Hcl Infosystem Ltd vs State Of U.P. And Another
2019 Latest Caselaw 4925 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
             Reserved on: 03.05.2019
 
 Delivered on: 23.05.2019
 
         
 
Case :- CRIMINAL REVISION No. - 55 of 2019
 
Revisionist :- HCL Infosystem Ltd
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Somya Chaturvedi,Gopal S Chatruvedi, Sr. Adv
 
Counsel for Opposite Party :- G.A.,Gyan Prakash,
 
with 
 
Case :- CRIMINAL REVISION No. - 306 of 2019
 
Revisionist :- Vimal Garg
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Somya Chaturvedi,Sri Gopal S. Chaturvedi Senior Advocate
 
Counsel for Opposite Party :- G.A.,Gyan Prakash
 
with 
 
Case :- CRIMINAL REVISION No. - 756 of 2019
 
Revisionist :- Neeraj Upadhyay
 
Opposite Party :- Cbi/Scb/Lucknow
 
Counsel for Revisionist :- Anurag Sharma,Avanish Mishra
 
Counsel for Opposite Party :- Gyan Prakash
 
with 
 
Case :- CRIMINAL REVISION No. - 754 of 2019
 
Revisionist :- Virendra Goyal
 
Opposite Party :- Cbi/Scb/Lucknow
 
Counsel for Revisionist :- Anurag Sharma,Avanish Mishra
 
Counsel for Opposite Party :- Gyan Prakash
 

 
Hon'ble Ramesh Sinha, J.

1. Criminal revision Nos. 55 of 2019 and 306 of 2019 have been preferred against the judgment and order dated 19.12.2018 passed by Special Judge (Prevention of Corruption Act), C.B.I. Ghaziabad framing charges in Special Case No. 15/2013 in RC No. 1(A)/2012/CBI/SCB/LKO (C.B.I. Vs. G.K. Batra & others) and the impugned order dated 28.11.2018 whereby the learned Judge has rejected the discharge application filed by the revisionists in the aforesaid case.

2. So far as Criminal Revision Nos. 754 of 2019 and 756 of 2019 preferred by co-accused Virendra Goel and Neeraj Upadhyay are concerned, these revisionists have challenged the impugned order dated 28.11.2018 by which their discharge application has been rejected in the aforementioned case.

3. One of the co-accused G.K. Batra who was a public servant in M/s. Shreetron India Ltd. (hereinafter referred to as 'SIL') died during the pendency of trial, hence, his trial has been ordered to be abated by the trial court.

4. As all the four criminal revisions arise out of common judgment and order of the trial court, hence, they are being heard and decided by this Court vide a common judgment and order.

5. In pursuance of order dated 15.11.2011 of this Court, a preliminary inquiry was conducted which revealed commission of cognizable offences in the purchase/installment of 951 computers and its peripherals and pursuant to the said preliminary inquiry, FIR No. 0532012A0001 dated 02.01.2012 was registered under section 120-B/409 IPC and sections 13 (2) read with section 13 (1) (d) of Prevention of Corruption Act, 1988 against G.K. Batra, Managing Director, Shreetron India Ltd., Virender Goel, proprietor, M/s. Axis Marketing and Neeraj Upadhyay, proprietor, M/s. Radhey Shyam Enterprises and other unknown persons for criminal conspiracy and misappropriation of Rs. 2.94 crores and approximately by showing undue favour to private firms. Chargesheet No. 01/2012 dated 04.04.2012 was submitted before Special Judge (Central), Anti Corruption, CBI, Lucknow against G.K. Batra, Virender Goel and Neeraj Upadhyay under sections 120-B/409/420 IPC and sections 13 (2) read with section 13 (1) (d) of Prevention of Corruption Act, 1988. On 20.11.2014, a supplementary chargesheet no. 01/2014 was filed by CBI before Special Judge (NRHM), Anti Corruption, CBI, Ghaziabad under sections 120-B/409/420 IPC and sections 13 (2) read with section 13 (1) (d) of P.C. Act against the revisionist HCL Infosystems Ltd. and/or its employees for being involved in the present crime.

