Judgment : This Criminal Revision Case is filed by the Central Bureau of Investigation against the order dated 30.4.2013 passed by the learned II Additional District Judge (CBI Cases) Coimbatore in Crl.MP.No.1152/2011 in CC.No.9/2011, discharging the Respondent/A5 from the charges levelled against him and to order framing of charges against the Respondent/ Accused. 2. The Respondent herein was employed as a Manager in the Debt Recovery Department of M/s.Global Trading Finance Limited (herein after referred to as M/s.GTFL), a Public Limited non banking financial Company. The said M/s.GTFL advanced a factoring facility of Rs.14.50 crores to A4 Company i.e. M/s.Kundrakudi Kandha Spinning Mills P Limited (herein after referred to as M/s.KKSMPL/A4 Company), in which, the A2 and A3 are the Managing Director and Director respectively. 3. As per the factoring facility of loan, the creditor borrower avails factoring facility of loan from the non banking financial Company at the discounted rate from the credit invoices raised against its debtors. The debtors, who are indebted to the creditor borrower, shall repay the credit invoice value to the non banking financial Company. The primary liability of repayment rests upon the debtors. The non banking Company which advanced the factoring facility may take recourse against the borrower creditor Company as well. 4. A criminal case was registered against A1 S.Arivarasu, the then Vice President and Branch Head, M/s.SBI Global Limited, Coimbatore Branch, A2 P.Venkatachalapathy, Managing Director and A3 Director of M/s.KKSMPL/A4 Company and others under Sections 120B read with 420, 467, 468 and 47 of IPC and Section 13(2) read with 13(1)&(d) of the Prevention of Corruption Act on the written complaint made by B.Surendran, Vice President Branch Head M/s.SBI Global Factors Limited, Coimbatore, regarding fraudulent transactions in the Trade Finance Account of A4 Company (presently known as Kandha Spinning Mills) held at M/s.SBI Global Factors Limited (previously known as M/s.Global Trade Finance Limited) Coimbatore Branch. 5. After investigation, charge sheet was filed against the Respondent herein, who was arrayed as A5 and others for the offences as stated above. As per the Prosecution case, M/s.KKSMPL/A4 represented by its Managing Director A2 had availed factoring facility of Rs.15 crores from M/s.GTFL, Mumbai. The accused had entered into a criminal conspiracy with S.Arivarasu (A1) the then Business Development Manager of M/s.GTFL, Coimbatore in availing factoring facility of Rs.15 crores from M/s.GTFL. As per the Prosecution case, M/s.KKSMPL/A4 represented by its Managing Director A2 had availed factoring facility of Rs.15 crores from M/s.GTFL, Mumbai. The accused had entered into a criminal conspiracy with S.Arivarasu (A1) the then Business Development Manager of M/s.GTFL, Coimbatore in availing factoring facility of Rs.15 crores from M/s.GTFL. M/s.KKSMPL/A4 has defaulted in making repayment of Rs.17.36 crores thereby caused wrongful loss to M/s.GTFL, Mumbai and obtained corresponding wrongful gain for themselves. It is the case of the Prosecution that the accused persons were parties to the criminal conspiracy hatched at Coimbatore to cheat M/s.GTFL for obtaining pecuniary advantage in favour of A4 Company. 6. The Respondent (A5) herein was the Manager (Debt Recovery) at M/s.GTFL from 19.6.2006 to 12.10.2009. He was responsible for recovering debts in respect of A4 Company. There were instances of cheque bounces in respect of A4 Company and its debtors units and the same was informed to him by the Operation Department of M/s.GTFL, Mumbai. For the purpose of effecting the recovery, he had visited the corporate Office of A4 Company and the offices of M/s.Tirupthi Fabrics and five other debtors located at Udumalpet. A5 was aware that A4 Company and the six debtors firms were not in existence and no business activity was going on. He had concealed this fact and did not submit a report regarding the non existence of M/s.KKSMPL/A4 and six debtors firms. 7. According to the Prosecution, he had received Rs.37.38 lakhs as illegal gratification from A4 Company and others through the accounts of his parents viz. D.S.Ahluwalia (A10) and Jasbir Ahluwalia held at ICICI Bank at Nagpur. He has not intimated to his controlling authorities in M/s.SBI GFL (erstwhile GFL) or to the Income Tax Department about the above said credits received by him. 8. It is the Prosecution case that the Respondent/A5 has failed to recover the debts and connived with the borrowers by not effecting the recovery and also concealed the facts that A4 Company and the debtors firms are all non existent. Further, he has obtained illegal gratification from the borrowers and the same was transferred to the account of his parents, namely, Jasbeer Ahluwalia and D.S.Ahluwalia/A10. 