TaxTMI 
TaxTMI 
2014 (9) TMI 1297
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....eet has been noticed in the opening paragraphs of the impugned order and needs no reproduction. A supplementary charge-sheet was filed regarding purported diversion of coal by petitioners. However, impugned order does not direct petitioners to stand trial for the alleged diversion of coal and rightly so, as upon a bare reading of the supplementary charge-sheet, no case for diversion of coal by petitioners is made out. 3. During the course of hearing, the facts adverted to by learned Senior Counsel for petitioners as culled out from the charge-sheet are as under:- I. M/s. Prakash Industries Ltd. (PIL) referred to as Accused No. 4 installed a sponge iron plant in the year 1993 with an annual production capacity of 1,50,000 MT per annum with one functioning kiln. (Para-17.3 of the Charge-Sheet at page-146 of Vol. I refers) II. In the year 1996, accused No. 4-PIL added another kiln increasing the annual production capacity to 2,50,000 MT per annum. Therefore, in the year 1996, the production capacity of Accused No. 4-PIL was 4,00,000 MT per annum. III. The third kiln having an annual production capacity of 2,00,000 MT per annum was installed....
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....r all capacity of 20,00,000 MTPA (Para-17.5 at page-147 of Charge-Sheet refers). XII. The Screening Committee in meetings of 7th & 8th December, 2008 requested applicants to make individual presentations and on July 3, 2008 met to finalize all recommendations pending with them. The recommendation for allocation of additional 12,00,000 MT P.A. by Ministry of Steel in favour of PIL from Vijay Central Coal Block was cleared. (Para-17.6 at page-147 of Charge Sheet refers). XIII. However, before the final orders of allocation were made, M/s. SKS Ispat Power Ltd (SKS) on July 7, 2008 questioned the capacity of PIL as disclosed and accused PIL of inflated capacity and production figures to Secretary Coal. This representation was forwarded in July 8, 2008 to Ministry of Steel. [Para-17.8 of Charge Sheet on page-148 and D-7(Annexure P-9) at page 250 refers]. XIV. On July 9, 2008 Ministry of Steel sought fresh production figures from PIL for the last 6 months in respect of its sponge iron plant at Champa. (Para 17.9 at page 148 of Charge-Sheet at page 254 refers). XV. That PIL responded by letter dated 10.07.2008 under the alleged signatures of Accused No.....
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....ct that in the year 2008, both the Ministry of Steel and Ministry of Coal were aware that the then current capacity for production of sponge iron was 6,00,000 MT P.A. and that the allege false representation of capacity by PIL is not substantiated. (at Para 6 page 349 in Vol. II refers). XXII. On further complaints, clarification was sought from Accused No. 1 & 2 on the contents of their spot verification report and they substantially reiterated their position on production capacity of PIL. XXIII. The crux of the prosecution is that the quantities of sponge iron manufactured by PIL as reflected in the attested copies of ER-I Forms and in the report of Basak and Soumen Chatterjee on September 5, 2008 are inconsistent with the data forwarded by PIL along with ER-1 Forms in their letter dated July 23, 2008. In fact, according to the charge-sheet, there are no ER-1 forms in original as copies thereof were submitted to the Ministry of Steel along with the alleged communication of 10th July, 2008. The original ER-1 Forms are in fact submitted to the Ministry of Steel by PIL on 23rd July, 2008. This fact is admitted by the prosecution (Pg 150 of paperbook refers)." ....
