TMI Blog2015 (11) TMI 1862X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. The CBI failed to bring evidence on record to show that petitioner Bhojraj Teli had ever got any favour from accused Ramesh Nambiar, i.e., husband of petitioner Rekha Nambiar or that said accused was instrumental in awarding any contract to petitioner Bhojraj Teli from Railways during 1995-1996 or that any payment was made to M/s Archana Traders Pvt. Ltd. by petitioner Bhojraj Teli. However, the learned Trial Court while passing the order on charge recorded that in the absence of any record relating to consultancy, at this stage of charge, these entries have to be rejected and the entire such income is to be taken into account to see the extent of disproportion. The genuineness of the entries as submitted by the accused persons has to be established during trial only and no benefit of the same can be given to the accused at the stage of charge - The learned Trial C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f machines from various Railway Zones from 1981 onwards. Hence, as per the case of the prosecution, there is no nexus between the said petitioner and accused No.1, and therefore, there was no occasion for the commission of any of the alleged offences. There is evidence on record to establish that money paid by the M/s HYT Group of Companies to petitioner Rekha Nambiar has been duly shown in the books of accounts and in the ITRs of the respective years. Moreover, petitioner Rekha Nambiar had also disclosed the income received from M/s HYT Group of Companies in her ITRs, however the learned Trial Court has ignored both the documents mentioned above and opined that these documents are matter of trial - It is true that the evidence in possession of the accused will be considered at the time of trial, however, the fact remains in the instant case is that documents taken into possession by the CBI establish that both the petitioners had declared the payments made and received in their ITRs and if any misconduct towards the employer has been committed by petitioner Rekha Nambiar, she can be liable for the departmental action, however cannot be booked in this case. It is not the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies, Naveen Patil and Rekha Nambiar under Sections 13 (2) read with Section 13(1)(e) of Prevention of Corruption Act, 1988 ( PC Act ) and Section 109 of the Indian Penal Code, 1860 ( IPC ) on the allegations that accused Ramesh Nambiar while posted and functioning as AGM (Sport), Air India at New Delhi and other places, being a public servant, amassed assets worth about Rs.2,39,21,165/- during the period from 14.10.1991 to 30.06.1999 in his name, in the name of his wife, i.e., petitioner Rekha Nambiar and his family members, which were disproportionate to his known sources of income. 4. The matter was investigated by the Central Bureau of Investigation ( CBI ), whereby it was disclosed that accused Ramesh Nambiar joined Air India on 14.10.1991 as Sport Assistant at New Delhi. During the entire period of his office, he remained posted in Sport Division at Delhi in different capacities. During the period from September, 1995 to March, 1996, he remained posted as Assistant Private Secretary to the then Minister of State for Railways on deputation. Subsequently, during the period from March, 1998, he remained posted as Additional Private Secretary to the then Textile Minister on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back, petitioner Bhojraj Teli came in contact with accused Ramesh Nambiar and his wife petitioner Rekha Nambiar and developed friendly relations with them. Petitioner Bhojraj Teli had been visiting the office of accused Ramesh Nambiar, when he was posted as a Private Secretary to the then Minister of State for Railways during 1995-1996. Initially, he went to the office of the Minister of State for Railways along with Shantaram Potdhuke, the then MP from Maharashtra as a courtesy meeting as Sh. Suresh Kalmadi, the then Minister of State for Railways belongs to Maharashtra. Subsequently, petitioner Bhojraj Teli used to meet accused Ramesh Nambiar in his office of Railways whenever he visited the Railway Board in connection with his business of supply of machines of Indian Railways etc. Petitioner Bhojraj Teli used to receive orders for supply of machines through various Railway Zones from 1981 onwards. 9. It is further case of the CBI that name of M/s. Archana Traders Pvt. Ltd. and Naveen Patil figured in the FIR that accused Ramesh Nambiar obtained unlawful commission through petitioner Bhojraj Teli of M/s. HYT Group of Companies in the name of consultancy fee for his wife and ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rekha Nambiar had taken any prior written permission from the Bank before rendering any consultancy to petitioner Bhojraj Teli from 2006 onwards. Accordingly, no benefit of consultancy fee can be allowed at this stage of charge. 12. Mr. Bansal submitted that the learned Trial Court in its impugned order dated 01.05.2014 further recorded that the explanation that money belongs to petitioner Rekha Nambiar cannot be accepted at this stage of charge, even though reflected in ITRs of Rekha Nambiar, who intentionally aided accused Ramesh Nambiar in acquiring disproportionate assets. Accordingly, the charge against Ramesh Nambiar was framed for the offences punishable under Sections 13(1)(e) read with Section 13(2) PC Act. As far as petitioner Bhojraj Teli is concerned, the learned Trial Court recorded that his role in this case is that he is connected with the payment of consultancy charges / fee to petitioner Rekha Nambiar which itself is to be established during the trial. 