9. Mr.N.Chandrasekaran, the learned Special Public Prosecutor for the petitioner contended that the learned Special Judge has failed to appreciate the facts, circumstances and the materials available on record properly. Further, he has obtained illegal gratification from the borrowers and the same was transferred to the account of his parents, namely, Jasbeer Ahluwalia and D.S.Ahluwalia/A10. 9. Mr.N.Chandrasekaran, the learned Special Public Prosecutor for the petitioner contended that the learned Special Judge has failed to appreciate the facts, circumstances and the materials available on record properly. The learned Special Public Prosecutor, referring to the decision of the Honourable Supreme Court reported in AIR-1972-SC-2639 (Nirmaljit Singh Hoon vs. State of WB), contended that at the time of framing of charge, the probative value of the material on record cannot be gone into and the material brought on record has to be accepted as true and on the basis of such material, the court could form an opinion that the accused might have committed the offence and it has to frame the charge though for conviction, the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. 10. The learned Special Public Prosecutor also relied upon yet another decision of the Honourable Supreme Court reported in AIR-1977-SC2018 (State of Bihar Vs. Ramesh Singh) to stress his submission that at the initial stage, if there is a strong suspicion, which leads the court to think that there is a ground for presuming that the accused has committed the offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The learned Special Public Prosecutor urged that the materials placed on record are sufficient to conclude that the Respondent/A5 has deliberately failed to report the non existence of debtors units at Udumalpet to the Competent Authority and he has concealed this information for consideration of illegal gratification of an amount of Rs.37.38 lakhs, which was received through the accounts of his parents held at ICICI Bank Limited at Nagpur. Therefore, he would submit that the order passed by the learned Special Judge, Coimbatore is unsustainable and liable to be set aside. 11. On the other hand, Mr.K.K.Sivashanmugam, the learned counsel for the Respondent supported the impugned order and submitted that Trial Court, after looking into material and documents that were made available at the stage of framing charges, on their face value concluded that charges could not be framed against Respondent/A5 and consequently, discharged him and there is no valid reason to upset the impugned order. The learned senior counsel submitted that the evidence collected do not disclose the commission of any offence and make out a case against the Respondent/ A5 and therefore, the order of discharge passed by the Trial Court cannot be interfered with. 12. This court heard the submissions made by the learned counsel on either side and also perused the materials placed on record. 13. Before I advert to the correctness of the impugned order, the law laid down by the Honourable Supreme Court in regard to the duty cast upon the court when it is called upon to consider whether a charge should be framed or not should be looked into. In the oft quoted decision of the Honourable Supreme Court reported in AIR-1986-SC-2045 (R.S.Nayak Vs. AR.Antulay), it has been held that at that stage the court has to address itself is whether the evidence led on behalf of the Prosecution is such that if unrebutted it would justify the conviction of the accused and the court has, therefore, to examine the evidence as its stands without rebuttal and come to a conclusion whether on the basis of such evidence the court would convict the accused. 14. In State of Karnataka Vs. L.Munisamy (AIR-1977-SC-1489), it has been held that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties, the court comes to the conclusion for reasons to be recorded that there is no sufficient grounds for proceeding against the accused. The object of the provisions which requires the Judge to record his reasons is to enable the superior courts to examine the correctness of the reasons, for which the Trial Court has held that there is no sufficient ground for proceeding against the accused. The High Court, therefore, is entitled to go into the reasons given by the Trial Court in support of its order and to determine for itself whether the order is justified by the facts and circumstances of the case. 15. The High Court, therefore, is entitled to go into the reasons given by the Trial Court in support of its order and to determine for itself whether the order is justified by the facts and circumstances of the case. 15. It is settled law by a catena of decisions by the Honourable Supreme Court, two of which are cited by the learned Special Public Prosecutor cited supra in the course of his arguments that at the time of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. 