Jharkhand High Court
Amar Nath vs Union Of India Through C.B.I on 5 May, 2022
Cr. M.P. No.3390 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No.3390 of 2019
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Amar Nath, Aged about 51 years S/o-Dr. K.N. Mittal, R/o-Nath
Niwas, Main Road, Saraidhela, P.S.-Saraidhela, Dist.-Dhanbad
........... Petitioner
Versus
Union of India through C.B.I.
........... Opposite Party
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For the Petitioner : Mr. Yogendra Prasad, Advocate
Mr. Anil Kumar Sahu, Advocate
Mr. Deb Nandan Rajak, Advocate
For the C.B.I. : Mr. Navneet Sahay, AC to ASGI
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court: - Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this court under section 482 of the Code of Criminal Procedure,
1973 with the prayer to quash the entire criminal proceeding including order
taking cognizance dated 03.09.2019 passed by learned Special Judge, CBI,
Dhanbad in connection with R.C. Case No. 08A/2016-D, whereby and
whereunder, the learned Special Judge, CBI-cum- Additional Sessions Judge-
XI, Dhanbad has been pleased to take cognizance of the offences punishable
under Sections 120-B, 420 of Indian Penal Code and Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988.
3. The case of the prosecution in brief is that while the petitioner was
posted as Senior Principal Scientist, Standard Technology Management
International (S&T) (STMIG) section in BDIL (STMIG Section) Department
was responsible for collection of Royalty Dues from the co-accused-M/s
Suparna Chemical Ltd. but the petitioner deliberately, in criminal conspiracy
with the co-accused person, did not point out the manipulation made by the
co-accused person public servant in the agreement dated 30.07.2003 and the
petitioner failed to take action for recovery of huge outstanding royalty from
the co-accused private party, which caused wrongful loss to Central Institute
of Mining and Fuel Research (CIMFR), Dhanbad.
4. It is further alleged that the co-accused-M/s Suparna Chemical Ltd.
Cr. M.P. No.3390 of 2019
had made payment of Royalty of Rs.35,868/- only to CMRI, Dhanbad up to
23.03.2006 but did not pay any Royalty thereafter but no action was taken by
the petitioner; who was posted as Senior Principal Scientist, Standard
Technology Management International (S&T) (STMIG) section of BDIL,
CIMFR, Dhanbad for collection of outstanding Royalty and penal interest
from the co-accused company for 9 years and he issued letters to the said
company for payment of Royalty in June and September, 2015 only and due
to these omissions and commissions on the part of the wrongful loss to the
tune of Rs.85,02,228/- to CIMFR, Dhanbad with corresponding wrongful
gain to the petitioner and others occurred.
5. It is further submitted by learned counsel for the petitioner that the
memorandum of understanding was signed with regard to percentage of
Royalty to be paid for Joint Development of Indigenous Chemical Oxygen
Self Rescuer (Raksha Kawach) on 30.07.2003 to which the petitioner was not a
signatory and there is specific allegation against the co-accused-Nageshwar
Sahay of fraudulently altering para 7.2 of the said agreement by reducing the
period of royalty from 10 to 8 years. It is further submitted that the co-accused
Nageshwar Sahay also changed para 3 of Terms & Conditions at Annexure-1
of the said agreement by reducing the penal interest as 12 % instead of 18 %
per annum. After execution of the said agreement at his own level without
approval of Director and without getting the said alterations/manipulations
authenticated by the co-accused S.K. Chaudhuri, the authorized signatory of
the said agreement and the petitioner was not involved in the said
manipulation either.
6. Mr. Yogendra Prasad, learned counsel for the petitioner submits that
though the said company M/s Suparna Chemical Ltd. supplied/sold 25,989
number of Raksha Kavach to the different PSUs and also to various private
parties during February 2005 to February 2015 valued rate of Rs.21.34 crores
and M/s Suparna Chemical Ltd. was required to make payment of Royalty @
2.1 % of basic price to CMRI as stipulated under Para 3 of Annexure-I, and
basic sale value of the said Raksha Kavach was 18.55 crores, so the said
company M/s Suparna Chemical Ltd. instead of paying Royalty amount of
Rs.38.95 lakhs, it paid only Rs. 35,868/- to the CMRI up to 23.03.2006 and the
company did not make payment of balance Royalty amount to CMRI which
attracted the penal interest on the balance Royalty amount, thus the penal
Cr. M.P. No.3390 of 2019
interest on Rs.38,95,603/- @ 18 % comes to Rs.46,06,625/-, thus, the total
wrongful loss caused to CMRI comes to Rs.85,02,228/-.
7. There is further allegation against the petitioner that while the
petitioner was posted in BDIL (STMIG Section) Department, was responsible
for collection of Royalty Dues from the party but the petitioner deliberately
with criminal conspiracy with the co-accused person did not point out the
manipulation made by the co-accused-Dr. N. Sahay in the agreement dated
30.07.2003 and by the co-accused Mohan Prasad in the agreement dated
18.10.2006 and the petitioner failed to take action for recovery of huge
outstanding Royalty from the co-accused-private party, which caused
wrongful loss to CIMFR and the petitioner did not bring these facts to the
notice of the Senior Officers/Scientist as well as Director CIMFR.
8. Learned counsel for the petitioner relying upon the judgment in the
case of Bindeshwari Das Vs. the Union of India through CBI in Cr. Revision
No.945 of 2017 passed by a co-ordinate bench of this court vide Order dated
12.09.2017, submits that as the Special Judge, CBI has not applied its mind to
show that there is sufficient materials to proceed against the petitioner. Hence
the impugned order being without any justifiable and cogent reasons which
has not discussed as to what material has been collected by the Investigating
Agency or which would show that the petitioner deserves to be prosecuted in
the criminal case, the said order is not in accordance with law hence the same
be quashed.
