TMI Blog2023 (6) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the Company, the very same act of the co-conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of A-1, as part of the criminal conspiracy, fell outside the discharge of his public duty, so as to disentitle him for protection Under Section 197(1) of the Code - the contention advanced on behalf of A-1 is upheld, that the prosecution ought to have taken previous sanction in terms of Section 197(1) of the Code, for prosecuting A-1, for the offences under the Indian Penal Code. Revolving around grant of pardon - HELD THAT:- The approver was examined as PW-16 during trial and he was cross examined on the contents of the confession statement. The Magistrate who recorded the confession was examined as PW 17 and the Additional Chief Judicial Magistrate who granted pardon was examined as PW-18. The proceedings before the XVIII Metropolitan Magistrate, the petition Under Section 306 of the Code and the proceedings on tender of pardon were marked respectively as EXX. P-50, 51 and 52. All the Accused were given opportunity to cross examine these witnesses both on the procedure and on the contents - there was no violation of the procedure prescribed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside - Appellants are acquitted of all the charges - Appeal allowed. - V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ. For the Appellant : Ranjeeta Rohatgi, AOR, Kaushik Mishra, Nishant Sharma, Adviteeya, Advs., Rakesh K. Sharma, Vijay Kumar, AORs, S. Nagamuthu, V. Mohana, Sr. Advs., B. Ragunath, N.C. Kavitha, Sneha Batwe, B. Pande and S.R. Raghunathan, Advs. For the Respondent : Sanjay Jain, A.S.G., A.K. Kaul, Shraddha Deshmukh, Madhav Sinhal, Srishti Mishra, Padmesh Mishra, Rajan Kumar Chourasia, Sweksha, Advs. and Arvind Kumar Sharma, AOR JUDGMENT V. RAMASUBRAMANIAN, J. 1. These three criminal appeals arise out of a common judgment passed by the Madurai Bench of the Madras High Court confirming the conviction of the Appellants herein for various offences under the Indian Penal Code, 1860 For short, IPC and the Prevention of Corruption Act, 1988 For short, PC Act . 2. We have heard Shri Huzefa A. Ahmadi, Shri S. Nagamuthu, Mrs. v. Mohana, learned Senior Counsel and Shri S.R. Raghunathan, learned counsel appearing for the Appellants and Shri Sanjay Jain, learned ASG assisted by Shri Padmesh Misra, learned Counsel for the Central Bureau of Investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 120B read with 420, 468, 471 read with 468 and 193 Indian Penal Code and Section 13(2) and 13(1)(d) of the PC Act. - A2 KrishnaRao, General Manager, BHEL Section 120B read with 420, 468, 471 read with 468 and 193 Indian Penal Code and Section 13(2) read with 13(1)(d) of the PC Act. Nil Acquitted of all charges A3 R. Thiagarajan, Assistant General Manager of Finance Section 120B read with 420, 468, 471 read with 468 and 193 Indian Penal Code and Section 13(2) read with 13(1)(d) of the PC Act. Section 109 Indian Penal Code read with 420, 468, 471 read with 468 and 193 Indian Penal Code. Not convicted for offences under the PC Act, since the competent authority refused to grant In addition, he was charged also Under Section 109 Indian Penal Code. sanction for prosecution against him. Not found guilty of Section 120B. A4 K. Chandrasekaran, Senior Manager in BHEL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and fine of Rs. 1000/- Section 471 read with Section 468 RI for 2 years and fine of Rs. 1000/- Section 193 RI for 1 year A4 Section 109 read with Section 420 RI for 2 years and fine of Rs. 1000/- Section 468 Indian Penal Code RI for 2 years and fine of Rs. 1000/- Section 471 read with Section 468 RI for 2 years and fine of Rs. 1000/- Section 193 RI for 1 year A7 Section 471 read with 468 RI for 1 year and fine of Rs. 1000/- Section 109 Indian Penal Code read with Section 13(2) read with Section 13(1)(e) of the PC Act RI for 1 year and fine of Rs. 1000/- 6. The background facts leading to the prosecution of the Appellants herein and their eventual conviction, may be summarised as follows: (i) During the period 1991-92, the Tamil Nadu Water Supply and Drainage Board decided to set up ROD Plants (Reverse Osmosis Desalination Pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) R. Krishna Rao, Retired General Manager, BHEL; (iii) R. Thyagarajan, Assistant General Manager (Finance), BHEL; (iv) K. Chandrasekaran, Deputy General Manager, BHEL; (v) Mohan Ramnath Proprietor, Entoma Hydro Systems; (vi) NRN Ayyar; and (vii) N. Raghunath. The final report was filed directly before the Principal Special Court for CBI Cases, Madurai. (ix) In the final report, the prosecution charged: A-1 to A-7 for the offences Under Section 120B read with Sections 420, 468, Section 471 read with