TaxTMI 
TaxTMI 
2020 (11) TMI 1095
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....0-B of the Indian Penal Code, 1860 (in short "the IPC") as well as section 21 of the Mines and Minerals (Development & Regulation) Act, 1957 (hereinafter, called as "MMDR Act") has been called in question. 2. The factual exposition necessary for the purpose are briefly stated as under:- The petitioner no. 2 is the lessee of Unchabali Iron and Manganese Mines situated in the revenue village Unchabali in the District of Keonjhar, Odisha. The petitioner no. 1 is the General Power of Attorney holder of petitioner no. 2 who as such had executed the mining lease-deed on 05.02.1999 which had been granted in favour of the petitioner no. 2. The mining operation in the said mines commenced after the mining plan was approved by the Indian Bureau of Mines(IBM) as provided under section 5(2)(b) of the MMDR Act. The petitioners are thereby duly authorized to mine the iron ore and undertake the mining activities. 3. (a) On 24.09.2009, a joint physical inspection of the said mines was made by a team led by the Vigilance Authorities, consisting of Technical Experts such as Engineers, and the Officials of Revenue as well as Mining Departments. On 02.12.2009, a written information was ....
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....sing stock (Book Balance) of 4,87,205.870 MT as on 24.09.2009; (b) that the Dy. Director of Mines, Joda from 04.07.2005 to 10.08.2009 has allowed dispatch of the excess iron ore in connivance with the Senior Inspector of Mines working as such from 23.06.2006 to 03.07.2009 and the other Senior Inspector, Mines from since 06.07.2009 to 24.09.2009; (c) these officials visited the mining site from time to time, and certified the dispatch of the iron ore despite the fact that huge quantity of iron ore have been brought from outside of the mining lease area; (d) on 24.09.2009, the day of joint verification, the physical stock of iron ore were found to be 1,82,637.695 MT against the closing balance of 4,87,205.870 MT as on 24.09.2009; thus, a shortage of 3,04,568.170 MT of iron ore as on 24.09.2009, costing Rs.6000/- per MT, which has been clandestinely disposed off by the petitioners without disclosing about the same in any official records; (d) the amount royalty and Sales Tax against the above quantity of iron ore having not come to the State exchequer; the petitioners have thus cheated the State; (e) that up to the date of joint physical verificatio....
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....ived under the Right to Informations Act which are public documents; the allegations as to clandestine sale of iron ore by the petitioners avoiding the payment of royalty and sales tax falls flat; that, on simple evaluation of the documents from the records maintained in the office of the concerned Deputy Director, Mines; further allegation that the petitioners had indulged in illegal mining activities in violation of the terms and conditions of the Mining Lease agreement and in contravention of the provision of section 4 of the MMDR Act is not per se acceptable nor those give rise to strong suspicion in the direction of and in support of the said allegations. (IV) that based on the F.I.R. and charge-sheet, upon which the court has taken cognizance of the offences and issued process to the petitioners, the Department of Steel and Mines, Government of Odisha demanded a sum of Rs. 11,31,72,22,470.00 under notice dated 25.11.2010. The said demand was based on the same sets of allegations / accusations/ assertions as made in the F.I.R. and charge-sheet. A revision as provided under the MMDR Act read with the Rules made thereunder being filed in questioning the said de....
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....en as against the closing balance as on 24.09.2009. It is however stated that the documents obtained from the office of the Deputy Director of Mines in shape of the informations being sought for under the RTI Act require proof during the trial and now the case has to proceed on the basis of the informations provided in the charge-sheet and the supporting documents annexed thereto; (iv) on the contention of the petitioners on the averments taken at paragraph-9 of the decision as to disposal of the revision by the Revisional Authority under the MMDR Act in their favour quashing the demand and consequential action upon failure based on same sets of factual settings as indicated in that joint inspection report and the final charge-sheet as also its confirmation by the Hon'ble High Court in the move by the State in questioning the said order of the Revisional Authority, nothing is stated in the objection in saying that such orders have either no factual or legal impact in the criminal trial. Rather, all those factual aspects said to have been found out or ascertained during joint inspection and as noted in the report as also in course of investigation based on which charge-shee....
