TMI Blog1986 (4) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... did not even bother to inquire as to who were the eminent public personalities who were trustees of these three trusts. It is prima facie difficult to accept the explanation offered by Ajit Kerkar. We do not think we would be unjustified, on the material on record, to take the prima facie view that these donations of ₹ 26 lakhs were also connected with the negotiations which took place on 25th March 1981 between Ajit Kerkar on the one hand and Gavai and the respondent on the other. We must therefore hold that a prima facie case has been made out on behalf of the prosecution for framing 23rd, 24th, 25th, 41st, 42nd and 43rd draft charges against the respondent. The learned Trial Judge in our opinion fell into an error in discharging the respondent in respect of these charges. Before we close we may make it clear that we have examined the evidence on record merely for the purpose of deciding whether the evidence is of such a nature that, if unrebutted, it would warrant the conviction of the respondent. It will be open to the respondent to rebut this evidence and to make out his defence when the trial proceeds against him on the charges already framed by the learned Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng under Section 245 sub-section (1) of the Code of Criminal Procedure whether any case has been made out against the accused which if unrebutted would warrant his conviction, it is difficult to understand as to how the court can brush aside the presumption under Section 4 of the Prevention of Corruption Act, 1947. Sub-section (1) of Section 4 of that Act provided that where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or of an offence referred to in clause (a) or clause (b) of sub- section (1) of Section 5 of that Act it is proved that an accused has accepted or obtained or has agreed to accept or admitted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or submitted to obtain, that gratification or that valuable thing as a motive or reward such as is mentioned in Section 161 or as the case may be, without consideration or for a consideration which he knows to be inadequate. When the court is called upon to consider whether a charge should be fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Up' is a 'consummation devoutly to be wished', although naive optimism cannot obfuscate the obnoxious experience that laws made in terrorem against those who belong to the top power bloc prove in action to be paper tigers. The pathology of our public law, with its class slant, is that an unmincing ombudsman or sentinel on the qui vive with power to act against those in power, now or before, and offering legal access to the informed citizen to complain with immunity does not exist, despite all the bruited umbrage of political performers against peculations and perversions by higher echelons. Law is what law says and the moral gap between word and deed menaces people's faith in life and law. And then, the tragedy - democracy becomes a casualty." "The impact of 'summit' crimes in the Third World setting is more terrible than the Watergate syndrome as perceptive social scientists have unmasked. Corruption and repression-cousins in such situations-hijack developmental processes. And, in the long run, lagging national progress means ebb ing peop1e's confidence in constitutional means to social justice. And so, to track down and give short shrift to these heavy-weight criminaloids who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is subordinate or from whom any person whom he knows to be interested in or related to the person so concerned. Whereas under Section 161 it is necessary to establish that the taking of gratification must be connected with any specific official action, favour or service by way of motive or reward, no such connection is necessary to be proved in order to bring whom an offence under Section 165 and all that is necessary to establish is that a valuable thing is accepted or obtained or agreed to be accepted or attempted to be obtained by a public servant from any person whom he knows to have been or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant or having any connection with the official function of such public servant and such valuable thing has been accepted or obtained or agreed to be accepted or attempted to be obtained without consideration or for a consideration which such public servant knows to be inadequate. The reach of Section 165 is definitely wider than that of Section 161. Moreover, it is clear from illustration (c) to Section 165 that money or currency is regarded by the Legislature as a valuable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection certificate from the Controller of Accommodation in view of the Bombay Land Requisition Act 1948. The partners of this firm therefore made an application to the Controller of Accommodation on 13th January 1981 pointing out that the Indo Suez Bank had approached them with a request to allow them to use the premises for the purpose of opening their branch office in Bombay and that it would be advantageous to the country to make it possible for the Indo-Suez Bank to open a branch office and requesting the Controller of Accommodation "to grant the necessary permission........... to permit the Bank to use the premises on sub-lease basis". Though this application was dated 13th January 1981, it appears from the endorsement made on the application that it was received in the office of the Controller of Accommodation on 11th February 1981. Thereafter on 19th February 1981 an officer from the office of the Controller of Accommodation visited the premises and certain documents relating to the partnership of M/s Nanubhai Jewellers were handed over by Lal Chand Rohra and the father of Ramesh Merchant to such officer. They also handed over to such officer copies of the rent receipts for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and below that is the date which presently reads 16/3. We shall revert to this endorsement of the first respondent a little later when we examine the arguments urged on behalf of the parties. Now according to the evidence of Ramesh Merchant he came to know from the staff of the office of the Controller of Accommodation in the first week of April, 1981 that file rebting to their application for no objection certificate had been forwarded to the first respondent. Ramesh Marchant knew the first respondent quite-well since he and his father had been stitching clothes for the first respondent. Ramesh