2018 (1) TMI 1639 - HC - Indian Laws

Validity of pre-charge and post cognizance proceedings - siphoning off of unaccounted amount - Privity of criminal conspiracy - trial for the accusation of criminal conspiracy - HELD THAT - For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. When it is not a case of the Petitioner-A13 was privy to any conspiracy with M/s. Emaar properties Public Joint Stock Company (PJSC) Dubai from the time of their entering the MOU much less even party to agreement between M/s. Emaar and its subsidiaries and M/s. Stylish Homes and not even privy with Ranga Rao- Director of M/s. Stylish Homes and nothing even of any material with substance to say any privy between A6-Rajendraprasad and the petitioner-A13 leave apart even any thing to infer between father and son of any knowledge of the son about his father was privy with others in any offence and not prevented that no way establish any criminal conspiracy to mulct the petitioner as A13 with others of them even taken for arguments sake of his version of the amount remitted by Parthasarthy was a loan and the amount remitted by Suresh was investment in any business are untrue that by itself but for one of several circumstances to infer no way suffice to charge him with accusation of criminal conspiracy. Thus there is nothing to implicate him with criminal conspiracy for there is nothing to show any circumstances give rise to a conclusive or irresistible inference of an agreement between him and one or more other persons to commit an offence; leave apart a few bits here and a few bits there on which the prosecution relies if any cannot be held to be adequate for connecting him with the commission of the crime of criminal conspiracy. Undisputedly from the settled legal position there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. For that the acts and conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. The innocuous innocent or inadvertent events and incidents should not enter the judicial verdict. If the agreement is not an agreement to commit an offence it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. what is essential of the Agreement as a primary fact is proved from the prosecution material on record for mere knowledge or even discussion of the plan is not per se enough. The ends of justice are to be understood by ascertainment of the truth as to the facts on balance of evidence on each side. With reference to the facts of the case the Court held that in the absence of any other method it has no choice left in the application of the Section except such tests subject to the caution to be exercised in the use of inherent jurisdiction and the avoidance of interference in details and directed providing of a legal practitioner. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not - where the Court finds that it would amount to abuse of process of the Code or that interest of justice favors otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone the courts exist. The principle thus laid down is before issuing a process and taking cognizance the Court has to consider from the existing material whether case falls within the exception and only if not to say prima facie accusation on a complaint or final report to take cognizance for any criminal if makes out. It is something different of prima facie consideration at pre-cognizance stage to the postcognizance defence available to the accused under any of the exceptions in detail to make out either from the prosecution material or from any material placed by accused to show he is not liable to be charged to face the ordeal of trial - When such is the case so far as the quash Court under Section 482 CrPC from the accused also entitled to ask by placing any material in defence to consider from facts and circumstances to subserve the ends of Justice irrespective of the complaint allegations make out case for taking cognizance where it deserves for quashing instead of continuing a lame prosecution with no purpose and by no need of inviting the accused to face the ordeal of trial. In INDER MOHAN GOSWAMI ANR VERSUS STATE OF UTTARANCHAL ORS 2007 (10) TMI 550 - SUPREME COURT It is observed that Court should balance with personal liberty the societical interest and a warrant for arrest of accused should not be issued without proper scrutiny of facts from complaint or F.I.R in application of judicial mind and where dispute is a pure civil in nature or from reading of F.I.R the ingredients of offence are absent the proceedings can be quashed. It is needless to say ends of Justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. Without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction - petition allowed.

Summary

Issues Involved:
1. Quashing of pre-charge and post-cognizance proceedings against the petitioner.
2. Allegations of criminal conspiracy, cheating, and breach of trust.
3. Evaluation of prima facie evidence and the applicability of legal provisions.

Detailed Analysis:

1. Quashing of Pre-Charge and Post-Cognizance Proceedings:
The petitioner sought to quash the proceedings in C.C.No.6 of 2012, arguing that no incriminating allegations were made against him in the charge sheets filed by the CBI. He contended that mere credit and debit entries in bank statements do not impute knowledge or complicity in any alleged criminal transactions. The petitioner emphasized that there was no entrustment of property, dishonest inducement, or meeting of minds as required under Sections 409, 420, and 120B IPC respectively. The court acknowledged that the petitioner had filed a discharge petition which had been pending for a long time, causing severe loss to his business and professional life.

2. Allegations of Criminal Conspiracy, Cheating, and Breach of Trust:
The prosecution alleged that the petitioner received amounts in his Dubai bank account from villa plot buyers as part of a larger conspiracy involving his father (A6) and others. The petitioner was accused of camouflaging the amount as a loan and refunding it as an afterthought. However, the court found no evidence of the petitioner’s involvement in any agreement or conspiracy with other accused persons. The court noted that the mere relationship between the petitioner and his father (A6) was insufficient to establish criminal conspiracy. The court reiterated that there must be cogent evidence showing a meeting of minds and conscious acts to infer conspiracy, which was lacking in this case.

3. Evaluation of Prima Facie Evidence and Applicability of Legal Provisions:
The court evaluated the material on record and concluded that there was no prima facie case against the petitioner for the alleged offences. It emphasized that the prosecution must show conclusive or irresistible inference of an agreement to commit an offence, which was not demonstrated in this case. The court cited several precedents, including the principles laid down in Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd and State of Jharkhand Vs. Lalu Prasad Yadav, to highlight that mere suspicion or relationship does not suffice to establish conspiracy. The court also referred to the Supreme Court’s observations in various cases, emphasizing the need for substantial evidence to prove criminal conspiracy and the importance of preventing abuse of the judicial process.

Conclusion:
The court allowed the criminal petition, quashing the proceedings against the petitioner in C.C.No.6 of 2012. It held that the material on record did not establish a prima facie case of criminal conspiracy, cheating, or breach of trust against the petitioner. The court emphasized the need for substantial evidence to proceed with criminal charges and highlighted the importance of preventing abuse of the judicial process. The petitioner was acquitted, and his bail bonds were canceled, with the caveat that the prosecution could seek to invoke Section 319 CrPC if new evidence emerged during the trial.