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Judgment
V. Jagannathan, J.—This appeal is by the CBI calling in question the acquittal of respondents 1 to 3 by the Trial Court in respect of the offences punishable u/s 120B of the Indian Penal Code, 1860 read with Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 ("the Act" for short).
The case of the prosecution in short is that during the financial year 1991-92, the 1st respondent herein (A1) while working as the Additional Chief Secretary and Finance Commissioner to the Government of Karnataka, entered into a criminal conspiracy with accused 2, the Chief Minister of Karnataka and both of them joined hands with accused 3 to 6 and the result of the said conspiracy was that, accused 1 received the proforma invoice from accused 3-Gokul Krishna on behalf of the firm M/s. Classic Computer Systems (''M/s. CCS'' for short) for supply of 100 Apple Macintosh Computer Systems (''AMC'' for short) at the rate of Rs. 5.27 lakhs per unit, which amount includes the cost of installation, software, developmental charges and training for the officials of the Government of Karnataka. The said invoice was received by accused 1 on 31-3-1992. On the same day, accused 1 put up the note to accused 2, the Chief Minister for approval of the proforma invoice and accordingly, accused 2 gave approval for the purchase of 100 Apple Macintosh Computers. On the same day approval was also given towards payment of advance amount of 30% of the total value and the said advance amount was Rs. 1.581 crores. The cheque was drawn in favour of Classic Computer Systems on the very same day and as per the instructions of accused 1, the cheque was personally delivered on 3-4-1992 to accused 3-Gokul Krishna and A3 issued a receipt for the same.
It is the further case of the prosecution that, A3 approached A4 and, A4 issued a certificate to the effect that M/s. CCS was appointed as a dealer for apple range of products and A4 received Rs. 10.5 lakhs from A3 and the said amount was not accounted in the books of M/s. Raba Contel Private Limited, New Delhi. On the other hand, amount was deposited by A4 in the account of M/s. Ajmir Printers, a firm floated by A4. Thereafter A5 who was intimately known to A4, operated as a contact man between A2-the Chief Minister and A3-Gokul Krishna and at the relevant time, A5 was also staying at Kumara Krupa Guest House, Bangalore, which is very close to the residence of A2-the Chief Minister. Thereafter, A3 deposited the cheque for Rs. 1.581 crores in his current account on 6-4-1992 which account was opened by him with the State Bank of India, Rajajinagar Branch, in the name of M/s. Classic Computer Systems. On 8-4-1992, A3 and A6 visited the State Bank of India and drew Rs. 1.50 crores from the Current Account No. 21040 against Cheque No. 599901. A3 and A6 kept a sum of Rs. 1.45 crores in three suit cases, which were then taken to Kumara Krupa Guest House in two motor cars where A5 was staying.
It is the further case of the prosecution that the keys of the two cars were handed over to A5 and in turn A5 took the said cars to the residential office of A2-the Chief Minister and the two cars returned after some time without the suit cases. It is therefore alleged by the prosecution that, A3 to A6 also were part of the entire conspiracy and by their acts, A1 to A6 caused not only financial loss to the Government of Karnataka but A1 and A2 had abused their official position as Additional Chief Secretary and the Chief Minister respectively.
According to the prosecution, the entire transaction starting with the receipt of the proforma invoice by A1 and culminating in the cheques being issued and amount being deposited in the bank, all took place at lightening speed on the same day i.e., 31-3-1992. This itself is indicative of the official misuse or abuse of the positions held by A1-the Additional Chief Secretary and A2-the Chief Minister of State of Karnataka. The other factors which also gave rise to hold the aforesaid charges against A1 and A2 in particular were that, on an earlier occasion, supply of Apple Macintosh Computer Systems by CCS was rejected twice and even there was a note put up by one Smt. M.C. Seetha, the Under Secretary to the Department of Personnel and Administrative Reforms (DPAR). These notes were ignored by A1 and A2 and in order to help A3, and the firm''s quotation was approved although the price quoted by the said firm CCS was much higher than the other firms in the market.
It is the case of the prosecution that, A3 had no establishment in Bangalore and whether the firm which A3 represented was a company or a firm or was a proprietary concern itself was not clearly known. A3 had no experience in computer systems and the contract that was placed with A3 was the only purchase order that A3 had received. As such, the background of A3 was also very suspicious giving rise to hold that due to the act of conspiracy hatched by A1 and A2, A3 came to have pecuniary advantage and in turn with the help of A4 to A6, A2 was also benefited. Another reason for the prosecution to level charges against the accused was that, there was no provision in the contingency manual for diverting the contingency fund to the purchase of computers and yet another factor important reason for suspecting the whole transaction was that, the Technical Advisory Panel also had rejected the purchase of computers as it was not found to be feasible when compared to the IBM Computers.