Merchant therefore, after consulting his partners, went to the residence of the first respondent a day or two after he received the above information that the file had been forwarded to the first respondent. Ramesh Merchant stated in his evidence that he told the first respondent about the application for permission made on behalf of the firm of M/s Nanubhai Jewellers and requested the first respondent to sanction grant of no objection certificate stating that he and his father were partners in that firm. The first respondent stated that he knew that the file of the firm of M/s Nanubhai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramesh Merchant : "The accused told me that the needful would be done in the matter." Ramesh Merchant reiterated in cross-examination by the learned counsel appearing on behalf of the first respondent: "After I handed over the cheque the accused stated that he will do the needful in the matter." The no objection certificate was thereafter issued by the office of the Controller of Accommodation on 18th April 1981. On these facts the learned counsel appearing on behalf of the appellant submitted that offences under Section 161, 165 of the Indian Penal Code and Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act 1947 were clearly made out on behalf of the prosecution so as to warrant the framing of charges for the said offences against the first respondent. It is clear from the cross-examination of Ramesh Merchant by the learned counsel on behalf of the first respondent that the case of the first respondent was that Ramesh Merchant had not gone to visit the first respondent on either at the two occasions depose to by him nor had Ramesh Merchant offered the cheque of Rs. 8 lakhs to the Chief Minister but that the cheque of Rs. 8 lakhs was sent by the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this question because after the charges are framed, evidence may have to be led on behalf of the prosecution for the purpose of establishing overwriting of the figure "4" by the figure "3" and the first respondent may also lead the evidence to show that there is no overwriting and the original figure always was "3". But while we are considering the prima facie case made out against the first respondent we cannot help observing that it does appear from the original endorsement in red ink made by the first respondent at the bottom of the relevant page in the file (Ex. 815(D) that figure "3" has been thickly written over another figure which was presumably "4". The possibility cannot be ruled out that the original date below the endorsement was "16/4" and the figure "4" was overwritten by figure "3" with a view to showing as if the endorsement was made on 16th March 1981. This possibility does seem to receive support from the circumstance that, as appearing from the stamped endorsement on the last page of the file (Ex. 815(D), the file was received back in the office of the Controller of Accommodation on 18th April 1981. It is a little difficult to understand that, if the first respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the ultimate figure demanded was Rs. 8 lakhs. If the donation was being made voluntarily why should any request have been made by Ramesh Merchant to the first respondent to name a reasonable amount and where could be the question of such a request being considered sympathetically by the first respondent. Moreover, when Ramesh Merchant contacted Lalchand Rohra and his other parterns after this meeting with the first respondent, he clearly told them that the first respondent had demanded Rs. 10 lakhs for the no objection certificate but it was ultimately agreed that the firm of M/s Nanubhai Jewellers would pay Rs. 8 lakhs by way of donation to Indira Gandhi Pratibha Pratisthan. There is no reason to disbelieve the evidence given by Lalchand Rohra to this effect. Since the rent which the firm of M/s. Nanubhai Jewellers was to get from Indo-Suez Bank was phenomenal and it was more than eight times the rent payable by it to the landlord, the partners of the firm of M/s. Nanubhai Jewellers obviously did not mind paying the donation of Rs. 8 lakhs for getting the no objection certificate. The cheque for Rs. 8 lakhs was made out and according to the evidence of Ramesh Merchant, he wen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction of no objection certificate and 35th, 36th and 37th charges should have been framed against the first respondent. That takes us to draft charges 29, 30, and 31 arising out of the donations made by M/s Hira Nandani Builders and Hira Nandani Construction Private Limited to Indira Gandhi Pratibha Pratishthan. It is necessary to state briefly the facts relating to this transaction in order to be able to decide whether a prima facie case has been made out on behalf of the prosecution against the respondent in regard to this transaction and evidence led on behalf of the prosecution is such that if unrebutted it would warrant the conviction of the respondent on these charges. These draft charges are sought to be made good on the basis of the oral evidence of the sole witness Hira Nandani PW-28 and the documentary evidence produced in the course of his deposition. We will begin by first referring to the evidence of Hira Nandani and whilst we consider that evidence we shall refer to the various documents produced in the case. Hira Nandani was known to the respondent for more than 15 years and in fact the respondent was a family friend of Hira Nandani, having been a patient of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns dated 28th April 1981, one being Ex. 355 and 355A made by Hira Nandani Construction Private Limited, the second being Ex. 356 and 356A addressed by Hira Nagar Developers, the third being Ex. 357 and 357A addressed by Hira Nagar Constructions and the fourth being Ex. 358 and 358A addressed by Hira Nagar Enterprises. All these applications were addressed to the respondent in his capacity as Chief Minister. The application of Hira Nandani Constructions Private Limited Ex. 355 and 355A pointed out that until the date of the application the company had been allotted only 30 metric tonns of cement and requested the respondent to allot at least 250 metric tonns of cement. Similarly the application of Hira Nagar Developers Ex. 356 and 356A complained that the firm had not received any supply of cement at all and requested the respondents to allot at least 250 metric tonns of cement. So also the application of Hira Nagar Constructions Ex. 357 and 357A stated that the firm had received until