Section 468, Section 193 Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the PC Act. A-1 and A-2 for offences Under Section 13(2) read with Section 13(1)(d) of the PC Act, 1988 and Section 109 Indian Penal Code read with Sections 420, 468, Section 471 read with Section 468 and Section 193 Indian Penal Code. A-3 and A-4 for offences Under Section 109 Indian Penal Code read with Sections 420, 468, Section 471 read with Section 468 and Section 193 Indian Penal Code. A-5, A-6 and A-7 for offences Under Sections 420, 468, Section 471 read with Section 468, Section 193 Indian Penal Code and Section 109 Indian Penal Code read with Section 13(1)(d) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquires were made, A-5 responded to the same not only in the name of M/s. Entoma Hydro Systems but also on behalf of the four bogus firms. A-7, the brother of A-5 obtained demand drafts for Rs. 20,000/- each in the names of the bogus firms by remitting cash into Indian Bank, Royapettah Branch, State Bank of India, Velachery Branch, State Bank of Mysore, T. Nagar Branch and Bank of Madura, Mount Road Branch and also by filling up demand draft applications and signing the same in the names of the bogus firms. Thereafter, the Tender Committee consisting of the Approver, A-3 and A-4 processed the names of all these firms and recommended the award of contract to M/s. Entoma Hydro Systems, giving false justifications for recommending them though the said firm did not have necessary experts or technical expertise. The Committee even recommended the sanction of interest free mobilisation advance, in violation of existing practice, to cause pecuniary advantage to A-5. Accordingly, an interest free mobilisation advance of Rs. 4.32 crores was paid to A-5's firm. The amount was deposited in the account of the firm with Indian Bank. From the said account, a sum of Rs. 1.52 crores was diver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfession statement of PW-16 (Approver) marked as Exhibit P-44 had to be rejected, in view of the fact that PW-16 had not stated anything self-incriminating in his confession statement. But this contention advanced on behalf of A-1 was rejected by the Court on the ground that Exhibit P-26 is the chit in which PW-16 admittedly wrote down the names of four bogus firms and the name of M/s. Entoma Hydro Systems, as dictated by A-1 and that this was sufficient to show that PW-16 was incriminating himself in the charge of criminal conspiracy with A-1. 12. When it was pointed out that as per the evidence on record, PW-1 was on leave 26.11.1992, due to the death of his mother-in-law and that therefore, he could not have had any discussion on that date, the Trial Court turned this very argument against A-1 and held that A-1 should not have approved the Approval Note dated 25.11.1992 marked as Exhibit P-27, if he was on leave and had not carried out a background check. 13. The Trial Court thereafter held that the prosecution had successfully proved that the four other firms whose names were found in the chit Exhibit P-26 were all bogus. This was on the basis of the evidence of PW-2, PW- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t A-1, A-3 and A-4 were Officers of BHEL, while A-7 was a private individual. 19. On the complicity of A-1, A-3 and A-4, the High Court primarily relied upon the evidence of PW-8, the Technical Examiner of the Central Vigilance Commission as well as the evidence of PW-16, the Approver. On the basis of their evidence, supported by documents, the High Court held that the complicity of A-1, A-3 and A-4 was proved. On the question as to whether the action of the Accused resulted in monetary loss to BHEL, the High Court held that the subsequent remedial measure taken by BHEL by invoking the bank guarantee and realizing the money, cannot lead to the conclusion that there was no wrongful loss. 20. Insofar as the complicity of A-7 is concerned, the High Court held that the signatures contained in the applications presented to various banks for obtaining demand drafts for procuring the tender document, were obviously that of A-7. In fact, the applications for securing demand drafts were marked as Exhibits P-66, P-76, P-90 and P-92 and these exhibits had been sent to a handwriting expert for his opinion. The handwriting expert was examined as PW-30. His report was marked as Exhibit P-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 13(1)(d) of the PC Act. 25. Appearing on behalf of A-4, it was contended by Shri S.R. Raghunathan, learned Counsel: (i) that A-4 played no role either in the preparation of tender or in choosing the tenderers; (ii) that what was constituted on 23.12.1992, after the tenderers were shortlisted, allegedly by PW-16 at the instance of A-1, was only a Negotiation Committee; (iii) that