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.... take legal action under MMDR Act. In this case cog. was taken on 6.12.2010 and prior to that there was government notification authorizing the officers above the rank of Inspector of vigilance department to conduct the investigation under MMDR Act. In this case F.I.R. has been filed by Dy. Superintendent of Police, Vigilance Cell, Cuttack and charge sheet has been submitted by Dy. Superintendent of Police, Vigilance Cell Unit, Bhubaneswar. So, on no illegality has been committed by taking cognizance in this case u/s.21 of MMDR Act. In view of the above facts and circumstance and the principles decided by the Hon'ble Apex Court, the petition filed by the accused persons being devoid of any merit stands rejected. " 9. Learned Counsel for the petitioners in course of hearing advanced his submissions in reiterating the points raised before the trial court for discharge of the petitioners in their petition and further highlighted those with reference to the relevant documents. He submitted that the allegations as to clandestine mining by the petitioners and dispatch of minerals without extracting those from within the mines area but outside when run contrary to the recor....
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....her challenged. He therefore, submitted that when that very proceeding before the Government in the Department of Steel and Mines, based upon all those accusations made in the charge-sheet has been quashed exonerating the petitioners from being visited with any penal consequences concerning the operation of the mines in question, no charge can be framed for trial of the offences indicting the petitioners to have been so committed by them, on those very same sets of allegations culled out and inferred from what have been said to have been noticed during joint inspection and the records prepared in the subsequent investigation made thereto. According to him, the criminal trial under the circumstance is abuse of process as the charges have now to be said to be groundless. He contended that on this ground alone the impugned order of the learned Special Judge unsustainable. He placed reliance upon the decision of the Hon'ble Apex Court in case of Radheshyam Kejriwal Vrs. State of West Bengal and Another; (2011) 3 SCC 581 in support of said limb of his contention. Thus he contended that besides the grounds urged as above even on this lone ground, the impugned order rejecting the applicat....
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....filed respective written notes on their submissions, those have been taken on record and carefully perused. 11. On the above rival submissions, taking into account, the view expressed by the learned Counsel for the petitioners that his last limb of contention, if finds favour with and accepted, the other limbs would no more be required to be further dwelt at length; it is felt apposite to first take up said exercise of consideration of last limb of the contentions raised by the learned Counsel for the petitioners which corresponds to the ground raised before the trial court as indicated in the foregoing paragraph -6(iv) as to judge the impact of the decision of the Revisional Authority in the matter, which has been upheld by the Hon'ble High Court on being challenged, on the framing of charges against the petitioners in the criminal trial on hand and its progress. 12. This Court is in the seisin of the revision filed by the petitioners in questioning the sustainability of an order passed by the trial court, refusing thereby to discharge the petitioners in putting an end to the criminal trial in so far as they are concerned. At this juncture, before proceeding to dwell upon th....
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....n is not enough and the suspicion founded upon the materials on record must be of strength persuading the court to form a prima facie opinion justifying the trial as those when proved may lead to a result in favour of the prosecution. 14. The crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the Court for the purpose is not required to appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused. Ref.:- State of M.P. Vrs. Mohanlal Soni; (2000) 6 SCC 338. 15. In the recent case in M.E. Shivalinga Murthy Vrs. Central Bureau of Investigation, Bengaluru; (2020) 2 SCC 768, cited by the learned Additional Standing Counsel, Vigilance, the Hon'ble Apex Court referring to the earlier decisions including the one in case of P. Vijayan Vrs. State of Kerala and Another; (2012) 2 SCC 398 have discerned the following principles:- (i) if two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused;....
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....ing of said order. Next, the order passed by the Hon'ble High Court on the move of the State Government in assailing that order of the Revisional Authority had also been referred to in the application for discharge filed by the petitioners before the trial court. These orders are public documents and as such can always be looked into in their proper perspective as to their impact or bearing if any over this case in accordance with law, keeping in view the fact that the proceedings initiated by the State Government and the criminal case owe their origin to that very physical inspection and verification of the mines as made on 24.09.2009, with all those same features as to stock, excavation etc. as noted therein having no such variance. 17. The petitioner no.2, the lessee of the mines in question had been served with a notice indicating the above illegalities and irregularities committed in course of operation of the mines in violation of the conditions of the mining lease as provided under Rule 27 of the Mineral and Concession Rules, 1960 (hereinafter, for short, 'the M.C. Rules') and other provisions of the MMDR Act. Based upon the same, the demand of Rs.11,31,72,22,470.00 under....
