Delhi High Court

P.K. Thungon vs Central Bureau Of Investigation on 20 February, 2009

Author: S. Muralidhar

       IN THE HIGH COURT OF DELHI AT NEW DELHI

               CRL.M.C. 2563/2007 & CRL.MA 9059/2007

                                      Reserved on: 3rd February 2009
                                      Date of decision: 20th February 2009

       P.K.THUNGON                                    ..... Petitioner
                              Through: Mr. Gurdial Singh with
                              Mr. K.K. Patra, Advocate
               versus

       CENTRAL BUREAU OF INVESTIGATION
                                           ..... Respondent
                   Through: Mr. Harish Gulati, Sr. Standing
                   Counsel with Mr. Anindya Malhotra and
                   Mr. Ashiesh Kumar, Advocates.

               CRL.REV. P. 32/2008 & CRL.MA. 539/2008

       P.K.THUNGON                                      ..... Petitioner
                              Through: Mr. Gurdial Singh with
                              Mr. K.K. Patra, Advocate
               versus

       CENTRAL BUREAU OF INVESTIGATION
                                           ..... Respondent
                   Through: Mr. Harish Gulati, Sr. Standing
                   Counsel with Mr. Anindya Malhotra and
                   Mr. Ashiesh Kumar, Advocates.

               CRL.REV.P. 52/2008 & CRL.MA. 909/2008

       MAHESH MAHESHWARI                    ..... Petitioner
                   Through Mr. Ramesh Gupta with
                   Mr. Sunil Sethi, Mr. Sumit Arora and
                   Mr. Rahul Bakshi, Advocates
          versus

       CENTRAL BUREAU OF INVESTIGATION
                                           ..... Respondent
                   Through: Mr. Harish Gulati, Sr. Standing
                   Counsel with Mr. Anindya Malhotra and
                   Mr. Ashiesh Kumar Advocates.

             CRL.M.C. 2587/2007 & CRL.MA. 9162/2007

MAHESH MAHESHWARI                 ..... Petitioner
               Through Mr. Ramesh Gupta with
               Mr. Sunil Sethi, Mr. Sumit Arora and
               Mr. Rahul Bakshi, Advocates
Crl.M.C. Nos.2563/07, 2587/07, Crl.Rev(P) 32/08 & 52/08      Page 1 of 16
                versus

CENTRAL BUREAU OF INVESTIGATION
                                   ..... Respondent
                 Through: Mr. Harish Gulati, Sr. Standing
                 Counsel with Mr. Anindya Malhotra and
                 Mr. Ashiesh Kumar, Advocates.

       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

        1. Whether Reporters of local papers may be
           allowed to see the judgment?                     Yes
       2. To be referred to the Reporter or not?            Yes
       3. Whether the judgment should be reported in Digest? Yes


                                      JUDGMENT

20.02.2009 S. Muralidhar, J.

1. These are four petitions raising common questions and are therefore

being disposed of by this common judgment.

2. On 1st January 1998 the Central Bureau of Investigation (CBI)

registered RCA No. 1(A)/98-DLI ACB under Sections 120-

B/409/419/420/467/468/471 IPC and 13(2) read with 13(1)(c) & (d) of

the Prohibition of Corruption Act, 1988 (PC Act) against five persons,

VIZ., P.K. Thungon, Tali AO, C. Sangeet AO, Mahesh Maheshwari

and N.M. Jain. The charge sheet filed by the CBI on 30th June 2003

showed the aforementioned five persons as the accused persons being

sent up for trial. Five others were shown in Column 2 as accused

persons not sent up for trial.

3. The charge sheet narrates that the case was registered on the basis

of a written complaint of Shri P.C. Sharma, Deputy SP, CBI, ACB,

New Delhi that during the course of investigation of RC 33(A) /96

DLI, a search was conducted in the residential premises of P.K.

Thungon, a former Minister of State, Ministry of Urban Affairs and

Employment, New Delhi on 10th July 1996. During the search various

documents and articles were seized. These included one partly used

cheque book of SB A/c No. 7770 of Vijaya Bank, Ansari Road, New

Delhi in the name of Prem Kumar. Investigation with Vijaya Bank

revealed that P.K.Thungon had opened this account in the said Bank

on 31st March 1994 in the false name of Prem Kumar giving the false

address as C-113, Sarvodaya Enclave, New Delhi. There was also a

locker No. 288 in the said bank assumed name of Prem Kumar. It is

further alleged that an amount of Rs.8 lakhs was credited in the said

savings bank a/c No. 7770 and by transfer from A/c No. 7798 on 26th

April 1994. Account No. 7798 had been opened one day earlier, i.e.on

25th April 1994, in the fictitious name of Thanu Thungon with the

official address as 2050/25 Sharada Nand Marg near Ajmeri Gate,

New Delhi on introduction of Mahesh Maheshwari, Director, M/s

S.N.H. India Traders, New Delhi. It was alleged that Mahesh

Maheshwari had in fact opened A/c No. 7798 by impersonating as

Thanu Thungon and had introduced himself on the basis of Current

A/c No. 1379 of the company in which he was one of the Directors.