the date of the application only 50 metric tonns of cement and requested the respondent to allot at least 250 metric tonns of cement. And lastly the application of Hira Nandani Enterprises Ex. 358 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be obtained prior to 4th July, 1981 and it was admitted by Hira Nandani in the course of his evidence that it was correct that till 15th June, 1981, that he had not received more than 400 metric tonns of cement against the four applications dated 28th April, 1981 Exs. 355 and 355A to 358 and 358A. It was only when as a result of further representations made to the respondent, new orders of allotment were issued on 23rd July, 1981 that some quantities of cement could be obtained by these four concerns of Hira Nandani. We have already referred to the fact that Hira Nandani Enterprises had undertaken construction work under the agreement with Udyogik Shramik Kamgar Housing Society. On account of want of cement this construction work had almost come to a stand-still in June, 1981. Hira Nandani Enterprises had also not been able to obtain any quantity of cement in respect of the other construction work undertaken by them at Villa Parle (East) despite the application dated 28th April, 1981 made by them to the respondent. The two applications were accordingly made to the respondent on 24th June, 1981, one by Hira Nandani Enterprises, marked as Ex. 354, pointing out that in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo donations of Rs. 30,000 and Rs. 1,20,000 in consideration of the grant of the two permits in favour of Hira Nandani Enterprises and Udyogik Shramik Kamgar Housing Society the first respondent had committed offences under sections 161 and 165 of the Indian Penal Code, sub-sections 1(d) and (2) of section 5 of the Prevention of Corruption Act, 1947. We shall presently proceed to consider whether these charges could be said to have been prima facie made out on behalf of the prosecution. But at this stage, it is necessary to refer to two other applications made by Hira Nandani Builders and Apex Builders, both being concerns of Hira Nandani. It seems that Hira Nandani Builders has started a new project at Varsova in May, 1981 and they needed cement for this project and they accordingly made an application dated 15th June, 1981 Ex. 648 and 648A for allotment of at least 500 metric tonns of cement. Apex Builders also made another application dated 23rd June, 1981 Ex. 649 and 649A for allotment of at least 250 metric tonns of cement and though this application was in the name of Apex Builders it was in respect of the same Varsova project. Now according to the evidence of V.T. Chari PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent and it is marked Ex. 421. It is the evidence of V.T. Chari that the file containing this note was returned to him on the same day, that is, 25th June 1981 and when the file came back to him, this note bore the signature of the respondent and the date in his hand-writing and V.T. Chari thereupon noted on the reverse of the note "Please keep with papers dealing with these cases" and addressed this note to the Deputy Secretary. Now the note Ex. 421 as exhibited contained the following endorsement made by the respondent : "'A' - Is it ? Where is 'B' ? Secy. to withdraw action and F CS Deptt. to decide on merit as usual. I am indeed surprised at such notings." just above his signature and date. The evidence of V.T. Chari is that this endorsement which has been marked Ex. 421A was not there at the time when the file was received by V.T. Chari from the respondent on 25th June 1981 and it was for the first time in September 1982 when R.D. Pradhan, who was then Chief Secretary, called V.T. Chari to his office and showed him the note Ex. 421 along with another note Ex. 419A that he saw the above endorsement of the respondent. The suggestion therefore clearly was that this endor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants for consideration or even otherwise, and to palm it off on the first respondent by falsely attributing the authority to do so to the first respondent, it passes one's comprehension as to why he should have on the same day submitted note Ex. 421 to the first respondent which would expose his deception and fraud and provide an opportunity to the respondent to immediately contradict and expose him. V.T. Chari would in that event be inviting his own ruination. It is indeed difficult to attribute such irrationality and foolishness to a senior I.A.S. Officer like V.T. Chari. Moreover, it is interesting to note that if the note Ex. 421 submitted by V.T. Chari to the respondent was wrong and the respondent had not given to V.T. Chari the instructions set out in that note, would the respondent have rested content with merely making an endorsement at the foot of the note saying that he was surprised at such notings. The first respondent would have been shocked at the statement contained in the note falsely involving the respondent and dishonestly attributing to him authority which he had not given and he would have immediately called upon V.T. Chari to explain his conduct in makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of these two applications, letters of allotment of 300 metric tonns of cement to Hira Nandani Builders and 250 metric tonns of cement to Apex Builders were issued on the same day, namely, 1st July, 1981 on which the first order of allotment, part of Ex. 421 in respect of 21 applicants, including Hira Nandani Builders and Apex Builders, was made by the Food and Civil Supplies Department. It would thus appear prima facie that Hira Nandani Builders and Apex Builders obtained 300 metric tonns and 250 metric tonns respectively of cement on applications submitted by them through the intervention of Pesi Tata. We may now revert to the dontions of Rs. 30,000 and Rs.1,20,000 made by Hira Nandani Construction Prviate Limited and Hira Nandani Builders respectively. The case of the prosecution was that these two donations were made by the two concerns of Hira Nandani in order to obtain allotment of cement which was badly needed for the construction works undertaken by the various concerns of Hira Nandani. This was disputed on behalf of the respondent who contended that these two donations had been made by Hira Nandani Construction Private Limited and Hira Nandani Builders voluntarily and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the two donations of Rs. 30,000 and Rs. 1,20,000 were connected with the grant of the two permits. It is interesting to note that prima facie one