Madras High Court
M/S.Syr Infrastructure vs State on 7 December, 2021
Crl.R.C.Nos.1084 of 2021,
202 of 2022 and 225 of 2022
and connected C.M.Ps.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders reserved on Orders pronounced on
22.04.2022 26.05.2022
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
Crl.R.C.Nos.1084 of 2021, 202 of 2022 and 225 of 2022
and
CMP Nos.728, 2104, 2336 and 13993 of 2022
Crl.R.C.No.1084 of 2021
M/s.SYR Infrastructure
represented by its Proprietor
K.S.Yougandhar ... Petitioner/A5
Vs.
State
represented by Inspector of Police
Central Bureau of Investigation
Anti-Corruption Bureau
Chennai. ... Respondent
This Criminal Revision Case is filed under Section 397 r/w. 401
Cr.P.C. to set aside the order of dismissal of Crl.M.P.No.6895 of 2021 in
C.C.No.5 of 2019 on the file of XIV Additional Special Judge for CBI
Cases, Chennai, seeking discharge of the offences and thereby, dismiss
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the complaint in C.C.No.5 of 2019 on the file of XIV Additional Special
Judge for CBI Cases, Chennai, invoking supervisory revisional
jurisdiction of this Court.
For Petitioner : Mr.C.Manishankar,
Senior Counsel
for
M/s.R.Udhayakumar
For Respondent : Mr.K.Srinivasan
Special Public Prosecutor
Crl.R.C.No.202 of 2022
K.Kumar ... Petitioner/A2
Vs.
State by Inspector of Police
CBI, ACB
Chennai. ... Respondent
This Criminal Revision Case is filed under Section 397 r/w. 401
Cr.P.C. to call for the records and to set aside the order dated 07.12.2021
passed in Crl.M.P.No.4190 of 2020 in C.C.No.5 of 2019 on the file of
XIV Additional Special Judge for CBI Cases, Chennai, dismissing the
discharge petition.
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For Petitioner : Mr.K.Ravi Anantha Padmanabhan
For Respondent : Mr.K.Srinivasan
Special Public Prosecutor
Crl.R.C.No.225 of 2022
1. M/s.Eastern Bulk Trading and Shipping P Limited
represented by its Director
Tajudeen Mohamed Ilyas
2. Tajudeen Mohamed Ilyas
... Petitioners/A6 and A7
Vs.
The Inspector of Police
Central Bureau of Investigation
Anti-Corruption Branch
Madurai, (Camp at Chennai)
Chennai – 600 006.
RC MA1 2017 A 0011 ... Respondent
This Criminal Revision Case is filed under Section 397 r/w. 401
Cr.P.C. to call for the records and to set aside the order dated 07.12.2021
passed in Crl.M.P.No.5579 of 2019 in C.C.No.5 of 2019 on the file of
XIV Additional Special Judge for CBI Cases, City Civil Court, Chennai,
dismissing the discharge petition.
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For Petitioners : Mr.R.Rajarathnam
for
M/s.C.R.Malarvannan
For Respondent : Mr.K.Srinivasan
Special Public Prosecutor
COMMON ORDER
These Criminal Revision Cases have been filed against the order of
dismissal of discharge petitions filed under Section 239 Cr.P.C in
Crl.M.P.Nos. 6895 of 2021, 4190 of 2020 and 5579 of 2019 respectively
in C.C.No.5 of 2019 on the file of XIV Additional Special Judge for CBI
Cases, City Civil Court, Chennai.
2. Petitioner in Crl.R.C.No.202 of 2022 is the second accused,
petitioners in Crl.R.C.No.225 of 2022 are accused 6 and 7 and the
petitioner in Crl.R.C.No.1084 of 2021 is the fifth accused in C.C.No.5 of
2019.
3. Respondent filed final report against the accused 1 to 8 in
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this case. The gist of the final report filed in this case is that during the
period 2016-17, A1 to A3 - the officials of Chennai Port Trust, A4-
M/s.M.C Jain and associates, A5-M/s.SYR Infrastructure and A6-
M/s.Eastern Bulk Trading and Shipping Private Limited conspired
together to cheat Chennai Port Trust in a matter of sale of iron ore and in
pursuance of the conspiracy, contract was awarded to M/s.SYR
Infrastructure on the basis of very low reserve price valued by M/s.M.C
Jain and associates and then M/s.Eastern Bulk Trading and Shipping
Private Limited was permitted to make payment for the contract, which
was awarded to M/s.SYR Infrastructure against the contract terms. As
per the prevailing market price, the same quality of iron ore was
Rs.1,218/- per Metric Ton. Due to fixation of reserve price at Rs.400/-
per Metric Ton, a wrongful loss to the tune of Rs.7,10,45,100/- was
caused to M/s.Chennai Port Trust. Therefore, A1 to A3 are liable to be
prosecuted for the offence under Sections 120(b) r/w.420 IPC, Section
13(2) r/w.13(1)(d) of Prevention of Corruption Act and A4 to A8 are
liable to be prosecuted for the offence under Section 120(b) r/w.420 IPC.
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4. Challenging the final report, petitioners filed discharge
petitions under Section 239 Cr.P.C as stated above. Learned trial Judge,
on considering the rival submissions and on perusal of the materials
available on record, dismissed the discharge petitions. Thus, the
petitioners are before this Court by way of these Revision Cases.
