TaxTMI 
TaxTMI 
2023 (6) TMI 1351
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....ohana, learned Senior Counsel and Shri S.R. Raghunathan, learned counsel appearing for the Appellants and Shri Sanjay Jain, learned ASG assisted by Shri Padmesh Misra, learned Counsel for the Central Bureau of Investigation. 3. The brief facts leading to the above appeals are as follows: (i) Seven persons, four of whom were officers of BHEL, Trichy (a Public Sector Undertaking), and the remaining three engaged in private enterprise, were charged by the Inspector of Police, SPE/CBI/ACB, Chennai, through a final report dated 16.07.2002, for alleged offences Under Section 120B read with Sections 420, 468, Section 471 read with Section 468 and Section 193 Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the PC Act. Cognizance was taken by the Principal Special Judge for CBI cases, Madurai in CC No. 9 of 2002. During the pendency of trial, two of the Accused, namely, A-5 and A-6 died. (ii) By a judgment dated 08.09.2006, the Special Court acquitted A-2 and convicted A-1, A-3, A-4 and A-7 for various offences. These four convicted persons filed three appeals in Criminal Appeal (MD) Nos. 437, 445 and 469 of 2006, on the file of the Madurai Bench of th....
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.... the PC Act. In addition, he was charged also Under Section 109 Indian Penal Code. Section 109 read with 420, 468, 471 read with 468 and 193 Indian Penal Code. Sanction for prosecution was not granted by the competent authority for the offences under the PC Act. Not convicted for offence Under Section 120B. A5 Mohan Ramnath, proprietor of Entoma Hydro Systems Section 120B read with 420, 468, 471 read with 468 and 193 Indian Penal Code and Section 13(2) read with 13(1)(d) of the PC Act. In addition, he was charged also Under Section 109 Indian Penal Code Died during the pendency of trial. - A6 NRN Ayyar, Father of A-5 A7 N.Raghunath, Brother of A-5 and son of A-6 Section 120B read with 420, 468, 471 read with 468 and 193 Indian Penal Code and Section 13(2) read with 13(1)(d) of the PC Act. In addition, he was charged also Under Section 109 Indian Penal Code. Section 471 read with 468 and 109 Indian Penal Code read with Section 13(2) read with 13(1)(e) of the PC Act. Not found guilty of the offences Under Section 120B read with Section 420 and 193 Indian Penal Code. 5. For easy appreciation, the punishments awarded offence-wise to....
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.... the First Information Report that the three officials of BHEL and the contractor entered into a criminal conspiracy to cheat BHEL and caused loss to BHEL to the tune of Rs. 4.32 crores by awarding the contract to the aforesaid concern. The FIR was for offences Under Section 120B read with 420, Section 420 Indian Penal Code and Section 13(2) read with Section 13(1)(d) of PC Act. (vi) In November 1998, the person first named in the FIR namely K. Bhaskar Rao, DGM, was arrested and released on bail by CBI itself. Thereafter, he gave a confession before the XVIII Metropolitan Magistrate, Chennai Under Section 164 of the Code of Criminal Procedure. After the confession so made, CBI moved an application in Criminal Miscellaneous Petition No. 562 of 2000 Under Section 306 of the Code, before the Chief Judicial Magistrate, Madurai for the grant of pardon to K. Bhaskar Rao. The petition was made over to the Additional Chief Judicial Magistrate, Madurai, who passed an order dated 18.07.2000 granting pardon to Bhaskar Rao. (vii) Thereafter, CBI requested the Chairman, BHEL to grant sanction to prosecute the other two officials named in the FIR, for the offences under the PC ....