4. In the said A/c No. 7798 an amount of Rs. 9,98,500/- was credited

through clearing on 25th April 1994. On the next day an amount of Rs.

8 lakhs was transferred to A/c No. 7770 opened in the name of Prem

Kumar. Similarly, an amount of Rs. 1,98,000/- was withdrawn by

self-cheque from A/c No. 7798 on 3rd May 1994 and the same was

credited in SB A/c No. 7770. The CFSL expert to whom the

documents pertaining to the said accounts with specimen writings of

Mahesh Maheshwari were sent confirmed that the signatures in the

name of Thanu Thungon were in the writings of Mahesh Maheshwari.

Inquiries about the credit of Rs.9,98,500/- into A/c No. 7798 revealed

that it was the proceeds of DD No. 479623 dated 21 st April 1994

issued in favour of Thanu Thungon by the SBI Lerie Branch, Kohima,

Nagaland on the request of Irrigation and Flood Control Department,

Govt. of Nagaland.

5. The trail of the money transactions led the CBI to a letter dated 24th

January 1994 of the Planning Commission sanctioning a sum of Rs. 2

crores towards the grant of additional assistance of Rs. 41.0 crores to

the Government of Nagaland by the Government of India, Ministry of

Water Resources for renovation and upgradation of minor irrigation

projects in Nagaland during the year 1993-94. One of the conditions

was that the Government of Nagaland had to provide the balance fund

of Rs. 2.10 crores for the project. The assistance from the Central

Government was to be released in two instalments of Rs. 1 crore each.

The first instalment of Rs. 1 crore was released by the Finance

Ministry, Department of Expenditure, Government of India on 21st

March 1994. It was kept in a civil deposit by the Government of

Nagaland on 29th March 1994. Thereafter the Joint Director, Irrigation

and Flood Control Department, Government of Nagaland was allowed

to withdraw Rs. 50 lakhs from the said amount of Rs. 1 crore.

6. Thereafter Mezakrol, the Joint Director, Irrigation and Flood

Control Department, Government of Nagaland wrote a letter on 6th

April 1994 seeking permission of the Government of Nagaland for

procurement of sausage wire worth Rs. 20 lakhs for the ongoing minor

irrigation projects. The then Minister of State for Irrigation and Flood

Control directed that the supply order of sausage wire for the sum of

Rs. 50 lakhs be issued "only to Sh. Tali Ao on priority basis".

Thereafter, even before the receipt of approval of the Government for

the procurement of sausage wire, Mezakrol placed an order dated 2nd

April 1994 on Tali Ao for supply of 85.450 sq. m of sausage wire. On

7th April 1994 he placed another order on Shri T. Moa for supply of

57,000 sq.m of sausage wire.

7. Tali Ao submitted a bill dated 19th April 1994 of Rs. 29,99,295/-

against the supply of sausage wire to the Joint Director, Irrigation

Flood Control, Nagaland. He mentioned in a hand written letter dated

21st April 1994 that a demand draft of Rs. 10 lakhs was to be deposited

in favour of Thanu Thungon and another for sum of Rs. 15 lakhs in

favour of K. Konngon Konyak. Mezakrol after getting the withdrawal

authority of Rs. 50 lakhs submitted a bill for clearance to the Treasury

Office (South), Kohima which passed the bill on 21st April 1994.