5. Learned counsel appearing for the petitioners made general
submissions about the background of these cases. It is seen from their
submissions that in and around 2010, there was a ban of iron ore mining
and transportation in Karnataka and Andhra Pradesh. As a result,
M/s.Chennai Port Trust stopped handling iron ore and the exporters were
forced to vacate the plots allotted to them. Certain exporters failed to
clear the iron ore stocked in their respective plots. M/s.Chennai Port
Trust cleared the heaps of iron ore left behind by the exporters by
conducting auctions. Residuals of iron ore accumulated in the stocking
yards are deposited underneath the earth approximately to a depth of
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around one metre, which led to increase of dust levels in the M/s.Chennai
Port Trust and the Hon'ble Supreme Court appointed the Empowered
Committee to handle the coal and other dusts in the Port. On 12.07.2016,
a meeting was held by the Empowered Committee at Ministry of
Shipping, New Delhi. As a consequence of the meeting, Chief
Mechanical Engineer of M/s.Chennai Port Trust requested the
Commissioner of Customs (Exports), Chennai, Commissionerate on
04.08.2012 for permission to sell the unaccounted iron ore lying
underneath the iron ore plots of M/s.Chennai Port Trust through e-
auction. Permission was sanctioned by Chairman of Commissioner of
Customs (Exports) on 31.08.2016 with an agreement to share the sale
proceeds on 50:50 basis between M/s.Chennai Port Trust and Customs
Department. M/s.M.C Jain and associates, a common value approver
was appointed as a valuer for assessing the quality and furnishing the
value. Considering the cost of deploying, earthmoving equipment,
labour cost, number of approximate days, transportation and various
other costs, the valuer arrived at a reserve price of Rs.400/- per Metric
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Ton. E-auction was conducted on 30.12.2016. As per e-auction
catalogue, e-auction was conducted under the condition “as is where is”,
as the residual ores were deposited underneath the soil and it was
incalculable to precision. M/s.SYR Infrastructure, who was the highest
bidder, by quoting highest price of Rs.681/- per Metric Ton. M/s.SYR
Infrastructure, due to various economic factors, was not able to pay the
amount within the time stipulated. On the request made by e-mail letter
dated 06.01.2017, the time was extended till 19.01.2017 and again
extended till 24.01.2017 on the basis of the request made on 17.01.2017
for making payment. Mean while M/s.Eastern Bulk Trading and
Shipping Private Limited approached M/s.SYR Infrastructure to form a
partnership and to pay Rs.10,18,53,867/-. Petitioner accepted the
proposal and M/s.Eastern Bulk Trading and Shipping Private Limited
paid a sum of Rs.3,00,00,000/- on 23.01.2017 and a sum of
Rs.7,18,53,867/- on 24.01.2017. They had no malevolent intention to
cheat or commit forgery on M/s.Chennai Port Trust and the transaction
was done in a transparent manner. The payment was also confirmed by
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the Chairman, M/s.Chennai Port Trust. M/s.MSTC confirmed the
payment and gave delivery order to M/s.SYR Infrastructure. M/s.SYR
Infrastructure commenced the work of excavating and moving iron ore
complying with the rules and regulations of tender. On 29.03.2017
M/s.Chennai Port Trust officials orally instructed to stop the work of
excavating the iron ore. Subsequently on the basis of the complaint by
the Viligance Officer, this case came to be registered.
6. Learned counsel for the petitioner in Crl.R.C.No.202 of
2022/second accused submitted that he is only a Senior Deputy Materials
Manager. He has no role in approval of reserve price, deciding the bid
amount and closing the e-auction. A4 is the independent Government
approved valuer. A4 assessed the iron ore quality and quantity to be
auctioned and fixed the reserve price at Rs.400/- and sent it in a sealed
cover to the Chairman. The Chairman approved it and sent it for further
process. The e-auction was advertised in newspapers and in web portals.
Nobody would know the name of the bidders on the display boards,
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except seeing the bid quoted amount. The auction was conducted by
Government of India undertaking M/s.MSTC Limited. Everything was
done through online. A1 to A3 are the 6th and 7th lower level officers
from the post of Chairman of M/s.Chennai Port Trust. There was no role
played by A2 in approving the extension of time and acceptance of RTGS
payment made on behalf of A5. All these letters and transactions were
handled only by higher officials. Since 2014, M/s.Chennai Port Trust has
been in the habit of opening a web portal of auctioneer one day prior to
the auction date. Therefore, the allegations that the web portal was
opened a day before the auction on 30.12.2006 is not out of ordinary. It
was a routine procedure followed from 2014. There is no whisper in
anywhere in the charge sheet that A1 to A3 led A4 in fixing reserve price
by A4 and made unlawful gain. There is absolutely no material that the
petitioner, A1 and A3 had conspired with other accused in the matter of
conducting e-auction. Petitioner is unnecessarily and unjustly prosecuted
for no fault committed by him. If really, there is anything illegal, that can
be attributed only to higher officials starting from Chairman,
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M/s.Chennai Port Trust. But they are let off and not shown as accused.
7. Learned counsel for the petitioner in Crl.O.P.No.1084 of
2021/5th accused submitted that the tender was for the sale of iron ore
consisting of sand, lumps, mud and clay and on “as is where is” basis.