6. The brief facts of the case are that the revisionist company HCL Infosystem Ltd and Vimal Garg are facing trial in the aforesaid case and after submission of the chargesheet against the revisionists, an application for discharge was moved on behalf of the revisionists before the trial court and the same was rejected on 28.11.2018 and the trial court framed charges against the revisionists by the impugned order dated 19.12.2018 for the offences in question.

7. Heard Sri Gopal S. Chaturvedi, Senior Advocate assisted by Ms. Somya Chaturvedi, learned counsel for the revisionists in Criminal Revision Nos. 55 of 2019 and 306 of 2019, Sri P. Chakravarty, and Sri Anurag Sharma, learned counsel appearing for the revisionists in Criminal Revision Nos. 754 of 2019 and 756 of 2019, Sri Gyan Prakash, learned counsel for CBI and perused the record.

8. Sri Gopal S. Chaturvedi, learned counsel for the revisionists has submitted that as per the chargesheet dated 04.04.2012, it is apparent that the allegations levelled pertains to periods prior to floating of the tenders and no accusation has been made either against HCL Infosystems Ltd. and/or its employees. He submitted that the accusations are against G.K. Batra who on 16.07.2009 prior to initiation of tender process is alleged to have verbally ordered his Manager (Accounts) to issue a cheque for making payment of Rs. 20,00,000/- to M/s. Axis Marketing whose proprietor was Virender Goel and payments were allegedly made by way of cheque. It is also alleged that G.K. Batra issued orders to pay Rs. 1,62,25,400/- to M/s. Radhey Shyam Enterprises which was paid by cheque dated 01.08.2009. G.K. Batra further issued orders to pay Rs. 1,62,25,400/- to M/s. Axis Marketing which was paid by cheque dated 04.08.2009. All these payments were made even before finalization of tender process. It was pointed out that chargesheet dated 04.04.2012 shows that certain recoveries were made by Shreetron India Ltd. with regard to payments from M/s. Radhey Shyam Enterprises in respect of another purchase order relating to Rohailkhand University. The allegations in the chargesheet that the payments were made by public servant to Radhey Shyam Enterprises and M/s. Axis Marketing prior to floating of tender shows that offence if any under section 13 of Prevention of Corruption Act stood completed as soon as the payment was made and nothing remained to be done to complete the offence. The second part of the allegation in the chargesheet dated 04.04.2012 is that in order to dishonestly show favour to Radhey Shyam Enterprises and M/s. Axis Marketing and also to regularize the above payments, a notice was floated by G.K. Batra in connivance with the two co-accused namely Virender Goel and Neeraj Upadhyay calling for tender bids and financial bids from original equipment manufacturers. The said allegation in the chargesheet shows that subsequent to the commission of the alleged illegalities, payments have been made to the two firms that the tender process was initiated and the revisionist company/HCL, Lenovo participated in the tender through M/s. Axis Marketing and HP participated through Radhey Shyam Enterprises in the tender process for supply of 951 desktop computers and its peripherals. HCL Infosystems Ltd. being L-1 was awarded the work of supply of 951 computers and peripherals being the lowest bidder. He further argued that chargesheet dated 04.04.2012 does not impute the knowledge to HCL Infosystems Ltd. and/or to any of its employees about the payments made to Axis Marketing and/or Radhey Shyam Enterprises prior to the issuance of tender. The chargesheet dated 04.04.2012 does not disclose any evidence, oral or documentary of meeting of mind or the revisionist/HCL Infosystems Ltd. and its employees with the other accused persons namely Virender Goel and Neeraj Upadhyay. The chargesheet conspicuously fails to disclose the fact that appointment of channel partner was permissible in the tender conditions and that HCL Infosystems Ltd. had informed Shreetron India Ltd. prior to appointment of their channel partners i.e. Axis Marketing and Radhey Shyam Enterprises. HCL Infosystems Ltd. had informed Shreetron India Ltd. prior to appointment of channel partners i.e. Axis Marketing and Radhey Shyam. The request was accepted by Shreetron India Ltd. The chargesheet dated 04.04.2012 further filed the details of the bank guarantees issued by HCL Infosystems Ltd. and the payment received by the channel partners from Shreetron India Ltd. and the payments made to HCL Infosystems by the channel partners and Shreetron India Ltd.