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....ed 17.09.2010, the Madurai Bench of the Madras High Court dismissed all the three appeals. (xv) Therefore, A-1, A-3, A-4 and A-7 filed four independent appeals before this Court respectively in Criminal Appeal Nos. 2417, 2443 and 2444 of 2010 and 16 of 2011. But A-3, the Appellant in Criminal Appeal No. 2443 of 2010 died pending appeal and hence his appeal was dismissed as abated. Therefore, we are now left with three appeals filed by A-1, A-4 and A-7 arising out of concurrent judgments of conviction. 7. In brief, the case of the prosecution was that A-1 to A-7 entered into a criminal conspiracy to cheat BHEL in the matter of award of contract for the construction of desalination plants. In pursuance of the said conspiracy, A-1, the then Executive Director of BHEL instructed Bhaskar Rao, the DGM (who turned Approver) to go in for limited/restricted tenders without following the tender procedure of pre-qualification of prospective tenderers before inviting limited tenders. According to the prosecution, A-1 dictated the names of four bogus firms along with the name of M/s. Entoma Hydro Systems represented by its proprietor A-5, for inviting limited tenders. As per the dic....
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.... from paragraph 61. 10. To begin with, the Special Court took up for consideration the contention of the Accused that BHEL did not suffer any wrongful loss and that, therefore, the charge Under Section 420 Indian Penal Code does not lie. But this contention of the Accused was rejected by the Trial Court on the ground that the entire interest free mobilisation advance of Rs. 4.32 crores was deposited in the account of M/s. Entoma Hydro Systems with Indian Bank and that out of the same, a sum of Rs. 1,52,50,000/- was transferred to a firm by name M/s. Insecticides & Allied Chemicals, of which A-5 to A-7 were partners. Therefore, the Special Court came to the conclusion that on the date on which the transfer of money took place, a direct wrongful monetary loss was caused to BHEL and a direct wrongful monetary gain caused to A-5 to A-7. The Special Court also held that after the termination of the contract with M/s. Entoma Hydro Systems, BHEL divided the contract into several parts and awarded the contracts to various persons and that, therefore, the money paid to each of such contractors was a wrongful loss to BHEL. Though the Special Court also found that BHEL actually recovered R....
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....ared by A-1 and the Approver acting in conspiracy. After reaching such a finding, the Special Court acquitted A-2 of the charges framed against him. 16. Insofar as A-3 and A-4 are concerned, it was argued that they came into the picture only after 23.12.1992, when the Negotiation Committee comprising of A-3, A-4 and the Approver was formed. But this argument was rejected by the Trial Court by holding that what was constituted was a Tender Committee, as seen from Exhibit P-36 (proceedings of the Committee) and that therefore if they were innocent, they should have questioned and sought details regarding the contractors. Interestingly, the Trial Court after holding in paragraph 79 that the charges against A- 2 were not proved, again went back to the question of guilt of A-2, after holding A-3 and A-4 guilty, through a reversal of the logic. 17. Coming to the role played by A-7, the Trial Court held that it was he who purchased the demand drafts in the names of the bogus firms, with a view to cheat BHEL and that he obtained wrongful gain for himself as a partner of the firm Insecticides & Allied Chemicals. On the basis of these findings, the Trial Court convicted the Accused for....
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....and draft applications were that of A-7 and that the diversion of funds to M/s. Insecticides & Allied Chemicals is a circumstance which corroborated the same. 22. It was argued before the High Court on behalf of A-3 and A-4 that BHEL Administration had refused to accord sanction to prosecute them for the offences under the PC Act and that therefore they cannot be held guilty of other offences. But this contention was rejected by the High Court, on the ground that the decision taken by the Management of the Company cannot have a bearing upon the prosecution case. 23. On the basis of the above findings, the High Court dismissed the appeals and confirmed the conviction and sentence awarded by the Trial Court. 24. Appearing on behalf of A-1, Shri Huzefa Ahmadi, learned Senior Counsel contended: (i) That there was no evidence to connect A-1 with the commission of any of the offences and that none of the charges stood established beyond reasonable doubt; (ii) That the substratum of the allegations was based entirely upon the statement of the approver (PW-16), but the same suffers from serious irregularities; (iii) That though no sanction was required t....