It was also the case of the prosecution that, A3, who was acting for CCS was not the agent of the Raba Contel Private Limited, Delhi and at no point of time Raba Contel Private Limited, Delhi had appointed CCS as their dealers. The fact that the computers were not delivered even after the payment of advance money was also indicative of the firm CCS being favoured by A1 and A2 due to their conspiracy act. This in substance is the main charge levelled against the accused persons by the prosecution.
The award of the contract to CCS was also questioned before this Court in Writ Petition No. 21340 of 1992 by M.C. Nanaiah, the opposition leader at the relevant time and the challenge to the contract given to CCS, was on the ground of it being vitiated by mala fides. The said writ petition came to be allowed by this Court and the contract awarded to CCS was held to be unconstitutional and void. A3-Gokul Krishna on behalf of CCS preferred a writ appeal and the said writ appeal was also dismissed in W.A. No. 59 of 1993. Based on the observations made by this Court in writ appeal in the case of V. Gokulkrishna Vs. M.C. Nanaiah, who was the Chief Secretary to the Government of Karnataka from 1-12-1992 till 31-12-1994, put up a draft before the Chief Minister Veerappa Moily and the matter was then placed before the Union Home Minister Sri S.B. Chavan for the CBI to investigate. P.W. 4-Lynn lodged a formal complaint with the CBI as per Ex. P. 5.
The CBI came on to the picture thereafter and the investigation led to collection of voluminous material in the form of recording of statements of several officials of the Government, Personal Secretaries, Deputy Secretaries attached to A1 and A2, Computer Analysis, experts from the business field, politicians and even several Ministers. On completion of the investigation, which also included sanction order to prosecute A1, who was at the time Additional Chief Secretary, the charge-sheet was submitted against all the six accused persons for the offences mentioned above.
A4-Praveen Bhambri sought for discharge from the case and the said prayer was rejected by the Trial Court and all the six accused persons were put on trial following they not pleading guilty. A4 however moved this Court in Cri. R.P. No. 119 of 1999 and the order of the Trial Court refusing to discharge him was set aside and A4 was discharged. Thus, A1 to A3, A5 and A6 faced the trial.
At the trial, the prosecution examined 88 witnesses and produced 360 documents. The accused statement was recorded and the accused denied the prosecution case against them and on their behalf, relied upon certain documents which were marked as Exs. D. 1 to D. 15. No defence evidence was let in by the accused persons.
Learned Trial Judge after appreciating the evidence on record, in the light of the argument put forward by the respective sides, held that the prosecution had not brought home the guilt of the accused persons beyond all reasonable doubt.
The Trial Court found that the evidence on record did not make out a case of criminal conspiracy as alleged by the prosecution against A1 and A2, nor was there any evidence to show that A1 and A2 had any pecuniary advantage in their favour and ultimately all the accused were acquitted of all the offences with which they stood charged.
This appeal is preferred by the CBI challenging the acquittal of A1 to A3. In other words, the acquittal of A5 and A6 by the Trial Court has gone on without any challenge. As such, this Court will have to consider the present appeal only in respect of the order of acquittal passed in favour of A1 to A3.
I have heard learned Counsel Sri C.H. Jadhav for the CBI and learned Senior Counsel Sri C.V. Nagesh for A1 and A2 who are respondents 1 and 2 herein and Sri Kiran S. Javali, learned Counsel for A3 and perused the entire records of this case.
Sri C.H. Jadhav, learned Counsel for the CBI took this Court through the entire evidence on record and the reasoning given by the learned Trial Judge and argued that the entire transaction leading to the purchase order being placed with the CCS took place on the same day i.e., 31-3-1992 within a couple of hours, right from the time A1 received the proforma invoice from A3 and put up his own note as per Ex. P. 57 before A2-the Chief Minister for approval. It is argued that, an amount of Rs. 1.581 crores was also released by way of cheque on the very same day and the cheque was also deposited in the bank. Therefore, the swiftness with which the entire affair has gone through itself is indicative of the conspiracy hatched by A1 and A2 to favour A3.
It is his submission that, though there was a note put up by P.W. 15-Smt. M.C. Seetha stating that the Technical Advisory Panel (TAP) had rejected the proposal of AMCS, yet A1 and A2 got the very same computers approved in order to favour A3. The fact that the amount was raised from the contingency fund is also contrary to the rules prescribed under the contingency manual. Even the advise given by the computer experts were not heeded and the contract was awarded to A3 without even verifying the credentials and reputation of A3 as a dealer for M/s. Raba Contel Private Limited, Delhi. The fact that A3 was not having any office, but a room in the house of P.W. 3 and even the telephone of P.W. 3 was also lent to A3 and A3 having no experience in the past in the field of computer business and the turnover also being found to be nil, the question of A3 being preferred over others therefore was indicative of the act of criminal conspiracy hatched by A1 and A2 as well as the abuse or misuse of the official position of A1 and A2.