On the basis of nature of iron ore and its quality and other incidental
expenses, M/s.M.C Jain and associates had fixed the reserve price of
Rs.400/- per Metric Ton. There is no material to show that there was a
conspiracy between A5 and A4 M/s.M.C Jain and associates with regard
to the fixation of reserve price. The Chairman of Port Trust has power to
refer the valuation for three members panel, if he feels that the reserve
price fixed by the valuer is less. That was not done in this case. But the
Chairman of M/s.Chennai Port Trust approved the reserve price. The
Investigating Agency has not conducted any enquiry with the Chairman,
M/s.Chennai Port Trust in this matter. There is a huge difference in the
valuation of the material, when it was inside the soil and after taking out
of the soil. If at all some offences had been committed, it would not have
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been possible to commit the offence without the knowledge of Chairman,
M/s.Chennai Port Trust, Deputy Chairman, M/s.Chennai Port Trust,
Chief Accountant Officer, Chief Mechanical Engineer of M/s.Chennai
Port Trust. Except the Chief Mechanical Engineer, none of the above
hand been enquired by the Investigating Agency. Fifth accused was the
highest bidder quoting reserve price at Rs.681/- per Metric Ton. The bid
amount with other charges were paid by the sixth accused on behalf of
the fifth accused and it was intimated to the Chairman, M/s.Chennai Port
Trust, MSTC and the Chief Mechanical Engineer. They neither refused
to receive the payment nor issued any notice in this regard to the fifth and
sixth accused. The payment was made well within the terms of contract.
The SES report obtained by the vigilance department is totally different
from the valuation done by A4. The agreement between A5 and A6
namely H1 and H3 bidders was after the tender process had been
completed. There is nothing illegal in it. Even if there is any procedural
violation, it could only result in civil consequences. Certainly not a
criminal prosecution. Fifth accused filed the Writ Petition in
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W.P.No.13934 of 2017 against the order restraining the fifth accused
from removing the iron ore and that petition was dismissed on the ground
that the criminal case is pending. Fifth accused filed Writ Appeal in
W.A.No.965 of 2018. This Court in W.A.No.965 of 2018 directed the
fifth accused to furnish the bank guarantee of Rs.7,10,45,100/- to the
credit of M/s.Chennai Port Trust and allowed the petitioner to remove the
balance iron ore from the allotted plots. Appeal filed by the M/s.Chennai
Port Trust before the Hon'ble Supreme Court was dismissed during the
admission.
8. Learned counsel appearing for the petitioner in
Crl.R.C.No.225 of 2022/A6 and A7 submitted that A6 was a new entrant
in the iron ore e-auction held on 30.07.2016 and it is third highest bidder.
It quoted Rs.676/- per Metric Ton, but fifth accused had quoted Rs.681/-
per Metric Ton and was awarded the contract. Then A5 and A6 formed
an unregistered firm in the name of M/s.EB Trading Company on
20.01.2016. A sale and purchase agreement was entered into between A5
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and M/s.EB Trading Company on 20.01.2017. A6 remitted the amount to
M/s.Chennai Port Trust on behalf of the fifth accused and it was
approved by the M/s.Chennai Port Trust officials. There is no
suppression of any facts. All the transactions had taken place in
transparent manner through bank payment. There is absolutely no
material to show that A6 had conspired with A5 or A4 or for that matter
with any other accused in this case. Second highest bidder, who claimed
to have shared the same portal with the fifth accused, namely M/s.Sri
Laxmi Glass Plywoods has not been included as accused, but was shown
as a witness. It is perplexing absolutely. Fifth accused and sixth accused
had participated in the auction for buying the iron ore and selling at
higher price, namely at a profit to the prospective buyers. Whatever
transaction that had taken place between fifth accused and sixth accused
are only purely a business/commercial transaction. Sixth accused had no
role in fixing the reserve price in conducting e-auction and finalising e-
auction. There is no law prohibiting a tie-up with the successful bidder
for advancing business interest. There is no criminal intention of
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cheating, conspiracy to cheat among the accused.
9. Thus, the counsel appearing for the parties submitted that the
learned trial Judge, without considering the scope of the case in the light
of factual and legal background, had wrongly dismissed the discharge
petitions. Thus, they prayed for setting aside the orders passed in the
discharge petitions and for allowing the Criminal Revision Cases.
10. Respondent filed separate counters in these Revision Cases.
It is seen from the counters filed that the second accused as an Executive
officer in the rank of Senior Deputy Material Manager, M/s.Chennai Port
Trust has a right and responsibility of cancelling the e-auction. His role
in criminal conspiracy is clearly seen in the aspect of putting up a note to
the Chief Mechanical Engineer by falsely mentioning that bidder
M/s.SYR Infrastructure had paid the bid amount, whereas the bid amount
was actually paid by its competitor M/s.Eastern Bulk Trading and
Shipping Private Limited. He knew the reserve price prior to forwarding
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the same to the Chairman, M/s.Chennai Port Trust. He knew well that
the report was prepared without following the stipulated scientific
standard method by analysing the ferrous content, quality of the ore,
details with reserve price. Deliberately uploaded the reserve price in the
portal. It shows that he conspired with other accused in this case. As per
Port Trust circulars, the reserve price has to be uploaded in MSTC portal
only on the date of auction, whereas the second accused, in collusion
with other accused, violated this procedure. He had right to cancel the e-
auction, but did not done so, in order to unduly favour the fifth accused.
