Bhanu Pratap Shahi Aged About 42 ... vs The State Of Jharkhand Through ...
2022 Latest Caselaw 1723 Jhar

                                                                       Cr. Revision No.905 of 2018




IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Cr. Revision No.905 of 2018
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{Against the Order dated 13.03.2018 passed by the learned Special Judge, CBI, Ranchi in Misc. Criminal Application No.253 of 2018 arising out of ECIR/02/Pat/09/AD (D)}

Bhanu Pratap Shahi aged about 42 years, son of Shri Hemendra Pratap Dehati, resident of Kadhwan, P.O. Parsodih, P.S. Bhawnathpur, District-Garhwa (Jharkhand) ........... Petitioner Versus The State of Jharkhand through Enforcement Directorate ........... Opposite Party

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 For the Petitioner    : Mr. Ajit Kumar, Sr. Advocate
 For the E.D.          : Mr. Amit Kumar Das, Adv.
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                                   PRESENT
           HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


 By the Court: - Heard the parties.

2. This Criminal Revision petition has been filed against the order dated 13.03.2018 passed by the learned Special Judge, CBI, Ranchi in Misc. Criminal Application No.253 of 2018 arising out of ECIR/02/Pat/09/AD(D) by which the learned Special Judge, CBI has rejected the petition for discharge of the petitioner and it transpires from the record that subsequently the charges for the offences punishable under section 3 & 4 of Prevention of Money Laundering Act, 2002 have been framed inter alia against the petitioner and his private secretary namely Uma Shankar Malviya along with Ajay Singh, Prashant Kumar Singh, Santoshi Devi during the check period from March 2005 to July, 2009; while the petitioner was a Member of Legislative Assembly and Minister of Health and Labour, Government of Jharkhand, having directly or indirectly indulged in process and activities in connection with proceeds of crime of the schedule offence and knowingly have obtained/acquired huge properties and made bank transactions in the Jharkhand and other states by involving in process and activities connected with the proceeds of the crime of the schedule offences of the said offences under Prevention of

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Money Laundering Act, 2002 valued Rs.7,97,96,888/-, and the petitioner and others have projected the said properties as untainted properties. It further transpires that after framing the charge, the six witnesses have been examined by the prosecution during the trial and except P.W.3 rest of the witnesses have supported the case of the prosecution.

3. The case of the prosecution in brief is that the petitioner was elected as Member of Legislative Assembly on 13.03.2005 and while working as public servant as Member of Legislative Assembly and as Minister of Health and Labour, Government of Jharkhand during the check period of 13.03.2005 to 24.07.2009 acquired assets disproportionate to his known source of income to the extent of Rs.6,99,95,964/-, by abusing his official position and the disproportionate assets so acquired has been invested by the petitioner and the co-accused person in the form of movable/immovable assets

(i) in the name of his relatives;

(ii) in the trust of which the petitioner was authorized signatory; and

(iii) in two front companies, which were incorporated for this purpose but which companies were not having any business activity.

It is further alleged that the acquisition of disproportionate asset by the petitioner while working as public servant is punishable offence under Section 13(2) read with 13 (1)(e) of Prevention of Corruption Act, 1988 and in this respect, Vigilance FIR. No.09 of 2009 dated 02.07.2009 was registered before the Vigilance Police Station, Ranchi, and subsequently in terms of the order dated 04.08.2010 in WP(PIL) No.4700 of 2008 passed by a Bench of this Court, the investigation was transferred to Central Bureau of Investigation and the C.B.I. re-registered the case as R.C.05(A)/10-AHD-R dated 11.08.2010 and after due investigation of the case, the Charge-Sheet No.07 of 2011 dated 22.12.2011 has been submitted inter alia against the petitioner which is schedule offences of this case which has been instituted against the petitioner and others for having committed the offences punishable under section 3 and 4 of the Prevention of Money Laundering Act, 2002. It is further alleged that the petitioner has illegally acquired Rs.7,97,96,888/- and laundered the said money with the aid and assistance of the co-accused persons in the form of movable and immovable properties. It is further alleged

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that modus operandi of the petitioner is basically of three types:

(i) The petitioner acquired immovable property in the name of his relatives who could not give any satisfactory explanation regarding their sources of acquisition of properties as such the explanations regarding the source of money for acquisition of such properties given by them were found to be false during the investigation of the case and their statements were contradictory to the statement given by them to the CBI in connection with R.C.05(A)/10-AHD-R and upon verification it was also found that the claims as have taken by the co-accused persons who laundered the money of the petitioner were fake and false and in fact, the loan as claimed by the persons in whose name the property was acquired; was not advanced.