It is pointed out that, it has come in the evidence of P.W. 10-the systems analyst of Karnataka Government Computer Centre that it was better to buy the IBM Computers and this advise was also ignored. Within one month of the CCS coming into existence, the contract was awarded to CCS and this also speaks volumes about the conspiracy act on the part of A1 and A2 assisted by the other accused persons. Reference was made to the evidence of P.W. 78 to submit that CCS had no business connection with Raba Contel Private Limited, Delhi. The evidence of P.W. 88 was referred to, to contend that A3 had no office as such except a small room. Therefore, it is the argument of Sri C.H. Jadhav that, A3 was an individual having no business experience and the contract was entered into by A1 and A2 assisted A1 in this process. P.W. 23''s evidence was referred to, to contend that the price offered by CCS was much higher than that of other computers. The Government agencies were ignored in preference to CCS and therefore it is a clear case of abuse of power by A1 and A2. It was also his submission, by referring to the evidence of P.W. 39 that, there was no provision during that financial year towards purchase of computers and the said transaction would not fall within the contingency fund. Therefore, the subsequent ratification will not have any effect.
Nextly, it is contended by Sri C.H. Jadhav that, this Court had quashed the contract awarded to CCS in Writ Petition No. 21340 of 1992 filed by M.C. Nanaiah and even the writ appeal filed was dismissed with certain observations and that itself goes to show that the entire purchase order placed by A1 and A2 with A3 was against the rules and procedures and as such, the Trial Court could not have ignored the observations of the High Court in the writ appeal in the case of V. Gokulkrishna.
It is the argument of the learned Counsel for the appellant that the Trial Court''s judgment is totally one sided, inasmuch as, the evidence of the prosecution witnesses have not been properly considered and the Trial Court has picked up that part of the evidence which is in favour of the accused. The Kannada language policy of the Government has nothing to do with the purchase of AMC. As the computers were not delivered and money paid to A3 had not been refunded and the cheque also having been issued on 31-3-1992 even before the actual orders were placed and amount being withdrawn by A3, all these would go to show that the Trial Court did not appreciate the evidence from proper perspective. The observations of the Division Bench in the above mentioned writ appeal was not taken seriously by the Trial Court. Apart from this, learned Counsel also submitted that A1 was made the Chief Secretary ignoring the seniority of many other IAS officers including P.W. 4-Lynn and it was only after Veerappa Moily became the Chief Minister, that Lynn was made the Chief Secretary.
As far as the other accused are concerned, learned Counsel argued that A5 was the mediator and he was close to A2 and at the relevant time, A2 was the Chairman of MUDA and he played a vital role in the entire deal and A5 and A6 transported the money in suit cases to the residence of A2. Therefore, learned Counsel for the CBI, in the light of the above submission, sought for the judgment of acquittal being set aside and the respondents be convicted.
On the other hand, learned Senior Counsel Sri C.V. Nagesh for the respondents 1 and 2 at the beginning of his submission pointed out a defect in the charge by indicating that the charge against A1 and A2 is that, they gained pecuniary advantage to themselves, but no charge is framed u/s 13(1)(d)(i) of the Prevention of Corruption Act.
As far as the merits of the case is concerned, learned Senior Counsel took this Court through the evidence of most of the witnesses and referring to the evidence of the said witnesses, it is argued by him that the Trial Court has considered the entire evidence very carefully and the findings recorded by the Trial Court are based on the materials on record and the testimony of P.Ws. 3, 7, 23, 28, 56 and 79 was referred in regard to the establishment of the firm of A3 at Bangalore and the evidence of P.W. 85 was pointed out in regard to the fact of A3 being a dealer in Karnataka for Raba Contel Private Limited, Delhi.
Learned Counsel took this Court through the evidence of P.Ws. 2, 4, 15, 23, 29, 31, 32, 33, 37, 39, 42, 44, 46, 50, 64, 68, 76 and 86 to indicate that the transfer of the amount from contingency fund was placed before the cabinet and the bill having been passed was sent to the Government for approval and then it became an Act and therefore the expenditure incurred was lawful and reliance was placed on the evidence of cabinet ministers who were examined before the Court and who were also party to the decision. Learned Senior Counsel argued that the decision to buy A.M. Computers from CCS was a collective decision of the cabinet and therefore the question of A1 and A2 alone having conspired to cause loss to the Government does not arise.