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....he Additional Chief Judicial Magistrate, Madurai and the final report was filed directly before the Special Court for CBI cases; (ii) that since the Additional Chief Judicial Magistrate granted pardon in this case, this case is covered by Sub-section (1) of Section 306 and hence the prosecution ought to have followed the procedure prescribed Under Section 306(4)(a) of the Code; (iii) that there is no particular reason as to why the petition for pardon was made before the Additional Chief Judicial Magistrate, when the confession statement was recorded by the Metropolitan Magistrate and there is no reason why the prosecution chose to file the final report directly before the Special Court Under Section 5(1) of the PC Act 1988; (iv) that neither the evidence of PW-44 (I.O.) nor the evidence of PW-16 (approver) had anything incriminating A-7; (v) that A-7 has been roped in, merely because of his relationship with A-5 and also on account of a sum of Rs. 1,52,50,000/- being transferred to the firm of which he is a partner, from out of the account of Entoma Hydro Systems; (vi) that while the Special Court, without going into the report of the h....
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....as the Court of Session; (viii) that therefore there was nothing wrong in the Additional Chief Judicial Magistrate, Madurai granting pardon; and (ix) that therefore the concurrent judgments of conviction of the Appellants do not warrant any interference. 28. We have carefully considered the rival contentions. For the purpose of easy appreciation, we shall divide the discussion and analysis into three parts, the first dealing with the contention revolving around Section 197 of the Code, the second dealing with the correctness of the procedure adopted while granting pardon Under Section 306 of the Code and the third revolving around the merits of the case qua culpability of each of the Appellants before us. Discussion and Analysis Part-I (Revolving around Section 197 of the Code) 29. There is no dispute about the fact that A-1 to A-4, being officers of a company coming within the description contained in the Twelfth item of Section 21 of the Indian Penal Code, were 'public servants' within the definition of the said expression Under Section 21 of the Indian Penal Code. A-1 to A-4 were also public servants within the meaning of the expression Unde....
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.....2001, he refused to accord sanction on the ground that it will not be in the commercial interest of the Company nor in the public interest of an efficient, quick and disciplined working in PSU. 34. The argument revolving around the necessity for previous sanction Under Section 197(1) of the Code, has to be considered keeping in view the above facts. It is true that the refusal to grant sanction for prosecution under the PC Act in respect of A-3 and A-4 may not have a direct bearing upon the prosecution of A-1. But it would certainly provide the context in which the culpability of A-1 for the offences both under the Indian Penal Code and under the PC Act has to be determined. 35. It is admitted by the Respondent-State that no previous sanction Under Section 197(1) of the Code was sought for prosecuting A-1. The stand of the prosecution is that the previous sanction Under Section 197(1) may be necessary only when the offence is allegedly committed "while acting or purporting to act in the discharge of his official duty". Almost all judicial precedents on Section 197(1) have turned on these words. Therefore, we may now take a quick but brief look at some of the decisions. 36....
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....ngaged in his official duty that the alleged offence was said to have been committed [see Gangaraju v. Venki, quoting from Mitra's Commentary on the (Criminal Procedure Code). The use of the expression "while acting" etc., in Section 197 of the Code of Criminal Procedure (particularly its introduction by way of amendment in 1923) has been held to lend some support to this view. While I do not wish to ignore the significance of the time factor, it does not seem to me right to make it the test. To take an illustration suggested in the course of the argument, if a medical officer, while on duty in the hospital, is alleged to have committed rape on one of the patients or to have stolen a jewel from the patient's person, it is difficult to believe that it was the intention of the Legislature that he could not be prosecuted for such offences except with the previous sanction of the Local Government. 37. It is seen from the portion of the decision extracted above that the Federal Court categorised in Dr. Hori Ram Singh (supra), the decisions given Under Section 197 of the Code into three groups namely (i) cases where it was held that there must be something in the nature of the....