other correlation can also be perceived between the two donations of Rs. 30,000 and Rs. 1,20,000 made by Hira Nandani on behalf of his two concerns and the quota of cement allotted under the two permits. The donation of Rs.30,000 could be said to have been worked out at the rate of Rs. 30 per bag for the permit of 50 metric tonns, that is, 1000 bags of cement while the donation of Rs. 1,20,000 could be said to have been arrived at by applying the same rate of Rs. 30 per bag in respect of the permit of 200 metric tonns, that is, 4000 bags of cement. When Hira Nandani was asked to explain how it was that for the permit of 50 metric tonns, that is, 1000 bags, he made a payment of Rs. 30,000 which worked out to Rs. 30 per bag and for the permit of 200 metric tonns, that is, 4,000 bags he made payment of Rs. 1,20,000 which worked out to the same rate of Rs. 30 per bag, the only answer which Hira Nandani could give was that it was a coincidence. It is indeed strange that coincidences should take place in this transaction. It may also be not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulture and the Chief Secretary to the Government of Maharashtra were both nominated ex-officio Member on the Council of NCPA. Subsequently, with a view to enabling it to meet its operating expenses NCPA made an application to the Government of Maharashtra by its letter dated 4th March 1971 requesting the Government for permission to utilise upto one-fourth of the area granted to it for the purpose of putting up high grade shops and offices. This request of NCPA was granted by the Government of Maharashtra. By a Government resolution dated 31st October 1972, the Government granted permission to NCPA to use one-fourth area of the land for putting up high grade shops and offices on condition that 50% of the net income accruing out of the commercial user of this area would be payable to the Government of Maharashtra subject to certain conditions which are not material for the purpose of the present appeal. But, since it would take sometime for high grade shops and offices to be put up on one-fourth area of the land, NCPA applied to the Government of India for a bridging loan of Rs. 3 crores and this loan was sanctioned by the Government of India in February 1974 on the security of mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trustee of NCPA and apart from him there were ten other trustees including J.R.D. Tata. When NCPA found itself in this difficult situation where it would be almost impossible for it to carry out its activities, J.R.D. Tata addressed a letter dated 1st January 1979 to the then Chief Minister requesting him to permit NCPA to construct a commercial building with a rentable area of 400,000 sq.ft. This letter was followed by meetings with various officers in which J.J. Bhabha participated alongwith one Ajit Kerkar. Now, Ajit Kerkar was not in any way officially connected with NCPA. He was the Managing Director of Indian Hotels Co. Ltd. as also Chairman of the Board of Directors of PIEM Hotels Ltd. and Taj Trade and Transport Co. Ltd. which are admittedly Tata concerns. Though Ajit Kerkar did not hold any official position in NCPA, he took an active part in the negotiations with the various officers of the Government of Maharashtra in 1979 for the purpose of obtaining relaxation of the BMRDA notification dated 19th June 1977 and Government resolution dated 23rd March 1977 so as to enable NCPA to construct a commercial building of net rentable area of 400,000 sq.ft. The fact that Ajit Ker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary), Prabhakar (Special Secretary Finance) Pradeep (Secretary, Finance) and Kapoor (Secretary, Urban Development) as also with the respondent. But, these discussions did not yield any positive results until 24th March 1981 when Ajit Kerkar prepared a Note (Ex. 229) and handed it over to Gavai in his chamber on the same day. This note set out the scheme proposed by Ajit Kerkar but it did not make any mention of the donations to be made to Indira Gandhi Pratibha Pratishthan. Some reliance was placed on behalf of the respondent on the fact that this note did not make any reference to donations to be made to Indira Gandhi Pratibha Pratishthan and it was sought to be argued that there was in fact no such talk prior to the date of this note. But this argument is futile because Ajit Kerkar clearly admitted in his evidence that in February 1981 he had discussed this scheme with the respondent, Gavai, Prabhakar, Pradeep and Kapoor and that he had made it clear to the respondent and these officers that the donee of the scheme was Indira Gandhi Pratibha Pratishthan. There can therefore be no doubt that in February 1981 the question of donations to be made to Indira Gandhi Pratibha Pratishth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 3 years i.e. on completion and commissioning of the commercial complex - Rs. 25 lakhs per year. iii) After 8 years i.e. 5 years after the completion of the commercial complex - Rs. 50 lakhs per year. But he requested that these donations should be considered as deductible expenses while computing the net income so that 50% of the net income payable to the Government of Maharashtra should be arrived at after deducting the donations from the net income. But this request for deductibility of the donations in computation of the net income was not acceptable to Gavai and Prabhakar. Immediately, after the aforesaid discussion between Ajit Kerkar on the one hand and Gavai and Prabhakar on the other, they all went to the respondent and informed him of the agreement arrived at with NCPA. The respondent approved and confirmed the agreement but it was made clear to Ajit Kerkar and it was agreed by him that the donations made to Indira Gandhi Pratibha Pratishthan would not be deductible as expenses of NCPA while computing its net income. Thus it was clearly agreed that donations would be made to Indira Gandhi Pratibha Pratishthan by NCPA by itself or through others but that they would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited, all four being Tata concerns. It is interesting to note that these four cheques making up in the aggregate a donation of Rs. 1 crore were paid over to Nirmal Sethia Foundation within six months of the order dated 6th May, 1981 issued by the Government of Maharashtra granting relaxation asked for by NCPA, thus apparently complying with the scheme put forward by Ajit Kerkar under which the initial donation of Rs. 1 crore was to be made to Indira Gandhi Pratibha Pratishthan but, as admitted by Ajit