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2019 DIGILAW 247 (ORI)

Debendra Kumar Panda v. State Of Odisha (VIG)

2019-03-27

D.DASH

body2019
JUDGMENT : D. Dash, J. The petitioner, by filing this revision, has prayed for examination of the legality and propriety of an order dated 19.8.2017 passed by the learned Special Judge (Vigilance), Cuttack in T.R. No.35 of 2017. 2. By the impugned order, the court below, upon receiving the chargesheet placing several accused persons including the petitioner named therein for trial for commission of offence under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act (for short hereinafter 'the PC Act') and section 420/468/471/120-B of the Indian Penal Code (in short, 'the IPC'), has taken cognizance of those offences and issued process against all to face that proceeding. Under the said order, the trial court had also issued process against two more persons, for whom there was no sanction by the Government and competent authority as required under section 19 of the PC Act, to face the criminal proceeding for offence under section 420/468/471/120-B of the IPC. Those two persons who were issued with the process by the above order, are now no more within the arena of the case since that part of the order has been quashed by this court in Criminal Revision No.907 of 2017 and 364 of 2018. 3. Facts necessary for the purpose are stated hereunder: The Government of India, in the Ministry of Coal, passed a Resolution on 18.10.2007, covering the field of coal distribution, practically putting in place a new policy thereof. As per the said policy, the small and tiny consumers in non-coal sectors having coal consumption of less than 4200 M.T. are eligible to get coal from the State nominated agencies on a base price of about Rs.850/- as against the average auction rate of Rs.1400/- and market rate of Rs.2500/- per M.T. Pursuant to the above policy, the Government of Orissa declared Orissa Consumer Cooperative Federation Limited (for short, 'the OCCF') as the nodal agency for the purpose. The guidelines and orders prescribe that the distribution of linkage coal to the Medium and Small Medium Enterprises (MSMEs) has to be done in a realistic manner upon joint verification by the concerned General Manager of the DIC (for short, 'the DIC') and the personnels of nodal agencies, here, it is OCCF. The guidelines and orders prescribe that the distribution of linkage coal to the Medium and Small Medium Enterprises (MSMEs) has to be done in a realistic manner upon joint verification by the concerned General Manager of the DIC (for short, 'the DIC') and the personnels of nodal agencies, here, it is OCCF. So, the OCCF in order to carry out the activities as nodal agency in the matter of distribution of coal in consonance with the policy, put the public notice for appointment of a marketing agent. Three bids being received, finally M/s.Vinayak Minerals with which the petitioner is concerned, being the power of attorney holder was appointed as such and that stood approved by the Committee of OCCF, put in place for the purpose. The agreement to that effect was entered into. That is how the petitioner came to the picture in the matter of carrying out the part activity as regards distribution of coal to the consumers as per the above agreement terms and conditions. 4. The first challenge here is that the petitioner has played no role in carrying out the obligations under the said agreement as the marketing agent of the OCCF in the direction of commission of offence as alleged and, therefore, issuance of process against the petitioner in the criminal proceeding for the offences is illegal. 5. The next ground of attack is that when the order of issuance of process in the criminal proceeding as passed by the court below despite lack of sanction against those two officials attached to the DIC, has been quashed by the order of this court passed in CRLREV No.907 of 2017 and 364 of 2018, which have not been further challenged, the petitioner cannot be proceeded in the case as he had only carried out the orders in discharge of the duty entrusted to him under the agreement when there stands no such material to show that he himself carried the coal and sold the same in open market. 6. The allegations constituting offences and as to the role of the petitioner and others, find mention at page 6 and 7 of the charge-sheet. 