Learned Senior Counsel also took this Court through the evidence of other witnesses, in regard to the procedure that was followed and the decision taken both by the Technical Advisory Panel (TAP) as well as High Level Committee (HLC) and argued that the HLC was also comprised of several experts in the field including the agencies from the Central Government. The decision taken by HLC was to go for AM Computers as the facilities offered and the range of work undertook by the CCS included the aspects of covering the entire State of Karnataka and to train the officials and to provide the necessary software, that would enable the computers being used both in English and Kannada language and referring to all these aspects, submission made is that, when the HLC had approved the purchase of AMC from CCS, the question of accused committing the act of conspiracy or misusing their official position, does not arise.
As far as the decision of this Court in the writ appeal referred to above earlier is concerned, learned Senior Counsel argued that, no doubt the decision of the Division Bench in the case of V. Gokulkrishna is a relevant factor, yet the Criminal Court has to decide the case before it on the basis of the evidence that is let in before the Criminal Court. It is argued by him that the standard of proof required in a criminal case is proof beyond reasonable doubt, whereas in civil cases it is preponderance of probabilities and therefore the Criminal cases will be decided on the strength of the evidence placed before it. Previous judgments will have to be taken note of as being a relevant one having regard to the provisions contained under Sections 41 to 43 of the Indian Evidence Act, 1872.
Further, submission made by the learned Senior Counsel for R1 and R2 is that, the charge concerning the amount being taken in two cars in three suit cases and the car coming back without suit cases from the residence of R2, has not been established because the crucial witnesses for the prosecution have failed to support the prosecution and they are P.W. 21 and P.W. 41, as such, the question of A1 and A2 having any pecuniary gain has not been proved by satisfactory evidence by the prosecution. As the acquittal of A5 and A6 has not been challenged by the CBI, the entire theory of conspiracy therefore has to fall to the ground and consequently the Trial Court took all these factors into account and has rightly acquitted the respondents.
It is also the submission of the learned Senior Counsel that, this Court while sitting in appeal against the judgment of acquittal can interfere only if it is shown that the findings recorded by the Trial Court are perverse or the view taken is unreasonable or for that matter relevant evidence had been ignored. No such infirmity is found in the judgment of the Trial Court and as such, the question of interfering with the judgment of acquittal, does not arise. The decisions referred to by the learned Senior Counsel in support of the aforesaid submissions are the once which are in Khatri and Others Vs. State of Bihar and Others, ; Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, ; Santokh Singh and Another Vs. State of Punjab, ; C. Chenga Reddy and Others Vs. State of Andhra Pradesh, ; Kailash Vs. Nanhku and Others, ; Anil Behari Ghosh Vs. Smt. Latika Bala Dassi and Others,
Learned Counsel Sri Kiran Javali for A3 also referred to the acquittal of A5 and A6 to contend that when the theory of conspiracy has not been established and the prosecution also having failed to prove that money was taken in suit cases to the residence of A2, the question of A3 also being a party to the conspiracy along with other accused, does not arise.
It is his further submission that, A3 is not a public servant so as to hold him liable for the offences with which he is charged under the Prevention of Corruption Act.
The learned Counsel for A3 took this Court through the judgments of the Trial Court and referring to paragraphs 25, 28, 36 as well to the other portions of the judgment, argued that the Trial Court had considered the entire evidence in respect of each one of the allegations made against the accused persons and after having analysed the evidence carefully, the Trial Court has recorded its findings and as such, as the findings are based on the evidence and the findings, not being found to be perverse or the view taken unreasonable, the scope of interference by this Court against the judgment of acquittal is therefore very much limited.
Learned Counsel Sri Kiran S. Javali also argued that, when A4 has been discharged from the case, the question of a conspiracy having been hatched by the accused persons also cannot stand. As there is nothing in the judgment of the Trial Court to indicate that the findings recorded by the Trial Court are contrary to the evidence, the appeal filed by the CBI therefore has to be dismissed.
Having thus heard learned Counsel for the parties, whether the judgment of the Trial Court requires interference by this Court in appeal is the point for consideration.
Before I proceed to examine the contentions put forward in the light of the evidence on record and the reasoning given by the Trial Court, it would be proper to keep in view the law laid down by the Apex Court with regard to interference by the Appellate Court against the judgment of acquittal and scope of interference.
In the case of J.H. Jadhav Vs. Forbes Gokak Ltd., , the Apex Court has observed thus:
(D) Criminal Procedure Code, 1973 (2 of 1974), Section 378 -- Appeal against acquittal -- Interference -- Scope -- Court can review evidence.
There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.
In the case of Chandrappa and Others Vs. State of Karnataka, , following is the observation made by the Apex Court with regard to interference by the Appellate Court against the order of acquittal:
From the above decisions, in our considered view, the following general principles regarding powers of Appellate Court while dealing with an appeal against an order of acquittal emerge:
(1) An Appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an Appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc., are not intended to curtail extensive powers of an Appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language'' to emphasise the reluctance of an Appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion;
(4) An Appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a Competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court;
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court.