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....January, 2007 (Annexure P-5) to point out that even in this communication, the existing capacity was clearly disclosed to Ministry of Coal. It was pointed out by learned Senior Counsel for petitioners that Office Memorandum of 23rd August, 2010 (Annexure P-24) also takes note of the true disclosure of facts by petitioners and the communication of 8th October, 2009 (Annexure P-20) of the Coal Controller to the Under Secretary in Ministry of Coal clinches the issue as in the aforesaid communication (Annexure P-20), it is concluded by the Ministry of Coal that no irregularity has been noticed. Thus, it was contended by learned Senior Counsel for petitioners that impugned order is clearly erroneous as it does not take note of the internal departmental communication of 8th October, 2009 (Annexure P-20) in which the unambiguous conclusion reached is that no irregularity by petitioner-M/s. Prakash Industries Ltd. was noticed. Thus, quashing of the impugned order is sought. 8. Learned Special Public Prosecutor for respondent-CBI has ably assisted this Court in the meticulous examination of the documents relied upon by the prosecution and had pointed out that petitioners' communication o....
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....rstood as capacity for which allotment of coal block has already been considered in earlier Screening Committee and for which they have already been allotted coal blocks and should not be considered under the instant advertisement. Ld. defence counsel submitted that in application of A-4 M/s PIL, the facts were already clarified and there was no misrepresentation on the part of A-3 A. K. Chaturvedi and A-4 M/s PIL. In respect of the question of forged ERs it was submitted that letter dated 10.07.2008 does not bear the signature of A-3 A.K. Chaturvedi and there is no material to show as how and who gave this letter to the Ministry of Steel. In view of the above discussion and evidence on record, prima facie the contention of ld. defence counsel appears meritless. As there was confusion about the production capacity and operating kilns, A-1 Goutam Kumar Basak and A-2 Soumen Chatterjee were appointed to give their report whereas A-4 M/s PIL was asked by the Ministry to submit ERs of A-4 M/s PIL. As per report of CFSL, both the letters purportedly written on behalf of A-4 M/s PIL by A-3 A. K. Chaturvedi are on the papers of the same source. Though letter dated 10.07.2008 does ....
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....d the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible." 11. In Rajiv Thappar v. Madan Lal Kapoor (2013) 3 SCC 330, Apex Court has further reiterated as under: - "30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. th....
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.... not at all justified in observing that the stand of petitioners relates to facts in issue. At this stage, it would be pertinent to refer to petitioners' communication of 23rd July, 2008 and the documents accompanying it (Annexure P-14) which is part of the charge-sheet. Undisputedly, aforesaid communication (Annexure P-14) reflects the correct factual position and in the face of aforesaid undisputed document, there remains no justification to put petitioners on trial in this case. 14. It would be worthwhile to note that the correct factual position was disclosed by petitioners, not only in its communication of 23rd July, 2008 (Annexure P-14), but at the earliest opportunity i.e. in petitioners' application of 12th January, 2007 for allotment of captive coal blocks, which is also a document (D-55) forming part of the charge-sheet. On behalf of respondent-CBI, it was much emphasized that petitioners' communication of 29th January, 2007 (Annexure P-5) disclosing the correct factual position is not part of the charge-sheet. This is true, but it appears from bare perusal of petitioners' communication of 29th January, 2007 (Annexure P-5) that it is a reiteration of petitioners' earli....
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..... Chaturvedi had accompanied his co-accused for spot inspection would not justify putting him up for trial on the premise that the factual data as contained in the spot Inspection Report tallied with the communication of 10th July, 2008. It is so said because in the face of the Forensic Report of 27th January, 2011 (Annexure P-13 colly.), which is part of the charge-sheet, prosecution is unable to show that it connects petitioners with the offence in question. The irresistible conclusion arrived at is that even with the aid of Section 120-B of IPC, petitioners cannot be put on trial with their co-accused who are sought to be prosecuted on the basis of the spot Inspection Report (Annexure P-16). 18. In a criminal trial, accused was discharged by the Sessions Court and the said order was reversed by the High Court and the Apex Court in Rajiv Thapper (supra) restored the order of discharge by observing that on the parameters formulated in the said decision, as noticed hereinabove, ought to be taken into consideration. The pertinent observations of the Apex Court in Rajiv Thapper (supra) deserve to be noticed and are as under: - "38. We are persuaded to conclude from the fa....