The highest bidder fifth accused and second highest bidder M/s. Sri
Laxmi Glass Plywoods fed the bid amount from the same IP address. It
amounts to cheating. He also failed to take steps to cancel e-auction,
when the bid amount was paid by sixth accused on behalf of fifth
accused.
11. It is further submitted by the learned Special Public
Prosecutor for CBI that the market price for iron ore was Rs.1,218/- per
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Metric Ton at the relevant point of time, whereas the reserve price was
fixed at Rs.400/- per Metric Ton. Fifth accused purchased the iron ore,
which was undervalued by the fourth accused, in pursuance of criminal
conspiracy. The fact that the iron ore consists of sand, lumps, mud and
clay does not mean that iron ore was of poor quality. It was mentioned as
'fair quality ore' by the fourth accused. The price quoted by fifth accused
at Rs.681/- per Metric Ton is very low and loss was caused to
M/s.Chennai Port Trust. Instead of paying the bid amount, fifth accused
allowed the sixth accused to pay the bid amount against the terms of the
contract. Later, the iron ore was sold at a higher price. If the bidder
withdraws or fails to deposit the share value, its offer is liable to be
cancelled, as per clause 20 of the auction catalogue for tender. However,
in connivance with Port Trust officials, fifth accused and sixth accused
got the payment made by the sixth accused on behalf of the fifth accused.
12. It is further submitted by the learned Special Public
Prosecutor that sixth accused is a private limited company represented by
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its Director, seventh accused. Having lost the bid, sixth accused made
the payment on behalf of fifth accused, without any prior approval. It
was made possible with the help of Port Trust officials. Port Trust
officials and the accused had conspired to regularise the payment made
by the sixth accused on behalf of fifth accused. The payment made by
sixth accused on behalf of fifth accused is against the terms of the tender
clause. Thus the learned Special Public Prosecutor submitted that
starting from fixing base price, participation in e-auction, allowing fifth
accused to be the successful bidder and then fifth accused and sixth
accused joining hands in flouting a company for the sale of iron ore at
higher price and in the process causing loss to the M/s.Chennai Port Trust
are all result of criminal conspiracy among the accused, with an intention
of cheating M/s.Chennai Port Trust. There are materials available to
support the allegations made against the accused in this case. Therefore,
the trial Court had rightly dismissed the discharge petitions. Thus, the
learned Special Public Prosecutor prayed for confirming the order of
learned trial Judge and for dismissal of this Criminal Revision Cases.
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13. Considered the rival submissions and perused the records.
14. It is seen from the submissions of the learned counsel
appearing for the parties and the records produced, that the Ministry of
Finance and Department of Revenue, Government of India through the
office of Commissioner of Customs, Chennai issued a Facility circular
No.18/2016 dated 31.08.2016 wherein the subject of disposal of iron ore
brought into M/s.Chennai Port Trust area, Customs area for export, but
not exported and not obtained was considered. It was observed that
abandoned export goods are lying in M/s.Chennai Port Trust and it led to
congestion within M/s.Chennai Port Trust area/CFS. Various logistic
problems arose out of space constraint and it was decided to dispose of
such goods from time to time. It was decided that M/s.Chennai Port
Trust/CFS will dispose such unclaimed/uncleared export cargo by
following the similar procedure for disposal of unclaimed/uncleared
import cargo. The process of disposal should be completed not later than
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31st December 2016 by the respective custodians. Valuation of the goods
taken up for disposal shall be done by custodians through the approved
valuers appointed by them. In case of doubt, the same may be referred to
a panel of three valuers. The sale price shall be shared between the
custodians and Customs with 50:50 basis. On the basis Chairman,
M/s.Chennai Port Trust sanction dated 3.11.2016, a letter dated
09.11.2016 was addressed for the disposal of iron ore through e-auction.
On 17.11.2016, the Chief Mechanical Engineer, M/s.Chennai Port Trust,
wrote to M/s.M.C Jain and associates for assessment of quality and for
value of the residual iron ore. On 25.11.2016 M/s.M.C Jain and
associates sent a valuation report along with a covering letter. It is seen
from this letter that it surveyed top layer of iron ore consisting of sand,
lumps, mud and clay in heaps located at stocking yard. The density of
iron ore in one cubic meter varies from 1.5 MT to 2 MT Ton. It enquired
Haldia Port and Sponge iron factories about the density of iron ore and
taken average of 1.8 MT for one cubic metre for calculating the iron ore
in the location mentioned. Valuation report was sent in a separate and
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confidential envelop.
15. Material Management Division, Mechanical and Chemical
Engineering Department, M/s.Chennai Port Trust issued an auction
catelogue incorporating the terms and conditions of e-auction to be held
on 27.12.2016. M/s.MSTC was requested through letter dated
08.12.2016 for the display of auction catalogue in their website for wide
publicity. Dr.P.Tamilvanan was appointed as Independent External
Monitor for monitoring the e-auction process. On 23.12.2016, a
corrigendum was issued postponing the auction to 30.12.2016 with other
details. On 27.12.2016, a letter was sent to Traffic Manager, Marmagoa
Port Trust seeking to furnish list of exporters of iron ore of Marmagoa
Port Trust to give publicity to them. The bid history shows that e-auction
was closed on 19.17.46 hours on 30.12.2016. Highest bidder being fifth
accused – M/s.SYR Infrastructure for Rs.681/- followed by M/s. Sri
Laxmi Glass Plywoods at Rs.680/- and M/s.Eastern Bulk Trading and
Shipping Private Limited at Rs.676/-. Then on 06.01.2017, fifth accused
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sent a letter seeking time for paying bid amount. Through the letter dated
12.01.2017 M/s.Chennai Port Trust extended the time for payment till
19.01.2017. Again on 17.01.2017, fifth accused sought extension of time
stating various reasons. On the basis of this request, the time was
extended till 24.01.2017.