9. It was next argued by learned counsel for the revisionist that the first payment against the supplies was made to HCL Infosystems Ltd. on 23.01.2010 on which date, a bank guarantee in favour of Shreetron India Ltd. was issued by the revisionist/HCL and it is not the case of CBI that any undue payment was made to HCL or that the computers and peripherals were not supplied. It is also not the case of CBI that there has been a compromise in the specifications of the computers and its peripherals or that the warranty and on-site support has not been provided or that prices of 951 computers and its peripherals were inflated at the time of floating of tenders. The allegation of CBI is not that the channel partners received an amount which was higher than what channel partners paid to HCL Infosystems Ltd. and the channel partners retained certain money. CBI alleges that the differential amount is the 'downward revision of price' for the goods supplied and this benefit should have been passed on to Shreetron India Ltd in terms of purchase order dated 10.08.2009 but in making this allegation, CBI has not been able to place on record the price of desktop computers and peripherals of same specification to show the alleged 'downward revision of price' for the goods supplied. CBI, in its chargesheet dated 04.04.2012 has enclosed a performa invoice dated 26.03.2009 raised by UP Electronics Corporation Ltd. to Mahatma Jyotiba Phule Ruhailkhand University which would negate the allegations of 'downward revision of price'. In making the allegations of retaining of the money by the channel partners and in alleging 'downward revision of price', CBI failed to appreciate that in additional to supply of 951 computers and peripherals, HCL was also required to (a) provide on-site warranty support for three years on computer hardware and one year on other items from the date of installation; (b) supply anti-virus software of latest version and load on each computer with validity for three years with on-site warranty support; (c) regular preventive maintenance were to be carried out at each centre; (d) calls were to be attended and faults rectified during a specified time and in case of default, Rs. 100/- per day per system was to be levied by NRHM and the cited works among others was provided by the channel partners and in order to comply with the terms of the purchase order that channel partners were required and provisions were made in the tender document. The retaining of the money by the channel partners was towards the works as detailed herein.

10. In the supplementary chargesheet, only bald allegation has been made against the employees of revisionist company namely Vimal Garg of having conspired with G.K.Batra, Virender Goel and Neeraj Upadhyay for the alleged advances made prior to the tender has no basis. In fact, CBI has not supplied any evidence oral or documentary on record to substantiate their allegation against Vimal Garg. Learned counsel has vehemently argued that it is not the case of CBI in the supplementary chargesheet that either the employee of the revisionist/HCL is beneficiary of any advance payments made by Shreetron India Ltd. prior to the floating of tender or that the revisionist company and/or its employees had the knowledge of such advance payments. It was further submitted by Sri Chaturvedi that the allegation of 'downward revision of price' in its very nature of allegation cannot be said to be an offence under section 420 IPC as the allegations are in the nature of subsequent events which could not have been thought at the stage prior to entering into the contract. Even post registration of FIR, bank guarantees were available with Shreetron India Ltd. which were never encashed would show that allegations are bald and has no basis. There is no documentary evidence of any downward revision of price by the company, as is mentioned in clause-18 of the purchase order. It was further submitted that it is not the case of CBI that NRHM funds were entrusted to HCL and/or its employees as HCL had furnished bank guarantees in terms of the contract for the supplies. HCL was paid for the goods supplied. The allegation of criminal breach of trust under Section 409 IPC also cannot be attracted against the revisionist as HCL is a successful bidder. It was further submitted that HCL and/or its employees cannot be fastened with a liability for an offence under section 13 (1) (d) (ii) of Prevention of Corruption Act. Thus, the criminal conspiracy as defined under section 120B IPC had to be proved by direct or circumstantial evidence in favour of the prosecution in the present case. There is no evidence direct or circumstantial showing the ingredient of conspiracy. It was argued that the offences under sections 420 and 409 IPC cannot co-exist on the same set of allegations. Section 420 IPC presupposes a fraudulent or dishonest intention right at the beginning of the transaction that is the time when the offence is said to have been committed and an offence under section 409 IPC presupposes entrustment of property and the subsequent act of misappropriation has been made an offence. It is next submitted that a discharge application was moved on behalf of the revisionist company HCL and/or its employees before the trial court but the trial court has not considered the grounds raised in the said discharge application and has rejected the same scrumptiously and has framed charges against the revisionist, hence, the same be set aside.

