance in this contention, as Nitin Vyas (Accused No. 4) was not expected to use the expression mlusa while referring to Dhananjay Kumar, which would have been rather uncivilised. However, the view that I am taking, it is not necessary to go deeper into the matter and arrive at any conclusion in that regard. It is because the case of the prosecution is not that the number of Rajesh Shah was given by Dhananjay Kumar and the applicant both. The case is categorical i.e. that the telephone number of Rajesh Shah was written down and was given to the person of the Angadia by Accused No. 1 Dhananjay Kumar in the presence of the applicant. Thus, presence of the applicant is what is emphasized by the prosecution for showing his involvement in the alleged offence. Even if accused No. 4 Nitin Vyas perceived the number as having been given by both of them i.e. the applicant as well as Dhananjay Kumar that is merely his perception and cannot be accepted as a fact by the Court. Even at the stage of framing of charge, the Court would be required to shift facts from opinions. At the cost of repetition, it may be observed that except this stray reference to the applicant, Accused No. 4 Nitin Vyas has not made any other reference to him and that, he had been pleading with Rajesh Shah to explain the matter to Dhananjay Kumar and to understand the problem of the Angadia. He was pleading with Rajesh Shah to talk to Dhananjay Kumar. At that time, he has not made any reference to the applicant, and has referred only to Dhananjay Kumar. 18. The transcript at D-8 relates to the conversation between Rajesh Shah (Accused No. 3) and Dhananjay Kumar (Accused No. 1). He was pleading with Rajesh Shah to talk to Dhananjay Kumar. At that time, he has not made any reference to the applicant, and has referred only to Dhananjay Kumar. 18. The transcript at D-8 relates to the conversation between Rajesh Shah (Accused No. 3) and Dhananjay Kumar (Accused No. 1). In this, Rajesh Shah informs Dhananjay Kumar that he had told (the Angadia) the rate of half kilo per packet. 19. Then, there is conversation marked as D4. This is between the applicant and Dhananjay Kumar. In this, the applicant is asking Dhananjay Kumar that the persons from the Angadia had come, and whether the material was to be delivered to them. Dhananjay Kumar is then heard saying that it should be given and the applicant is heard getting a confirmation from Dhananjay Kumar and further asking him as to whether anything in writing was required to be obtained while returning the material i.e. diamond packets. Dhananjay Kumar then gave certain directions to the applicant as to what was to be got written. 20. It is thus clear that there is no conversation between accused No. 3 Rajesh Shah and the applicant. Rajesh Shah was not asked to speak anything or explain anything to the applicant. The telephone number of Rajesh Shah was not given to the person of Angadia by the applicant, and the applicant was merely present when it was given. Rajesh Shah did not inform that the demand of illegal gratification was conveyed to the Angadia to the applicant; this he informed to Dhananjay Kumar. 21. Ms. Gonsalves contended that the very fact that Dhananjay Kumar asked the person from the Angadia to contact Rajesh Shah in the presence of the applicant and that the applicant did nothing, shows that the demand was being made in pursuance of a conspiracy between the applicant and Dhananjay Kumar. She submitted that otherwise the applicant would have objected to the action of Dhananjay Kumar. 22. It is impossible to accept such a contention. The offence of conspiracy consists of an agreement between two persons to do an illegal act. In this case, the illegal act is said to be making a demand of money for releasing the diamond packets. She submitted that otherwise the applicant would have objected to the action of Dhananjay Kumar. 22. It is impossible to accept such a contention. The offence of conspiracy consists of an agreement between two persons to do an illegal act. In this case, the illegal act is said to be making a demand of money for releasing the diamond packets. That the chit was handed over in the presence of applicant, would, at the most indicate that the applicant was aware, or ought to have been aware, of the intention of Dhananjay Kumar to demand some gratification from the Angadia in return for the release of the packets, but the silence of the applicant cannot be equated with an agreement between the applicant and Dhananjay Kumar. In the absence of any indication of such an agreement, the accusation of a conspiracy cannot be levelled against the applicant. 