Kerkar himself in paragraph 35 of his evidence, "NCPA did not make the proposed donation to the IGPP because the Government did not agree to exempt the entire amount as deductible expense...... We agree to pay the donations to the Nirmal Sethia Foundation because the trust agreed to exempt the entire amount under the Income Tax Act". It is thus obvious that the donation of Rs. 1 crore which was to be made to Indira Gandhi Pratibha Pratishthan within six months of the Government's confirmation under the agreement arrived at on 25th March, 1981 was diverted to Nirmal Sethia Foundation in which the respondent and his wife were trustees alongwith Nirmal Sethia and his wife and Ajit Kerk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Tata concerns were to refuse to sanction the donation. Nirmal Sethia Foundation would then have to return the amount of the donation but if this amount was already spent by Nirmal Sethia Foundation for purchasing land for the purpose of building a hospital, how would Nirmal Sethia Foundation be able to return the amount of the donation and even if the amount of the donation were returned, it would be without interest because there was admittedly no provision for payment of interest and a Tata concern making the donation would lose interest on the amount of the donation for the period during which the amount remained with Nirmal Sethia Foundation. Prima facie the entire episode relating to this donation of Rs. 1 crore to Nirmal Sethia Foundation appears to be bizarre. Obviously - and here again we are expressing our prima facie view this donation of Rs. 1 crore to Nirmal Sethia Foundation was co-related to the donation of Rs. 1 crore agreed to be made to Indira Gandhi Pratibha Pratishthan and lends support to the evidence of Prabhakar supported by his noting dated 29th April, 1981 part of Ex. 230. We would not on this material be unjustified in taking the view that it was in pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial complex, RS. 50 lacs per year. The above donations may be considered as NCPA's expenses, while computing NCPA's net income." Ajit Kerkar again tried to persuade the Government of Maharashtra that the above donations to be made to Indira Gandhi Pratibha Pratishthan should be considered as expenses of NCPA while computing its net income. But obviously this effort also did not succeed. Indeed it would have been difficult for the Government of Maharashtra to agree to allow the donations to Indira Gandhi Pratibha Pratishthan to be considered as expenses of NCPA while computing 50 per cent of the net income of NCPA payable to the Government for two very good reasons. Firstly, it would be a fraud on the Government because than 50 per cent of the donations to Indira Gandhi Pratibha Pratishthan would be really paid by the Government and secondly it would have to be expressly stated in the official documents that the donations were deductible in computing the net income of NCPA and that would have exposed the real nature of the transaction, namely, that the donations were paid for getting a favour from the respondent. Neither Gavai and Prabhakar nor the respondent therefore accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han and their request for treating the donations as deductible expenses was turned down by the Government of Maharashtra. The draft Government resolution for giving effect to the Cabinet decision of 10th April, 1981 was approved by the Chief Secretary and the Government resolution dated 6th May, 1981 was issued by the Government of Maharashtra directing that : i) The entire plot of land admeasuring 30,419 sq. mtrs. should be covered under one single lease provided that the mortgage in respect of 3/4th of the plot is redeemed. National Centre for the Performing Arts will also have option to extend the existing mortgage with the Government of India to cover the entire property. ii) The National Centre for the Performing Arts be allowed to utilise the F.S.I. at the currently permissible rate of 1.33 over the entire plot. The area so covered would, however be inclusive of the existing construction already made by the N.C.P.A. to the extent of about 95,000 sq.ft. iii) The NCPA be permitted to build a hotel of international standard in the complex and offices and shops ancilary and germane to such Hotel Establishment only. They may by themselves or through any other parties develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was expected to give donations before 31st March 1981. He went on to say that the respondent had sent to him one Jadav who was a labour leader in the Taj Group of Companies in Bombay and he heard from Jadav that Indian Hotels Company Limited intended to make donations before 31st March 1981. Indian Hotels Company Limited accordingly by a Resolution of its Board of Directors dated 31st March 1981 approved of donation of Rs. 6 lakhs to Ambet Pratishthan, Rs. 10 lakhs to Mahasle Taluka Pratishthan and Rs. 10 lakhs to Shri Verdhan Matadarsangh Pratishthan and cheques were paid to Sheroo Kanuga on behalf of these three trusts. Now it does appear prima facie that these 3 donations aggregating Rs. 26 lakhs were paid by Indian Hotels Company Limited pursuant to some understanding reached in the course of negotiations leading to the agreement dated 25th March 1981. We fail to appreciate what possible reason could have prompted Indian Hotels Company Limited to make these donations aggregating to a large figure of Rs. 26 lakhs to the three trusts of the respondent. It is significant to note that these three trusts along with the 4th trust of Raigarh Pratishthan were executed and registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... areas of the Konkan Region. The Managing Director further reported that the Trustees of the Trusts were very eminent public personalities and the trusts had been issued certificate of exemption of tax under Sec. 15CCA of the Income- tax Act, 1961, pursuant to which donations to the Trusts would be fully exempt from tax in the hands of the donors. The names of the Trusts are under : (i) Ambet Pratishthan (ii) Shrivardhan Matadarsangh Pratishthan (iii) Mhasale Taluk Pratishthan". It is difficult to understand as to how over 600 employees working in the Ta; Group of Hotels suddenly came to know must a little prior to 31st March 1981 that three trusts had been floated by the respondent when they were executed and registered only a few days before that. How is it that within 4 or 5 days over 600 employees of the Ta; Group of Hotels came to know about the existence of these trusts