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....SCC 87, this Court took note of almost all the decisions on the point and summarized the principles emerging therefrom, in paragraph 39 as follows: 39. The principles emerging from the aforesaid decisions are summarised hereunder: 39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime. 39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 Code of Criminal Procedure has to be construed narrowly and in a restricted manner. 39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection Under Section 197 Code of Criminal Procedure. There cannot be a universal Rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay do....
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.... a deviation from the Rule was permissible. The second is that even General Managers were authorised to take a call, to deviate from the normal Rule and resort to Restricted Tender. 46. Admittedly, A-1 was occupying the position of Executive Director, which was above the rank of a General Manager. According to him he had taken a call to go for Restricted Tender, after discussing with the Chairman and Managing Director. The Chairman and Managing Director, in his evidence as PW-28, denied having had any discussion in this regard. 47. For the purpose of finding out whether A-1 acted or purported to act in the discharge of his official duty, it is enough for us to see whether he could take cover, rightly or wrongly, under any existing policy. Paragraph 4.2.1 of the existing policy extracted above shows that A-1 at least had an arguable case, in defence of the decision he took to go in for Restricted Tender. Once this is clear, his act, even if alleged to be lacking in bona fides or in pursuance of a conspiracy, would be an act in the discharge of his official duty, making the case come within the parameters of Section 197(1) of the Code. Therefore, the prosecution ought to have o....
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....bove. 51. No public servant is appointed with a mandate or authority to commit an offence. Therefore, if the observations contained in paragraph 50 of the decision in Parkash Singh Badal are applied, any act which constitutes an offence under any statute will go out of the purview of an act in the discharge of official duty. The requirement of a previous sanction will thus be rendered redundant by such an interpretation. 52. It must be remembered that in this particular case, the FIR actually implicated only four persons, namely PW-16, A-3, A-4 an A-5. A-1 was not implicated in the FIR. It was only after a confession statement was made by PW-16 in the year 1998 that A-1 was roped in. The allegations against A-1 were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting A-3 and A-4, twice, on the ground that the decisions taken were in the realm of commercial wisdom of the Company. If according to the Management of the Company, the very same act of the co-conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of A-1, as part of the criminal conspiracy,....
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....ngs dated 17.07.2000 and 18.07.2000 of the Additional Chief Judicial Magistrate, Madurai, relating to the tender of pardon, as Exhibit P-52. 55. Appearing on behalf of A-7, Shri S. Nagamuthu, learned Senior Counsel assailed the procedure so followed. According to the learned Senior Counsel, the Chief Judicial Magistrate/Metropolitan Magistrate is empowered to grant pardon during investigation, inquiry or trial and a Magistrate of first class is empowered to grant pardon while inquiring into or trying an offence. This is by virtue of Sub-section (1) of Section 306 of the Code. In the case on hand, the Additional Chief Judicial Magistrate granted pardon at the stage of investigation. Therefore, it is contended by the learned Senior Counsel that the approver, in cases covered by Section 306(1), should be examined twice, once before committal and then at the time of trial. The difference between the examination of an approver at these two stages is that the approver is examined as a court witness before committal, but as a prosecution witness during trial. Therefore, the learned Senior Counsel contended that such examination of an approver twice, is a mandatory requirement of Clause....
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....1 SCC 500, wherein it was held that the Special Judge has a dual power, namely that of a Court of Session and that of a Magistrate. Relying upon the decision in Harshad S. Mehta v. State of Maharashtra (2001) 8 SCC 257 and the decisions in P.C. Mishra v. State (Central Bureau of Investigation) (2014) 14 SCC 629 and State through Central Bureau of Investigation, Chennai v. V. Arul Kumar (2016) 11 SCC 733, the learned Senior Counsel contended that the request for pardon should have been made in this case at the stage of investigation only before the Special Court. Even assuming that it was a curable defect, there must be an evidence of good faith on the part of PW-18 (the Additional Chief Judicial Magistrate). In the absence of such an evidence, it is contended that the testimony of the approver was liable to be eschewed in this case. 58. We have carefully considered the above submissions. 59. Before we proceed with our analysis, it is necessary to bring on record Sections 306 and 307 of the Code and Section 5 of the PC Act. Section 306 and 307 of the Code reads as follows: 306. Tender of pardon to accomplice.-(1) With a view to obtaining the evidence of any person sup....