In the backdrop of the aforesaid principles laid down by the Apex Court, I proceed to examine the contentions raised by the learned counsel for the CBI.
Certain facts with regard to which there can be no doubt will have to be referred to at the beginning for proper appreciation of the arguments advanced by the learned Counsel for the parties.
A1-Alexander, the Additional Chief Secretary to the Government sent a note as per Ex. P. 53 enclosing with it the quotation of a CCS i.e., Ex. P. 57. This note Ex. P. 53 along with Ex. P. 57 were received by P.W. 15-M.C. Seetha on 31-3-1992. She was the Under Secretary to the Government, DPAR. Ex. P. 53-the note was in respect of procurement of 100 AMCs from CCS. The said note of A1 as per Ex. P. 53 also had the endorsement made by P.W. 39-B. Partha Sarathi, the DPAR Secretary, as per Ex. P. 53(c). P.W. 15 put up a note as per Ex. P. 55 wherein she had also mentioned that NIC had taken up the work of computer installations and buying of these AMCs should not lead to any duplication. This note was sent to P.W. 39-Partha Sarathi who endorsed on Ex. P. 55 at 2.55 p.m. for issuing necessary orders. The Government Order was also issued as per Ex. P. 56. The Finance Department, according to P.W. 15, has also issued an order for payment of advance amount of Rs. 1,58,10,000/- on 31-3-1992 from out of the contingency fund towards the purchase of computer systems from CCS. A cheque for Rs. 1.581 crores was released in favour of CCS on 31-3-1992 and it was delivered to A3 on 3-4-1992. The encashment of the said cheque is also an admitted fact. A3, who deposited the cheque on 6-4-1992, withdrew a sum of Rs. 1.50 crores from the bank State Bank of India, Rajajinagar Branch. The price offered by CCS was Rs. 5.27 lakhs per unit. The amount was also withdrawn from the contingency fund as has been spoken to by P.W. 15-M.C. Seetha.
The meeting of Technical Advisory Panel was held on 11-10-1991 and the TAP in its proceedings as per Ex. P. 26 had deferred the proposal of purchasing AMC on the ground that it is non-standard and non-compatible with IBM Computers. P.W. 40-Sharat Saxena, who was the Director of Karnataka Government Computer Centre (KGCC) and the Member Secretary of TAP and also Ex officio member of HLC has spoken to about this fact. The views of TAP was placed before the HLC and the HLC in its meeting held on 2-7-1992 considered the opinion of the TAP and various organisations of the committee, both Central and State Government Public undertakings about the utility and suitability of AMCs and resolved to recommend the purchase of AMCs and it was decided to place the matter before the cabinet. To this effect, there is evidence of P.W. 15-M.C. Seetha and P.W. 40-Sharath Saxena and other witnesses who took part in the HLC meeting. After the recommendation to purchase AMCs from CCS, the matter was placed before the Cabinet.
P.W. 31-K. Chandrashekaraiah, who was the Under Secretary to the Cabinet during 1991-92, placed the matter before the Cabinet for approval after seeking necessary approval from the Chief Minister and the Chief Secretary on the subject pertaining to purchase of computers viz., AMCs from CCS was placed in the Agenda at Ex. P. 189. The subjects for the Agenda-Ex. P. 189 were all circulated to the cabinet Ministers on 1-7-1992. A meeting of the cabinet was held on 3-7-1992 and the decision taken in the cabinet meeting on 3-7-1992 and 20-8-1992 were unanimous decisions.
It is also an admitted fact that, according to P.W. 2-Kashi Raya who was working as a Deputy Secretary in DPAR, High Level Committee Constituted by the Government, is superior to TAP. It is also the evidence of this witness that the High Level Committee consists of officers of rank of Secretaries and apart from that the opinions of the institutions or organisations were also considered by the High Level Committee.
Another fact in regard to which there is a very positive evidence placed by the prosecution witnesses is with regard to spending the amount from the contingency fund and if there is no allocation in the budget towards a particular item of expenditure, then the amount will be taken from the contingency fund and thereafterwards, the amount so drawn will have to be reimbursed by an appropriation bill and further P.W. 4-the Chief Secretary has stated that the appropriation bill will have to be passed by the Legislature of the concerned State and thereafterwards, the bill will be sent to the Governor for his assent. Witnesses including some of the Ministers examined have stated in one voice that, once the bill gets assent of the Governor, the expenditure incurred will become legal or lawful.
P.W. 29-Chandrahasa Reddy who was the Special Officer in Finance Department during 1991-1993 has deposed in his evidence that the appropriation bill being given assent by the Governor, the transactions covered under the bills becomes lawful and the payment made is legal.
