Prabhakar S/O Rupnarayn Jha, And ... vs The Central Bureau Of ...
2016 Latest Caselaw 42 Bom

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                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                            NAGPUR BENCH AT NAGPUR




                                                                                                                              
                                        CRIMINAL REVISION APPLICATION NO.92/2015

    1.            Prabhakar S/o Rupnarayan Jha, 




                                                                                                                             
                  aged about 48 Yrs., Occu. Service, 
                  R/o Plot No.42, Sheetal Vihar, 
                  Post Turang, Distt. Angul (Orissa). 




                                                                                                   
    2.            Bingumall Ramnaiah S/o Bingumall Veeraiah,
                  aged about 46 Yrs., Occu. Service, 
                  R/o C/o Mr. Subaih, LIC Agent, 
                  Kanakgudur, Distt. Kadapa (Andra Pradesh)
                                                                  ig                                                                                 ..Applicants.

                  ..Versus..
                                                                
                  The Central Bureau of Investigation, 
                  through Superintendent of Police, 
                  CBI Anti-Corruption Bureau, 
                  

                  Nagpur.                                                                                                                      ..Non-applicant.
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                Shri M.P. Khajanchi, Advocate for the applicants. 
               



                Shri S.S. Ahirkar, Special P.P. for the non-applicant.
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                                                                        CORAM  :  Z.A. HAQ, J.





                                                                        DATE  :    25.2.2016

    JUDGMENT

01. Heard Shri M.P. Khajanchi, advocate for the applicants and Shri S.S. Ahirkar

Special P.P. for the non-applicant.

02. Rule. Rule made returnable forthwith.

03. The applicants have approached this Court under Section 397 read with 401

of the Code of Criminal Procedure challenging the order passed by the learned

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Additional Sessions Judge rejecting the application (Exh. No.42) filed by them

praying for discharge from the prosecution for the offence punishable under Section

13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988

and Sections 120B and 409 of the Indian Penal Code.

04. The non-applicant - Central Bureau of Investigation has filed final report

before the Special Judge, Chandrapur against the applicants for the offence

punishable under Sections 120B and 409 of the Indian Penal Code and Section

13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988.

The case of the prosecution is that on the complaint dated 20 th/21st January, 2012

received from the Vigilance Officer at Western Coalfields Limited, Nagpur, a surprise

check in association with the Survey Team of Wani North Area and Majri Area of

Gauri Open Cast Mine-1 of Ballarpur Area was conducted on 3 rd December, 2010

and shortage of 8806.7553 tonnes of coal was detected which was 22.466% short

than the permissible limit as per the Yellow Book Manual of W.C.L. The cost of the

coal found to be short is shown to be Rs.1,33,16,782.30/-. It is alleged that the

applicants/accused abused their official position and entered into criminal

conspiracy with dishonest intention to misappropriate coal entrusted to them over

which they had dominion. The applicant no.1 was working as Sub-Area Manager of

Gauri Open Cast Mine-1 of Ballarpur and the applicant no.2 was working as Mines

Manager of Gauri- 1 Open Cast Mine at the relevant time.

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The applicants filed the application (Exh. No.42) praying for discharge. This

application is rejected by the learned Additional Sessions Judge by the impugned

order.

The applicants being aggrieved by the order passed by the learned

Additional Sessions Judge, have filed this revision application.

05. Shri Khajanchi, learned advocate for the applicants has pointed out the

communication issued by the Area Finance Manager, Ballarpur Area on 25 th May,

2013 stating that the balance sheet of 31 st March, 2011 or Profit and Loss Account

for the period 2010-2011 of Ballarpur Area does not show financial loss due to

shortage of coal or theft of coal. The communication issued by the Area Finance

Manager Ballarpur Area dated 29 th November, 2013 is pointed out to show that

financial loss is not shown in the Books of Account/Balance Sheet/Profit and Loss

Account of W.C.L. Ballarpur Area due to shortage of coal or theft of coal in the year

2010-2011. The communication issued by the Chief Manager (Min) Manager Gauri

Extension Open Cast Mine on 18th/20th October, 2013 is pointed out which shows

that there is no "write off" of coal in 2010-2011. Referring to the above

communications, the learned advocate for the applicants has submitted that the

claim of the prosecution about loss of huge quantity of coal is not prima facie

established and, therefore, the applicants are entitled for being discharged from the

prosecution. It is submitted that the learned Additional Sessions Judge has wrongly

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relied on the judgment given in the case of State of Orissa V/s. Debendra Nath

Padhi reported in 2005(1) Crimes 1(SC) and refused to consider the

communications which show that there was no shortage or theft of coal in 2010-

2011. The learned advocate has submitted that it is not that the defence material

cannot be looked into by the Court while framing of the charge and there are cases

when defence material is required to be considered by the Court while framing the

charge, if the defence material convincingly demonstrate that the prosecution

version is absurd or preposterous. It is further submitted that the trial Court is

entitled to sift and weigh the material on the record including the defence material,

for the purpose of finding out whether a prima facie case exists against the accused

for prosecution or not. To support this submission, Shri Khajanchi, learned

advocate has relied on the following judgments:

(i) Judgment given in the case of Harshendra Kumar D. V/s. Rebatilata Koley and others reported in (2011) 3 SCC 351,

(ii) Judgment given in the case of Ajay Kumar Das V/s. State of Jharkhand and another reported in 2011(12) SCC 319,

(iii) Judgment given in the case of Union of India V/s. Prafulla Kumar Samal and another reported in (1979) 3 SCC 4,

(iv) Judgment given in the case of Rajiv Thapar and others V/s. Madan Lal Kapoor reported in (2013) 3 SCC 330 and

(v) Judgment given in the case of Rukhmini Narvekar V/s. Vijaya Satardekar and others reported in (2008) 14 SCC 1.

It is submitted that the communications issued by the Authorities of W.C.L.

show that there had been no shortage of coal or "write off" of coal in 2010-2011 and

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it cannot be said that the huge quantity of 8806.7553 tonnes of coal was found to be

short during that period. The learned advocate has submitted that the learned

Additional Sessions Judge has committed an error in not considering the above

referred communications, under the misconception that the defence material cannot

be looked into at the stage of framing of charge. It is submitted that the impugned

order is unsustainable and has to be set aside and the applicants be discharged

from the prosecution.

06. Per contra, Shri Ahirkar, learned Special P.P. has submitted that the

prosecution has been initiated on the complaint received from the Chief Vigilance

Officer of W.C.L. itself and after investigation it was found that substantiate quantity

of coal (8806.7553 tonnes) has been misappropriated and ample material having

been found against the applicants, the sanction of competent authority of Ministry of

Coal was sought as per Section 19 of the Prevention of Corruption Act and the

competent authority, after considering the material, has granted sanction to

prosecute the applicants. It is submitted that the learned Additional Sessions Judge

has rightly relied on the judgment given by the Hon'ble Supreme Court in the case of

State of Orissa V/s. Debendra Nath Padhi (cited supra) and has rightly rejected the

application filed by the applicants. It is submitted that the documents

(communications), on which the applicants are relying, cannot be considered at this

stage and it cannot be said that there is no material at all on the record to prosecute

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the applicants on the charge as levelled against them. It is prayed that the revision

application be dismissed with costs.

07. After hearing the learned advocate for the applicants and the learned Special

P.P. and examining the documents placed on the record, I find that the prosecution

has levelled specific charge against the applicants that in furtherance of criminal

conspiracy they have misappropriated the substantial quantity (8806.7553 tonnes)

of coal causing wrongful loss of about Rs.1,33,16,782/- to the W.C.L. It is not

disputed by the applicants that applicant no.1 was working as Area Manager of

Gauri Open Cast Mine-1 of Ballarpur Area and the applicant no.2 was working as

Mines Manager of Gauri Open Cast Mine-1 during the relevant period. It is not the

case of the applicants that they being Sub Area Manager and Mines Manager, they

had no control or dominion over the coal, as alleged by the prosecution. The

applicants are relying on some communications which are issued under the Right to

Information Act and are contending that there is neither any shortage nor "write of"

of coal during 2010-2011. It cannot be said that the communications, on which the

applicants are relying, convincingly demonstrate that the prosecution version is

totally absurd or preposterous. The learned Special P.P. has rightly

pointed that prima facie material exists against the applicants for prosecuting them

and that the competent authority, after considering that material has granted

sanction for prosecuting the applicants.

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08. In the judgment given in the case of Rukhmini Narvekar V/s. Vijaya

Satardekar and others (cited supra) the Hon'ble Supreme Court has laid down, in

paragraph no.22, as follows:

"22. Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the Court while framing of the

charge in view of D.N. Padhi' case 6, there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the

prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In

our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the

defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally

concocted."

The learned advocate for the applicants has not been able to show that the

present case is one of the exceptional cases and that the documents

(communications) produced by the applicants convincingly demonstrate that the

prosecution version is totally absurd or concocted.

Considering the facts of the case and the proposition laid down in the

judgment given in the case of Rukhmini Narvekar v. Vijaya Satardekar and others,

the other judgments referred by the learned Advocate for the applicants, do not

assist the applicants.

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09. In my view, the impugned order passed by the learned Additional Sessions

Judge rejecting the prayer of the applicants to discharge them from the prosecution

does not require any interference. The revision application is dismissed with costs

quantified at Rs.20,000/-, out of which Rs.10,000/- shall be paid by the applicant

no.1 and Rs.10,000/- shall be paid by the applicant no.2, to the non-applicant within

one month.

As the proceedings are of 2013, the learned Special Judge should

endeavour to dispose the proceedings till 30 th May, 2016.

JUDGE

Tambaskar.