16. At this juncture, it is relevant to quote yet another decision of the Honourable Supreme Court reported in 2010-Crl.LJ-1427-SC (P.Vijayan Vs. State of Kerala) wherein it is held as follows:- “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. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the Prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the Prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cos of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 17. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 17. Keeping in mind the principles laid down by the Honourable Supreme Court in the aforementioned decision, while considering the application for discharge, complicity of accused person is required to be taken into consideration for the purpose of determining the application for discharge upon taking a realistic view of the matter. Therefore, it is for the court to go into details of allegations made against the accused so as to form an opinion as to whether any case at all is made out as a strong suspicion in regard thereto shall subserve the requirements of law. At the same time, the mere suspicion of motive on surmises cannot serve as a sufficient ground for framing the charges in the absence of any material, prima facie, showing that the particular motive has passed into action and that the accused is connected with that action. 18. It is seen from paragraph 2 of the charge sheet that A2 has submitted the required documents on 25.02.2008 seeking trade finance of factoring facility from M/s.GTFL. It is further seen in paragraph 4 of the charge sheet that the Managing Director's Risk Committee (MDRC) sanctioned the loan on 18.3.2008. Paragraph 7 of the charge sheet shows that the funds of Rs.14.75 crores were released by M/s.GTFL from 28.3.2008 to 31.03.2008, based on the invoices raised by M/s.KKSMPL (A4) and accepted by six debtors firms. As per the version of the Prosecution, which is found in paragraph 3 of the charge sheet, all the six debtors firms were created on 20.02.2008 and 21.02.2008 by Manoharan and Senthil Kumar arrayed as A3 and A7 respectively and hence, according to the Prosecution, they were not existing as on the date of recommending the proposal. 19. Admittedly, the whole loan process was transacted between M/s.GTFL and the borrower Company, namely, M/s.KKSMPL (A4) between the period from 25.02.2008 to 31.03.2008. The Respondent (A5) has no role to play as he neither recommended the proposal of loan of M/s.KKSMPL (A4) nor he is the member of the Managing Director's Risk Committee which sanctioned the loan. 19. Admittedly, the whole loan process was transacted between M/s.GTFL and the borrower Company, namely, M/s.KKSMPL (A4) between the period from 25.02.2008 to 31.03.2008. The Respondent (A5) has no role to play as he neither recommended the proposal of loan of M/s.KKSMPL (A4) nor he is the member of the Managing Director's Risk Committee which sanctioned the loan. The main circumstance, on the basis of which the Prosecution sought to establish the offence of conspiracy is that the Respondent/A5 was fully aware of the fact that M/s.KKSMPL (A4) and its debtors were non existing and he chose to conceal the same to his higher authorities. There is no allegation about his involvement in getting the loan amount fraudulently from M/s.GTFL. If there is any fraud perpetrated by the borrower Company during the time of loan transaction, the Respondent cannot be blamed for it. There is no material on record on the basis of which any court could reasonably come to the conclusion that the Respondent/A5 was in any manner connected with the loan transaction between M/s.GTFL and the borrowing Company. For a conspiracy to be hatched there must be some foundation of gain or purpose. In this case, there is no evidence to establish prima facie participation of the accused in conspiracy or any material to indicate his involvement in the transaction along with the other accused persons. Therefore, the charges under Section 120B read with 420, 467, 468 and 47 of IPC cannot stand to trial. On a careful scrutiny of the charge sheet, it is seen that the charge of criminal misconduct is made on the conclusion of