in the said Committee comprising of three members, namely A-3, A-4 and PW-16, he (A-4) was the one who was subordinate to the other two members and hence the logic applied to A-2 should have been extended to him also; (iv) that both the Special Court and the High Court overlooked the evidence of PW-14 to the effect that no tender committee was constituted; (v) that no wrongful loss was caused to BHEL; (vi) that on the contrary, due to the role played by A-4, a bank guarantee to the tune of Rs. 4.84 crores was obtained from Entoma Hydro Systems; (vii) that the bank guarantee was invoked and the entire amount paid by BHEL towards mobilization advance was recovered; (viii) that as a matter of fact a sum of Rs. 2.60 crores is due and payable by BHEL to Entoma Hydro System ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tings, which were absent in this case; (viii) That in any case there was no loss caused to BHEL, which is a sine qua non for the offence under the PC Act; and (ix) That by a strange logic A-7 was convicted for the offence Under Section 13(1)(e) of the PC Act. 27. Countering the submissions made on behalf of the Appellants, it was argued by Shri Padmesh Mishra, learned Counsel for the State: (i) that there was cogent evidence, both oral and documentary, to connect all the Accused with the offences for which they were found guilty; (ii) that the evidence of the Approver (PW-16) stood corroborated by the testimonies of other witnesses, on all aspects such as the deliberate act of going in for limited tender, predetermining the person in whose favour the contract was to be awarded, sanction of an interest free mobilisation advance far in excess of the normal business norm, diversion of such advance by the contractor to another firm in which he was a partner along with is father and brother and the eventual termination of the contract on account of these malpractices; (iii) that there is no requirement in law that actual loss should have been suffered for an offence Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, both in respect of any person who is and in respect of any person who was employed. By the amendment under Act 16 of 2018, Section 19(1)(a) of the PC Act was suitably amended so that previous sanction became necessary even in respect of a person who was employed at the time of commission of the offence . 31. The case on hand arose before the coming into force of the Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018). Therefore, no previous sanction Under Section 19(1) of the PC Act was necessary insofar as A-1 was concerned, as he had retired by the time a final report was filed. He actually retired on 31.08.1997, after 7 months of registration of the FIR (31.01.1997) and 5 years before the filing of the final report (16.07.2002) and 6 years before the Special Court took cognizance (04.07.2003). But previous sanction Under Section 19(1) of the PC Act was required in respect of A-3 and A-4, as they were in service at the time of the Special Court taking cognizance. Therefore, the Agency sought sanction, but the Management of BHEL refused to grant sanction not once but twice, insofar as A-3 and A-4 are concerned. 32. It is by a quirk of fate or the unfort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the consent of the Governor. The Federal Court observed at the outset that this question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances. The Federal Court then referred by way of analogy to a number of rulings Under Section 197 of the Code and held as follows: The reported decisions on the application of Section 197 of the Code of Criminal Procedure are not by any means uniform. In most of them, the actual conclusion will probably be found to be unexceptionable, in view of the facts of each ease; but, in some, the test has been laid down in terms which it is difficult to accept as exhaustive or correct. Much the same may be said even of decisions pronounced in England, on the language, of similar statutory provisions (see observations in Booth v. Clive. It does not seem to me necessary to review in detail the decisions given Under Section 197 of the Code of Criminal Procedure which may roughly be classified as falling into three groups, so far as they attempted to state something in the nature of a test. In one group of cases, it is insisted that there must be something in the nature of the act complaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lustration of a medical officer committing rape on one of his patients or committing theft of a jewel from the patient's person. 