(ii) The second modus operandi was that a trust in the name and style of "Dehati Sthapna Nyas" was formed by the petitioner and the petitioner being Authorized Signatory of the trust was instrumental in making fake deposits in the said trust by fake persons to inflate the income earned by the said trust and during the investigation, the Chartered Accountant, Atul Jalan has categorically stated that the petitioner and his personal secretary, the co- accused U.S. Malviya handed over the blank receipt books of the said trust to the petitioner and gave the Pan Cards of the different persons and told the Chartered Accountant to fill up the receipts in the name of such persons, and on the investigation, it was found that such persons who have allegedly donated their money to the said trust, have no means to make donation.

(iii) The third modus operandi is that by establishing two front companies namely M/s Sonanchal Buildcon (P) Ltd. and M/s Angesh Trading Co. (P) Ltd., both located at Delhi; huge amount of money was shown to have been received by the said two companies by selling their shares though in fact the shares of the said companies were never sold and there is further allegation that the companies paid cash to grain merchants and obtained cheques from them and these companies have not been doing any business as such and the statements of such grain merchants who received cash from the said 2 front companies in lieu of cheques have been recorded during the investigation of the case.

Learned trial court after taking into consideration the allegation against the petitioner as placed before it including the charge-sheet found that there is sufficient material to frame the charge inter alia against the petitioner and rejected

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the petition of discharging the petitioner from this case.

4. Mr. Ajit Kumar, learned senior counsel for the petitioner submits that the learned Special Judge failed to appreciate the materials in this record in its proper perspective and could not apply his judicial mind while passing the impugned order and also failed to consider the facts that the petitioner comes from a family of landlord and after partition 27 acres of land came to the individual share of the petitioner and earning of the petitioner is Rs.5 lakhs per year from the proceeds of the agricultural land. It is further submitted that the schedule offence has not been committed by the petitioner and there is no basis to submit charge in the scheduled offence. It is next submitted that the learned Special Judge failed to consider that Smt. Santoshi Devi and Shri Abhishek Kumar Singh, late Ravindra Pratap Singh and others, in whose name the properties have been said to have been purchased by ill-gotten money of the petitioner, have their individual source of income and they have filed their respective Income Tax Returns in support of that. It is next submitted that learned special judge also failed to appreciate the fact that the "Dehati Sthapna Nyas" is a separate entity and it has its own property, earning and expenses, expenditures and the petitioner has got nothing to do with the same.

In support of the settled principal of law regarding the materials to be considered by the trial court at the stage of framing of the charges, learned senior counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court of India in the case of Soma Chakravarty Vs. State Through CBI reported in (2007) 5 SCC 403 paras 10 and 19 of which reads as under:

"10. It may be mentioned that the settled legal position, as mentioned in the above decisions, 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 at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.

19. Some of the questions, however, which have been raised by the appellant are of some importance and it may be necessary to deal therewith.

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The learned trial Judge, it appears, did not properly apply its mind in regard to the different categories of the accused while framing charges. It ought to have been done. 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 therefor. Suspicion cannot alone, without anything more, it is trite, form the basis therefor or held to be sufficient for framing charge."

Learned senior counsel for the petitioner in this respect next relied upon the judgment of the Hon'ble Supreme Court of India in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijjaya and Ors., reported in (1990) 4 SCC 76 para 6 of which reads as under:

"6. The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh [(1977) 4 SCC 39: 1977 SCC (Cri) 533: (1978) 1 SCR 257] this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609: (1979) 2 SCR 229] this Court after considering the scope of Section 227 observed that the words 'no sufficient ground for

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proceeding against the accused' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under: (SCC p. 9, para 10) "(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

Learned senior counsel further relied upon the judgment of the Hon'ble Supreme Court of India in the case of Dilawar Balu Kurane Vs. State of

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Maharashtra reported in (2002) 2 SCC 135 para 12 of which reads as under:

"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609)]."