the investigating agency on the basis of the documents collected and statements recorded during the course of investigation. There is no documents or statements on record in support of the allegation of concealment of non existence of M/s.KKSMPL (A4) and its debtors firms by the Respondent/A5 either from the defacto complainant or from the higher official of M/s.GTFL. On the other hand, the Investigating Officer has stated in paragraph 3 of the charge sheet that all the seven debtors firms were not existing as on the date of recommendation of loan proposal. Therefore, it is clear that the non existence of the debtors firms were known to the higher authorities of M/s.GTFL at the initial stage of advancement of loan. Therefore, it is clear that the non existence of the debtors firms were known to the higher authorities of M/s.GTFL at the initial stage of advancement of loan. It is not the case of the Prosecution that it was unearthed by A5 and he had concealed the said fact to his higher authorities. There is also no material to indicate that A5 was instructed by his higher officials to find about the non existence of the debtors firms. 20. M/s.KKSMPL (A4) is a private Limited Company and other debtors firms are not legal entities and they are partnership firm and the proprietorship concern. There is no document to show that M/s.KKSMPL (A4) was wound up. The individuals behind the partnership firm and the proprietorship concern cannot be said to be non existence unless they are dead or by the dissolution of the partnership firm. Under these circumstances, the allegation of non existence of M/s.KKSMPL (A4) and the debtor firms, when it appears even from the charge sheet that it has been created on 20.2.2008 and 21.2.2008 is not supported by any document or material. 21. In this context, the statement of LW.61 assumes significant. LW.61, Sunil K.Bandekar, who was working under the Respondent/A5 has clearly stated that it is his job to follow up with the client and debtors account, sending them the reminders for payment by email and phone. His statement clearly indicated that the bounced cheques from the debtors were handed over by his Department to the Legal Department to initiate further action under Section 138 of the Negotiable Instrument Act before the appropriate court. It also shows that pursuant to the instructions given by the Debt Recovery Department, the Legal Department has filed private complaints against M/s.KKSMPL (A4) and its debtor firms under Section 138 of the Negotiable Instruments Act before the 12th Metropolitan Magistrate, Mumbai and the same is produced as Document NO.5 in the index of typed set filed by the Respondent. It is not the case of the Prosecution that they were non functional but their case is that they were non existent. Therefore, the very allegation that M/s.KKSMPL (A4) and its debtors firm are non existent is not substantiated and it is contradictory to the documents produced and the statement of the witnesses. 22. The two irregularities mainly relied upon by the Prosecution, as already mentioned, viz. Therefore, the very allegation that M/s.KKSMPL (A4) and its debtors firm are non existent is not substantiated and it is contradictory to the documents produced and the statement of the witnesses. 22. The two irregularities mainly relied upon by the Prosecution, as already mentioned, viz. the Respondent/A5 has concealed the non existence of M/s.KKSMPL (A4) Company and its debtor firms to his higher authorities and he has concealed the said fact and received monetary benefits from the said accused persons through his parents. 23. It is the case of the Prosecution that these two cases would bring the accused within the mischief under Section 13(1)(a)and(d) of the Prevention of Corruption Act. Section 13 makes criminal misconduct an offence if there is habitual acceptance etc. of illegal gratification or any valuable thing in the circumstance stated in clause (a) and (b), but sub section (1) of Section 13 makes even a single instance punishable as is provided in clause (c) which deals with misappropriation of property entrusted to a public servant. It is relevant at this juncture to quote certain decisions of the Honourable Supreme Court, in which the question of proof of an offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947 (now 13(1)(d)) has been considered in detail. 