11. In support of his arguments, Sri Chaturvedi, learned counsel for the revisionist company HCL has placed reliance on the judgment of Apex Court in the case of 'M/s. Thermax Ltd. and others Vs. K.M. Johny and others' passed in Criminal Appeal No. 1868/2011 (arising out of SLP (Crl.) No. 590/2008) decided on 27.09.2011; AIR 2006 SC 2780 'M/s. Indian Oil Corporation Vs. NEPC India Ltd.'; AIR 1996 SC 2452; CBI, SPE, SIU (X), New Delhi vs. Duncan Agro Industries Ltd.'; and AIR 1960 SC 866 'R.P. Kapur vs. State of Punjab'.

12. Sri P. Chakravarty, learned counsel for the revisionist appearing on behalf of the two revisionists Neeraj Upadhyay, proprietor of M/s. Radhey Shyam Enterprises and Virender Goel, proprietor of M/s. Axis Marketing has argued that the allegations which have been levelled against them is that the said two revisionists in connivance with the main accused namely G.K. Batra, Managing Director of M/s. Shreetron India Ltd. a U.P. Govt. undertaking who influenced M/s. HCL Infosystems Ltd. to make Radhey Shyam Enterprises and Axis Marketing partners. It has been further alleged that M/s. Shreetron India Ltd. made a payment of Rs. 7.49 crores to them. However, against the said total amount received of Rs. 7.49 crores by them towards the cost of computer and peripherals from M/s. Shreetron India Ltd., these two firms made payment of Rs. 4.55 crores to M/s. HCL Infosystems Ltd. and balance of Rs. 2.94 crores was misappropriated by the aforesaid two firms. He argued that there is no evidence on record to show that who influenced M/s. HCL Infosystems Ltd. to make M/s. Axis Marketing, New Delhi and M/s. Radhey Shyam Enterprises as partners. It was further submitted by him that Rs. 2.94 crores have been wrongly alleged to have been misappropriated by the two firms as the said amount was paid for after sale service, guarantee and warranty, repairs and up-gradation of computer systems and peripherals and further up-gradation of software and system and providing facilities for anti-virus protection to the computers, installation and regular check-up for the maintenance of 951 computer systems and peripherals installed at different hospitals. The job work of after sale service as has been referred to above was also the part of same supply and such amount is desirable for the maintenance and all aforesaid works executed by M/s. Axis Marketing, New Delhi and M/s. Radhey Shyam Enterprises, Lucknow on the basis of 50%-50% supply of computer systems as a partner of M/s. HCL Infosystems Ltd. He next submitted that the allegations made in the FIR and the chargesheet are absolutely false as M/s. Axis Marketing, New Delhi has entered into an agreement with M/s. HCL Infosystems Ltd. on 02.12.2008 wherein it was stated that M/s. Axis Marketing, New Delhi shall provide services of M/s. HCL Infosystems Ltd. for their work in the State of U.P. such as delivery co-ordination, Installation co-ordination, upgrade, site inspection and warranty .

13. Sri Chaturvedi, learned counsel for the revisionists further submitted that even if the allegations are taken on its face value, no offence whatsoever is disclosed against Virender Goel and Neeraj Upadhyay and has further adopted the arguments of Sri Gopal S. Chaturvedi who had made his submissions for M/s. HCL Infosystems Ltd. and its employees and prayed that the impugned order rejecting the application of the revisionists for discharge be quashed by this Court.