5. Learned senior counsel also relied upon the judgment of the Hon'ble Supreme Court of India in the case of DSP, Chennai Vs. K. Inbasagaran. reported in (2006) 1 SCC 420 in which after conviction of the accused of that case by the trial court, in appeal it was observed by the Hon'ble Supreme Court of India that when the accused comes forward with pleas that all the money which has been recovered from his house and the purchase of real estate or the recovery of the gold and other deposits in the bank all have been owned by the wife of the accused, then he is said to have satisfactorily accounted for the recovery of the unaccounted money and in that situation unaccounted money ought not have been laid in the hands of the accused.

6. Mr. Ajit Kumar, learned senior counsel for the petitioner also relied upon the judgment of the Hon'ble Delhi High Court in the case of Rekha Nambiar Vs. CBI reported in (2015) SCC online Del 13255 wherein in para 48 the settled principle of law that the property in the name of income tax assessee cannot be a ground to hold that it actually belongs to such assessee has been reiterated and in the facts of that case, as CBI failed to bring the evidence in the record to show that the victim of that case had ever got any favour from the accused and that the

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accused was instrumental in awarding any contract to the petitioner of that case; discharged the petitioner of that case from the allegation of amassing assets disproportionate to the known sources of the income of her husband.

7. It is submitted by learned senior counsel for the petitioner that the order dated 13.03.2018 passed by the learned Special Judge, CBI, Ranchi in Misc. Criminal Application No.253 of 2018 arising out of ECIR/02/Pat/09/AD(D) by which the petitioner prayed for discharge of the petitioner of the offences mentioned in the charge-sheet which has been submitted against him in the said case be set aside and the petitioner be discharged of the said offences. It is further submitted that the petitioner has also filed interlocutory application being I.A. 217 of 2021 with a prayer to quash/set aside the order dated 04.06.2018 passed by Learned Special Judge, CBI-cum-PML Act, Ranchi whereby learned Special Judge, CBI framed charges for the offences punishable under Sections 3 & 4 of Prevention of Money Laundering Act, 2002 against the petitioner and the co-accused U.S. Malviya who was the personal secretary of the petitioner when he was holding the office of Minister of Health and Labour, Government of Jharkhand, and consequentially the said order be also quashed/set aside.

8. Mr. A.K. Das, learned counsel appearing for the Enforcement Directorate on the other vehemently opposes the prayer for setting aside the order dated 13.03.2018 passed by the learned Special Judge, CBI, Ranchi in Misc. Criminal Application No.253 of 2018 arising out of ECIR/02/Pat/09/AD(D) or for that matter the order dated 04.06.2018 in the said case passed by the Learned Special Judge, CBI, Ranchi and submits that there is no quarrel about the settled principle of law in respect of framing of charge, which has been placed by the learned senior counsel for the petitioner to the effect that at least grave suspicion is required for framing the charge against an accused in any trial but here in this case as has been mentioned in the complaint filed by the Enforcement Directorate upon the investigation; not only strong suspicions rather, if the contentions made therein, which is supported by the evidences is treated as true, then the materials in record is sufficient even for establishing the charges both for the offences punishable under Section 3 & 4 of Prevention of Money Laundering Act, 2002 against the petitioner beyond reasonable doubt. Hence, the said settled principle of law relied upon by the learned senior counsel for the petitioner are not applicable in the facts of this case. It is submitted that this is, in fact, the second journey of the petitioner before this court and earlier the petitioner moved with a prayer for

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quashing the order by which cognizance was taken by the learned Special Judge, CBI vide order dated 25.03.2014 but the same was dismissed vide order dated 08.07.2014 in Cr.M.P. No.1027 of 2014 by the predecessor Judge of this Bench. It is next submitted that the learned Special Judge, CBI in view of the overwhelming materials in the record rightly held that there is sufficient material available on record to frame the charges against the petitioner and has rightly framed charges and since, the trial is at advance stage and six witnesses have already been examined and five out of six witnesses have supported the case of prosecution, hence, there is no justifiable reason to interfere with the impugned order passed by learned Special Judge, CBI and in the absence of any illegality in the same, this revision petition as well as interlocutory application being I.A. No.217 of 2021 being without any merit be dismissed.