24. In Union of India Vs. Maj.I.C.Lala (AIR-1973-SC-2204), the accused officers were staff officers at the Head Quarters, Chief Engineer at Tejpur. One of their duties was to ensure supplies of goods as motor spare parts for military vehicles. It was alleged that along with the employees of M/s.Manick Motor Works, they entered into a conspiracy to commit criminal misconduct by manipulating supply orders and thereby obtaining pecuniary advantage for the said motor works. It was also alleged that the two officers, in pursuance of and as part of the conspiracy paid exorbitant prices to M/s.Manick Motors Works without obtaining previous quotations without issuing quotation enquiries and opening quotations without the presence of another officer as required by the rules and preparing antedated quotations etc. 25. The court considered the evidence on record and came to the conclusion that the allegation that a certain Auto Stores was a non existent firm was not conclusively proved and that there was no conclusive evidence to show that the accused officers knew that there did not exist any such firm. 26. 25. The court considered the evidence on record and came to the conclusion that the allegation that a certain Auto Stores was a non existent firm was not conclusively proved and that there was no conclusive evidence to show that the accused officers knew that there did not exist any such firm. 26. In regard to the allegation about the quotations, the Honourable Supreme Court observed that the accused might not have been careful or even grossly negligent, but his action could not be said to have been actuated with criminal intent. As regards the irregular procedure, the Honourable Supreme Court observed that any breach of procedure did not surely mean fraud or any other criminality. 27. The dictum laid down in the aforesaid decision squarely applies to the case on hand. 28. In yet another decision of the Honourable Supreme Court reported in AIR-1979-SC-826 (S.P.Batnagar Vs. State of Maharashtra) the Honourable Supreme Court has construed Section 5(1)(d) and in particular about the scope of expression “abuse of position”. 29. The court observed referring to two of its earlier decisions reported in AIR-1963-SC-1116 (M.Narayanan Nambiar Vs. State of Kerala) and Air-1977-SC-822 (S.K.Kale Vs. State of Maharashtra) as below:- “The phraseology “by otherwise abusing his position as a public servant covers acts done otherwise than by corrupt or illegal means by an officer abusing his position. The gift of the offence under this clause is that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. “Abuse” means misuse, that is, using his position for something which is not intended. That abuse may be by corrupt or illegal means or otherwise than those means.” 30. The juxtaposition of the word “otherwise” with the words “corrupt or illegal means” and the dishonest implicit to the word “abuse” indicates the necessity for a dishonest intention on his part to bring him within the meaning of the clause. 31. Following the decision in the aforementioned cases (supra) the abuse of position in order to come within the mischief of the section must necessarily be dishonest and it has to be shown whether the accused caused deliberate loss to the Department. It is for the Prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other persons. It is for the Prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other persons. It would, therefore, be necessary to find out in the present case as to whether the accused abused his position and acted dishonestly or with a corrupt or oblique motive. 32. The charge sheet conspicuously silent as regards any exercise of any corrupt or illegal means or abuse of official position to gain any valuable thing or pecuniary advantage to A5. The fact of concealment of non existence of M/s. KKSMPL (A4) and its debtors even if it is accepted as true, the said concealment by itself does not become corrupt, illegal and abuse of official position. There is no charge that the Respondent/A5 received any monetary benefit directly from M/s. KKSMPL (A4) Company. For charging the Respondent/A5 under Section 13(1)(a)and (d) of the Prevention of Corruption Act , obtaining any valuable thing or pecuniary advantage by the Respondent/ A5 is a pre-requisite and the receipt of money as loan by the parents of the Respondent/ A5 cannot be linked with the corrupt and illegal means of Respondent/ A5. 33. In this context, it is appropriate to refer to the decision relied upon by the learned senior counsel for the Respondent/A5. 