14. Sri Gyan Prakash, learned counsel for CBI has vehemently opposed the prayer for quashing of the impugned order rejecting the discharge application as well as the order framing charge against the revisionists in the aforesaid revisions and has submitted that as the discharge application of the applicant has been rejected by the trial court and charges have been framed against the revisionists and the trial is in progress, the allegations made in the FIR as well as in the two chargesheets against the revisionists has to be tested in the trial and quashing of the impugned orders and the proceedings by this Court at the initial stage prior to trial is not at all justified. He further submitted that G.K. Batra during the period 2009-10 being posted and functioning as Managing Director, M/s. Shreetron India Ltd. had subsidiary of U.P. Electronics Corporation Ltd. by abusing his official position as a public servant verbally instructed the the then principal consultant M/s. Shreetron India Ltd. to submit the proposal for supply of computers and peripherals amounting to Rs. 11,64,39,170/- to the Mission Director, State Programme Management Unit (SPMU), National Rural Health Mission (NRHM), Lucknow and as per the instructions of G.K. Batra a proposal wide letter no. SIL/LKO/NRHM/09-10 dated 9.7.2009 was submitted by M/s Shreetron India Ltd. to the then Mission Director, SPMU, NRHM, Lucknow, UP. He pointed out that no advertisement/order was placed by SPMU, NRHM either in the newspapers or to any person/company for supply of the said items to SPMU, NRHM, Lucknow, UP. CBI in its investigation found that G.K. Batra, the then Managing Director (SIL) in conspiracy with Virender Goel, proprietor of M/s. Axis Marketing and by misusing his official position as a public servant verbally ordered the Manager, Accounts, SIL for making payment of Rs. 20,00,000/- to M/s. Axis Marketing, New Delhi on 16.07.2009 vide cheque No. 509929 of Axis Bank Ltd. A/c. No. 126010200009102. There is nothing on record which could show as to why this amount was paid to M/s. Axis Marketing. Neither any supply order or purchase order was issued in favour of the firm nor the tender was finalized by then. Similarly, the investigation further revealed that G.K. Batra, the then Managing Director (SIL) in conspiracy with Neeraj Upadhyay, proprietor of M/s. Radhey Shyam Enterprises and by misusing his official position as a public servant further dishonestly issued order to pay an amount of Rs. 1,62,25,400/- to M/s. Radhey Shyam Enterprises on 01.08.2009 through two cheques No. 509955 and 509956 of Axis Bank Ltd. A/c. No. 126010200009102 dated 01.08.2009 on letter dated 30.07.2009 of Neeraj Upadhyay, proprietor of M/s. Radhey Shyam Enterprises without any supply order/purchase order being given to him ad even before finalization of the tender. It was further found by CBI in its investigation that in order to dishonestly show favour to the aforesaid two firms and also to regularize the above payments, a limited tender was floated by G.K. Batra in connivance with the aforesaid two revisionists Virender Goel and Neeraj Upadhyay calling for technical bids and financial bids from the Original Equipment Manufacturer. The tender was to be opened on 07.08.2009. This tender was only for the participation of empanelled vendors of SIL. In response to the said tender, the firms viz. M/s. HCL Infosystems Ltd., M/s. Axis Marketing and M/s. Radhey Shyam Enterprises submitted their bids though they were not empanelled till the date of opening of tender on 07.08.2009.

15. Thus, from the above facts and circumstances, it is evident that G.K. Batra in criminal conspiracy with Virender Goel and Neeraj Upadhyay and also my misusing his official position as a public servant had dishonestly and fraudulently facilitated the payment of Rs.3,44,50,800/- from NRHM funds to M/s. Axis Marketing and M/s. Radhey Shyam Enterprises without any purchase/supply order being given to them to misappropriate the same even before finalization of tender.

16. So far as HCL is concerned, it was argued by learned counsel for CBI that G.K. Batra entered into criminal conspiracy with Vimal Garg, Associate, Vice President, M/s. HCL Infosystems Ltd., Virender Goel, proprietor of M/s. Axis Marketing and Neeraj Upadhyay, proprietor of M/s. Radhey Shyam Enterprises and in furtherance of the said criminal conspiracy by misusing his official position as such public servant verbally ordered Manager, Accounts SIL to make the aforementioned payments without any reason.

17. Further investigation has disclosed that on 27.9.2009, a limited tender meant for participation by the companies/firms registered/empanelled with the organisation i.e. SIL for purchase of 951 computers and its peripherals was issued by SIL. It is revealed that as on 27.9.2009 no company/firm was registered/empanelled with SIL. the empanellment of 2008 has expired on 14.2.2009 and the new empanellment was in process and was finalized only on 21.11.2009 and agreement of empanellment was signed only on 23.11.2009. Thus, during 27.9.2009 to 21/23.11.2009 no company/firm was registered/empanelled with SIL. Despite that the three companies M/s Radhe Shyam Enterprises, Lucknow representing HP, M/s Axis Marketing, New Delhi representing Lenovo and M/s HCL Infosystems Ltd., Lucknow in criminal conspiracy with each other and with G.K. Batra, the then Managing Director, SIL submitted their tenders which were allowed to be admitted and after due processing of the tender documents by the tender purchase order was issued in favour of the firm nor this tender was finalized by then.