16. On 24.01.2017, M/s.SYR Infrastructure and M/s.Eastern
Bulk Trading and Shipping Private Limited namely, fifth accused and
sixth accused, through separate letters informed M/s.MSTC, Chennai and
the Chairman, M/s.Chennai Port Trust that a sum of Rs.10,86,53,867/-
was paid by sixth accused on behalf of fifth accused. Similar letter was
sent to the Chief Mechanical Engineer, M/s.Chennai Port Trust by the
fifth accused on 25.01.2017. It is seen from the note dated 25.01.2017
prepared by Mr.R.Arunachalam, Deputy Chief Accounts Officer that the
sale value of Rs.10,86,53,867/- was remitted by M/s.Eastern Bulk
Trading and Shipping Private Limited on behalf of M/s.SYR
Infrastructure. Acceptance letter was issued by M/s.Chennai Port Trust
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and delivery order was issued by M/s.MSTC to the fifth accused. Then
there was a communication dated 30.03.2017 from M/s.Chennai Port
Trust informing the evacuation of ore mines to be temporarily suspended.
It was responded through a letter dated 05.04.2017 by the fifth accused,
with a request to permit them to resume the iron ore excavation and its
movement.
17. At the behest of Vigilance Department, samples were tested
by M/s.SES India Private Limited with regard to Fe content. On the
basis of report of M/s.SES India Private Limited, the Chief Vigilance
Officer, through his letter dated 07.04.2017 requested the Regional
Manager, M/s.MSTC Limited for the market price of iron ore during
December 2016. In response to this letter, M/s.MSTC Limited through
their letter dated 18.04.2017 furnished the iron ore prices based on
various auctions conducted on behalf of the Monitoring Committee,
Bangalore for iron ore mines of Karnataka during November 2016 and
December 2016. As per this report, the price range of iron ore with Fe
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content ranging from 60 to 64% during 2016 was Rs.1,960/- to
Rs.2,286/- averaging at Rs.2,101/-. The reserve price price was fixed at
Rs.400/-, taking into consideration the labour cost, transportation cost,
JCP for digging and loading cost at 7% each + storage and handling loss
charge + poor quality at 20%. After including the aforesaid cost, the
market price for iron ore comes to Rs.1,218/-. If calculated at Rs.1,218/-
per Metric Ton, the price for 1,32,300 Metric Ton will be
Rs.16,11,41,400/-. But the sale price fixed was at Rs.9,96,00,300/-.
Thus it resulted in loss of Rs.7,10,45,100/- to the Port Trust.
18. It is submitted by the learned counsel appearing for the
parties that they have no role at all in fixing the base price and
conducting e-auction sale. Anybody can participate in the e-auction sale
subject to satisfying the eligibility criteria. Nobody can see, who are all
parties bidding the price, except the bid amount. They had no
opportunity of manipulating e-auction sale. There is absolutely no
material produced before the Court with regard to the allegations of
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conspiracy among the accused. In the absence of any material to
establish the meeting of minds to engage in conspiracy, there is
absolutely no case made out for the prosecution to prosecute the
petitioners for the offences alleged against them. In support of their
submission that the base price was used to be uploaded on the previous
date of auction, petitioners produced records to show that sealed cover
containing the base price was opened one day prior to the date of auction.
They also submitted the following judgments with regard to the
essentials required for establishing the charges of criminal conspiracy
and cheating and framing the charges.
(i) (2000) 4 SCC 168 – Hridaya Ranja Prasad Verma &
Others ..vs.. State of Bihar, it is held that,
“14. On a reading of the section it is
manifest that in the definition there are set forth two
separate classes of acts which the person deceived
may be induced to do. in the first place he may be
induced fraudulently or dishonestly to deliver any
property to any person. The second class of acts set
forth in the section is the doing or omitting to do
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anything which the person deceived would not do
or omit to do if he were not so deceived. In the first
class of cases the inducing must be fraudulent or
dishonest. In the second class of acts, the inducing
must be intentional but not fraudulent or dishonest.
15. In determining the question it has to be
kept in mind that the distinction between mere
breach of contract and the offence of cheating is a
fine one. It depends upon the intention of the
accused at the time to inducement which may be
judged by his subsequent conduct but for this
subsequent conduct is not the sole test. Mere breach
of contract cannot give rise to criminal prosecution
for cheating unless fraudulent or dishonest
intention is shown right at the beginning of the
transaction, that is the time when the offence is said
to have been committed. Therefore it is the intention
which is the gist of the offence. To hold a person
guilty of cheating it is necessary to show that he
had fraudulent or dishonest intention at the time of
making the promise. From his mere failure to keep
up promise subsequently such a culpable intention
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right at the beginning, that is, when he made the
promise cannot be presumed.”