6. The allegations constituting offences and as to the role of the petitioner and others, find mention at page 6 and 7 of the charge-sheet. For better appreciation, it is felt necessary to reproduce the same: "During investigation and as per the guidelines of new coal policy, it came to light that the coal consuming MSME unit whose annual consumption is less than 4200 MT are eligible to get coal through State Nodal Agency. The said MSME unit has to first registered his registration in D.I.C. (District Industry Centre) either E.M-I or E.M-II (Entrepreneurs Memorandum). The eligibility of supply and distribution of coal under this policy is that MSME unit has to apply the requirement of coal for his unit and in recommendation of coal has been made by the concerned D.I.C. on the following basis:- 'The General Manager of DICs are responsible for proactive identification of the coal consuming MSMEs having Valid Permanent (PMT)/Entrepreneur Memorandum-II (EM-II) and for realistic assessment of other equipment and utilization of coal by the MSMEs. Other coal consuming MSME units not having PMT/EM-II, but having obtained Provisional Registration Certificate (PRC)/Entrepreneur Memorandum Part-I (EM-I) may be inspected by the General Manager/Project Managers and units found in existence and running may be recommended for quantity of coal as per assessed requirement'. Thus as per the recommendation of D.I.C., the same come to State Nodal Agency (OCCF) and O.C.C.F. placed order to MCL authority for supply of coal under this scheme with depositing money and thereafter Road Delivery Orders (R.D.Os) are issued from the MCL authority and with that Delivery Orders, the appointed Marketing Agent (M/s.Vinayak Minerals) has lifted the coal on behalf of OCCF and the coal have been supplied to the different MSMEs. In this case, 5 Nos. Of MSMEs, namely, M/s.Prasanta Ku. Mohanty, M/s.J.B.Enterprisers, M/s.Soumya Industries, M/s.Arati Bricks, and M/s.Maa Biraja Bricks, Jajpur, all are under Jagatpur D.I.C. are registered E.M-II, MSME unit with DIC, Jaghatpur, Sri Sitikanta Sadangi, the G.M. on the recommendation of Sri Banambar Das, Industrial Supervisor, has recommended supply of coal to OCCF in favour of M/s.Prashanta Ku. Mohanty, M/s.J.B. Enterprisers, M/s.Soumya Industries, M/s.Arati Bricks and M/s.Maa Biraja Bricks of during the year 2008-09 and 2009-10 to O.C.C.F. M/s.Prasanta Ku. Mohanty, M/s.J.B. Enterprisers, M/s.Soumya Industries, M/s.Arati Bricks and M/s.Maa Biraja Bricks of during the year 2008-09 and 2009-10 to O.C.C.F. M/s.Prasanta Ku. Mohanty, M/s.J.B.Enterprisers, M/s.Soumya Industries, M/s.Arati Bricks and M/s. Baa Biraja Bricks lifted coal from Ananta OCP Talcher vide R.D.O. No.1426 MT, 2400 MT, 622 MT, 3308 MT, 174 MT and 2950 MT, (3426 MT, 4350.622 MT, 4072.9 MT, 3748.174 MT) respectively from OCCF through the Marketing Agent M/s.vinayak Mineral from MCL, Burla. But, the said 5 MSMEs units are Non-existence units. Thereby there is pecuniary advantage of Rs.58,56,294/- to the Suspect Officials namely Srit Sitakanta Sadangi, G.M., Prasnta Ku. Parija, IPO Rasulpur, Nihar Ranjan Parida, IPO Jajpur, all under DIC, Jagatpur, Sri Pravakar Nayak, BM, Cuttack Malgodown Branch, OCCF, Cuttack and the Proprietor Sri Debendra Kumar Panda, M/s.Vinayak Minerals. Thus the law was set in to motion." 7. Mr.Asok Mohanty, learned Senior Counsel for the petitioner submitted that even accepting the allegations, as laid, the petitioner has been unnecessarily arraigned in the case when he has no role in selecting the MSMEs eligible to get the benefit under the Coal Distribution Policy and in the preparation of the list of MSMEs which is said to be bogus. He further submitted that the role of the petitioner, as an marketing agent, in the matter of distribution of coal in favour of MSMEs is based on the recommendation of the DIC and order of the OCCF, the nodal agency. The lifting of coal by MSMEs is done by their own conveyance and the marketing agent is simply to hand over the coal at the ex-colliery point as per the, delivery order and form-G under intimation of DIC in acting as a facilitator. He, therefore, submitted that when the petitioner has no role in selecting the MSMEs after identifying those and has acted strictly in terms of the orders of the nodal agency, in terms of the agreement and in consonance with the direction of the DIC, he cannot be said to be having any involvement in commission of those offences. He, therefore, submitted that when the petitioner has no role in selecting the MSMEs after identifying those and has acted strictly in terms of the orders of the nodal agency, in terms of the agreement and in consonance with the direction of the DIC, he cannot be said to be having any involvement in commission of those offences. It was further submitted that when the persons associated with the process of selecting the MSMEs for being distributed with the coal, which is said to have been done only in pen and paper are no longer in the arena of the trial of the case, this petitioner as the marketing agent, with his limited role and function under the agreement, having absolutely no knowledge as to any other aspects, is not liable to be proceeded with. He, thus submitted that the order of issuance of process against the petitioner that too after quashment of the order of issuance of process against those two personnels of the DIC is unsustainable. 