34. In Dhirajlal Chatrabhun ratnagrahi Vs. State of Maharashtra in paragraph 9 it is observed as below:- “A plain reading of the section, therefore, presupposes that the accused has through either corrupt or illegal means or by abuse of his position as a public servant obtained for himself or someone else something valuable or gained pecuniary advantage. For this purpose, it would be insufficient for the Prosecution to merely establish that a certain consideration was asked for and that it was received by him. The gravamen of the charge essentially requires that the means adopted are corrupt or illegal or that he has misused his position for purposes of securing the consideration in question. If the Prosecution merely establishes the receipt as has happened in the present case, it would be wholly insufficient because there are many possible reasons why the accused could have received the money or article. If the Prosecution merely establishes the receipt as has happened in the present case, it would be wholly insufficient because there are many possible reasons why the accused could have received the money or article. It is only when there is a nexus with corruption, illegality or misuse of position which is a matter of fact and which must be conclusively established in addition to the receipt that an offence can be said to have been made out. A classic instance could be cited in the case of a public servant whose wife has fallen seriously ill and who has requested a person known to him for urgent assistance by way of a temporary loan to tide over the crisis. This loan cold have nothing to do with his official position or with misuse thereof and could be by way of pure emergency assistance. In such a case, even though the public servant has received a certain amount of money which has nothing to do with his legal remuneration it would be clearly outside the scope of section 5(1)(d) of the Act. It must be borne in mind by the investigating agencies that the misnomer which is unfortunately current that if the receipt is proved that a presumption automatically arises is incorrect because the presumption prescribed by Section 4 of the Act does not apply to offences under Section 5(1)(d) of the Act. ” 35. It is also relevant to refer to the decision of the Honourable Supreme Court reported in Manupatra/SC/1518/2005 (K.R.Purushothaman Vs. State of Kerala) wherein it is held that to attract the provisions of Section 13(1)(d) of the Prevention of Corruption Act public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant. 36. In the present case, according to the Prosecution, Rs.27 lakhs were transferred to the account of D.S.Ahluwalia and his wife Jasbir Ahluwalia who are the parents of A5 and the above transaction is a loan transaction. They have no official duty towards the main accused. The allegation of transfer of Rs.27 lakhs in the account of D.S.Ahluwalia and his wife is also vaguely stated without mentioning the date of such transfer. 37. It appears that D.S.Ahluwalia also received additional 150 lakhs from Sri Paupa Spinning Mills as loan. They have no official duty towards the main accused. The allegation of transfer of Rs.27 lakhs in the account of D.S.Ahluwalia and his wife is also vaguely stated without mentioning the date of such transfer. 37. It appears that D.S.Ahluwalia also received additional 150 lakhs from Sri Paupa Spinning Mills as loan. He was working in BHEL and he is said to have declared the said amounts as loan amounts to his Competent Authority. It is submitted by the learned senior counsel for the Respondent that the CBI ACB Nagpur filed a C.summary No.03/2013 before the Special Judge, Nagpur in RC 10(a)of 2012 wherein it has been stated that all transactions were duly intimated to Competent Authority by D.S.Ahluwalia which falls under category of “known sources of income”and on the said basis further action was dropped. The said final report is produced as Document No.8 in the index of typed set filed by the Respondent. In view of the discussions made above, I am of the clear view that no offence has been made out against the accused and he is liable to be discharged of the charges. 38. In the case on hand, the learned Special Judge has assigned detailed reasons for allowing the discharge petition and it is clear from his order that after consideration of the relevant materials, he has declined to frame charges against the Respondent/A5. After evaluating the materials produced by the Prosecution and after considering the probability of the case, the learned Special Judge (CBI Cases) being satisfied that there are no sufficient grounds to proceed against the Respondent/A5 discharged the accused from the charges levelled against him. All the relevant aspects have been carefully considered by this court and I am of the considered view that the learned Special Judge is justified in discharging the accused and I do not find any illegality or perversity in the order passed by the learned Judge. 39. In the result, this civil revision is dismissed.