Mezakrol approached the SB, Lerie Branch to make a DD for Rs. 10

lakhs in favour of Thanu Thungon payable at SBI New Delhi. Several

DACs were thereafter got made and encashed by Mezakrol. The

pattern of deposit of money running to lakh of rupees followed by

immediate withdrawal thereafter was repeated in the case of Konngom

Konyak. As far as the present petitioners are concerned, the charge

details the subsequent events as under:

"Demand draft No.479623 for Rs.9,98,500/- lakhs in favour of Sh. Thanu Thungon issued from SBI lerie branch was deposited on 25.4.94 in A/c No. 7798 of Vijaya Bank, Ansari Road, Dariya Ganj, Delhi. This amount was subsequently withdrawn. Investigation has revealed that this account was fraudulently and dishonesty opened on 25.4.94 by Sh. Mahesh Maheshwari in connivance with Sh. P.K. Thungon and Sh. N.M. Jain, Sr. Branch Manager, Vijaya Bank, Ansari Road, Delhi by impersonating himself as Thanu Thungon and he himself became the introducer on the basis of current A/c No. 1379 of M/s SNH India Traders Ltd. with whom Sh. Maheshwari was one of the Directors. This amount was credited in the said A/c No. 7798 on 25.4.94 through clearing and the aforesaid Demand Draft for Rs. 9,98,500/- was deposited by Sh. Mahesh Maheshwari on 25.4.94 in A/c No. 7798. Thereafter, Sh. Mahesh Maheshwari issued cheque for Rs. 8 lakhs in favour of Prem Kumar and deposited the same on 26.4.94 in A/c No. 7770 of Sh. P.K. Thungon in the same Bank and Rs. 1,98,000/- was withdrawn by self cheque on 3.5.94. Investigation has revealed that this A/c No. 7770 was opened on 31.3.94 with initial deposit of Rs. 1 lakh by Sh.P.K. Thungon, the then Minister of State of Urban Affairs & Employment and Water Resources, Govt. of India, New Delhi in the name of Sh. Prem Kumar giving false address of C-113, Sarvodaya Enclave, New Delhi on 31.3.94 and also hired locker No. 288 in the same bank branch in the name of Prem Kumar."

8. On the basis of the above materials the CBI in its charge sheet

dated 30th June 2003 concluded that a prima facie the case was made

out for prosecuting the petitioners for the offences abovementioned.

The charge sheet noted that the Government of Nagaland had declined

sanction for prosecuting Konngam Konyak, Mezakrol and other

government officials.

9. By an order dated 3rd July 2004, the learned Special Judge took

cognizance of the offences as far as P.K. Thungon, Tali Ao, C.Sangeet

Ao and Mahesh Maheshwari were concerned and ordered them to be

summoned. As regards N.M. Jain, the learned Special Judge

concluded that there was not sufficient material to take cognizance and

summon him to face trial. N.M. Jain was accordingly discharged.

10. An application was filed by P.K. Thungon in the Court of the

learned Special Judge seeking discharge on the ground that the Court

of Special Judge, CBI, New Delhi had no territorial jurisdiction to try

the case. Reliance was placed by the petitioners on the judgment of

the Supreme Court in CBI, AHD, Patna v. Braj Bhushan Prasad

(2001) 9 SCC 432 to contend that in terms of Section 4 (2) of the PC

Act, the offence has to be tried by the Special Judge "for the area

within which it was committed or, as the case may be, by the Special

Judge appointed for the case, or where there are more special Judges

than one for such area, by such one of them as may be specified in this

behalf by the Central Government". It was contended that since the

amounts in the instant case were all released through demand drafts in

Nagaland, having been drawn on the SBI Branch, Ereie in Kohima, the

jurisdiction to try these offences under the PC Act was only with the

Special Judge at Nagaland and not at New Delhi. Mahesh Maheshwari

also filed a similar application. His case was that the trial for the

offences under Sections 419, 420,468 and 471 IPC should be tried by

the Court at Delhi whereas the trial of the offences under the PC Act

should take place in Nagaland.

11. The learned Special Judge, CBI by a common order dated 1st May

2007 rejected the applications of both P.K. Thungon and Mahesh

Maheshwari. It was held that on a collective reading of Sections 179

and180 IPC given the nature of the offences and the manner of their

commission, the Court of Special Judge at New Delhi would have the

jurisdiction to try the case. Two of the present petitions, i.e., Crl.M.C.

No.2563 of 2007 (by P.K.Thungon) and Crl.M.C. No.2587 of 2007

(by Mahesh Maheshwari) are directed against the aforementioned

order dated 1st May 2007, rejecting the plea of the petitioners that the

Court in Delhi lacks the territorial jurisdiction to try the offences in

question.

