Delhi High Court

Ashok Kumar Ahluwalia vs Central Bureau Of Investigation on 21 November, 2016

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
    +    Crl.M.C.No.4445/2014

                                  Date of Decision: November 21st, 2016

         ASHOK KUMAR AHLUWALIA                            ..... Petitioner

                        Through      Mr.Prem B.Kshetri, Adv.


                        versus

         CENTRAL BUREAU OF INVESTIGATION...... Respondent
                        Through      Mr.Narender Mann, Spl.P.P. for CBI
                                     with Mr.Manoj Pant, Adv.

         CORAM:
         HON'BLE MR. JUSTICE P.S.TEJI

         P.S.TEJI, J.

1. The present petition has been filed under Article 227 of

the Constitution of India read with Section 482 Cr.P.C. for

quashing and setting aside the order dated 22.02.2014 along

with order dated 01.08.2013 passed by the Special Judge, CBI

whereby charge has been framed against the petitioner in

R.C.No.32(A)/94 dated 03.06.1994 under Section 120B read

with Section 420 IPC and Section 13(2) read with Section

13(1)(d) of the PC Act, 1988.

2. The learned counsel for the petitioner has raised grounds

in the following petition in support of his case that the impugned

order dated 22.02.2014 which is in continuation of earlier order

dated 01.08.2013 is neither sustainable under law nor tenable

under the facts and circumstances of the case and that the same

has been passed without appreciating the facts and applying the

judicial discretion, and is unjustified, bad in law and hence is

liable to be set aside; that the petitioner is a scapegoat inasmuch

as the conspiracy was hatched by accused persons namely

Sh.Subhash Handa and Sh.D.S.Kanwar, who have been arrayed

as accused Nos.1 & 2 respectively in the charge sheet; that the

Trial Court failed to observe that the petitioner has issued

delivery orders dated 22.07.1991 on the basis of letter dated

31.10.1990 whereby the accused No.1/Sh.Subhash Handa was

given the category of Special Dealers with special facility of

inbuilt storage of 2500 metric tons per month to the charge of

the company as per company's policy; that the Trial Court failed

to appreciate that the payment had to be collected by advance

demand draft whereas the same was collected by the mode of

cheque; that the Trial Court failed to examine that the

respondent knowingly did not file several documents which

make it clear that the petitioner is not guilty; hence, the

petitioner sought permission to file those documents which has

been allowed by the Trial Court and accordingly filed letter

dated 25.07.1991, 31.07.1991, memorandum of departmental

enquiry, charges and order dated 04.05.2006 which now has

become part of the charge sheet and court record and hence the

Trial Court would have to examine those documents as these are

very important pieces of evidence; that the Trial Court failed to

examine that the respondent knowingly did not file letter dated

12.08.1991 written by the petitioner to Sh.Sohan Lal, DO

Kaithal wherein it is very much clear that those three Delivery

Orders were issued by the petitioner at the instructions of AAM,

Kurukshetra. Till 12.08.1991, M/s Aar Kay Enterprises had not

lifted the materials as per the Delivery Orders. Apart from above

grounds, the petitioner has assailed the order on charge on the

ground that the same is without due application of mind and due

appreciation of material placed before it.

3. The case of the prosecution is that the petitioner i.e.

Ashok Kumar Ahluwalia, while working as Assistant Area

Manager, National Fertilizers Limited ('NFL' for short) at

Kaithal during the year 1991, abused his official position as

public servant. As per the policy of NFL, an adhoc dealer is

appointed after verifying antecedents and experience, for a

period of 6 months. In the instant case, M/s. Aar Key Enterprises

and M/s. Kuber Traders, firms of the co-accused/Subhansh

Handa were appointed without prior verification and their

appointment was not supported by requisite documents and that

too for a period of one year in each case. The policy of NFL is

that fertilizers are assured to its dealers through a document

called Delivery Orders. Advance payment in the form of demand

draft has to be obtained from the dealers as per the quantity

requirement, before the issuance of the deliver order. The

petitioner, in violation of policy of NFL, issued Delivery Orders

for the supply of 518.35 metric ton of Urea worth

Rs.8,03,243.50 vide three Delivery Orders i.e. (i) DO no.5501

dated 22.7.1991 for 410 metric tons urea for a sum of

Rs.6,27,300/- in favour of M/s. Aar Key Enterprises, Ambala (ii)

DO no.5502 dated 22.7.1991 for 75 metric tons urea for a sum

of Rs.1,22,250/- in favour of M/s. Aar Key Enterprises, Ambala

and (iii) DO no.5503 dated 22.7.1991 for 33 metric tons urea for

a sum of Rs.53,693/- in favour of M/s. Aar Key Enterprises,

Ambala, which is the firm of the co-accused Sh. Subhash Handa

on credit without receiving the payment and caused

corresponding loss to the NFL.

4. That the petitioner/accused with the object of causing

undue pecuniary advantage to accused Subhash Handa through

his firms M/s. Aar Key Enterprises and M/s. Kuber Traders was

part of conspiracy with other accused persons in appointing

these firms as ad-hoc dealerships and later issuing DO orders

without taking advance Bank Drafts for the value of the Urea,

which resulted into loss of Rs.2,52,05,302.12/- to the NFL and

corresponding unlawful gain to co-accused Subhash Handa. The

petitioner is an important link in the chain of the conspiracy and

without his involvement the offence could not have been

committed.

5. Learned Special PP for the CBI has submitted that the

impugned order for framing of charge is just, fair and proper,

based on the evidence collected during the course of

investigation and available on record. The framing of charge is

justified as prima facie material is available on record and an

offence is made out against the accused. It is further submitted

that at the stage of framing charge, the trial court is not required

to evaluate the entire evidence or weigh the evidence.

6. It is submitted that the any material which is not part of

the charge sheet or documents accompanying it, shall not be

considered at the stage of charge. If the petitioner/accused wants

to rely on any other material, it can be considered only at an

appropriate stage at the stage of defence evidence. Any such

material can not be considered at the stage of charge.

7. The case law regarding framing of charge is well settled.

The Hon'ble Apex Court in P. Vijayan v. State of Kerala and

Anr. AIR 2010 SC 663 has held as under :

"14. In a recent decision, in the case of Soma Chakravarty v. State through CBI (2007) 5 SCC 403 this Court has held that the settled legal position is that if on the

basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials there for. Suspicion alone, without anything more, cannot form the basis there for or held to be sufficient for framing charge."

8. From the material placed on record by the prosecution,

apparently, there is sufficient evidence and material against the

petitioner that he was part of the criminal conspiracy to give ad

hoc dealership to the firm of his co-accused and also of misusing

his official position as publc servant to give undue favour to his

co-accused.

9. It is a settled law that at the time of framing charge, the

court is required to look into the material placed before it by the

prosecution and to form its prima facie view whether there exists

strong suspicion to frame the charge or not as observed in the

case of P. Vijayan (supra).

This court is of the considered opinion that the