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2023 (6) TMI 1351 - SC - Indian LawsCriminal conspiracy to cheat BHEL in the matter of award of contract for the construction of desalination plants - Conviction of accused - Section 197 of the Code - correctness of the procedure adopted while granting pardon Under Section 306 of the Code - culpability of each of the Appellants. Revolving around Section 197 of the Code - HELD THAT:- 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, fell outside the discharge of his public duty, so as to disentitle him for protection Under Section 197(1) of the Code - the contention advanced on behalf of A-1 is upheld, that the prosecution ought to have taken previous sanction in terms of Section 197(1) of the Code, for prosecuting A-1, for the offences under the Indian Penal Code. Revolving around grant of pardon - HELD THAT:- The approver was examined as PW-16 during trial and he was cross examined on the contents of the confession statement. The Magistrate who recorded the confession was examined as PW 17 and the Additional Chief Judicial Magistrate who granted pardon was examined as PW-18. The proceedings before the XVIII Metropolitan Magistrate, the petition Under Section 306 of the Code and the proceedings on tender of pardon were marked respectively as EXX. P-50, 51 and 52. All the Accused were given opportunity to cross examine these witnesses both on the procedure and on the contents - there was no violation of the procedure prescribed by Section 306(4)(a) of the Code. Revolving around the merits of the case qua culpability of each of the Appellants - HELD THAT:- A-1 was found guilty of an offence Under Section 193. Section 193 applies only to false evidence given in any stage of a judicial proceeding or the fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding. The allegation against A-1 was not even remotely linked to any of the Explanations Under Section 193 of the Indian Penal Code. Therefore, the judgment of the Trial Court and that of the High Court convicting A-1 for the aforesaid offences and sentencing him to imprisonment of varying terms and fines of different amounts are liable to be reversed. A-4 had no role in choosing the tenderers, but entered the picture only after the offers were received from the tenderers. Admittedly, A-4 was subordinate to both PW-16 and A-3 - Thus, the competent authority refused to grant sanction to prosecute A-3 and A-4 for the offences under the PC Act. The Trial Court and the High Court did not find A-4 as a co-conspirator, which is why he was not held guilty of the offence Under Section 120-B Indian Penal Code. Section 193 Indian Penal Code had been included completely out of context - the conviction of A-4 by the Trial Court as confirmed by the High Court is wholly unsustainable and is liable to be set aside. The finding recorded by the Trial Court and the High Court as though A-7 committed forgery and cheating by making applications for the issue of demand drafts in the names of bogus firms is wholly unsustainable - only connecting link pointed out against A-7 was the transfer of money to the total extent of Rs. 1,52,50,000/- to the account of a firm of which he was a partner. This by itself will not constitute any offence. Therefore, the charge that A-7 abetted the commission of the crime by the other Accused, should also fail. This is especially so when A-5, whose proprietary concern bagged the contract, not only lost the contract but also allowed the bank guarantee to be invoked by BHEL and in addition, left a huge amount of Rs. 2.60 crores still with BHEL. Therefore, the conviction and sentence awarded to A-7 cannot be sustained. The judgment of the Special Court for CBI cases convicting the Appellants for various offences and the judgment of the High Court confirming the same are set aside - Appellants are acquitted of all the charges - Appeal allowed.
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