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....nt of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person. 60. Section 5 of the PC Act reads as follows: 5. Procedure and powers of special Judge.- (1) A special Judge may take cognizance of offences without the Accused being committed to him for trial and, in trying the Accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrates. (2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of Sub-sections (1) to (5) of Sec....
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....3) of Section 306 obliges the Magistrate tendering pardon, not only to record reasons for doing so but also to state whether the tender was accepted by the person to whom it was made; (v) Sub-section (4) of Section 306 makes it mandatory that every person accepting a tender of pardon made Under Sub-section (1) shall be examined as a witness both in the Court of the Magistrate taking cognizance and in the subsequent trial. Sub-section (4) also imposes an additional condition that the person accepting a tender of pardon shall be detained in custody till the termination of the trial, except when he is already on bail. (vi) A careful look at Clauses (a) and (b) of Sub-section (4) shows that the procedure prescribed therein is applicable only to cases covered by Sub-section (1). (vii) Sub-section (5) prescribes that once a person has accepted a tender of pardon Under Sub-section (1) and has been examined Under Sub-section (4) then the Magistrate taking cognizance should commit the case for trial either to the Court of Session or to the Court of Special Judge. In cases not covered by Clause (a) of Sub-section (5), the Magistrate taking cognizance should make ov....
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....t the stage at which pardon may be tendered by a Special Judge. This is perhaps in view of the express provisions of Sub-section (1) of Section 5 which empowers the Special Judge himself to take cognizance without the Accused being committed to him for trial. But the second part of Sub-section (2) of Section 5 of the PC Act creates a deeming fiction that the pardon tendered by the Special Judge shall be deemed to be a pardon tendered Under Section 307 of the Code. However, as rightly contended by the learned Senior Counsel for A-7, this deeming fiction is limited for the purposes of Sub-sections (1) to (5) of Section 308 of the Code. 66. It appears that before the advent of the Code of Criminal Procedure, 1973, the Courts were taking a view that the Magistrates had the power to tender pardon even after the commitment of the case for trial to the Court of Session/Special Judge. This was because of the way in which Section 338 of the Code of Criminal Procedure, 1898 was worded. A comparison of Section 307 of the Code of Criminal Procedure, 1973 with Section 338 of the Code of Criminal Procedure, 1898 will make the position more clear. Section 307 of the Code of Criminal Procedu....
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...., on the Accused making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. According to the learned Counsel, Sub-section (4) of Section 306 is not a condition for tendering pardon but is merely a procedure which has to be followed when a person is tendered pardon by a Magistrate in exercise of power Under Section 306. Since after a case committed to the Court of Session pardon is tendered by the court to whom the commitment is made, it would not be necessary for such court to comply with Sub-section (4)(a) of Section 306. Mr. Murlidhar, the learned Counsel appearing for the Appellants, on the other hand contended, that the object and purpose engrafted in Clause (a) of Sub-section (4) of Section 306 is to provide a safeguard to the Accused who can cross-examine even at the preliminary stage on knowing the evidence of the approver against him and can impeach the said testimony when the approver is examined in court during trial, if any contradictions or improvements are made by him. This right of the Accused cannot be denied to him me....