(ii) (2005) 10 SCC 336 – Uma Shankar Gopalika ..vs.. State of
Bihar and another, wherein it is held as follows:-
“6. Now the question to be examined by us is
as to whether on the facts disclosed in the petition
of complaint any criminal offence whatsoever is
made out much less offences under Sections
420/120-B IPC. The only allegation in the
complaint petition against the accused persons is
that they assured the complainant that when they
receive the insurance claim amounting to Rs
4,20,000, they would pay a sum of Rs 2,60,000 to
the complainant out of that but the same has never
been paid. Apart from that there is no other
allegation in the petition of complaint. It was
pointed out on behalf of the complainant that the
accused fraudulently persuaded the complainant
to agree so that the accused persons may take
steps for moving the Consumer Forum in relation
to the claim of Rs 4,20,000. It is well settled that
every breach of contract would not give rise to an
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offence of cheating and only in those cases breach
of contract would amount to cheating where there
was any deception played at the very inception. If
the intention to cheat has developed later on, the
same cannot amount to cheating, hi the present
case it has nowhere been stated that at the very
inception there was any intention on behalf of the
accused persons to cheat which is a condition
precedent for an offence under Section 420 IPC.
7. In our view petition of complaint does not
disclose any criminal offence at all much less any
offence either under Section 420 or Section 120-B
IPC and the present case is a case of purely civil
dispute between the parties for which remedy lies
before a civil court by filing a properly constituted
suit. In our opinion, in view of these facts allowing
the police investigation to continue would amount
to an abuse of the process of court and to prevent
the same it was just and expedient for the High
Court to quash the same by exercising the powers
under Section 482 CrPC which it has erroneously
refused.”
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(iii) (2012) 3 SCC (Cri.) 1183 – CBI ..vs.. K.Narayana Rao, the
relevant portion reads as follows:-
“24. The ingredients of the offence of
criminal conspiracy are that there should be an
agreement between the persons who are alleged to
conspire and the said agreement should be for
doing of an illegal act or for doing, by illegal
means, an act which by itself may not be illegal. In
other words, the essence of criminal conspiracy is
an agreement to do an illegal act and such an
agreement can be proved either by direct evidence
or by circumstantial evidence or by both and in a
matter of common experience that direct evidence
to prove conspiracy is rarely available.
Accordingly, the circumstances proved before and
after the occurrence have to be considered to
decide about the complicity of the accused. Even if
some acts are proved to have committed, it must
be clear that they were so committed in pursuance
of an agreement made between the accused
persons who were parties to the alleged
conspiracy. Inferences from such proved
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circumstances regarding the guilt may be drawn
only when such circumstances are incapable of
any other reasonable explanation. In other words,
an offence of conspiracy cannot be deemed to
have been established on mere suspicion and
surmises or inference which are not supported by
cogent and acceptable evidence. ”
(iv) (1979) 3 SCC 4 – Union of India ..vs.. Prafulla Kumar
Samal and others. It is held that,
“10. Thus, on a consideration of the
authorities mentioned above, the following principles
emerge:
(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
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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 produced 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 mouth-piece 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
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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.”
19. There is no dispute with regard to the decision taken by
M/s.Chennai Port Trust for selling the iron ore stocked in M/s.Chennai
Port Trust by the exporters and not removed. The prime issue in this case
is that M/s.M.C Jain and associates, fourth accused was requested to
assess the quality and valuation of the residual top layer iron ore. The
case of the prosecution is that the reserve price quoted by fourth accused
at Rs.400/- per Metric Ton is very low, for the reason that M/s.M.C Jain
and associates had fixed higher reserve price even during 2016 for
different consignments. The details are as follows:-
(1) on 01.09.2013 for 20596 MT of iron ore, reserve price was
fixed at Rs.3,000/- per Metric Ton. The quality was classified as 'good'.
(2) on 25.08.2015 for 7666 MT of iron ore, reserve price at
Rs.2,500/- per Metric Ton was fixed, though the quality was classified as
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'fair'.
(3) on 30.01.2016 for 7655 MT of iron ore, reserve price was
fixed at Rs.750/- per Metric Ton. The quality was classified as 'poor'.
(4) on 09.05.2016, the reserve price was fixed at Rs.700/- per
Metric Ton, for 4763 MT iron ore. The quality was classified as 'fair'.
(5) on 06.08.2016, for 3563 MT of iron ore, reserve price was
fixed at Rs.950/- per Metric Ton. The quality was classified as 'fair'.
However, in the case concerned in this case, reserve price for
1,32,300 MT of iron ore was fixed at Rs.400/- per Metric Ton, for quality
classified as 'fair'.
20. Obviously, fixation of reserve price from 2013-2016,
especially in the year 2016 shows that on 30.01.2016, for poor quality
iron ore, the reserve price was fixed at Rs.750/- per Metric Ton. In other
cases, reserve price was fixed at Rs.700/- per Metric Ton on 09.05.2016
and at Rs.950/- per Metric Ton on 06.08.2016 for the iron ore classified
as 'fair'. It is not known on what basis, the reserve price for 1,32,300 MT
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of iron ore for a 'fair' quality, was fixed as low as Rs.400/- per Metric
Ton. The charge against the fourth accused is that before fixing the
reserve price at Rs.400/- per Metric Ton, no scientific analysis was done
and no price verification was done from other sources. It was primarily
because there was a conspiracy among the accused to fix the reserve
price at a low price, so that the accused get benefitted. Considering the
huge difference in the reserve price for 'fair' quality iron ore even during
2016, this Court is of the considered view that there is an element of
strong suspicion with regard to low reserve price fixed by the fourth
accused, obviously because of enriching itself with the other accused.