8. Mr.Sangarm Das, learned Standing Counsel (Vigilance), submitted that it is too premature a stage to raise all these challenges to the order of issuance of process against the petitioner and the exact role of the petitioner can only be found out in the trial. 9. In order to address the rival contentions, it is felt appropriate to first take note of the job of the petitioner that he had discharged as per his admitted status as the marketing agent on behalf of the OCCF. The duties and responsibilities of the petitioner as such find mention at Clause-2 of the terms of reference, a document which has been relied upon by the prosecution to fasten the criminal liability upon the petitioner. It is pertinent to mention here that the OCCF had entered into an agreement called Fuel Supply Agreement with M/s.MCL in furtherance of that New Coal Distribution Policy of Government of India as has been earlier referred to. The marketing agent is to function under the authority and management of the OCCF. The terms and reference make it obligatory on the part of the marketing agent to take necessary step to obtain trading licence for the OCCF for sale of coal, ex-colliery against 'G' Form and submit the list of MSMEs in whose favour bills and 'G' Forms would be issued from the ex-colliery of MCL. The terms and reference make it obligatory on the part of the marketing agent to take necessary step to obtain trading licence for the OCCF for sale of coal, ex-colliery against 'G' Form and submit the list of MSMEs in whose favour bills and 'G' Forms would be issued from the ex-colliery of MCL. There stands no such allegation that the petitioner, acting on behalf of the marketing agent as engaged by the OCCF, has done any such manipulation in the list of MSMEs or to have made any such departure by bringing in any new MSME or reading a new MSME into the list so supplied, as also on any such other aspect as to the quantity of coal allowed to be lifted and supplied and etc. 10. The procedures formulated by the Government of Orissa, in the Department of Industries, on 13.8.2008 as to implementation of the New Coal Distribution Policy formulated by the Government of India on 18.10.2007 are that:- the State Nodal Agency (here is OCCF) will distribute coal to the MSMEs on the recommendation of the General Manager/Project Manager of the DICs (here we are concerned with General Manager) and the distribution to any other MSMEs not so reflected in the list, as above, is impermissible. It is the responsibility of the General Manager of DIC for proactive identification of coal consuming MSMEs having valid Permanent (PMT)/Entrepreneur Memorandum-II (EM-II) and for realistic assessment of other equipment and utilization of coal by the MSMEs. The MSMEs not having the PMT/EM-II, but having obtained the Provisional Registration Certificate (PRC)/Entrepreneur Memorandum Part-I (EM-I) upon being inspected and those units if would be so found to be in existence and running, may be recommended for quantity of coal as per the requirement as would be assessed. The General Manager/Project Manager of the DIC accompanied by an officer of Micro, Small and Medium Enterprises Development Institution (MSMEDI)/National Small Industries Corporation (NSIC) etc. The General Manager/Project Manager of the DIC accompanied by an officer of Micro, Small and Medium Enterprises Development Institution (MSMEDI)/National Small Industries Corporation (NSIC) etc. dealing with the MSMEs has the responsibility to assess the coal requirement of each of the MSMEs basing on the aspects such as item of production, annual installation capacity in quantity, quantity of finished product produced in the year 2008-09, quantity of coal consumed in the year 2008-09, quantity of coal recommended to OSIC in the year 2008-09, quantity of coal recommended to OSIC in the year 2008-09, projected production during the year 2009-10 and quantity of coal received commensurate with the projected production of the year 2009-10. 