Bombay High Court

Shyam Sundar Basak vs The Central Bureau Of Investigation ... on 7 August, 2024

Author: G. A. Sanap

Bench: G. A. Sanap

2024:BHC-NAG:9578


                                                             1                             APL1343.23 (J).odt


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


                             CRIMINAL APPLICATION (APL) NO. 1343 OF 2023


                APPLICANT                        : Shyam Sundar Basak,
                                                   Aged about 50 years, Occu. Service,
                                                   R/o 69, B.A.C. Street, Nimta Majherhati Ashram
                                                   road, Kolkata 49, West Bengal.

                                                                 VERSUS

                NON-APPLICANT : The Central Bureau of Investigation,
                                Anti Corruption Branch,
                                Nagpur.

                    ---------------------------------------------------------------------------------------------------
                Mr. Anil S. Mardikar, Senior Advocate with Mr. Sumit G. Joshi,
                Advocate for the applicant.
                Ms. Bhavana Pandey, Advocate h/f Mr. P. K. Sathianathan, advocate for
                the non-applicant.
                    ---------------------------------------------------------------------------------------------------

                                            CORAM : G. A. SANAP, J.
                                            DATED : AUGUST 07, 2024.

                ORAL JUDGMENT

1. Heard.

2. ADMIT. Taken up for final disposal forthwith by the

consent of the learned advocates for the parties.

2 APL1343.23 (J).odt

3. In this application, filed under Section 482 of the Code of

Criminal Procedure, the applicant, who is arrayed as accused no.3 in

Special (CBI) Case No. 02 of 2016, has prayed for quashing the charge

and order of framing charge dated 25.11.2021, passed by the learned

Special Judge, Nagpur.

4. BACKGROUND FACTS :-

The prosecution has been launched by the non-applicant/

Central Bureau of Investigation, Anti Corruption Branch, Nagpur

against three accused. Accused no.1, at the relevant time, was working

as a Senior Section Engineer, Central Railway, Nagpur. It is the case of

the CBI that accused no.1 hatched criminal conspiracy with accused

no.2, who is the Proprietor of M/s Riddhi Siddhi Udyog Ltd. and

agreed to receive 1% (one percent) of the total cost of supply order of

Break Shoes to the Railways, as a bribe. Accused no.1 demanded the

bribe to clear the bills without any delay. It is further the case of the

CBI that on 04.04.2014, accused no.1 demanded illegal gratification of

Rs.6,500/- from accused no.2 R.K. Bhalotia. Accused no.2 directed

accused no.3, who at the relevant time, was working as a Clerk with M/s

Riddhi Siddhi Udyog Ltd. of accused no.2, to deposit the said amount

in the bank account of Mr. Mohit Sharma, the son of accused no.1. The 3 APL1343.23 (J).odt

amount to be paid was other than the legal remuneration and as a

motive or reward to expeditiously clear his bills with regard to the

supply of brake shoes and fitment in the locos. It is stated that since

this amount of Rs.6,500/- deposited by accused no.3 was pursuant to

the conspiracy, accused no.3 is an abettor in the crime.

5. At this stage, it is necessary to mention that accused no.2

Mr. R.K. Bhalotia has been discharged by the learned Special Judge vide

order dated 20.06.2024 under Section 330(3)(a) of the Cr.P.C. in the

crime. Learned Judge ordered his discharge on the ground that he is of

unsound mind, mentally retarded and incapable of entering defence in

the trial. As on date, accused nos.1 and accused no.3 are facing the

prosecution. Learned Special Judge, vide order dated 25.11.2021,

framed the charge against accused nos.1 and 3. This order of framing of

charge and the charge has been challenged in this application. A prayer

has been made to quash the impugned order and the charge framed

against accused no.3.

6. I have heard Mr. Anil S. Mardikar, learned Senior Advocate

assisted by Mr. Sumit G. Joshi, learned advocate for the applicant and

Ms. Bhavana Pandey, learned Special Advocate for non-applicant/CBI.

4 APL1343.23 (J).odt

Perused the record and proceedings.

7. Mr. Anil Mardikar, learned Senior Advocate submitted that

the learned Special Judge has proceeded to frame the charge against the

accused nos.1 and 3 without any iota of evidence against accused no.3.