and how did they come to know that these 3 trusts were established for the purpose of undertaking programmes of rural development in the rural areas of Konkan Region. It is also stated in the minutes that Ajit Kerkar in his capacity as the Managing Director reported that the trustees of these 3 trusts we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent was, at the relevant time, holding the office of Chief Minister of the State of Maharashtra. Several legal proceedings were taken thereafter in regard to the necessity of sanction. Ultimately, however, the appellant lodged a fresh complaint on August 9, 1982, alleging commission of offences by the respondent punishable under ss. 161, 165, 384 and 420 read with s. 120B, I.P.C. as also s. 5(2) read with s. 5(1)(d) of the Act. This complaint came to be registered as Special Case No. 24/82 and was transferred to the High Court of Bombay for trial under an order made by a Constitution Bench of this Court on February 16, 1984, in R.S. Nayak v.A.R. Antulay, [1984] 2 S.C.C. 183. This Court directed : "Therefore, Special Case No. 24/82 and Special Case No. 3/83 (a similar complaint filed by one P.B. Samant against the respondent) pending in the Court of the Special Judge, Greater Bombay, Shri R.B.Sule, are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court" This Court in a separate judgment delivered on the same day in A.R. Antulay v. Ramdas Sriniwas Nayak Anr.,[1984] 2 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge in respect of those charges. It is this order of discharge relating to 22 charges which is assailed by the complainant in this appeal. The respondent, a Barrister by profession, entered into politics and was for some time Minister of Law in the State of Maharashtra and following the general election in 1980, came to be the Chief Minister of that State up to January 20, 1982. The appellant in his complaint petition named the respondent as the 1st accused and mentioned "others known and unknown" as the remaining accused persons. He alleged in the petition of complaint that between August 1980 and September 1981 when respondent was functioning as Chief Minister, he retained to himself the power to deal with the following matters : (1) The allotment of cement quota and distribution of cement; (2) Supply and sale of industrial alcohol, issue of licenses for wholesalers and retailers dealing in country liquor and Indian made foreign liquor; 673 (3) Control of co-operatives and in particular the sugar co-operatives; (4) Administration of urban land ceiling law, restriction of F.S.I. and exemptions therefrom and in fact he himself exercised these powers of the State. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. It is on record that her name was deleted and the Trust later came to be known only as Pratibha Pratishthan. As already stated, 43 draft charges were placed before the learned Trial Judge on the basis of the evidence of 57 prosecution witnesses and a large volume of documents. 43 draft charges were divided into six groups for convenience of consideration by the learned Trial Judge. These six heads with reference to the specific allegations and the particulars of the draft charges are shown below: Serial No. Allegation Offence alleged Charge No. 1. Conspiracy 120B, IPC 1 2. With reference to Sugar Co-operatives : (a) Shetkari Sahakar 165,384,420,IPC 2-4 Sakhar Karkhana (b) Warna -do- 5-7 (c) Panjara -do- 38-40 3. (a) National Centre for Performing Arts (NCPA) 161 165, IPC 23-25 5(2) read with 5(1) of the Prevention of Corruption Act. (b) Indian Hotel Co Ltd. 161 165, IPC; 41-43 5(2) read with 5(1) of the Prevention of Corruption Act. 4. Nanubhai Jewellers (F.S.I) 161 165, IPC; 33,35 5(2) read with 5(1), Prevention of Corruption Act. 5. Industrial Alcohol -do- 32,34 6. Cement Allotments -do- 8-22, 7.transactions 26-31. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46(1), on the other hand, requires : "If when such evidence has been taken or at any previous stage of the case the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which in his opinion should be adequately punished by him, he shall frame in writing a charge against the accused." The Code contemplates discharge of the accused by the Court of Sessions under s. 227 in a case triable by it; cases instituted upon a police report are covered by s. 239 and cases instituted otherwise than on police report are dealt with in s. 245. The three sections contain some what different provisions in regard to discharge of the accused. Under s. 227, the trial Judge is required to discharge the accused if he 'considers that there is not sufficient ground for proceeding against the accused.' Obligation to discharge the accused under s. 239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under s. 245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 227 or s. 228, then in such a situation ordinarily and generally, the order which will have to be made will be one under s. 228 (charge to be framed) and not under s. 227 (of discharge)". Untwalia, J. who spoke for the Court in that case, quoted with approval the view expressed by Shelat, J. in Nirmaljit Singh Hoon v. State of West Bengal Anr., [1973] 2 S.C.R. 66, and what had been said in yet another earlier decision of the Court in Chandra Deo Singh v. Prakash Chandra Bose, [1964] 3 S.C.R. 629. In the case of Union of India v. Prafulla Kumar Samal Anr., [1979] 2 S.C.R. 229, (a decision to which the trial Court referred), this Court was dealing with a case involving allegations relating to offences punishable under s. 5(2) read with s.5(1)(d) of the Act and s. 120-B, IPC as here. Fazal Ali, J. indicated that the Court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunia Ors.,[1979] 4 S.C.C. 274, a three Judge Bench of this Court said: "At this stage, as was pointed out by this Court in St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaints, however, continues to be cumbersome and time-taking and it is for Parliament to simplify the procedure for such cases keeping all aspects in view. Lengthy arguments were advanced both by Mr. Jethmalani for the appellant and Mr. P.P. Rao for the respondent with reference to the evidence. When an attempt was made by learned counsel on both sides to present an analysis of the evidence and criticism was advanced by Mr. Jethmalani against the reasons given by the trial Judge and support was indicated by Mr. Rao to such reasons, we indicated to Mr. Rao that if we went into the matter at length even for the prima facie purpose and indicated conclusions it might embarrass