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....izance of the offence and in the subsequent trial, if any. Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further enquiry in the case commit it for trial to any one of the courts mentioned in Clauses (i) or (ii) of Clause (a) of Sub-section (5), as the case may be. Section 209 of the Code deals with the commitment of cases to the Court of Session when offence is tried exclusively by that court. The examination of accomplice or an approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. As envisaged in Sub-section (1) of Section 306, the tender of pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Consequently, the failure to examine the approver as a witness before the committing Magistrate would not only amount to breach of the mandatory provisions contained in Clause (a) of Sub-section (4) of Section 306 ....
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....ence remanded the matter back to the Magistrate for recording the evidence of the approver. Thus the defect got cured before trial and hence this Court held in paragraph 31 of the decision that eventually no prejudice or disadvantage was shown to have been caused to the Accused. 72. Thus, there were two distinguishing features in Suresh Chandra Bahri. The first was that the Chief Judicial Magistrate who tendered pardon in that case committed the case to the Court of Session for trial (unlike the case on hand) without examining the approver as a witness in the Court. The second distinguishing feature was that the Court to whom the case was committed for trial noticed the defect and hence remanded the case back to the Court of Chief Judicial Magistrate. Therefore, this Court applied the prejudice test in that case. 73. But more importantly, what was held in Suresh Chandra Bahri to be vitiated, was the committal order. Therefore, it was concluded eventually in Suresh Chandra Bahri that the moment the defect in the committal order is cured before trial, the trial does not get vitiated. 74. But in cases where a Special Court itself is competent to take cognizance and also empow....
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....e read in conjunction with Section 5(1) of the PC Act, 1988. The aforesaid legal position would also answer the argument of the learned Counsel for the Respondent based on the judgment of this Court in A. Devendran [A. Devendran v. State of T.N., (1997) 11 SCC 720 : 1998 SCC (Cri) 220]. In that case, this Court held that once the proceedings are committed to the Court of Session, it is that court only to which commitment is made which can grant pardon to the approver. The view taken by us is, rather, in tune with the said judgment. 75. In other words, this Court recognised in Arul Kumar two types of cases, namely (i) those which come through the committal route; and (ii) those where cognizance is taken directly by the Special Judge Under Section 5(1) of the PC Act. In the second category of cases, the Court held that Section 306 of the Code would get by-passed. 76. Therefore, it is clear that when the Special Court chooses to take cognizance, the question of the approver being examined as a witness in the Court of the Magistrate as required by Section 306(4)(a) does not arise. Shri Padmesh Mishra, learned Counsel for the Respondent is therefore right in relying upon the decis....
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....n merits to see if the offences under the Indian Penal Code or under the PC Act stood proved beyond reasonable doubt. 81. To recapitulate, the allegations against A-1 are (i) that by entering into a criminal conspiracy to cheat BHEL and award the tender to A-5's firm and by instructing PW-16 to go in for limited tenders without following the procedure of pre-qualification of prospective tenderers and without selecting any one from the approved list of contractors, he committed various offences punishable under the Indian Penal Code; and (ii) that by abusing his official position and awarding the contract to A-5, he caused a wrongful loss to the tune of Rs. 4.32 crores to BHEL. 82. For proving the allegations with regard to the criminal conspiracy and for establishing that A-1 decided to go in for Restricted Tender for the purpose of awarding the contract to a chosen firm and also for showing that A-1 directed the inclusion of four bogus firms, the prosecution relied upon its star witness, namely PW-16. But PW-16 was the first-named Accused in the FIR, who later turned approver by giving a confession statement. 83. As rightly contended by Shri Huzefa Ahmadi, learned Sen....