13. Mr. Bansal further submitted that Memorandum of Understanding ( MoU ) dated 04.06.2006 (D-13) is an investors agreement wherein petitioner Rekha Nambiar agreed to contribute 20% of the paid up capital of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn sources of income as discussed above, and Shri Bhojraj Teli of M/s. HYT Group of Companies, M/s. Archana Traders Pvt. Ltd. and Shri Navin Patil have abetted Shri Ramesh Nambiar by various means in acquiring disproportionate assets. Therefore, the information prima facie discloses commission of offence punishable under Section 13 (2) r/w 13 (e) of PC Act, 1988 and Section 109 IPC. 16. Mr. Bansal further submitted that in order to bring home the guilt, either the prosecution was bound to establish that the amount of income shown in the name of the petitioner was bribe amount being paid to her husband or that it was the unaccounted money of her, which was being converted to the accounted one. The prosecution, however, did not allege either of the two, but had alleged that husband of the petitioner had obtained unlawful commission through petitioner Bhojraj Teli by routing the same through M/s. Archana Traders Pvt. Ltd. Ultimately, CBI could not establish the complicity of M/s. Archana Traders Pvt. Ltd. Consequently, the only allegations alleged having not been established, the prosecution was liable to be dropped. However, the CBI brought the half baked report before the Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sufficient for framing charge. 18. Mr.Siddharth Luthra, learned senior counsel appearing on behalf of petitioner Bhojraj Teli submitted that petitioner has been charged with offence punishable under Section 109 IPC read with Sections 13 (1) (e) and 13 (2) PC Act. The initial ingredient for Section 13 (1) (e) PC Act is that other person must be in possession of the property on behalf of public servant. However, there is no material in the charge sheet that the petitioner was in possession of any property on behalf of accused No.1 Ramesh Nambiar. As per the case of CBI, M/s HYT Innovative Projects Pvt. Ltd., had paid consultation fees to petitioner Rekha Nambiar and such payments had been made to said petitioner after due deductions of the TDS. The said payment was disclosed and reflected in the income tax returns of the above noted company. Thus, the petitioner cannot be charged for the offences punishable under Section 109 IPC. Ld. Sr. Counsel has placed reliance on M Krishna Reddy vs State Deputy Superintendent of Police, Hyderabad (1992) 4 SCC 45 wherein the Apex Court has held as under:- 14. We are unable to appreciate that reasoning and hold that the prosecution has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HYT Group of Companies to Rekha Nambiar for the commission of offences under Section 109 IPC read with Section 13 (1) (e) PC Act. The allegations against petitioner Rekha Nambiar is that she was not allowed to take further employment without the prior permission of Deutsche Bank, cannot be read against petitioner Bhoj Raj Teli. 20. Learned senior counsel further submitted that taking service of a Professional is not a criminal act. Without any document or the witness, inference drawn by the learned Trial Court is illegal and liable to be set aside. Moreover, the second employment of petitioner Rekha Nambiar is not a criminal act and it can at the best make her liable for departmental action. 21. To strengthen the contentions, he relied upon the decision of the Apex Court in DSP, Chennai vs K Inbasagaran (2006) 1 SCC 420 wherein the Hon ble Supreme Court held as under:- 17. Now, in this background, when the accused has come forward with the plea that all the money which has been recovered from his house and purchase of real estate or the recovery of the gold and other deposits in the Bank, all have been owned by his wife, then in that situation how can all these recoverie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case was of the possession and the premises in question was jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will not be proper to hold husband guilty. Therefore, in these circumstances, we are of the opinion that the view taken by the High Court appears to be justified and there are no compelling circumstances to reverse the order of acquittal. Hence, we do not find any merit in this appeal and the same is dismissed. 22. Learned senior counsel further submitted that allegations of the prosecution with regard to any real work being done by petitioner Rekha Nambiar are unsubstantiated. He submitted that the prosecution has relied upon two documents, which were the Shareholders Agreement dated 13.12.2012 and the MoU dated 04.06.2006 annexed as Annexures 1 and 2 respectively. Clause 5 of the Shareholders Agreement and Clauses 1,4,6,9 12 of the MoU mentioned above clearly establish that petitioner Rekha Nambiar had rendered her services as Consultant, Advisor and Director of M/s HYT Innovative Projects Pvt. Ltd. She had contributed 20% of the paid up capital in M/s HYT Innovative Projects Pvt. Ltd. She assisted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by the company. 16. The Penal Code, save and except some provisions specifically providing therefor, does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence. 17. A criminal breach of trust is an offence committed by a person to whom the property is entrusted. 18. Ingredients of the offence under Section 406 are:- (1) a person should have been entrusted with property, or entrusted with dominion over property; (2) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (3) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. 