P.W. 33-I.S.N. Prasad has also stated on the same lines. This witness has also stated in the course of his evidence that during cross-examination that, for the purpose of obtaining the assent of the Governor of the State in the instant case all the requiring procedures had been followed.
P.W. 37-Ashwatha Reddy who was the Minister for PWD during the period of Chief Ministership of A2-S. Bangarappa, has deposed in his evidence during the cross-examination, that the cabinet meeting held on 3-7-1992 was attended by several ministers including Mr. Veerappa Moily, the then minister for Education and parliamentary affairs and the subject pertaining to purchase of 100 AMCs from M/s. Classic Computer Systems was one of the subjects for discussion and the cabinet discussed the subject and placed orders for the purchase of said number of computers at a cost of Rs. 5.27 crores and the Council of Ministers also ratified action taken by the Executive to place the orders with the firm. This witness has gone on to say in his evidence that, in the cabinet meeting of the Counsel of Ministers, it was thought fit and necessary to go for purchase of AMC systems for the purpose of implementation of the policy decision of the Government which had introduced Kannada at all levels of administration and in particular, in the rural areas. It is also the evidence of this witness that in case of purchase of intellectual properties question of calling for tenders does not arise.
P.W. 39-Partha Sarathi was the Secretary, DPAR, Government of Karnataka has also deposed in his evidence that in case of payment of advance to M/s. CCS in respect of purchase of 100 Apple Macintosh Computer Systems, the amount was dawn from the contingency fund of the State and an appropriation bill was placed before Legislature for discussion and after discussion the Legislature passed an appropriation bill and thereafter the bill was sent to the Governor of the State and Governor gave the assent. It is also in the evidence of this witness that the decision taken by the HLC it was unanimous one. He was also a party to the said decision as he was a Secretary to DPAR.
P.W. 44-N. Chikke Gowda was the Minister for agriculture in the cabinet headed by A2-Chief Minister S. Bangarappa and this witness has also reiterated what was said by the other witnesses in respect of the cabinet meeting held on 3-7-1992 and the Counsel for ministers ratifying action taken by the Government with regard to purchase of 100 AMC systems from M/s. CCS. This witness also confirms that the drawing of the amount from contingency fund of the State was placed before the Legislature in the form of appropriation bill and the bill was approved, then the Governor gave his assent and thereafter it became an Act. In view of the ratification by the Counsel of Ministers, the witnesses has stated that the order placed for purchase of 100 AMC systems and the advance payment made became lawful and legal.
P.W. 46-Mallikarjuna Kharge who was the Minister for Revenue and Rural Development and Panchayat Raj during the Chief Ministership of A2-S. Bangarappa has deposed in similar fashion by confirming that meeting held on 3-7-1992 and Ex. P. 188 is the decision of the cabinet and in the meeting, the subject pertaining to purchase of AMC systems from M/s. CCS was one of the subject and discussion was followed by unanimous decision. He has further gone on to depose that he also took place in the cabinet meeting held on 12-8-1992 Ex. P. 194 and in the said meeting furnishing of Bank guarantee and payment of additional custom duty towards purchase of AMC systems also was approved.
P.W. 50-Sri Veerappa Moily, the then Minister for Education and Parliamentary Affairs in the Government headed by A2-S. Bangarappa has confirmed taking part in the Cabinet meeting held on 3-7-1992 and stated that the subject pertaining to purchase of AMC systems was approved in the meeting. In the cross-examination this witness has also stated that, if there is no provision in the budget and towards the expenditure to be incurred the amount will be incurred or drawn from contingency fund of the State and thereafterwards the amount will have to be reimbursed in the form of appropriation bill, and he goes on to depose about the steps taken for getting the appropriation bill passed and consent of the Governor also being obtained. Another important statement made by the witness in the course of his cross-examination is that the purpose of ratification is to approve the expenditure and the cabinet decision is a collective decision of the Counsel of Ministers.