23. Even otherwise, while judging the aspect of conspiracy, although prima facie, the other material in the charge-sheet cannot be overlooked. That, there should be no conversation between Rajesh Shah and the applicant, that Nitin Vyas should not make any reference to the applicant, and that he should expect Rajesh Shah to plead only with Dhananjay Kumar regarding the difficulty of the Angadia, are indicative of the fact that Dhananjay Kumar was treated as the only person who was to be managed. Obviously, therefore Rajesh Shah was treated as an agent only of Dhananjay Kumar, and convincing Dhananjay Kumar was what was felt necessary by the Angadia. 24. Since that handing over of the chit by Dhananjay Kumar in the presence of the applicant shows the involvement of the applicant is contended, I have examined the contents of the FIR which came to be registered on the basis of reliable information. Interestingly, this information was to the effect that Shri Dhananjay Kumar (accused No. 1), Dy. Director (Investigation) Income Tax, Mumbai had entered into a criminal conspiracy with Rajesh Shah (accused No. 3), a Chartered Accountant and Shri Nitin Vyas (accused No. 3) to release 17 18 packets of diamonds of M/s. Somabhai Ramdas Angadia, and agreed to accept, and attempted to obtain, illegal gratification negotiated through the said Rajesh Shah and Nitin Vyas. That, the demand was of Rs. That, the demand was of Rs. 50,000/- per packet, conveyed by a code word half kilogram, and that, in pursuance of the said conspiracy, Shri Dhananjay Kumar agreed to accept and attempted to obtain bribe for the release of the packets, the possession of which had been taken by the Income Tax Officials concerned with the search, from a person working for M/s. Somabhai Ramdas Angadia, who had entered the premises of M/s. Niru Impex, when the search operation was going on, and the premises were under the prohibitory orders as contemplated under section 132(3) of the Income-tax Act. That, the acts of Dhananjay Kumar (accused No. 1), Rajesh Shah (accused No. 3) and Nitin Vyas (accused No. 4) disclosed commission of offences punishable under section 120B of the IPC, section 7 and section 12 of the Prevention of Corruption Act, 1988 (for short the P.C. Act). 25. Interestingly, on the basis of this information, nothing was suspected against the applicant, and he was not shown as an accused in the said case. The FIR has been registered on 13th June, 2007 on the basis of the information received on the very date. This relates to the incidents that have taken place sometime in October, 2006. The telephonic conversations had already been tapped about 8 months before the registration of the FIR on the basis of the information received. It is thus clear that no suspicion was entertained against the applicant at the initial stage. The question is then at what point of time, the suspicion was first entertained by the Investigating Agency against the applicant. The learned counsel for the CBI submitted that in the statement of Vishnubhai Patel recorded on 19th October, 2008, he has spoken about the presence of the applicant when the chit containing name and telephone number of Rajesh Shah (accused No. 3) was handed over by Dhananjay Kumar to Nitin Vyas. 26. In my opinion, there was hardly any justification for levelling the accusation against the applicant of his having conspired with Dhananjay Kumar. 27. To sum up, the persons of the Angadia were not directed to accused No. 3 Rajesh Shah (who was to convey the demand of illegal gratification) by the applicant. Rajesh Shah did not contact the applicant, but contacted Dhananjay Kumar. 27. To sum up, the persons of the Angadia were not directed to accused No. 3 Rajesh Shah (who was to convey the demand of illegal gratification) by the applicant. Rajesh Shah did not contact the applicant, but contacted Dhananjay Kumar. The accused No. 4 Nitin Vyas was pleading his case with Rajesh Shah and asking him to explain the matter to Dhananjay Kumar. There was no conversation between Dhananjay Kumar and the applicant suggesting that the applicant had agreed with Dhananjay Kumar that a demand of money for releasing the packets in question should be made through the accused No. 3 Rajesh Shah. Only because the chit containing the name and telephone number of Rajesh Shah is said to have been handed over by Dhananjay Kumar in the presence of the applicant, the applicant cannot be said to be a party to that act. Similarly, merely because the applicant sought confirmation from Dhananjay Kumar as to whether the packets were to be released, he cannot be said to have entered into a conspiracy with Dhananjay Kumar. Significantly, the applicant has not touched the subject of the demand, and has not made any queries as to whether the demand had been made, whether amount had been received, etc. There is no material to suggest that the demand made by Dhananjay Kumar was in pursuance of any conspiracy hatched between him and the applicant. 