12. The other two petitions, namely, Crl. Rev. (P) No. 32 of 2008 by

P.K. Thungon and Crl. Rev. (P) No.52 of 2008 by Mahesh

Maheshwari seek to challenge the order on charge dated dated 13th

November 2007 and the charge dated 21st November 2007 whereby

the petitioners were charged for the offences under Section 120-B read

with Section 419/420/467/468/ 471 IPC and 13(2) read with 13 (1) (c)

and 13 (1) (d) of the PC Act. It may be added that as regards Mahesh

Maheshwari, substantive charges under Sections 419/468/471 IPC

have been framed. As regards P.K. Thungon, substantive charge

under Section 13 (2) read with 13 (1) (d) of the PC Act has been

framed.

13. Arguments have been heard at length of Mr. Gurdial Singh , the

learned counsel appearing for the petitioner, P.K. Thungon and Mr.

Ramesh Gupta, the learned counsel appearing for the petitioner,

Mahesh Maheshwari. Mr. Harish Gulati, the learned Senior Standing

Counsel made submissions on behalf of the CBI.

14. Counsel for the petitioners seek to place extensive reliance upon

the judgment in Braj Bhushan Prasad (supra) to contend that it

applies on all fours and that it is plain that the Court of Special Judge

in New Delhi does not have the territorial jurisdiction to try the

offences under the PC Act. It is submitted on behalf of the petitioner

Mahesh Maheshwari that while the trial against him for the substantive

IPC offences could be by the criminal court in Delhi, the trial of the

PC Act offences could take place only in the Court of the Special

Judge in Nagaland. This submission is without prejudice to the rights

and contentions of both the petitioners that when the charge sheet and

the accompanying materials are read as a whole, no case whatsoever is

made out against either of the petitioners for any of the offences for

which they have been charged.

15. Counsel for both petitioners have placed on record the charge

sheet filed by the CBI in Braj Bhushan Prasad (supra). In particular,

they refer to the portions of the said charge sheet which sets out a table

indicating the names of the proprietors/partners of the firms which

supplied fodder/feed, the names of the banks where the drafts were

encashed and the account numbers. It is pointed out that in many of

the instances listed in the charge sheet, the encashment of the bank

drafts were in different places like Calcutta, Patna, Aurangabad,

Muzaffarpur and so on. However, the place from where the money

was transferred was Chaibasa, Saraikela within the State of Jharkhand.

Consequently it is sought to be contended that the place from where

the money is taken is what is relevant for determining the location of

the court which is competent to and has jurisdiction to try the offences

under the PC Act. According to the petitioners, the place where the

money is received is not relevant for this purpose. Applying the said

analogy to the facts of the present case it is sought to be contended that

the fact that the demand drafts were deposited in the bank accounts

opened in New Delhi is not relevant. The fact that the demand drafts in

question were in fact drawn on the SBI Branch in Kohima is alone

relevant since that is where the alleged offence was completed. It is

further submitted that in terms of the ratio in Braj Bhushan Prasad

(supra) the location where the main offence was committed is relevant.

The submission is that in the instant case, the main offence is that

under the PC Act. However, according to Mahesh Maheshwari the

main offence is not under the PC Act but the IPC. On the other hand,

petitioner P.K. Thungon contends that the main offence is in fact the

one under the PC Act which did not take place within the jurisdiction

of the Special Judge at New Delhi. Reliance is also placed on the

judgment of the Supreme Court in V.K. Puri v. Central Bureau of

Investigation 2007 [2] JCC 1470.

16. In the considered view of this Court, the contentions of the

petitioners on the question of territorial jurisdiction are unacceptable.

It is plain from Section 4(2) of the PC Act that the offences thereunder

have to be tried by the Special Judge for the area within which the

offence was committed. Section 5(1) and 5(3) PC Act mandate that

the CrPC will apply to the court of the Special Judge constituted under

the PC Act. Under Sections 178 CrPC where there is uncertainty

about "in which of several local areas an offence was committed",

then it could be tried by the court "having jurisdiction over any of such

local areas". Section 179 CrPC, which is relevant for the present

purpose, reads as under:

"179.Offence triable where act is done or consequence ensues._When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued."

17. On the facts of the present case, it cannot be said that the entire

offence for the purposes of the PC Act took place only within the local

limits of Kohima, where the demand drafts may have been prepared.

The case of the prosecution is that the said amounts were deposited by

way of demand drafts in the bank accounts in Delhi and thereafter

transferred to other accounts in Delhi either held in fictitious names

for the benefit of the petitioners or in the accounts opened by the

petitioners and operated by them. These transactions form an integral

part of the offence of criminal conspiracy with a view to doing a

criminal act punishable under the PC Act cannot be separated from it.