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.... material particulars. 85. Keeping the above principles in mind, if we turn our attention to the evidence of PW-16, it will be seen that he was trying to shift the burden on A-1, to save his own skin. The following admissions made by him during the cross-examination showed that he was unworthy of credit: (i) There was no approved list of contractors maintained at BHEL, Trichy, till 1994; (ii) It is not correct to say that open tender system was not at all resorted to by Civil Engineering Department in BHEL, Trichy till 1994. I cannot recollect single instance of open tender as I have forgotten; (iii) During my tenure I did not initiate anything to cancel the award of contract to Entoma Hydro Systems. It is true that I did not take steps to annul the contract as the circumstances did not warrant that; (iv) I am the competent person to call the tenderers for negotiation and in that capacity I wrote several letters to the contractors; (v) Exhibit P-55 is the letter dated 02.01.1993 by me to Entoma Hydro Systems asking them to send fresh offer before 07.01.1993; (vi) Exhibit P-53 is one such letter dated 31.12.1992 written by me ....
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....included in that list because it would give some respectability to the list. A1 thought for some time and told me that these two companies may also be included. 87. But in cross-examination, he admitted that Exhibit P-33 was a letter dated 22.10.1992 written by one Sri Kantarao, Manager (Civil/Design) to Ganesan (PW-14) and that there was a note in that letter to the effect that Ganesan has discussed this matter with DGM, Civil. PW-16 further admitted that it was possible that Ganesan might have discussed with him. 88. The above statement in cross-examination shows that the discussion between PW-16 and PW-14 took place on 22.10.1992. But the discussion with A-1 and the dictation of five names took place even according to PW-16, only in November, 1992. In fact, Exhibit P-33 letter which was dated 22.10.1992, according to PW-16 dealt with inviting limited tender. 89. If discussions had taken place between PW-16 and someone else in October, 1992 and a decision taken in that meeting to go for limited tender, it is inconceivable as to how the original sin can be attributed to A-1, especially when the discussion between PW-16 and A-1 took place only in November, 1992 wherein the....
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....s. BHEL Trichy. Apart from this amount an amount of Rs. 98,52,286/- is payable to Accused No. 5 by BHEL towards the work done by him... 97. Two things are borne out of the above admission made by PW-24. The first is that even at the time of investigation, PW-24 had provided to the I.O., a detailed accounts copy showing that BHEL had not suffered any loss and that on the contrary, a sum of Rs. 2.60 crores was payable to Entoma. But for some inexplicable reason, the copy of the said accounts statement was not produced by the CBI before the Court. The same had to be marked as Defense Exhibit D-1 while cross-examining PW-24. Therefore, it is clear that this statement of account was burked, so that a picture is painted as though BHEL suffered wrongful loss. 98. The second thing that flows out of PW-24's cross-examination extracted above, is that even after invoking the bank guarantee and appropriating the same towards the monies already paid, BHEL was still left with the contractor's money of Rs. 1,61,86,234/- apart from an amount of Rs. 98,52,286/- payable to A-5 by BHEL towards the work done. 99. Therefore, it is clear that it was A-5 who actually got into a mess, bot....
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....rough the statement of PW-4, Manager of L&T Company that a tender enquiry was received by them from BHEL. If the inclusion of the names of those two companies were intended to be a make belief affair, A-1 would not have taken the risk of sending the letter and that too to a company like L&T. Therefore, we are of the view, (i) that the evidence of PW-16 was not worthy of credit; (ii) that even assuming that it has some credibility, his statement that "he recommended the contract to be given to A-5 not because of A-1's interest", made the whole edifice upon which the case of the prosecution was built, collapse; and (iii) that there was no other evidence to connect A-1 with the commission of these offences. 103. In fact, the only person found by both the Courts to be guilty of the offence Under Section 120B was A-1. Therefore, an argument was advanced that a single person cannot be held guilty of criminal conspiracy. But this contention was repelled by the Courts on the ground that PW-16 was the second person with whom A-1 had entered into a conspiracy. In other words, the reasoning adopted by the Trial Court and the High Court was that only A-1 and PW-16 were part of the consp....