38. In Matajog Dobey v. H.C. Bhari (1955) 2 SCR 925 a Constitution Bench of this Court was concerned with the interpretation to be given to the words, any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty in Section 197 of the Code. After referring to the decision in Dr. Hori Ram Singh, the Constitution Bench summed up the result of the discussion, in paragraph 19 by holding: There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the Accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. 39. In State of Orissa through Kumar Raghvendra Singh v. Ganesh Chandra Jew (2004) 8 SCC 40, a two Member Bench of this Court explained that the protection Under Section 197 has certain limits and that it is available only when the alleged act is reasonably connected with the discharge of his official duty and is not merely a cloak f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court explained that sanction is required not only for acts done in the discharge of official duty but also required for any act purported to be done in the discharge of official duty and/or act done under colour of or in excess of such duty or authority. This Court also held that to decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. 43. Keeping in mind the above principles, if we get back to the facts of the case, it may be seen that the primary charge against A-1 is that with a view to confer an unfair and undue advantage upon A-5, he directed PW-16 to go for limited tenders by dictating the names of four bogus companies, along with the name of the chosen one and eventually awarded the contract to the chosen one. It was admitted by the prosecution that at the relevant point of time, the Works Policy of BHEL marked as Exhibit P-11, provided for three types of tenders, namely (i) Open Tender; (ii) Limited/Restricted Tender; and (iii) Single Tender. 44. Paragraph 4.2.1 of the Works Policy filed as Exhibit P-11 and relied upon by the prosecution laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. In such cases, official status only provides an opportunity for commission of the offence. 49. On the basis of the above observation, it was contended by the learned Counsel for the Respondent that any act done by a public servant, which constitutes an offence of cheating, cannot be taken to have been committed while acting or purporting to act in the discharge of official duty. 50. But the above contention in our opinion is far-fetched. The observations contained in paragraph 50 of the decision in Parkash Singh Badal (supra) are too general in nature and cannot be regarded as the ratio flowing out of the said case. If by their very nature, the offences Under Sections 420, 468, 471 and 120B cannot be regarded as having been committed by a public servant while acting or purporting to act in the discharge of official duty, the same logic would apply with much more vigour in the case of offences under the PC Act. Section 197 of the Code does not carve out any group of offences that will fall outside its purview. Therefore, the observations contained in para 50 of the decision in Parkash Singh Badal cannot be taken as carving out an exception judicially, to a statutory presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... released on bail by the Respondents themselves. After his release, the said K. Bhaskar Rao gave a confession statement Under Section 164 of the Code before the XVIII Metropolitan Magistrate, Chennai on 16.11.1998. On the basis of the statement so given by K. Bhaskar Rao, prosecution filed a petition in Criminal M.P No. 562 of 2000 before the Chief Judicial Magistrate, Madurai Under Section 306 of the Code for the grant of pardon. On the said petition so filed on 22.06.2000, the Additional Chief Judicial Magistrate, Madurai (to whom it was made over) summoned K. Bhaskar Rao to appear before him on 17.07.2000. After broadly informing K. Bhaskar Rao of the consequences of his action, the Additional Chief Judicial Magistrate adjourned the matter to 18.07.2000. On 18.07.2000, the Additional Chief Judicial Magistrate read out the contents of his confession statement and asked Bhaskar Rao whether it was voluntarily given by him after knowing the consequences. Once K. Bhaskar Rao answered the questions in the affirmative, the Additional Chief Judicial Magistrate passed an order on 18.07.2000 granting pardon to K. Bhaskar Rao Under Section 306 of the Code. Thereafter, the Respondents filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e approver is liable to be eschewed. 