The offences with which the petitioners have been charged are under

Section 13 (2) read with 13(1) (c) & (d) of the PC Act. Those offences

certainly envisage the receipt of illegal gratification for amounts

wrongfully taken away from the Government. The receipt of the

money in Delhi is an essential ingredient of such offence.

19. Mr. Harish Gulati, the learned Standing Counsel for the CBI has

further pointed out that as far as the transactions in Delhi are

concerned, the question of criminal conspiracy does arise because P.K.

Thungon was at the relevant time a Union Minister of State in the

Ministry of Urban Affairs and Employment. He was also a Member of

Parliament. The case of the prosecution is that he abused his office for

the purposes of the transactions in question. The correspondence in

this regard forms part of the case record.

20. The judgment in Braj Bhushan Prasad (supra) does not assist the

case of the petitioners. No comparison can be drawn with the

transactions that formed the subject matter of the fodder feed scam in

Bihar. Ultimately, each case will have to be examined on its own facts.

As rightly pointed out by the learned trial judge, the substantive

offences in the instant case include the offences under Section 120B

read with 409/419/420/467/468/471 IPC. The transaction of an

opening bank account in a false name through impersonation with a

view to siphoning of monies from one account to the another after

encashing the drafts, are all offences which are substantive in nature

and have occurred within the territorial jurisdiction of the court in

Delhi. Equally, as far as P.K. Thungon is concerned, his role in the

criminal conspiracy was during the period that he served as a Union

Minister of State in Delhi. Mahesh Maheshwari was a part of this

criminal conspiracy. According to the prosecution, the accounts in

question were opened with the active help and connivance of Mahesh

Maheshwari. Therefore, both these petitioners were part of the

criminal conspiracy for committing the offences under the PC Act and

the IPC. Unlike the facts that form the subject matter of the decision

in Braj Bhushan Prasad (supra), it is not possible in the present case

to hold that either sets of offences, i.e., IPC offences and PC Act

offences are not the main offences. In fact each of these offences

would be the "main offence".

21. In terms of the relevant provisions of the CrPC which pro tanto

apply to the court of the learned Special Judge, the inescapable

conclusion is that the court in Delhi does have territorial jurisdiction to

try the PC Act offence.

22. The decision in V.K. Puri (supra) is really of no assistance to the

petitioners particularly since the offence there was under Section 13(2)

read with 13 (1) (e) PC Act. A distinction was drawn in the said

decision between the offences under Section 13(1)(e) and those under

Section 13(1)(c) and 13(d). It is not possible, therefore, to agree with

the contention of the petitioners in this regard.

23. For the aforementioned reasons, this Court rejects the plea of the

petitioners on the question of territorial jurisdiction. Crl. M.C. No.

2563 of 2007 and 2587 of 2007 are accordingly dismissed.

24. Now turning to the criminal revision petitions this Court finds on

an examination of the record, that there was sufficient material for the

charges to be framed against each of the petitioners for the offences in

question. An extensive discussion of the materials is not warranted at

this stage particularly in view of the dictum of the Supreme Court in

Kanti Bhadra Shah v. State of West Bengal (2001) 1 SCC 722 in the

following words:

"12. If there is no legal requirement that the trial Court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to chalk out measure to avert all road-blocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial Courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order had been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at

other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial."

26. The above principles have been reiterated in the recent judgment in

Hem Chand v. State of Jharkhand (2008) 5 SCC 113 in the following

words (SCC @ p.115-116):

"9. It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidence is brought on records at the trial. The documents whereupon the appellant intended to rely upon were: (i) an order of assessment passed by the Income Tax Authority and (ii) his declaration of assets.

13. The learned Counsel for the CBI is, thus, correct in his submission that what has been refused to be looked into by the learned Special Judge related to the documents filed by the appellant along with his application for discharge. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would

ordinarily not consider as to whether the accused would be able to establish his defence, if any."

27. Keeping the above principles in mind when one examines the

material on record, it is found that there is sufficient evidence to

proceed against each of these petitioners. The learned counsel for the

petitioner P.K. Thungon sought to contend that there was no reference

whatsoever to the exact role played by the petitioner in the transaction

in question. A bare examination of the charge sheet shows the precise

role played by the petitioner and the misuse of his office while being a

public servant. Likewise in the case of the Mahesh Maheshwari, the

contention that he is not part of the main criminal conspiracy and

therefore cannot be tried for an offence under the PC Act offence is

without merit in view of what has already been discussed hereinabove.

In any event a detailed examination of these contentions is possible