21. There is yet another allegation that no sufficient time was
given to facilitate other iron ore exporters to participate in the e-auction.
It is seen from the letter dated 27.12.2016 from the Chief Mechanical
Engineer to the Traffic Manager, Marmagoa Port Trust that the list of
exporters of iron ore was intimated only on 27.12.2016, for the e-auction
fixed on 30.12.2006. It prima facie shows that no sufficient time was
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given to the exporters of Marmagoa Port Trust to furnish the list of
exporters of iron ore for extensive participation of prospective buyers in
the e-auction sale.
22. It is alleged in the final report that fifth accused and second
highest bidder M/s. Sri Laxmi Glass Plywoods formed a portal and both
the bidders fed the bid amount in the e-auction through the same IP
address. However, it is seen that M/s. Sri Laxmi Glass Plywoods is not
arrayed as an accused, but only shown as a witness. Grievance of the
petitioners is that when the second highest bidder is not shown as
accused, theory of conspiracy falls to the ground.
23. It is the admitted fact that fifth accused became the
successful bidder. But fifth accused did not make the payment of bid
amount with other charges, despite giving two extension of time.
Payment was made by sixth accused on behalf of fifth accused. This is,
according to the prosecution, is contrary to the terms of the tender
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conditions.
24. The condition of e-auction sale, with regard to “confirmed
lots” in clause-a reads as follows:-
“ 8(a) For confirmed lots, 100% of the
sale value with applicable taxes, levies and 5%
Clearance Security Deposit shall be remitted by way
of Demand Draft/Bank Cheque in favour of the
Chairman, Chennai Port Trust, payable at Chennai
within five (5) Trust working days from the next date
of closing of e-auction to the Trust's Finance
Department through M/s.MSTC Ltd., The
auctioneer will issue Delivery Order on receipt of
100% sale value along with taxes and levies and 5%
Clearance Security Deposit, otherwise interest shall
be payable to the Trust on the sale value beyond free
time.”
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It is clear from this clause that the successful bidder should pay 100% of
the share value within 5 working days of closing of e-auction sale.
25. Clause-20 reads as follows:-
“If the bidder withdraws or fails to deposit the
amount of sale value, the offer will be cancelled
besides recording his unsatisfactory performance
and also forfeit of EMD or action taken as deemed
fit. Further, Trust reserves the right to take legal
action to compensate the loss due to resale.”
26. As per clause-20, if the bidder fails to deposit the amount of
sale value, the offer will be cancelled ie., the sale offer will be cancelled,
besides recording 'unsatisfactory performance' of the bidder apart from
his losing the EMD. It was also made clear that M/s.Chennai Port Trust
has right to take legal action to compensate the loss due to resale.
Clause-20 makes it clear that the course open to M/s.Chennai Port Trust
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is to resale the consignment, if the bidder fails to deposit the sale amount.
There is no provision made in the condition of sale that a person other
than the successful bidder can pay the sale amount on behalf of the
successful bidder, even if it meant to be the third highest bidder.
27. It is seen from the records that the sixth accused had not
sought any permission from M/s.Chennai Port Trust authorities to make
payment on behalf of the fifth accused. Sixth accused just made the
payment on behalf of fifth accused and sought only ratification. The
ratification/ approval was possible, according to the case of the
prosecution, when M/s.Chennai Port Trust officials, especially accused 1
to 3, prepared a wrong note to get the approval of payment. It is also
revealed during the course of investigation that fifth accused Company
purchased the iron ore from M/S.EB Trading Company floated by fifth
accused and sixth accused at Rs.2,120/- per Metric Ton during March
2017 and sold it at Rs.2,200/- per Metric Ton to M/s.JSW Steel. The
fixation of reserve price at Rs.400/- per Metric Ton, when it ought to
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have been much higher, payment of sale price by the sixth accused on
behalf of fifth accused contrary to the tender conditions, prima facie
establish the allegation of cheating, allegation of conspiracy for the
purpose of cheating M/s.Chennai Port Trust. The 'proforma of integrity
fact clause-9' provides that bidder will not collude with other parties
interested in the contract, not only prior to the tender process, but also
after the tender process during contract and implementation of contract.
Admittedly A5 and A6 had participated in the e-tender; sixth accused
paid the sale price on behalf of fifth accused against tender conditions;
they flouted M/s.EB Trading Company and sold the iron ore at a much
higher price. Whether this is only purely a business/commercial
transaction or an action to cheat M/s.Chennai Port Trust in conspiracy
with other accused, could be known only if trial is conducted, witnesses
examined and documents marked. Conspiracy can be proved either by
direct evidence or by circumstances. If the complicity of any other
person comes to light, it is always open to add them as accused under
Section 319 of Criminal Procedure Code.