18. Further investigation has disclosed that on 27.9.2009, a limited tender meant for participation by the companies/firms registered/empanelled with the organization i.e. SIL for purchase of 951 computers and its peripherals was issued by SIL. It is revealed that as on 27.9.2009 no company/firm was registered/empanelled with SIL. the empanellment of 2008 has expired on 14.2.2009 and the new empanellment was in process and was finalized only on 21.11.2009 and agreement of empanellment was signed only on 23.11.2009. Thus, during 27.9.2009 to 21/23.11.2009 no company/firm was registered/empanelled with SIL. Despite that the three companies M/s Radhe Shyam Enterprises, Lucknow representing HP, M/s Axis Marketing, New Delhi representing Lenovo and M/s HCL Infosystems Ltd., Lucknow in criminal conpsiracy with each other and with G.K. Batra, the then Managing Director, SIL submitted their tenders which were allowed to be admitted and after due processing of the tender documents by the tender committee, the lowest rates of HCL were accepted by SIL.

19. It is also revealed that in the tender documents in the condition at Page-6, Para 21.1.4(VI) it was provided that the tender/bidder has to give the name of their single dealer if any, in the bid/technical bid for execution of the purchase order to be issued by the purchaser for supply and installation of the computers and other items and as such HCL and other bidders were authorized to nominate only one dealer that too in the technical bid of tender which they had not done.

20. Investigation revealed that after HCL were found lowest and letter of intent dated 8.8.2009 was issued by SIL to HCL for supply and installation of 951 computer hardware and its peripherals. Investigation has revealed that HCL has vide letter no. HCL:LKN:SL:PDI:1008 2009 dated 10.8.2009 signed by Avichal Mishra, Executive, HCL on the direction of Vimal Garg, falsely informed the Managing Director, SIL that due to logistic challenges, the supply of the order would be routed through two partners viz M/s Radhe Shyam Enterprises and M/s Axis Marketing on 50% each basis. Vimal Garg, Associate Vice President of HCL has in criminal conspiracy with G.K. Batra, Virender Goel and Neeraj Upadhyay approved the inclusion of these two parties as their channel partner for supply of computers. Whereas, investigation has revealed that all the supplies and installations were actually made by HCL only. In case of routing the supplies, there was no requirement of M/s. Radhey Shyam and M/s. Axis placing supply orders on HCL.

21. It is revealed that all the decisions of purchase of tender documents, submission of tender quoting rates, making the two companies i.e. M/s. Axis Marketing and M/s. Radhey Shyam Enterprises as channel partners of M/s. HCL for making supply to M/s. SIL were taken by Vimal Garg, the then Associate Vice President of M/s. HCL and he in criminal conspiracy with G.K. Batra, Neeraj Upadhyay and Virender Goel made these comapnies as channel partner of his company M/s HCL in order to cover up the advance payments illegally made to these two firms by G.K. Batra much before finalization of the tender and Vimal Garg allowed them a backdoor entry into the contract to address the illegal advance payments made to them.

22. During the course of further investigation, Forensic Psychological assessment/forensic statement analysis test of Vimal Garg was got conducted by the experts of CFSL, New Delhi and it was opined by the CFSL experts that Vimal Garg was found deceptive and not disclosing complete truth during this analysis. When asked to undergo, Vimal Garg has denied from being subjected to polygraph test citing medical reasons.

23. The bills for supply and installation of 951 computers and its peripherals were raised by M/s. Radhey Shyam and M/s. Axis Marketing on M/s. SIL at the rates of computers and its peripheral approved in the tender awarded to M/s. HCL totalling to Rs. 7,48,99288/- {M/s. Radhey Shyam Enterprises Rs. 2,49,62,404/- + M/s. HCL Rs. 1.30 crores (on behalf of M/s. Radhey Shyam Enterprises) + M/s Axis Marketing Rs. 3,69,36,884/-} which were passed and payments made to the private parties after adjusting the illegally issued advance payments to them and the same was misappropriated by the private parties.