11. The procedure of distribution of coal, as provided in the Orissa Coal Distribution Policy, further clarifies that the DICs will assess the coal requirement of the MSMEs scrupulously and furnish the list of coal consuming units to the OCCF/OSIC at the beginning of the year, indicating their annual requirement with the grade of coal. It is then for the MSMEs to choose the nodal agency either OCCF or OSIC for lifting of their coal as per their own conveyance. 12. The policy further provides that the supply of coal to the consuming units are to be done proportionately and a list has to be furnished to the DICs where those will be verified as also more importantly the utilization of the coal by those MSMEs as has been issued to those MSMEs for their consumption in the units and recommend quantum of coal required by the unit for the coming year. Thus the role of officials of the DIC starts at first and is most important which govern the entire exercise of distribution of coal as also its utilization. As per the above, the list of MSMEs is made in the DIC, after supply of coal, its utilization is also to be looked into by the DIC. 13. The responsibility of the General Manager of the DIC is the following:- (I) to identify the coal consuming MSMEs having valid PMT or entrepreneur memorandum recommended for the quantity of the coal for the assessed requirement with the assistance of an officer of MSMEDI/NSIC. 13. The responsibility of the General Manager of the DIC is the following:- (I) to identify the coal consuming MSMEs having valid PMT or entrepreneur memorandum recommended for the quantity of the coal for the assessed requirement with the assistance of an officer of MSMEDI/NSIC. Next comes the role of the nodal agency, i.e, the OCCF in the present case and so far as this petitioner is concerned, he was entrusted with the job of distribution of the coal among the MSMEs as per the list as has been provided and recommended by the DIC. The MSMEs have the responsibility as to lifting of the coal in their own conveyance. The job of the marketing agent is to facilitate such distribution of coal at the ex-colliery point coming in contact with the MCL personnels in place for the purpose and to handover the Road Delivery Order and Form-'G' followed by the intimation of the DIC. 14. The prosecution case is that those five units recommended by the DIC for supply of the coal, vide their letters dated 4.11.2008, 13.1.2009 and 28.2.2009 are non-existent. Almost all the letters however provide that the concerned units had applied to the DIC for allotment of appropriate graded coal in their favour for own consumption giving all the required details and thus being verified as required under the prescribed policy, the concerned Project Manager of the OCCF has been given with the recommendation in taking action for onward supply of the coal. The MSMEs thereafter have deposited the cost of the coal directly with the OCCF as also the money towards the value of the coal. Thereafter, the delivery of the coal has been made with the facilitations made by the petitioner in terms of the agreement as such and that being informed, the OCCF has communicated about the delivery by letters dated 16.1.2009, 11.2.2009, 28.2.2009, 6.5.2009, 4.6.2009, 15.7.2009 and 10.8.2009. Then those MSMEs have also confirmed the OCCF about the receipt of the coal in writing. There is no allegation or material on record to the effect that the coal has not been physically lifted by the MSMEs and it is not stated that this petitioner misappropriated the coal from that MCL for illegal use or distribution or sale at his end or that he himself directly did anything for that purpose by creating any false documents and putting those on record. It is also not the prosecution case that the petitioner himself used any document as genuine knowingly and having reason to believe the same to be forged. The very list of MSMEs forming the basis of supply of coal at the final round of the exercise is being said to have been made knowing fully well that those MSMEs were non-existent or nonfunctional or we may say having no such requirement of coal. But in that, this petitioner appears to have nothing to do. 15. One important feature that has appeared in the case is that the then General Manager of the DIC, namely, Srikanta Sarangi and the Industrial Promotion Officer attached to the DIC, namely, Prasanta Kumar Parija, whose role under the policy comes first in identifying and preparing the