19. As, admittedly, drafts were drawn in the name of the company, even if appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Indian Penal Code. If and when a statute contemplates creation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted 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; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution and taken at the face value, whether existence of the ingredients constituting the alleged offence or offences are disclosed. It is for this limited purpose alone that the court is permitted to sift the evidence. In para 7 of the judgment in (1990) 4 SCC 76 Niranjan Singh Karam Singh Punjabi Ors. Vs. Jitendra Bhimraj Bijja Ors. the Apex Court defined the parameters of the scope and consideration thus: 7. The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exist sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt to lay down a rule of universal application. By and large however if two views are equally possible and the judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code of judge which under the present Code is a senior and experienced judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. xxxx From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2014 submitted that the petitioners have been charged for abetting the offence committed by accused Ramesh Nambiar, who was a public servant and alleged to have accumulated assets disproportionate to his known sources of income worth about Rs.2,08,38,170/- during the check period from 14.10.1991 to 30.06.2009 in his name, in the name of his wife, i.e., petitioner Rekha Nambiar and his family members. Further submitted that petitioner Bhojraj Teli colluded with accused Ramesh Nambiar to justify his tainted money by making available his companies to transfer the money of accused Ramesh Nambiar to his wife petitioner Rekha Nambiar. 33. Learned counsel further submitted that while framing the charge, the learned Trial Court has considered inter alia the facts that there is no evidence/document on record to establish her appointment as a Consultant with M/s. HYT Group of Companies. There is no evidence with regard to nature of work done by petitioner Rekha Nambiar. No project report was prepared and no permission was taken from her employer Deutsche Bank. 34. It is a settled law that in order to prove offence under Section 13(1) (e) PC Act, the prosecution has to satisfy the ing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed: Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. 22. Shri Shanti Bhushan cited certain illustrations which, according to us, would amplify the cases of abetments fitting with each of the three clauses in Section 107of the Penal Code vis-a-vis Section 13(1)(e) of the P.C. Act. The first illustration cited is this: If A, a close relative of the public servant tells him of how other public servants have become more wealthy by receiving bribes and A persuades the public servant to do the same in order to become rich and the public servant acts accordingly. If it is a proved position there cannot be any doubt that A has abetted the offence by instigation. Next illustration is this: Four persons including the public servant decide to raise a bulk amount through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a proved position then all the said persons are guilty of abetment through conspiracy. The last illustration is this: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weigh the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused. Where the material placed before the Court disclosed grave suspicion against the accused which has not been properly explained, the Court would be fully justified in framing the charge and proceeding with the trial. Further, if on the basis of material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge. At the time of framing of charges, the probative value of the material on record cannot be gone into, but before framing of charge, the Court ought to apply its judicious mind on the materials placed on record and must be satisfied that the commission of offence by the accused is possible. 38. Mr.Narender Mann, learned Special Public Prosecutor appearing on behalf of the CBI in CRL.M.C. No. 4781/2014 submitted that at the stage of charge, the Court would not ordinarily consider as to whether the accused would be able to establish his defence. The satisfactory explanation as contemplated under Section 13 (1) (e) PC Act has to be before the learned Trial Court during trial, however, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 109 IPC read with Sections 13 (1) (e) and 13 (2) PC Act. When the material on record per se sufficient for the Court to form an opinion that the accused person has committed the offence alleged against him, there is no reason why the charge against the accused should be quashed at such a preliminary stage when only charges having been framed and prosecution has to lead evidence in support of its case. 42. Learned counsel has relied upon the recent decision rendered by this Court on 05.10.2015 in Crl.M.C.No.4402/2014 Rekha Rani vs CBI Through its Standing Counsel, wherein it has been observed as under:- 17. It is settled law that at the time of framing of charge, the Court is not expected to hold mini trial and delve deep into the matter for the purposes of appreciating the evidence and the evidence can only be weighed when the entire material will be brought before the Trial Court. The Court was required to see at the time of framing charge whether a strong suspicion exists for commission of the offence. The Trial Court found prima facie case against the petitioner, accordingly framed charges. 43. I have heard the learned counsel for the parties. 44. The ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 onwards. 