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....hat either A-1 or A-3 or A-4 either gave false evidence or fabricated false evidence in any stage of a judicial proceeding, falling within any of the three Explanations Under Section 193. But unfortunately, the Trial Court found A-4 guilty of the offence Under Section 193, without there being any specific allegation in the charge-sheet and without there being any specific finding on merits. 108. As rightly contended by Shri S.R. Raghunathan, learned Counsel for A-4, no Court shall take cognizance of any offence punishable Under Section 193 Indian Penal Code, except on a complaint in writing of that Court or of some other Court to which that Court is subordinate. This bar is found in Section 195(1)(b)(i) of the Code. No complaint was ever made by any Court or by any officer authorized by any Court that A-1 or A-3 or A-4 committed an offence punishable Under Section 193 Indian Penal Code. But unfortunately, the Trial Court convicted A-1, A-3 and A-4, of the offence Under Section 193 without any application of mind and the same has been upheld by the High Court. 109. Even according to the prosecution, the only role played by A-4 was that of being a member of a Committee constitu....
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....f the negotiation by the committee. The negotiation committee had insisted the bank guarantee for the amount and obtained the bank guarantee also. Though the negotiations were completed as early as in January, 1993 letter of intent came to be issued only in July 1994 i.e. after 18 months. It is true that because of the efforts of the negotiation committee the contractor was persuaded not to hike the rate because of the delay of 18 months in issuing the work order. 112. Despite the above assertion on the part of PW-16 giving a clean chit to A-3 and A-4, the Trial Court found both of them guilty on a convoluted logic that they were part of a Tender Committee and that "every word and every description in Exhibit P-36 (Tender Committee proceedings) had been written by them with a view to cheat BHEL" and that "if A-3 and A-4 were innocent they should have questioned and asked for details regarding the contractors." Such a reasoning given by the trial Court and approved by the Trial Court and approved by the High Court was completely perverse. 113. As rightly contended by the learned Counsel, A-4 had no role in choosing the tenderers, but entered the picture only after the offers w....
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....ated and that he could identify the signature of A-7 in Exhibit P-76. However, in cross-examination he admitted: the applicant's signature was available in the branch. I did not compare the specimen signature with the signature in the DD Application. When I was examined by CBI, I did not ask for the specimen signature of the applicant. 119. PW-40 through whom Exhibit P-90 was marked, did not say anything in the chief-examination that A-7 signed the application form for demand draft. He merely identified the demand draft application form and the party on whose behalf the demand draft was taken. In other words, PW-40, like PW-22 did not implicate A-7 as the person who signed the application for the issue of demand draft on behalf of some bogus firms. 120. PW-41 through whom Exhibit P-92 was marked, merely stated as to who obtained the demand draft. He did not also specifically name A-7 as the person who signed the application form or who received the demand draft. 121. In fact, PW-40 stated that no statement Under Section 161 of the Code was recorded by the I.O. though he was examined. Similarly, PW-41 stated that he was examined by the Inspector, CBI but he did....
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....-7 is concerned. His report marked as Exhibit P-68 did not implicate A-7 as the person in whose handwriting and signature, Exhibits P-66, P-76, P-90 and P-92 were written and signed. 128. Thus, there was a colossal failure on the part of the prosecution to establish that Exhibits P-66, P-76, P-90 and P-92 were in the handwritings/signatures of A-7. This is despite the prosecution examining the bank officials as PW-22, PW-32, PW-40 and PW-41 and the handwriting expert as PW-30. 129. Unfortunately, the Trial Court adopted a very curious reasoning in paragraph 91 (the only paragraph in which the reasons were given in this regard) that since he was a beneficiary of the money diverted to the account of Insecticides & Allied Chemicals, he must have had participation and knowledge that the demand drafts were purchased to cheat BHEL. Such a reasoning is wholly unacceptable in view of the fact that A-7 was Accused of forgery and charged Under Section 468 Indian Penal Code, in relation to these very same applications for demand drafts. Therefore, it was necessary for the prosecution to prove forgery and also to show that the purpose of such forgery was cheating. Both were absent. 13....