24. Due to the aforesaid acts of omission and commission on the part of G.K. Batra, Vimal Garg, Virender Goel and Neeraj Upadhyaya, a wrongful loss to the NRHM funds to the tune of Rs. 2,78,24,546/- was caused and corresponding wrongful gain was also caused to the accused persons.

25. After having considered the submissions advanced by learned counsel for the parties and having perused the impugned order challenged in the aforesaid criminal revisions, it appears that the allegations which have been leveled in the two chargesheets against the revisionists, it cannot be said that no offence is made out against the revisionists and their trial in the present case is unwarranted. The trial is in progress and charges have been framed against the revisionists, therefore, it would not be proper for this Court to interfere at this stage as the prosecution should be allowed to adduce evidence against the revisionists before the trial court.

26. One of the arguments of learned counsel for the applicant which was advanced that the trial court had not considered several grounds which have been mentioned in the discharge application and has rejected it in cursory manner and giving reference of several judgments of the Apex Court as well as of this Court hence, the same may be set aside on this ground alone is also not acceptable. It is a well settled law that at the time of framing of charge, the trial court is justified in framing of charge if a prima facie case is made out on the evidences collected during the course of investigation for which a chargesheet has been submitted against the accused and in the instant case, the trial court finding a prima facie case found it sufficient for proceeding against the revisionists for trial has rightly proceeded to frame charges against the revisionists while rejecting their discharge application. It is also well settled that at the stage of framing of charge, no mini trial is required regarding genuineness and truthfulness of the allegations as has been observed by the Apex Court in the case of 'State of Orrisa Vs. Debendra Nath Parhi' reported in AIR 2003 SC 1512. Moreover, in the case of 'State of Bihar vs. Ramesh Singh; 1977 4 SCC 39, it was held that at the stage of framing of charge, ti is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible wit the innocence of the accused or not. Likewise, in the case of 'State of Delhi vs. Gyan Devi and others (2000) 8 SCC 239, this Court reiterated that at the stage of framing of charge, the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. All the decisions, when they hold that there can be limited evaluation of the materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exist or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused.

27. Yet, in another judgment of the Apex Court reported in 2019 4 SCC 149, 'State represented by Deputy Superintendent of Police, Vigilance and Anti-Corruption, Tamil Nadu vs. J. Doraiswamy and Others, it has been held that while considering petition for discharge, courts cannot act as appellate court and start appreciating evidence by finding out inconsistencies in statements of witnesses. Consideration of record for discharge purpose is different from consideration of record while deciding appeal.

28. The Apex Court as well as this Court has held that at the stage at which the Court is required to consider the question of framing of charge, the test of prima facie case is to be applied. At the stage of Section 227 Cr.P.C, the Judge has to merely sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In a recent judgment passed by the Apex Court reported in AIR 2019 SC 847 'Sau. Kamal Shivaji Pokarnekar vs. State of Maharashtra and others, it has been held that correctness of allegation against the accused has to be decided only in trial and criminal trial cannot be quashed at initial stage. Para 9 of the judgment which is relavant is quoted hereinbelow:

"Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the respondents. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process, it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie, made out in the complaint, the criminal proceedings shall not be interdicted."

29. Lastly, the judgments relied upon by learned counsel for the revisionists as has been referred to above, are distinguishable from the facts and circumstances of the present case as the said judgments deals with the powers of the Court under Section 482 Cr.P.C. for quashing the complaints and criminal proceedings but so far as the revisional jurisdiction is concerned, the Court has to test the impugned order whether the same suffers from any manifest error of law or not. Hence, the same cannot be made applicable in the present case.

30. Thus, in view of the foregoing discussions and the proposition of law as has been settled by the Apex Court in its catena of judgments some of which have been referred to above, I do not find any good ground for interfering with the impugned orders as the same does not suffer from any illegality, infirmity or jurisdictional error. Hence, the aforesaid criminal revisions lack merit and are accordingly dismissed. Interim order, if any, stands discharged.

Order dated:- 23.05.2019

Madhurima