As far as the High Level Committee is concerned P.W. 10-Satish who was working as System Management in Karnataka Government Computer Centre has deposed to the effect that the High Level Committee comprises of some of the members of TAP and the Director of the Government Computer Centre is also a member and apart from that the High Level Committee consists of the Secretaries of Science and Technology, Planning Commission and other officers of the rank of Secretaries of the Government, different departments. He has also stated that on 3-7-1992 the High Level Committee received several opinions from the Central Government and State Government and Central Organisations and Central Governing bodies and he also took part in the meeting and the opinion expressed by the Project Management Group (Tamil Nadu Urban Development Project), Government of Tamil Nadu, ISRO Central Department of Space, Government of India, National Aeronautical Laboratory, Bangalore, Computer Maintenance Corporation, Bangalore, Minister of Finance Department and Economic Affairs and Director, National Information Centre, Hyderabad were all considered. It is also in the evidence of this witness that National Aeronautical Laboratory in its letter dated 4-6-1992 addressed to the Government had opined that AMCs are popular and higher user friendly and these computers are compatible with IBM computers and goes on to further depose that even the Government of India, Ministry of Finance in its letter dated 16-6-1992 to the Government of Karnataka has opined that the AMCs are used since 1986 and the system is user friendly and has got the maintenance service. In the cross-examination he has deposed that in the TAP meeting held on 7-5-1992 the TAP had no advantage of any opinion of the Government Departments, some Government Department and in other establishment which are using the computers. It is also in the evidence of this witness that except Ex. P. 23 the proforma invoice of the M/s. CCS, no other invoices or quotations are available before the meeting held on 7-5-1992. It is also the evidence of this witness and Ex. P. 23-M/s. CCS has also undertaken to do the installation of the system at their cost and at that time nobody had submitted invoices in respect of the Kannada language software.
The aforesaid evidence of the witnesses concerning the purchase order placed with M/s. CCS, cheque being given in favour of A1 on 31-3-1992 and amount having been encashed and the amount that was drawn from contingency fund also having been ratified by the cabinet in its meeting and the appropriation bill having obtained the assent of the Governor and the decision taken in the cabinet being a collective decision of all the ministers are borne on record through the documents produced by the prosecution. Ex. P. 149 is the proceedings of HLC. It is in the background of aforesaid admitted facts that the arguments advanced by the learned Counsel Sri C.H. Jadhav for the appellant will have to be appreciated.
It is the specific contention of the learned Counsel Sri C.H. Jadhav for the appellant that A3-Gokul Krishna was not having permanent office to run M/s. CCS and in this regard he referred to the evidence placed by the prosecution. The evidence of P.W. 3 in particular was referred in this connection. Having gone through the evidence on record in respect of the office of A3, it is also seen from the evidence led by the prosecution itself that P.W. 28-Ravindranath Prabhu, Deputy Commissioner, Commercial Tax Department, has deposed in his evidence that Ex. P. 163 was issued by G. Parks Corporation by permitting M/s. CCS to operate its business from its premises and further this witness has deposed in his evidence that after inspection of the premises, a report was given as per Ex. P. 164 and after verification, CCS was registered under the Karnataka Sales Tax Act, 1957 and Central Sales Tax Act, 1956 and certificates were issued as per Exs. P. 165 and P. 166.
It is also his evidence that the confirmation of the registration was also issued as per Ex. P. 167 on 19-8-1992 and the CCS submitted the returns as per Exs. P. 176 to P. 180. This witness has also deposed in his evidence that registration becomes necessary only at the time of raising of the invoice and bill and till the dealer reaches a particular turnover, he need not get registered under the Act.
The next witness who speaks to the registration of the firm CCS is P.W. 56-Srinivasa Rao who was the Registrar of Companies, Bangalore, and it is in his evidence that the proprietary business establishment and partnership business establishment are not required to register under the provisions of the Registration Act.
P.W. 79-Hanumanthagouda is the next witness and this witness who was the Assistant to District Registrar, Bangalore, has deposed to the effect that in case of proprietary business concerns, compulsory registration is not required and such a situation does not arise.
P.W. 7-C.V. Sudarshan has deposed in his evidence that A6 took his house in the 1st floor on rent and A3 being the brother of A6, both were having their business establishments in a premises situated in 7th Block, Jayanagar, Bangalore and they were running the business in the name of M/s. Classic Computers and M/s. Super Star Confectionery Company.
It is the evidence of P.W. 17-V.S. Sudhir, retired Bank Officer of State Bank of India, Rajajinagar, that the current account was opened in the name of CCS on 6-4-1992 and in the cross-examination, this officer has deposed to the effect that, unless the bank is satisfied about the registration of the firm or company, the Bank would not permit opening of any account and in the case of CCS, the Bank found all the requirements having been met by the said firm.
Thus, the evidence of the aforesaid witnesses has led the Trial Court to hold that CCS was in existence and it was run by A3 and as such, the argument that CCS was not in existence, cannot be accepted.
As regards the contention put forward by the learned Counsel Sri C.H. Jadhav for the appellant that A3 was not appointed as a dealer in Karnataka for Rab Contel Private Limited, Delhi, is concerned, the evidence of Kamini Talwar was referred by the learned Senior Counsel Sri C.V. Nagesh and the said witness who was examined as P.W. 85 has deposed in his evidence that, one Rakesh Gandhi and Praveen Bambri were the Directors of Rab Contel Private Limited and the certificates-Ex. D. 1 and Ex. P. 346 were issued on the letter head of RCPL and the witnesses have gone on to depose that even though the said documents are signed by only one Director, the Directors mentioned above are authorised to act on behalf of the company and therefore the witness has stated that, any communication should be signed either by P.W. 85 or by Mr. Nath as Product Manager or by Mr. Gandhi or Mr. Praveen Bambri. In the instant case, Praveen Bambri, who was A4 has been discharged by this Court and therefore the material placed before the Trial Court led the Trial Court to accept the contention that A3 was the dealer in Karnataka of RCPL.