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....Revision vide Revision Application filed No. 22(22)/2010-RC-1 as provided under section 30 of the MMDR Act read with Rule 55 of the MC Rules, 1960 before the Revisional Authority. The Revision has been allowed and said proceeding against the petitioners has been quashed. 20. The above order passed by the Revisional Authority, was assailed by the State before this Court in W.P.(C) No. 10219 of 2012. After hearing, by judgment dated 08.08.2016, the Hon'ble Division Bench of this Court has found the Writ Application sans merit and accordingly, refused to interfere with the order of Revisional Authority which had been impugned therein. The Writ Application filed by the State has thus been dismissed. It is stated at the Bar, that the State has not questioned the said judgment of the Hon'ble Division Bench of this Court by further carrying the matter to the Hon'ble Apex Court. The judgment dated 08.08.2016 passed by the Hon'ble Division Bench of this Court in W.P.(C) No. 10219 of 2012 confirming the order of the Revisional Authority has thus attained its finality, in so far as demand of Rs.11,31,72,22,470.00 towards cost of 24,31,225.130 MT of iron ore which was raised and demanded....
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....he facts are found to have been dwelt upon:- (i) on shortage of 304568.175 MT of iron ore as on the date of joint inspection on 24.09.2009, thereby Revisionist has evaded Rs.82,23,340.59 royalty and Rs.7,30,96,360.80 towards royalty and sales tax respectively; and (ii) the differential quantity of iron ore of 20,68,841.44 MT said to have been illegally raised from some area outside the leasehold. 23. It has noted the contentions raised by the petitioners which are the followings:- "31.1 On (i) above Revisionist contends that as per the month wise details received under RTI from Mining Officer, Joda vide letter dt.23.12.10 shown at Annex-J to RA, from May'08 to Sep.'10 their production comes to 27,17,082 MT. and dispatches 24,81,022 MT. According book balance as on 30.09.11 comes to 2,36,059.53 MT. These figures including closing balance exactly tally with figures in their statutory returns. There has been production of 60,051 MT and dispatch of 38.826 MT during 24.09.10 to 30.09.10. Revisionist further contends that during verifying Physical Balance, the team ignored stock pile of 24,700 MT of BD contaminated 10-80 mm ore presumably because it was stak....
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.... I observe that the figures for the months Feb., March, June and July 2009 do not tally. Whereas the same tally with the figures in statutory returns, copies whereof filed at Annex-F,G,H and I of the RA. The impugned Proceedings state that these figures mentioned therein were found from records of DDM, Joda. But these departmental figures are different from the departmental figures provided under RTI. How these figures in impugned Proceedings were arrived at or their genesis are not explained. Why the same are also not as per FIR is also not explained. One of these two sets of departmental figures have to be true and authentic departmental figures. As information received under RTI Act generally has to be true and authentic and as State Govt. has not commented on the origin and veracity of the departmental figures of the impugned, thus allegations/findings of shortages are not substantiated. 31.3. As discussed above information received under RTI Act has to be true and authentic. Further as the same has been received from the same source as mentioned in the impugned Proceedings, I consider that the figures mentioned in the impugned Proceedings (para-2) are not authentic; the Sta....
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.... MT can be produced from the excavated pits, as stated above there is no basis given in the impugned Proceedings or in the reply. Nor any document/ evidence in support has been given to the Revisionist or filed before Revision Authority. 32.2. Revisionist contends that this finding is again based on no material evidence. This is also against the following arrived at from the reports of IBM. Being statutory and independent body its report is binding on both the parties. i) That IBM on inspection on 09.12.09 certified that production from leasehold area from May' 2008 to Nov.' 2009 had been 30,86,776 MT. With backward computations Revisionist's correct production as on 24.09.2009 would be 26,57,031 and not 29,18,431 MT. ii) That further IBM on inspection on 08.12.2008 (Annexure-M) certified that production from leasehold area from May' 2008 i.e. within a period of seven months of the start of production Revisionist's had produced 7,84,950 MT. thus approximate 92% of this production has been produced by Nov.' 2008 i.e. 10 months before the visit. iii) Revisionist contends that admittedly the volume of pit excavated in the mining leasehold area of the Revi....
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....rs. As Revisionist's trend of production / dispatch remains same from start of mining operation. The allegation thus is that within this period the Revisionist has done both legal and alleged illegal mining. Impugned proceedings states that the visiting team consisted of Technical Officers, Engineers, Surveyors and Geologist, Revenue, Forest and Mining Officials. But no investigation appears to have been done either by Vigilance Directorate, or by the Steel & Mines Department or Forest Department or by any of other for almost one year to locate such a huge size pit or above stated other paraphernalia, machineries and trucks. If it exists, the same must not be far away from existing lease area. Further admittedly area is stated to be falling in forest. No case has been stated to have booked for violation of Forest (Conservation) Act, 1980. There is also no allegation of tampering of boundary pillars. Not a single dispatch has been seized. No one has also appears to have seen Revisionist doing alleged illegal mining to such a huge scale. 32.6. Entire case of State Govt. is based only on the above stated visit on 24.09.09 and the demand is made upto this date. Impugned Procee....