list of MSMEs for supply of coal under the New Coal Distribution Policy besides the role after delivery of coal are no more in the arena of the case. The Government and competent authority refused to grant sanction for prosecution of those two. They had not been so shown in the charge-sheet as accused persons, to have been placed for trial for the offence under section 13(d) read with section 13(i)(d) of the PC Act and section 420/468/471/120-B of the IPC. It has been specifically mentioned in the charge sheet that although based on the materials collected in the investigation their names had been given for being prosecuted, the sanction of prosecution against them, has been refused by the sanctioning authority. The trial court, on receipt of the charge-sheet, while taking cognizance of the offences, had issued process also against them. Those orders of issuance of process having been challenged in so far as accused Sitakanta Sarangi, the then General Manager of the DIC is concerned, in CLRREV No.907 of 2017 and in so far as accused Prasant Parija, the then Industrial Promotional Officer attached to the DIC is concerned, in CRLREV No.364 of 2018, such orders have been quashed. The prosecution case is that the persons associated in the process at the commencement point of the process of distribution of coal by preparing the list of MSMEs and all other accused persons including the petitioner have conspired amongst themselves and have committed the offence and as such are liable. The prosecution case is that the persons associated in the process at the commencement point of the process of distribution of coal by preparing the list of MSMEs and all other accused persons including the petitioner have conspired amongst themselves and have committed the offence and as such are liable. In so far as this petitioner is concerned, the case against him is conspiracy under section 120-B IPC and it is said that this petitioner finally facilitated the process of supply of coal to those listed MSMEs, which are non-existent. The prosecution has not specially come up with the stand as to which of the MSMEs are not there in the place so as to say that those are nonexistent and as such the supply is fake or which in terms of the guidelines are not eligible. Be that as it may, this petitioner is not said to have any such association with those MSMEs nor it is said that he played any role therein thus having the knowledge. So the persons who are the officials of the DIC associated in preparing the list of MSMEs are not within the arena of this criminal trial for offence under section 13(2) read with 13(1)(d) of the PC Act nor facing trial for offence under section 420/468/471 IPC nor under section 120-B IPC. Therefore, when they are not coming to face the charge of conspiracy under section 120-B IPC, the petitioner cannot be pushed into the arena to face the criminal proceeding as to have conspired with them. The prosecution case against the petitioner is that he entered into a criminal conspiracy with others in finally distributing coal to the non-existent or nonfunctional MSMEs as given in the list prepared by the persons other than the petitioner as required under the policy. Once the persons preparing the list are kept out of the arena of the case to face trial for offence in relation to conspiracy as also all other offences, the petitioner cannot be proceeded with for the conspiracy. Once the persons preparing the list are kept out of the arena of the case to face trial for offence in relation to conspiracy as also all other offences, the petitioner cannot be proceeded with for the conspiracy. Moreover, in the absence of the persons preparing the list of MSMEs where the petitioner has no role and that very list of those MSMEs which were said to be non-existent or non-functional having no requirement of user of coal and it is said that such distribution was thus to make gain by selling in open market at higher price which has been done, in the trial no such fault can be found with those two personnels of the DIC as to have prepared the bogus list of MSMEs. In view of that issuance of process against the petitioner to face the criminal proceeding for entering into conspiracy with them, who are said to have been involved at the very source and are not within the arena of the case, is not sustainable. 16. Resultantly, the CRLREV is allowed and the order 19.8.2017 passed by the learned Special Judge (Vigilance), Cuttack in T.R. No.35 of 2017 in so far as the issuance of process against the petitioner is concerned, stands quashed.