the respondent in, his defence even in respect of the charges framed by the trial Court. In view of these observations made in course of the hearing, a written statement on behalf of the respondent was filed on November 5, 1985, signed by the respondent and his counsel. The relevant portion of the said statement reads thus : "Since some charges have already been framed by learned Trial Judge with respect to offences under ss. 161 and 165, I.P.C. and s. 5(1)(d) read with s. 5(2) of the Prevention of Corrupt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Judge should be free to come to his conclusion in law with reference to the facts of the case about the scope and ambit of that provision that if any party was aggrieved by the decision it would still be open to be corrected in the appellate forum. Taking these submissions into consideration and on further deliberation, we are inclined to accept the view that it may not be appropriate at this stage to lay down the ambit and scope of the offence under s. 165, I.P.C. at any great length. It would be sufficient in our view to generally point out the distinction between sections 161 and 165, I.P.C. and simultaneously deal with the provisions of s. 5(1) read with s. 5(2) of the Act. But before doing so, we would briefly refer to the evidence in support of the charges which the respondent has agreed to be framed for the purpose of showing that the learned Trial Judge had prima facie taken a wrong view and it was a fit case where these charges should have also been framed. The complainant PW. 14 is a member of the Bhartiya Janata Party. He was elected as a State legislator in 1978 and from 1980 onwards he was General Secretary of the Bombay City unit of the said Party. He has suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd payment of Rs. 2,25,000 which has gone into the funds of the KUMM has been alleged and is claimed to have been proved. The record shows that the allotment of alcohol was restored. The oral evidence in this case is backed up by documentary evidence. Some of the relevant documents have interpolations and the inquiry relating to interpolation has not become final. It is indeed difficult at this stage to say that the evidence as a whole is inadequate to establish the prima facie case. The learned Trial Judge, as already pointed out, extracted at great length both the oral evidence as also the contents of documents but there was not much of analysis to justify rejection of the material. It may be pointed out that there is substance in Mr. Jethmalani's submission that the learned Trial Judge adopted two different standards in the matter of weighing the same evidence, when he agreed to frame 21 charges which were inter-linked and inter-connected with the rest of the prosecution story with reference to which the 22 draft charges had been given. In fact it is this position which, when properly considered by his counsel, led the respondent to file his statement suggesting that charges for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly violate the Penal Code, the law presumes every man to be innocent; but some men do transgress it; and therefore, evidence is received to repel this presumption." (emphasis supplied by us). The learned trial Judge should have proceeded to scan the evidence keeping this aspect of the legal position in view which he has missed. There is another aspect which has also to be noticed here. One of the allegations against the respondent is the commission of offences punishable under s. 5(1) read with s. 5(2) of the Act. Section 4 of that Act provides : 'Where in any trial of an offence punishable under s. 161 or section 165 of the Indian Penal Code, or of an offence referred to in clause (a) or clause (b) of sub-s. (1) of s. 5 of this Act punishable under sub-section (2) thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing is so concerned or interested or related. It has been pointed out by this Court in A. Vaidyanatha Iyer's case (Supra) that s. 165 is so worded as to cover cases of corruption which do not come within ss. 161, 162 or 163. Indisputably the field under s. 165 is wider. If public servants are allowed to accept presents when they are prohibited under a penalty from accepting bribes, they would easily circumvent the prohibition by accepting the bribe in the shape of a present. The difference between the acceptance of a bribe made punishable under s. 161 and 165, IPC, is this : under the former section the present is taken as a motive or reward for abuse of office, under the latter section the question of motive or reward is wholly immaterial and the acceptance of a valuable thing without consideration or with inadequate consideration from a person who has or is likely to have any business to be transacted, is forbidden because though not taken as a motive or reward for showing any official favour, it is likely to influence the public servant to show official favour to the person giving such valuable thing. The provisions of ss. 161 and 165, IPC as also s. 5 of the Act are intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and 31.3.81 had been able to secure a very small amount compared to the target and bulk of that small amount had come from the Government of Maharashtra; (iii) Considering the pomp and publicity with which IGPP had been brought into existence, the financial position appeared to be ridiculous for want of sufficient funds. The respondent had assured the Board of Trustees at the meeting of the 6th May 1981 that the sugar cooperatives at his instance had agreed to immediately make payment of their contribution; (iv) The statement of the respondent was based upon the fact that at the meeting on 25th April, 1981, of the ministerial committee held in his Secretariat Chamber, he had extracted promises from the managements of the sugar co-operatives for payment of contributions to IGPP in lieu of an assurance to them of agreeing to their pending demands with Government; (v) After obtaining the promise of donations, the respondent adjourned consideration of the demand of the industry to the next meeting to be held on the 28th May 1981 and insisted upon compliance of the promise of donations before their demands could be acceded to; (vi) The entire official machinery, particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person in fear of any injury to that person J or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits extortion." The main ingredients of the offence are : (i) the accused must put any person in fear of injury to that person or any other