56. Shri S. Nagamuthu, learned Senior Counsel also submitted that the requirement of examining an approver once as a court witness before committal and then as a prosecution witness during trial, prescribed by Section 306(4)(a), will not be applicable to a case covered by Section 307 of the Code, which empowers the Court to which the case is committed for trial, itself to grant pardon. But in the case on hand, the case was not committed by any Magistrate/Additional Chief Judicial Magistrate to the Special Court and hence, the prosecution cannot even rely upon Section 307 of the Code. 57. Adverting to the provisions of Sub-sections (1) and (2) of Section 5 of the PC Act, it was contended by Shri S. Nagamuthu, learned Senior Counsel that the power to tender a pardon was available even to the Special Court. The pardon so tendered by the Special Court is deemed Under Sub-section (2) of Section 5 to be a pardon tendered Under Section 307 of the Code. But this deeming fiction is limited in its applicability only for the purposes of Sub-sections (1) to (5) of Section 308 of the Code. In other words, the power of the Court to grant pardon Under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952) (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (3) Every Magistrate who tenders a pardon Under Sub-section (1) shall record- (a) his reasons for so doing; (b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the Accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made Under Sub-section (1)- (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any, (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has accepted a tender of pardon made Under Sub-section (1) and has been examined Under Sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case, (a) commit it for trial- (i) to the Court of Session if the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate. (5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted. (6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944). 61. A careful look at the anatomy of Section 306 of the Code shows that it provides a plethora of steps either in the alternative or in addition. They are as follows: (i) Section 306(1) divides a criminal case into three stages, namely, (i) investigation; (ii) inquiry; and (iii) trial of the offence. (ii) A Chief Judicial Magistrate or a Metropolitan Magistrate is empowered to grant pardon to any person, at any of the three stages, namely the stage of investigation, the stage of inquiry or the stage of trial. In contrast, the Magistrate of the first class can grant pardon only in two stages, namely the stage of inquirin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate and that such a Special Judge conducts the proceedings both prior to the filing of the charge sheet and for holding trial. In fact what was in question in Bangaru Laxman was whether the pardon tendered by the Special Judge, one day before the filing of the charge sheet, was correct or not. This Court found the same to be in order. 64. Interestingly, Sub-section (2) of Section 5 which empowers the Special Judge to tender a pardon, does not speak about the stage at which a Special Judge may tender pardon. This point can be appreciated if we go back once again to Sections 306 and 307 of the Code which lays down the following rules: (i) A Chief Judicial Magistrate or a Metropolitan Magistrate is empowered to tender pardon at any of the three stages; (ii) The Magistrate of first class is empowered to tender pardon at two stage; and (iii) The Court to which commitment is made (meaning thereby either a Court of Session or a Court of Special Judge named in Sub-clauses (i) and (ii) of Clause (a) of Sub-section (5) of Section 306) is empowered to tender pardon at only one stage namely the trial of the offence. Though the word trial, used in Section 306(1) is not used in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Magistrate to tender, a pardon on the same condition to such person. 67. The change brought about by the legislature to the procedure prescribed in Sections 306 and 307 of the Code of 1973 was noted by this Court in A. Devendran v. State of T.N. (1997) 11 SCC 720. Incidentally, a question arose in A. Devendran (supra) as to whether the non-examination of the Approver as a witness after grant of pardon was a non-compliance of Sub-section (4)(a) of Section 306 and whether it would vitiate the proceedings. Paragraph 10 of the decision in A. Devendran is of importance and hence it is extracted as follows: 10. The next question that arises for consideration is as to whether non-examination of the approver as a witness after grant of pardon and thereby non-compliance of Sub-section 4(a) of Section 306 vitiates the entire proceeding. In the case in hand there is no dispute that after the Chief Judicial Magistrate granted pardon to the Accused he was not examined immediately after the grant of pardon and was only examined once by the learned Sessions Judge in course of trial. The question that arises for consideration is: When an Accused is granted pardon after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on knowing the evidence of the approver and can impeach the said testimony when the approver is examined in Court during trial. 