46. Further case of the CBI that accused Ramesh Nambiar obtained unlawful commission through petitioner Bhojraj Teli of M/s. HYT Group of Companies in the name of consultancy fee for his wife and routed the same through M/s Archana Traders Pvt. Ltd., wherein Naveen Patil and father of petitioner Rekha Nambiar were the major shareholders/Directors. It is not in dispute that investigation could not reveal any evidence to show that accused Ramesh Nambiar had invested the funds in M/s Archana Traders Pvt. Ltd. directly or indirectly. 47. In the case of P. Nallammal etc.(supra), the Apex Court held that a non-public servant is also liable to be tried along with the public servant before the Court of Special Judge having jurisdiction over the matter for commission of the offences punishable under Section 109 IPC read with Sections 13 (1) (e) and 13 (2) PC Act, when the material on record per se sufficient for the Court to form an opinion that the accused person has committed the offence alleged against him. The Legislature has advisedly used the expression satisfactorily account , the emphasis must be on the word satisfactorily . That means the accused has to satisfy t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITRs of Rekha Nambiar. However, the learned Trial Court ignored the MoU dated 04.06.2006 (D-13), which is an investors agreement, wherein petitioner Rekha Nambiar agreed to contribute 20% of the paid up capital of M/s HYT Innovative Projects Ltd. Moreover, the learned Trial Court has ignored the statement of K.B. Surve (PW3), who stated that petitioner Rekha Nambiar was paid salary from April, 2008 to October, 2008 amounting to Rs.21,00,000/-. The learned Trial Court has only considered the salary received from Deutsche Bank by petitioner Rekha Nambiar while calculating the disproportionate assets, however, ignored the consultancy fee, credit card used and travel expenses, which were duly intimated to the Income Tax Authority in ITRs. It shows that the learned Trial Court has ignored each and every aspect which is in favour of the petitioners and was on record. However, the learned Trial Court framed the charges only on the ground that petitioner Rekha Nambiar was not authorized to undertake any such consultancy work during the currency of her employment with Deutsche Bank without prior written approval of her employer. 50. In view of the facts recorded above, Section 109 IPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nambiar (A-2) and Sh. Bhojraj Teli (A-3). As investigation could not reveal and evidence against M/s. Archana Traders Pvt. Ltd. and Sh. Naveen Patil, hence, they are not sent up for trial. 52. Thus, once the very basis and genesis of the allegation stood disappeared, then could still the petitioners be prosecuted, is a question to be considered. 53. In order to bring home the guilt, either the prosecution was bound to establish that the amount of income shown in the name of the petitioner was bribe amount being paid to her husband or that it was the unaccounted money of her, which was being converted to the accounted one. The prosecution, however, did not allege either of the two, but had alleged that husband of the petitioner had obtained unlawful commission through petitioner Bhojraj Teli by routing the same through M/s Archana Traders Pvt. Ltd. But the fact remains that CBI could not establish the complicity of M/s Archana Traders Pvt. Ltd, consequently, the chargesheet has not been filed against said company. In this manner, the CBI has filed the half baked report before the learned Trial Court and the learned Trial Court instead of rejecting the same, at the outset, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment without the prior permission of Deutsche Bank cannot be read against petitioner Bhoj Raj Teli. Moreover, the second employment of petitioner Rekha Nambiar is not a criminal act and it can at best make her liable for departmental action. 56. The allegations of prosecution with regard to any real work being done by petitioner Rekha Nambiar are unsubstantiated. The prosecution has relied upon two documents, which were the Shareholders Agreement dated 13.12.2012 and the MoU dated 04.06.2006 annexed as Annexures 1 and 2 respectively. Clause 5 of the Shareholders Agreement and Clauses 1,4,6,9 12 of the MoU mentioned above clearly establish that petitioner Rekha Nambiar had rendered her services as Consultant, Advisor and Director of M/s HYT Innovative Projects Pvt. Ltd. She had contributed 20% of the paid up capital in M/s HYT Innovative Projects Pvt. Ltd. She assisted them in marketing the company s products. Moreover none of the Directors of M/s HYT Group of Companies were to be changed without permission of Rekha Nambiar which clearly establishes that she had active role in the affairs of the said company, for which she has been paid remuneration for her services. Even the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. 59. In case of R Kalyani vs Janak C Metha and Others, (2009) 1 SCC 516, the Apex Court observed as under:- 41. If a person, thus, has to be proceeded with as being variously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company. 60. There is evidence on record to establish that money paid by the M/s HYT Group of Companies to petitioner Rekha Nambiar has been duly shown in the books of accounts and in the ITRs of the respective years. Moreover, petitioner Rekha Nambiar had also disclosed the income received from M/s HYT Group of Companies in her ITRs, however the learned Trial Court has ignored both the documents mentioned above and opined that these documents are matter of trial. 61. It is true that the evidence in possession of the accused will be considered at the time of trial, however, the fact remains in the instant case is that documents taken into possession by the CBI establish that both the petitioners had declared the payments made and received in their ITRs and if a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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