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.... "I set aside the impugned Proceeding dated 25.11.2010 of Government of Odisha. Revision succeeds with consequential benefits." 24. Assailing this order of Revisional Authority in the writ application i.e. W.P.(C) No. 10219 of 2012; the State Government first contended that the Revisional Authority ought not to have taken up the revision for hearing for its disposal on merit as the revision was not maintainable. Answering the point, the Hon'ble Division Bench of this Court on that has categorically said that the revision filed by the opposite party no.2 therein challenging the order under communication on dated 25.11.2010 was maintainable under section 30 of the MMDR Act. 25. Next going to address the contention of the State that the Revisional Authority ought not to have entered into the merits of the case and given its finding as to whether opposite party no.2 therein was liable to make payment of the amount determined by said order dated 25.11.2010 under section 21(5) of the MMDR Act, but should have remanded the matter to the State Government to give an opportunity to the opposite party no.2 therein to show-cause and then pass final order; the Hon'ble Division B....
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....ld not but accept the position that the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceeding is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it." In the background, the Hon'ble Court held that:- "23. Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3- 1996 for allowing the appeal and quashing the impugned criminal proceedings and giv....
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....ficers of the Enforcement Directorate in exercise of the power under section 35 of the Foreign Exchange Regulation Act, 1973 (for short 'the FERA') searched various premises in occupation of the appellant besides other persons. The appellant was arrested and then released on bail. On being asked to appear, he gave his statements. Based on the materials collected during search and from the statement of the appellant, he was found to have contravened the provisions of section 9(1)(f)(i) of the FERA as also liable to pay penalty under section -50 of the FERA. The Enforcement Directorate was of the further opinion that by abetting as to contravention of the provisions of section 9(1)(f)(i) and section 8(2) read with section 64(2) of the FERA, the appellant has rendered himself liable for penalty under section 50 of the FERA. Accordingly, show-cause notice being issued, adjudication proceeding under section 51 of the FERA was initiated. The adjudication officer came to conclude that the charges against the appellant were not sustainable. Accordingly, the adjudication officer dropped the adjudicatory proceeding. This order was not further challenged by the Enforcement Directorate. How....
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....r actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined." xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 29. We do not have the slightest hesitation in accepting the broad submission of Mr. Malhotra that the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the sam....
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.... rendered its judgment on 08.09.2020. In that case, the FIR was regarding one MSME Receivable Finance Scheme operated by the Small Industries Development Bank of India (SIDBI). Some vendors complaining of delay in getting their payments, SIDBI, in consultation with TATA Motors Limited, advised the vendors of TATA Motors Limited to furnish RTGS details for remittance of funds. It was found that for making payments in RTGS for various purchases made by the TATA Motors Ltd. from one Ranflex India Pvt. Ltd. (Vendor), 12 payments amounting to Rs.1,64,17,551/- were made through RTGS by SIDBI in the vendor's account with Federal Bank, Thriupporur. Ultimately, SIDBI was informed by the vendor that it has an account with Central Bank, Bangalore and not with Federal Bank, Thriupporur. On account of such diversion of funds as per the FIR, a number of persons came to be arraigned as accused persons in the case. The appellant therein who was accused no.9 with others had been charge-sheeted on 26.07.2011. It had been alleged that the appellant had received the e-mail on 25.05.2009 containing the RTGS details for the account with Federal Bank, Thripporur, which he then forwarded to accused-Mut....
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....ision in case of Radheshyam Kejriwal (supra) as also other decisions have finally ordered for discharge of the appellant therein in the criminal trial involving same set of facts. 32. Keeping in view the aforestated principles, and discussions already made above in detail, let us advert to the case on hand as to its broad features. Here the proceedings initiated by the Government in the Department of Steel & Mines, against the petitioner no.2, the lessee of the mines in question for the illegalities/ irregularities/ breach / deficiencies /deviations as pointed out by the members of the team who had made the joint inspection and verification of the concerned mines and indicated in the FIR as well as the charge-sheet giving rise to the present criminal trial have been quashed. The State Government since 08.08.2016 has accepted the said order of quashment of the proceedings for realization of heavy penalty from the petitioners and cancellation of the mining lease after having failed in the attempt by filing the writ application before this Hon'ble Court in getting the order of quashment of those proceedings passed by the Revisional Authority annulled. The Hon'ble Division Bench of ....