69. For finding an answer to the said question, the Court in A. Devendran, first made a distinction between a case where tender of pardon was made before the commitment of the same to the Court of Session and a case where pardon is tendered after commitment. After making such a distinction, on the basis of whether pardon was tendered before or after the committal, this Court held in Devendran (para 11) as follows: 11. ... A combined reading of Sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if an Accused is tendered pardon and is taken as an approver before commitment then compliance of Sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an Accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers Under Section 307 then in such a case the provisions of Sub-section (4) of Section 306 are not attracted. ... 70. To come to the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hreshold so that he may take steps to show that the approver's evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial. It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with, the Accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approver's evidence as unreliable. Further Clause (b) of Sub-section (4) of Section 306 of the Code will also go to show that it mandates that a person who has accepted a tender of pardon shall, unless he is already on bail be detained in custody until the termination of the trial. We have, therefore, also to see whether in the instant case these two mandatory provisions were complied with or not and if the same were not complied with, what is the effect of such a non-compliance on the trial? 71. It is interest to see that in Suresh Chandra Bahri, this Court first held that the procedure prescribed in Section 306(4)(a) of the Code is mandatory and not dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 193 of the Code stipulates that the Court of Session cannot take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Thus, embargo of Section 193 of the Code has been lifted. It, however, nowhere provides that the cognizance cannot be taken by the Magistrate at all. There is, thus, an option given to the Special Judge to straightaway take cognizance of the offences and not to have the committal route through a Magistrate. However, normal procedure prescribed Under Section 190 of the Code empowering the Magistrate to take cognizance of such offences, though triable by the Court of Session, is not given a go-by. Both the alternatives are available. In those cases where charge-sheet is filed before the Magistrate, he will have to commit it to the Special Judge. In this situation, the provisions of Section 306 of the Code would be applicable and the Magistrate would be empowered to exercise the power under the said provision. In contrast, in those cases where Special Judge takes cognizance of offence directly, as he is authorised to do so in view of Section 5(2) of the PC Act, 1988, Section 306 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the object of examining an approver twice, is to ensure that the Accused is made aware of the evidence against him even at the preliminary stage, so as to enable him to effectively cross examine the approver during trial, bring out contradictions and show him to be untrustworthy. The said object stands fulfilled in this case, since the confession statement of the approver before the XVIII Metropolitan Magistrate was enclosed to the Charge Sheet. The approver was examined as PW-16 during trial and he was cross examined on the contents of the confession statement. The Magistrate who recorded the confession was examined as PW 17 and the Additional Chief Judicial Magistrate who granted pardon was examined as PW-18. The proceedings before the XVIII Metropolitan Magistrate, the petition Under Section 306 of the Code and the proceedings on tender of pardon were marked respectively as EXX. P-50, 51 and 52. All the Accused were given opportunity to cross examine these witnesses both on the procedure and on the contents. 79. In view of the above, we are of the considered view that there was no violation of the procedure prescribed by Section 306(4)(a) of the Code. Thus, we answer th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the Accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an Accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based. 