Learned Senior Advocate submitted that the only material relied upon

against accused no.3 is with regard to deposit of Rs.6,500/- by accused

no.3 in the bank account of the son of accused no.1. In the submission

of learned Senior Advocate, accused no.3 has simply followed the orders

of his master. Learned Senior Advocate pointed out that there is no iota

of material on record to suggest that accused no.3 had any direct or

indirect knowledge of the dealings between accused no.1 and accused

no.2. Learned Senior Advocate submitted that in the absence of such

material, accused no.3 would not have been roped in as an abettor.

Learned Senior Advocate submitted that the learned Special Judge has

failed to take all these facts into consideration. Learned Senior

Advocate submitted that the charge has been framed without any

evidence against accused no.3. In the submission of learned Senior

Advocate, the learned Special Judge, at the stage of framing of charge

itself, ought to have discharged accused no.3 in this crime.

5 APL1343.23 (J).odt

8. Learned advocate for the non-applicant/CBI submitted

that at the stage of framing of charge, learned Special Judge was satisfied

that the deposit of Rs.6,500/- in the bank account of the son of accused

no.1 by accused no.3 by itself would be sufficient to attribute the

knowledge of dealings between accused no.1 and accused no.2 to

accused no.3. Learned special advocate further submitted that the CBI

has collected entire record from the bank with regard to the deposit of

illegal gratification of Rs.6,500/- in the account of the son of accused

no.1.

9. It needs to be stated that criminal prosecution is a serious

matter. A person cannot be prosecuted unless and until there is any

allegation against him to show commission of crime by him. It needs to

be stated that mere allegations without any evidence or material is not

sufficient to make a person to face criminal prosecution. In this case, the

CBI has not contended that accused no.1 had direct dealings with

accused no.3. Accused no.3 has been roped in the crime only on the

basis of his act of deposit of Rs.6,500/- in the bank account of the son

of accused no.1. On the basis of this solitary act on the part of accused

no.3, it has been contended by CBI that he is an abettor to the crime 6 APL1343.23 (J).odt

committed by accused nos.1 and 2 under section 7 of the Prevention of

Corruption Act, 1988.

10. In my view, in the absence of any direct evidence of actual

involvement of accused no.3 in the conspiracy hatched by accused nos.1

and 2, the CBI ought to have taken proper care before filing charge-

sheet against accused no.3. In fact, considering the facts and

circumstances and the lack of evidence to attribute charge of abatement

to accused no.3 in the crime, the CBI ought to have made accused no.3

as a prosecution witness in the case. Accused no.3 had simply followed

the orders of his master-accused no.2. He was working as a Clerk with

accused no.2. It is not the case of the CBI that he was directly or

indirectly involved in the dealings with accused no.1. The CBI has

relied upon the telephonic conversation between accused no.1 and

accused no.2 to substantiate their charge against all the accused. Perusal

of the record would show that there is no telephonic conversation

between accused no.1 and accused no.3. There is no evidence that

accused no.3 had direct dealings with accused no.1. Similarly, there is

no evidence that accused no.3 had knowledge of any dealings between

accused nos.1 and 2. In my view, in this view of the matter, the learned

Special Judge ought to have considered the prayer made by accused 7 APL1343.23 (J).odt

no.3 for discharge at the stage of framing of charge.

11. In this case, on going through the facts and the evidence

compiled in the charge-sheet by the CBI, it is apparent that there is no

iota of evidence against accused no.3 to attribute knowledge of

transactions between accused no.1 and accused no.2 to accused no.3.

Accused no.3, simply because of the deposit of Rs.6,500/- as per the

directions of his master, could not be held to be an abettor in the crime.

In my view, therefore, the learned Judge was not right in framing the

charge against accused no.3 without any iota of evidence against him.

The evidence relied upon, even if taken at its face value, would not be

sufficient to substantiate the charge against accused no.3 being an

abettor in the crime. In view of this, the application deserves to be

allowed.

12. Accordingly, the criminal application is allowed.

(i) The charge framed against accused no.3 - Shyam Sundar

Basak and order of framing of charge, dated 25.11.2021, passed by the

learned Special Judge, Nagpur in Special (CBI) Case No. 02 of 2016, is

quashed and set aside.