9. Having heard the submission made at bar and after going through the materials in the record, it is pertinent to mention here that the facts of the case of DSP, Chennai Vs. K. Inbasagaran (supra) and the case of Rekha Nambiar Vs. CBI (supra) are entirely different from the facts of this case as the case of DSP Chennai Vs. K. Inbasagaran (supra) is a case where the appeal was considered by the Hon'ble Supreme Court of India, where the trial court did not consider the defence evidence in its proper perspective but it is settled principle of law that at the stage of framing of charge, the defence of the accused could not be considered as held by Hon'ble Supreme Court of India in the case of M.E. Shivalingamurthy vs. Central Bureau of Investigation, Bengaluru, reported in (2020) 2 SCC 768 para-29 of which reads as under:

"29. It is not open to the accused to rely on the material by way of defence and persuade the court to discharge him."

10. So far, the case of Rekha Nambiar Vs. CBI (supra) is considered, the offences involved in that case were not the offences punishable under the Prevention of Money Laundering Act, 2002 but the offences relating to schedule offence under Penal Provision for the offences punishable under section 109 of Indian Penal Code and under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. Hence, the ratios of these two judgments, in the considered opinion of this court, are of not much help to the petitioner. There is no dispute regarding the settled principle of law regarding the materials to be considered by the trial court while considering the discharge petition as also framing of charge but coming to the facts of this case, this court finds that there is

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specific allegation against the petitioner of having laundered money to the tune of Rs.7,97,96,888/- and also there is specific allegation of adopting three modus operandi for the same which are as under:

(i) The petitioner acquired immovable property in the name of his relatives who could not give any satisfactory explanation regarding their sources of acquisition of properties as such the explanations regarding the source of money for acquisition of such properties given by them were found to be false during the investigation of the case and their statements were contradictory to the statement given by them to the CBI in connection with R.C.05(A)/10-AHD-R and upon verification it was also found that the claims as have taken by the co-accused persons who laundered the money of the petitioner were fake and false and in fact, the loan as claimed by the persons in whose name the property was acquired; was not advanced.

(ii) The second modus operandi was that a trust in the name and style of "Dehati Sthapna Nyas" was formed by the petitioner and the petitioner being Authorized Signatory of the trust was instrumental in making fake deposits in the said trust by fake persons to inflate the income earned by the said trust and during the investigation, the Chartered Accountant, Atul Jalan has categorically stated that the petitioner and his personal secretary, the co- accused U.S. Malviya handed over the blank receipt books of the said trust to the petitioner and gave the Pan Cards of the different persons and told the Chartered Accountant to fill up the receipts in the name of such persons, and on the investigation, it was found that such persons who have allegedly donated their money to the said trust, have no means to make donation.

(iii) The third modus operandi is that by establishing two front companies namely M/s Sonanchal Buildcon (P) Ltd. and M/s Angesh Trading Co. (P) Ltd., both located at Delhi; huge amount of money was shown to have been received by the said two companies by selling their shares though in fact the shares of the said companies were never sold and there is further allegation that the companies paid cash to grain merchants and obtained cheques from them and these companies have not been doing any business as such and the statements of such grain merchants who received cash from the said 2 front companies in lieu of cheques have been recorded during the investigation of the case.

11. Hence, this court is of considered view that, there is no illegality in the

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impugned order passed by the learned Special Judge, CBI in Misc. Criminal Application No.253 of 2018 arising out of ECIR/02/Pat/09/AD(D). Accordingly, this Court do not find any justifiable reason to interfere with the order dated 13.03.2018 passed by the learned Special Judge, CBI, Ranchi in Misc. Criminal Application No.253 of 2018 arising out of ECIR/02/Pat/09/AD(D) or for that matter the order dated 04.06.2018 passed in the said case by the learned Special Judge, CBI, Ranchi.

12. Accordingly, this criminal revision petition as well as the interlocutory application being I.A. No.217 of 2021 being without any merit be dismissed.

13. Let a copy of this order be sent to the learned court below forthwith.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 02nd of May, 2022.

AFR/ Pappu