84. Section 133 of the Indian Evidence Act, 1872 declares an accomplice to be a competent witness and that a conviction is not illegal merely because it proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id that he had located a person in Chennai who was a dynamic person, resourceful person, go-getter and an achiever. It was his positive assertion in chief examination that on the same day A-1 told him to prepare tender documents and hence he returned to his office and instructed the Tender Department to prepare the tender document. What has happened subsequently is narrated by PW-16 in chief examination as follows: ... After some time A1 again called me to his office and told me that he had collected the names and addresses of some contractors from TWAD Board who were in a position to take up the work if awarded. Then I told him that the tender documents were ready and that I could send the same if it was furnished with the names and address of the contractors. Then, A1 dictated the following 5 names 1) Entoma Hydro Systems, Madras. 2) East Coast Builders, Madras. 3) Turn Key Construction Company, Madras. 4) Raghava Engineers and Builders, Madras. 5) Mercantile Construction Company, Madras. I noted down these names. Then I told him that I had no knowledge of any of these 5 companies, might be they were exclusively the TWAD Board contractors and I might not be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation as to how they were represented in the meeting. 92. It was admitted by PW-16 that in Exhibits P-53 and P-54, (letters written to two of those firms) there was an indication as though the letters were in continuation of the telephonic conversation they had. 93. In other words, two of the four firms, which were branded as bogus firms by PW-16, have had discussions with PW-16 and they have also attended the meetings. 94. To cap all this, PW-16 admitted: I recommended the contract to be given to Entoma who was the lowest tenderer. I recommended the contract to be given to A5 not because of A1's interest. 95. Therefore, nothing more was required to show that PW-16 was unworthy of credit and the conviction based upon such a person as a star witness, cannot be sustained. 96. On the question whether BHEL suffered a wrongful loss or whether A-5 or any other firm with which he was associated had a wrongful gain, the evidence of PW-24 who was the Deputy Manager (Finance) BHEL is crucial. In his cross-examination, PW-24 stated as follows: ...In the course of the enquiry by the CBI official they asked me to send a detailed account copies. As per their request I se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized by BHEL. As a matter of fact, mobilization advance is intended to be used for the purchase of materials. The DGM (EMS), BHEL, examined as PW-34 stated even in chief examination that in the initial stages, the contract had gone very well and that up to the stage of water quality testing, the contractor was doing well. Therefore, the mobilization advance was necessarily to be spent. A suspicion cannot be thrown, solely on the basis of the person to whom the payments were made. If what was paid by BHEL to A-5 had been shared by A-6 and A-7, what was realized from A-5 through the invocation of the bank guarantee, cannot be taken advantage of to contend that A-6 and A-7 did not repay the money. The logic adopted by Trial Court in this regard was completely flawed. 101. Both the Trial Court and the High Court considered the oral evidence of PW-2 (a Chartered Accountant), PW-3 (an officer of the Chennai Telephones) and a few others to come to the conclusion that the names of four other firms included in Exhibit P-26 chit were bogus. But both the Trial Court and the High Court overlooked the admissions made by PW-16 that he held negotiations at least with two out of those four firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely linked to any of the Explanations Under Section 193 of the Indian Penal Code. Therefore, the judgment of the Trial Court and that of the High Court convicting A-1 for the aforesaid offences and sentencing him to imprisonment of varying terms and fines of different amounts are liable to be reversed. As regards A-4 105. As can be seen from the judgment of the Trial Court, A-4 was convicted for the offences Under Section 109 read with Section 420, 468 Indian Penal Code, Section 471 read with 468 Indian Penal Code and Section 193 Indian Penal Code. 106. As we have pointed out in the last paragraph dealing with the case of A-1, Section 193 Indian Penal Code deals with punishment for false evidence, given intentionally in any stage of a judicial proceeding. It also includes fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding. There are three Explanations Under Section 193. Explanation 2 Under Section 193 makes an investigation directed by law preliminary to a proceeding before a Court of Justice, to be a stage of judicial proceeding, though that investigation may not take place before a Court of Justice. Similarly, Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the picture only on 23.12.1992. The Note dated 23.12.1992 by which the Negotiation Committee was constituted brings on record the fact that five named contractors had submitted their offers. The names and addresses of all the five contractors, the amounts quoted by them and the date and mode of receipt of the offers are all presented in the form of a table in the Note dated 23.12.1992. After noting all these particulars, the Note date dated 23.12.1992 proceeds to state the object behind the constitution of the Committee as follows: As the quoted value by the tenderers are very high, it is proposed to conduct negotiation with the lowest three tenderers under Serial Nos. 1 to 3. 