9. It is next submitted by learned counsel for the petitioner that the
petitioner has been made a scapegoat at the instance of some vested
contender of his post in his organisation, for no fault of him and in the
absence of any official guidelines vesting authority upon the petitioner to
collect the dues of Royalty and it was the duty of the project leader of the
work concerned to collect the said Royalty. It is further submitted that the
petitioner after coming to know about the Dues of Royalty against the co-
accused- M/s Suparna Chemical Ltd. wrote demand letters to the said
company in June and September, 2015. It next submitted that there was no
negligence on the part of the petitioner in the recovery of the said Royalty
Dues. Hence, it is submitted that the entire criminal proceeding including
order taking cognizance dated 03.09.2019 passed by learned Special Judge,
CBI, Dhanbad in connection with R.C. Case No. 08A/2016-D, registered
Cr. M.P. No.3390 of 2019
under section 120-B, 420 of Indian Penal Code and Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988, in which the
cognizance has been taken against the petitioner, be quashed.
10. Learned counsel for the CBI on the other hand vehemently opposes the
prayer for quashing/setting aside the entire criminal proceeding including
order taking cognizance dated 03.09.2019 passed by learned Special Judge,
CBI, Dhanbad in connection with R.C. Case No. 08A/2016-D and submits that
the Hon'ble Supreme Court of India deprecates the practice of quashing of
cognizance and thereby nip the criminal prosecution in the bud itself, as is
evident from the observations made in the case of Central Bureau of
Investigation Vs. Sanjiv Paul in Criminal Appeal No. 67 of 2017 arising out of
SLP (Crl.) No. 9590 of 2013 dated 10.01.2017, paragraph nos. 3 & 4 of which
reads as under:-
"3. On due consideration, we are of the view that the stage at which the
High Court had quashed the proceedings was not appropriate. We,
therefore, interfere with the order of the High Court but leave it open to the
respondent-accused to seek discharge before the learned trial Court. All
questions are left open to be urged before the learned trial Court
4. Appeal, consequently is disposed of in terms of the above."
11. It is next submitted by learned counsel for the CBI that there is specific
allegation against the petitioner, that he in criminal conspiracy with the co-
accused persons has cheated and thereby caused wrongful loss to the tune of
Rs.85,02,228/- to CIMFR, Dhanbad corresponding to wrongful gain to himself
and the co-accused person, hence, it is submitted that there is no justifiable
reason to quash the entire criminal proceeding including order taking
cognizance dated 03.09.2019 passed by learned Special Judge, CBI, Dhanbad
in connection with R.C. Case No. 08A/2016-D. Hence, it is submitted that this
Criminal Miscellaneous Petition being without any merit be dismissed.
12. Having heard the submission made at bar and after going through the
materials in the record, it is pertinent to mention here that it is a settled
principle of law that the cognizance is with regard to the offence and not the
offender and at the stage of taking cognizance, the court concerned is not
required to consider the defence version of materials or argument, and in this
respect, nor it is required to evaluate the merits of the material evidence of the
Cr. M.P. No.3390 of 2019
complaint because the trial court concerned must not undertake the exercise
to find out at this stage whether the material will lead to conviction or not.
Taking cognizance does not involve any formal action or indeed action of any
kind but occurs as soon as the Magistrate as such applies its mind to the
suspected commission of the offence. Taking cognizance of an offence is not
the same thing as issuance of process, as has been observed by the Hon'ble
Supreme Court of India in the case of State of Karnataka and Anr. v. Pastor
P. Raju, reported in (2006) 6 SCC 728, in paragraphs 10 and 13 as under:
"10. Several provisions in Chapter XIV of the Code of Criminal Procedure use the
word "cognizance". The very first section in the said Chapter viz. Section 190
lays down how cognizance of offences will be taken by a Magistrate. However, the
word "cognizance" has not been defined in the Code of Criminal Procedure. The
dictionary meaning of the word "cognizance" is -- "judicial hearing of a matter".
The meaning of the word has been explained by judicial pronouncements and it
has acquired a definite connotation. The earliest decision of this Court on the
point is R.R. Chari v. State of U.P. [1951 SCR 312 : AIR 1951 SC 207 : 1951 Cri
LJ 775] wherein it was held : (SCR p. 320)
"... 'taking cognizance does not involve any formal action or indeed action
of any kind but occurs as soon as a Magistrate as such applies his mind to the
suspected commission of an offence'."
13. It is necessary to mention here that taking cognizance of an offence is not the
same thing as issuance of process. Cognizance is taken at the initial stage when
the Magistrate applies his judicial mind to the facts mentioned in a complaint or
to a police report or upon information received from any other person that an
offence has been committed. The issuance of process is at a subsequent stage when
after considering the material placed before it the court decides to proceed against
the offenders against whom a prima facie case is made out."
13. As already indicated above the materials in the record suggest that
there is specific allegation against the petitioner, that he in criminal
conspiracy with the co-accused person has committed offences of cheating
and thereby causing wrongful loss to the tune of Rs.85,02,228/- to CIMFR
besides committing offences punishable under Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988. Hence, this court is
of considered view that the uncontroverted allegations as made, established
prima facie case against the petitioner of having committed the said offences.
Cr. M.P. No.3390 of 2019
Accordingly, this court is of considered view that this is not a fit case where
the entire criminal proceedings or for that matter the order dated 03.09.2019
passed by learned Special Judge, CBI, Dhanbad in connection with R.C. Case
No. 08A/2016-D by which the cognizance of the offences has been taken by
the learned Special judge, be quashed.
14. Accordingly, this Criminal Miscellaneous Petition being without any
merit is dismissed.
15. 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 05th of May, 2022.
AFR/ Pappu