person; (ii) the putting of a person in such fear must be intentional; (ii1) the accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security; and (iv) such inducement must be done dishonestly. Before a person can be said to put any person to fear of any injury to that person, it must appear that he has held out some threat to do or omit to do what he is legally bound to do in future. If all that a man does is to promise to do a thing which he is not legally bound to do and says that if money is not paid to him he would not do that thing, such act would not amount to an offence of extortion. We agree with this view which has been indicated in Habibul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government and the public press to the fact that IGPP was a Government trust; and (ii) though Mrs. Gandhi had never agreed to the Trust being named after her, the respondent associated her name for the purpose of creating an impression in the mind of the people at large that the then Prime Minister, Mrs. lndira Gandhi had associated herself with the respondent's trust. The fact that Mrs. Gandhi had not consented was stated on the floor of the Parliament. The correct position was always known to the respondent and yet he either directly or through others misrepresented these two aspects with a view to making people part with money by way of contribution to this Trust. The evidence in regard to these allegations is both oral and documentary. The Cabinet met on October 6, 1980, and it is the prosecution case that the respondent gave out a Press Conference on the following day that on the 6th October the Cabinet had decided to create a Trust by the name of IGPP. The news relating to the Press Conference was reported in several newspapers, a few among them being the Free Press Journal, Sakal, Lok Satta, Nav Shakti and the Indian Express. The report appearing in the Free Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent was trying to create an impression that IGPP was a Government Trust, yet the same was not; but on account of her being in the Cabinet she did not dispute the position anywhere publicly. The Cabinet Resolution has not yet seen the light of the day. PW. 1 was specifically questioned as to whether there was a Cabinet decision in respect of creation of IGPP as a Govt. Trust. She declined to answer the question by saying that she was bound by the oath of secrecy and she would not be in a position to disclose that information. The prosecution attempted to cause production of the Cabinet decision but privilege was claimed and the claim has succeeded. Therefore, the document has not been produced before the learned trial Judge and is not a part of the record. The propriety of the claim of privilege is subjudice before this Court and we do not intend to say anything more about it. The core of the prosecution allegation in regard to this part of the matter is with reference to the sugar co-operatives. Several witnesses have been examined to support this aspect of the prosecution case. So far as the second aspect, i.e. relating to the association of the name of Mrs. Gandhi is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by the second part of (ii), the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. (See Dilbagh Rai Jarry v. Union of India Ors., [1974] 2 F S.C.R. 178.) Section 415 actually consists of two parts, each part dealing with one way of cheating - 1. Where, by deception practised upon a person the accused dishonestly or fraudulently induces that person to deliver property to any person or to consent that any person shall retain any property ; 2. Where, by deception, practised upon a person, the accused intentionally induces that person to do or omit to do anything which he would not do or omit to do, if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. The question is whether these ingredients are satisfied by the prosecution evidence. We must point out that the learned trial Judge failed to analyse the evidence which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers like Gavai have already retired and are no more in service. Almost five long years have intervened between the events and now. These are relevant aspects to be taken into consideration. So far as Gavai is concerned, the learned trial Judge has examined his conduct with reference to the matter relating to NCPA and has come to the conclusion one which may not be immediately rejected that he was anxious to watch the interests of the Government and, therefore, did not agree with the concessions proposed by the NCPA. We are inclined, therefore, to take the view that so far as Gavai is concerned, the trial Judge was justified in holding that he was not liable to be proceeded against as a co-conspirator. While dealing with this aspect of the matter, the learned Judge indicated that superior's direction was a germane consideration. We agree with Mr. Jethmalani's submission that the superior's direction is no defence in respect of criminal acts, as every officer is bound to act according to law and is not entitled to protection of a superior's direction as a defence in the matter of commission of a crime. It is relevant to point out that the other persons alleged against were not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been made out which is open to be rebutted by the 1st respondent. The learned trial Judge is, therefore, free to come to his own conclusions on the basis of the evidence which is already on record and which may be led before him by the parties when the trial proceeds after the framing of the charges and he will decide whether the charges against the 1st respondent are made out or not on the basis of the entire evidence. At the hearing Mr. Jethmalani for the appellant had prayed that we should give a direction to the learned Chief Justice to nominate a Judge other than Mehta, J. to take up A the further trial of the case and this prayer has been opposed by Mr. Rao for the respondent. It is too well settled that litigants can have no say in regard to the choice of the judge before whom their lis must be heard. We have no doubt that Mehta, J. had dealt with the matter in a fair way and there is no warrant on the facts of the case for shifting the case from him to another learned Judge for trial. Recording of the prosecution evidence is almost over and but for a few more witnesses and some documents which might come, the prosecution has already laid its entire cards before the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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