110. Therefore, the reading of the trial Court and the High Court as though this Committee of which A-3, A-4 and the Approver were a part, was actually a Tender Committee having a larger role to play, is completely misconceived. 111. In fact, the prosecution had to stand or fall on the strength of the testimony of the Approver namely PW-16. But this is what PW-16 said about the role played by A-3 and A-4. A3 Thiagarajan and A4 Chandrasekaran had absolutely nothing to do in choosing the contractors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were real firms, though they were not in existence. A-7 was also Accused of causing wrongful loss to BHEL along with A-5 and A-6 to the tune of Rs. 4.32 crores. A-7 was also Accused of abetting A-1 and A-2 to commit criminal misconduct by misusing their official position and obtaining pecuniary advantage to themselves. 117. To establish that A-7 filed applications with different banks for the issue of demand drafts in the names of four bogus firms, the prosecution examined PW-22, a Senior Manager of Indian Bank, PW-32, the Branch Manager of State Bank of India, PW-40, the Senior Manager of Bank of Madura, PW-41, the Chief Manager of State Bank of Mysore and PW-30, the handwriting expert. The prosecution marked Exhibits P-66, P-76, P- 90 and P-92, which were the applications submitted in the names of the four bogus firms, to these banks for the issue of demand drafts. 118. PW-22 through whom Exhibit P-66 was marked did not say even in the chief-examination that the application form was signed by A-7. PW-32 through whom Exhibit P-76 was marked, stated in the chief- examination that on the date of the application for the issue of demand draft he was not working in that branch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-7 were identified as S63 to S73A and marked as Exhibit P-75 series. 125. In the chief-examination, PW-30, the handwriting expert stated that in his opinion, the writer of the specimen writings/ signatures marked as S1 to S31 in Exhibit P-70, was the person responsible for writing the red-encircled questioned writings in certain documents. The writer of the specimen writings and signatures identified in Exhibit P-70 was A-5 and not A-7. 126. Similarly, PW-30 identified the writer of the specimen writings in S40 and S41 marked as Exhibit P-73 as the person responsible for writing Exhibit P-26. This related to K. Bhaskar Rao (PW-16) and the reference was to the chit in which the names of five firms were originally dictated and the names of two later included. Similarly, PW-30 identified in chief examination, the specimen writings marked in S42 to S62 and S93 to S96 in Exhibit P-74 as that of the person whose writings are found in Exhibit P-26. S42 to S62 and S93 to S96 were that of A-6. 127. After thus relating the specimen writings and signatures of A-5, PW-16 and A-6 to some of the questioned writings, the handwriting expert made it clear even in his chief examination tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the purpose of enabling a comparison. Without following the procedure so prescribed in Section 73, the High Court invented a novel procedure, to uphold the conviction handed over by the Trial Court through a wrong reasoning. 133. In fact, the High Court considered Exhibit P-75 to be the document containing the admitted handwritings and signatures of A-7 and compared what was found therein with the handwritings/signatures found in Exhibits P-66, P-76, P-90 and P-92. 134. But what was contained in Exhibit P-75 was never admitted by A- 7 to be in his handwriting. Exhibit P-75 was marked through PW-30, the handwriting expert, and not even by the I.O. At least if the I.O. had identified and marked the specimen writings and signatures of A-7 as Exhibit P-75, it was possible for the prosecution to contend that the specimen signatures stood proved. But the I.O. did not identify Exhibit P-75. PW-30 through whom Exhibit P-75 was marked did not directly obtain the specimen writings of A-7. The statement of PW-30 that the specimen writings of A-7 are in Exhibit P-75 was only hearsay evidence, as he did not directly obtain those specimen signatures. Thus, Exhibit P- 75 never stood p ..... 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