28. Though at the stage of framing of charge, the material in the police report and accompanying documents is to be taken at face value, it needs to be seen, even at that stage, whether by taking the material at face value, a prima facie case of an offence is disclosed against an accused. As aforesaid, agreement is the essence of the offence of conspiracy and when the material collected by the Investigating Agency in the course of investigation does not show any agreement between the applicant and the said Dhananjay Kumar, it is impossible to hold that there is a case for framing of charge against the applicant. Only on the basis of the applicants presence when the chit was handed over, and that he sought confirmation from the accused No. 1 Dhananjay Kumar that the packets in question were to be physically handed over back to the person from the Angadia, it cannot be presumed that the applicant had committed the alleged offences. Only on the basis of the applicants presence when the chit was handed over, and that he sought confirmation from the accused No. 1 Dhananjay Kumar that the packets in question were to be physically handed over back to the person from the Angadia, it cannot be presumed that the applicant had committed the alleged offences. Unless there would be a ground for presuming that the accused has committed an offence, there would be no question of framing of charge. 29. The trial court has not grasped the facts revealed by the police report and accompanying documents properly. In the first place, the trial courts observation that the 21 packets brought by the delivery boy of the Angadia, were placed under prohibitory order by the applicant and Dhananjay Kumar, is not at all correct. It is nobodys case. The packets were taken charge of on 4th October, 2006, when neither the applicant, nor Dhananjay Kumar were present in the premises of M/s. Niru Impex. The learned Special Judge further observed that the fact that the applicant did not ask Dhananjay Kumar as to why he was giving telephone number of a private person to the employee of Angadia, showed that there was something in between Dhananjay Kumar and the applicant so as to connect them with the crime. The learned Special Judge did not realize that agreement was the essence of the offence of conspiracy, and whether this would show an agreement between the applicant and Dhananjay Kumar to make a demand for illegal gratification. It was significant in this context that the entry of the delivery boy of the Angadia in the premises of M/s. Niru Impex was unforeseen and it is nobodys case that even Dhananjay Kumar had any idea about such a possibility. 30. The impugned order is not in accordance with law. The material in the charge-sheet even if taken at face value is not sufficient for presuming that the applicant has committed the alleged offences. The charge against the applicant appears to be groundless. 31. There is also an interesting aspect of the matter. Admittedly, the case was registered in respect of offences punishable under section 120B of the IPC, section 7 and section 12 of the Prevention of Corruption Act, 1988. The charge against the applicant appears to be groundless. 31. There is also an interesting aspect of the matter. Admittedly, the case was registered in respect of offences punishable under section 120B of the IPC, section 7 and section 12 of the Prevention of Corruption Act, 1988. Admittedly, cognizance of the offence punishable under section 7 of the P.C. Act cannot be taken, except without the previous sanction of the competent authority, in view of the provisions of section 19 of the P.C. Act. Admittedly, in this case, sanction under section 19 was refused by the competent authority. It is therefore, that the prosecution in respect of an offence punishable u/S.7 of the P.C. Act has been dropped, and the applicant and other accused are sought to be prosecuted on the allegation of their having committed an offence punishable u/S.12 of the P.C. Act, which according to the prosecution, does not require any sanction u/S.19. The offence punishable u/S.12 is the offence of abetting an offence punishable u/S.7 or section 11 of the P.C. Act. Even if it is accepted, that sanction u/S.19 would not be necessary for prosecuting an offender in respect of an offence punishable u/S.12 of the P.C. Act, still, an interesting question would arise as to when the offence punishable u/S.7 of the P.C. Act is alleged to have been committed by an accused, and when sanction u/S.19 of the P.C. Act is refused for the prosecution of the accused, whether the difficulty arising out of want of sanction can be overcome by prosecuting the accused only with respect to the offence punishable u/S.12 of the P.C. Act, claiming that no sanction u/S.19 with respect to the offence punishable u/S.12 is necessary. Anyway, since I have found the charge against the applicant to be groundless, I do not wish to go into this question and decide it. 32. In the result, the Application is allowed. 33. The impugned order is set aside. 34. The applicant stands discharged. 35. The learned Special Judge shall proceed further with the case in accordance with law. Application allowed.