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28. It is observed in 'Amit Kapoor ..vs.. Ramesh Chander and
another' reported in (2012) 9 SCC 460 that,
17. Framing of a charge is an exercise of
jurisdiction by the trial court in terms of Section
228 of the Code, unless the accused is discharged
under Section 227 of the Code. Under both these
provisions, the court is required to consider the
‘record of the case’ and documents submitted
therewith and, after hearing the parties, may either
discharge the accused or where it appears to the
court and in its opinion there is ground for
presuming that the accused has committed an
offence, it shall frame the charge. Once the facts
and ingredients of the Section exists, then the Court
would be right in presuming that there is ground to
proceed against the accused and frame the charge
accordingly. This presumption is not a presumption
of law as such. The satisfaction of the court in
relation to the existence of constituents of an
offence and the facts leading to that offence is a
sine qua non for exercise of such jurisdiction. It
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may even be weaker than a prima facie case. There
is a fine distinction between the language
of Sections 227 and 228 of the Code. Section 227 is
expression of a definite opinion and judgment of the
Court while Section 228 is tentative. Thus, to say
that at the stage of framing of charge, the Court
should form an opinion that the accused is certainly
guilty of committing an offence, is an approach
which is impermissible in terms of Section 228 of
the Code.
18. ........
19. At the initial stage of framing of a
charge, the court is concerned not with proof but
with a strong suspicion that the accused has
committed an offence, which, if put to trial, could
prove him guilty. All that the court has to see is that
the material on record and the facts would be
compatible with the innocence of the accused or
not. The final test of guilt is not to be applied at that
stage. We may refer to the well settled law laid
down by this Court in the case of State of Bihar v.
Ramesh Singh (1977) 4 SCC 39:
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“4. Under Section 226 of the Code while
opening the case for the prosecution the
Prosecutor has got to describe the charge
against the accused and state by what
evidence he proposes to prove the guilt of
the accused. Thereafter comes at the initial
stage the duty of the Court to consider the
record of the case and the documents
submitted therewith and to hear the
submissions of the accused and the
prosecution in that behalf. The Judge has
to pass thereafter an order either
under Section 227 or Section 228 of the
Code. If “the Judge considers that there is
no sufficient ground for proceeding against
the accused, he shall discharge the accused
and record his reasons for so doing”, as
enjoined by Section 227. If, on the other
hand, “the Judge is of opinion that there is
ground for presuming that the accused has
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committed an offence which— … (b) is
exclusively triable by the Court, he shall
frame in writing a charge against the
accused”, as provided in Section 228.
Reading the two provisions together in
juxtaposition, as they have got to be, it
would be clear that at the beginning and
the initial stage of the trial the truth,
veracity and effect of the evidence which
the Prosecutor proposes to adduce are not
to be meticulously judged. Nor is any
weight to be attached to the probable
defence of the accused. It is not obligatory
for the Judge at that stage of the trial to
consider in any detail and weigh in a
sensitive balance whether the facts, if
proved, would be incompatible with the
innocence of the accused or not. The
standard of test and judgment which is to
be finally applied before recording a
finding regarding the guilt or otherwise of
the accused is not exactly to be applied at
the stage of deciding the matter
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under Section 227 or Section 228 of the
Code. At that stage the Court is not to see
whether there is sufficient ground for
conviction of the accused or whether the
trial is sure to end in his conviction. Strong
suspicion against the accused, if the matter
remains in the region of suspicion, cannot
take the place of proof of his guilt at the
conclusion of the trial. But at the initial
stage if there is a strong suspicion 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.
The presumption of the guilt of the accused
which is to be drawn at the initial stage is
not in the sense of the law governing the
trial of criminal cases in France where the
accused is presumed to be guilty unless the
contrary is proved. But it is only for the
purpose of deciding prima facie whether
the Court should proceed with the trial or
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not. It the evidence which the Prosecutor
proposes to adduce to prove the guilt of the
accused even if fully accepted before it is
challenged in 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. An
exhaustive list of the circumstances to
indicate as to what will lead to one
conclusion or the other is neither possible
nor advisable. We may just illustrate the
difference of the law by one more example.
If the scales of pan as to the guilt or
innocence of the accused are something
like even, at the conclusion of the trial,
then, on the theory of benefit of doubt the
case is to end in his acquittal. But if, on the
other hand, it is so at the initial stage of
making an order under Section
227 or Section 228, then in such a situation
ordinarily and generally the order which
will have to be made will be one
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under Section 228 and not under Section
227.”
29. A same cause of action may give rise to a civil and criminal
consequences. Merely because a civil remedy is possible, criminal
prosecution cannot be subverted. At the time of framing of charges, the
probative value of the materials on record cannot be gone into and the
materials by the prosecution have to be accepted as true. If there is
sufficient ground to proceed, then charges can be framed. When applied
this principle, this Court is of the considered view that there are materials
available sufficient enough to frame charges against the petitioners for
the offences alleged against them. Thus, this Court finds that the trial
Court had rightly dismissed the discharge petitions and this finding
requires no interference.
30. In this view of the matter, all the above Criminal Revision
Cases are dismissed by confirming the order passed by the trial Court.
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The trial Court is directed to dispose the case as early as possible,
preferably within a period of four months, without being influenced by
any of the observations made in this order. Consequently, connected
Miscellaneous Petitions are closed.
Mra 26.05.2022
Index : Yes
Internet : Yes
Speaking/Non-speaking order
To:
1. The XIV Additional Special Judge for CBI Cases,
City Civil Court,
Chennai.
2. Inspector of Police
Central Bureau of Investigation
Anti-Corruption Bureau
Chennai.
3. The Inspector of Police
Central Bureau of Investigation
Anti-Corruption Branch
Madurai, (Camp at Chennai)
Chennai – 600 006.
RC MA1 2017 A 0011
G.CHANDRASEKHARAN, J.,
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mra
4. The Public Prosecutor
High Court
Madras.
Common Order in
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26.05.2022
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