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TMI Blog2024 (8) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... CBI No. 60/2010. Petitioners at the relevant time acted as Shipping Agents of Shipping Corporation of India Ltd. (SCI) for handling port related activities. Brief prosecution story is that a criminal conspiracy was entered into by four officials of SCI viz. (i) Shri. Dhaneshchandra Punamchand Revawala-the then Deputy General Manager, SCI, (ii) Shri. Naishad Rashiklal Saraiya-the then Vice President, Outport Accounts Department, SCI, (iii) Smt. Vaishali Ladi-the then Manager (Outport Accounts), SCI and (iv) Shri. Hari Prakash Kamath-the then Deputy Manager, Finance & Accounts Division (Outport Accounts), SCI, who abused their official position and entered into a criminal conspiracy with Petitioners for granting undue benefits to Petitioner No. 2, an agent of SCI. The accusation of abuse of official position and criminal conspiracy against the four SCIL officials stem out of the following broad allegations: (i) failing to direct Petitioners to comply with conditions laid down in the Agreement dated 12 April 1999. (ii) dishonestly not forwarding the bills pertaining of financial years 2003-04 to 2006-07 submitted by Petitioner No. 2-M/s. J.M. Baxi & Co. to the Operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarged him from CBI Special Case No. 60/2010. 6) Thus out of the four SCI officials, one has passed away and three have been discharged by this Court and only two Petitioners now remain accused in CBI Special Case No. 60/2010. Petitioners also filed application at Exhibit-116 seeking their discharge. The learned Special Judge has however proceeded to reject the application by order dated 23 November 2017, which is the subject matter of challenge in the present petition. By order dated 5 December 2023, this Court has stayed the proceedings before the learned Special Judge. 7) Mr. Kumar Abhishek Singh, the learned counsel appearing for Petitioners would submit that all the allegations in the chargesheet are essentially made with reference to public servant and there is no separate or specific allegation against Petitioners. That it is an admitted position that all the subject invoices submitted by Petitioners to SCI have been disallowed. The factum of the invoices not being cleared/paid has been categorically dealt with by the Chairman and Managing Director of SCI while passing the order dated 18 September 2010 refusing to grant prosecution sanction to the charge-sheeted public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld therefore pray for discharge of the Petitioners. 8) The petition is opposed by Mr. Kuldeep Patil, the learned counsel appearing for Respondent-CBI. He would submit that the Petitioners are repeatedly found to have raised and got cleared several fictitious bills, unsupported by any vouchers and has caused wrongful loss to SCI. He would submit that the nature of transaction involved in the present case is of such nature that Petitioners, while acting as agent for SCI, used to possess funds of SCI in advance and they were raising bogus invoices for claiming various amounts out of those funds available with them. That therefore the sanctioning or clearing of bills is not entirely relevant in the facts of the present case as Petitioners had full intention of misappropriating the funds of SCI by raising fictitious bills. That there is ample documentary as well as oral evidence on record pointing out incriminating role of Petitioners. He would rely upon report of the Chartered Accountant, M/s. R.B. Jain & Associates dated 9 August 2009 in which 980 false bills of the year 2005-06 and 45 false bills of the year 2006-07 were found to have been submitted by Petitioner No. 2 to SCI. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erating Division/User Department for scrutiny and therefore the bills had remained unsettled/uncleared. It is CBI's allegation that even soft copies of bills were not loaded in the system of SCI and that in some cases, the uploading was delayed by more than 240 days. It is CBI's allegation that SCI officials did not even bother to question Petitioners about missing and unsupported vouchers in respect of those bills, which remained uncleared/unsettled. According to CBI, ultimately M/s. S.B. Billimoria & Co., internal auditor appointed by SCI disallowed the said bills in their audit report dated 1 June 2006. Another allegation by CBI is about failure to adhere to the stipulations of the Agency Agreement by the officials of SCI. The CBI apparently appointed M/s. R.B. Jain & Associates, its own Auditor, and claims of Rs.3,21,647/- for FY 2005-06 and Rs.3,82,506/- during FY 2006-07 towards conveyance of custom officials and sundry/telephone/fax expenses etc were disallowed by the said Auditor. 12) Perusal of the chargesheet filed by CBI in the present case would indicate that the prosecution essentially proceeds on a footing that the four custom officials have cheated SCI and caused w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion related only to SCI officials. Therefore, the findings recorded by CMD in relation to the said allegation need not be examined in the present case. 15) The third allegation of incorrect claims made by Petitioners for Rs. 3,21,647.50/- during FY 2005-06, Rs. 3,08,246/- during FY 2006-07 appears to be the main allegation against Petitioners and it is claimed that no such expenditure towards conveyance of custom officials was actually incurred by Petitioners. After examining the allegations and evidence on record, CMD held that even those bills for Rs. 3,21,647.50/- and Rs. 3,08,246/- were actually settled and remained pending with Operating Division for scrutiny /authorisation. The relevant findings recorded by the CMD, SCI in this regard are as under: Firstly, the aforesaid CBI Report as well as the report of the CBI appointed Chartered Accountants M/s. R.B. Jain, themselves mention merely that M/s. J.M. Baxi & Co. had claimed the aforesaid amounts, however, it is nowhere mentioned in the said reports that the SCI had actually sanctioned or authorised or settled or paid the said amounts. While in all fairness, it is stated that it may be true that the General accounts submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a ship visits a port. Even a day's delay on the part of an agent in handling such important tasks, in respect of the visit of just a single ship, could lead to loss of thousands of dollars for the SCI due to highly competitive nature of the shipping industry, Time is of essence in this regard, and, so is the necessity to have perfection in the quality of work. A slight lapse in the quality of work can mean huge losses for the SCI. It is in this context that the agents of various shipping companies have generally been following the practice of escorting the Customs offices or officers of other authorities in their vehicles in their anxiety to ensure that not even a single minutes is wasted unnecessarily waiting for the official vehicle of the Customs officer (or other such officers) to become available for his visits to the ship. It may be pointed out that such visits are only for a few kilometers from the office of such authorities to the point near to the place where the ship is docked. Escorting such officers saves time and the ship will not be left at the mercy of the concerned officers who could otherwise take their own time to plan/arrange the visit to the ship. Thus, by sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clearly brought out the genuineness of claims made by Petitioners and that CBI had proceeded to ignore her statement. Thus, even CMD was apparently satisfied about genuineness of claims made by the Petitioners, ultimately it was found that even those genuine claims were never sanctioned by SCI and that no payment was made to Petitioners towards said claim of Rs. 3,08,246 and Rs. 3,21,647.50/-. 19) The CMD, SCI also did not find any basis in respect of the allegations of non-compliance with the terms and conditions of Agency Agreement on the part of the custom officials. 20) Thus, the order dated 18 September 2010 of CMD, SCI refusing prosecution sanction clearly establishes that neither the bills covered in allegation No. (A) nor the bills covered by allegation No. (C) were actually paid/cleared by SCI and that Petitioners have not received any payments from SCI towards the said bills. This Court has taken note of the order passed by CMD, SCI while discharging Mr. N.R. Saraiya and Smt. Vaishali Ladi by order dated 15 February 2007 and Mr. Hari Prasad Kamath by order dated 14 September 2023. Today, none of the public servants who were originally accused of committing the crime a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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