As regards the contention that the price offered by M/s. CCS being higher when compared to IBM and other computers is concerned, learned Judge of the Trial Court has considered the evidence carefully and has recorded a finding to the effect that the price quoted by M/s. CCS is not high because of the High standard, quality and competitive features and this finding is based on an appreciation of the evidence of P.Ws. 9, 10, 16, 24, 26 apart from taking into consideration the documents-Exs. P. 18, P. 22, P. 23. The analysis of evidence by the Trial Court found at para 129 till para 141 does go to indicate that the conclusion reached is based on the evidence placed on record.
Now coming to the pecuniary advantage which A1 and A2 is said to have gained from the whole transaction, learned Trial Judge has referred to the evidence on record and has observed at para 154 onwards that the only witnesses relied on by the prosecution to prove the pecuniary advantage being derived by A1 and A2, are P.W. 21-S. Sukumar and P.W. 41-Shivarama and both these witnesses have turned hostile and did not support the prosecution. In fact it is observed by the learned Trial Judge that, these two witnesses have gone to the extent of deposing to the effect that their statement was not recorded by the CBI. As such, the entire prosecution theory that the money was transported in three suit cases to the residence of A2 in two cars and that the cars returned from the residence of A2 without the suit cases, does not stand established. As such, the Trial Court observed that the prosecution has failed to prove passing of kick back to the extent of Rs. 1.45 crores by A3 to A2 through A5.
In view of the said two crucial witnesses not supporting the prosecution case, the finding that the allegation of A1 and A2 having any pecuniary gain has not been established by the prosecution beyond all reasonable doubt. That apart, it has also to be mentioned that the Trial Court also took note of the suit that was filed by the State Government in O.S. No. 1468 of 1994 and in the said suit the State had claimed recovery of Rs. 2,09,27,300 which included the advance amount of Rs. 1.581 crores plus interest and the said suit was dismissed for non-prosecution on 19-6-2003 and the Government did nothing thereafterwards.
Another important aspect to be noted in this connection is that, in the said suit A1 and A2 were not arraigned as parties nor any criminal act was alleged against them.
Thus, the evidence on the whole has been analysed by the Trial Court and I have also referred to the evidence of the material witnesses to show that the entire transaction of placing purchase orders with A3 went through various stages of the matter being discussed by TAP first and then by the HLC and thereafter the matter was placed before the Cabinet for approval of the bill, and the bill having been approved, it was sent to the Governor and therefore the argument that A1 and A2 had conspired to cause pecuniary loss to the Government, does not appeal to me as very convincing, when the decision to go for Apple Macintosh Computer Systems from M/s. CCS was the collective decision of the Cabinet and that too an unanimous decision.
As far as the Division Bench decision relied on by the learned Counsel Sri C.H. Jadhav for the appellant is concerned, no doubt in the said decision in V. Gokulkrishna''s case, the Division Bench has quashed the entire purchase order placed with A3 and also went on to observe that the Government Order dated 31-3-1992 is unconstitutional and void and the procedure followed was not proper and the procedure was arbitrary and violative of the Article 14 of the Constitution. At the same time, the Division Bench did not see any mala fide on the part of the accused A1 and A2 in the entire transaction. Whether the said decision of the Division Bench can have any effect on the prosecution case is the point for consideration. In this connection the decisions referred to by the learned Senior Counsel Sri C.V. Nagesh for the respondents 1 and 2 will have to be referred to.
In the case of P. Jayappan Vs. S.K. Perumal, First Income Tax Officer, Tuticorin, , dealing with the pendency of reassessment proceedings and whether that would constitute as a bar to the criminal prosecution for offences punishable u/s 276-C or Section 277 of the Act, the Apex Court had observed thus:
In the criminal case all the ingredients of the offence in question have to be established in order to secure the conviction of the accused. The Criminal Court no doubt has to give due regard to the result of any proceeding under the Act having a bearing on the question in issue and in an appropriate case it may drop the proceedings in the light of an order passed under the Act. It does not, however, mean that the result of a proceeding under the Act would be binding on the Criminal Court. The Criminal Court has to Judge the case independently on the evidence placed before it. Otherwise there is a danger of a contention being advanced that whenever the assessee or any other person liable under the Act has failed to convince the authorities in the proceedings under the Act that he has not deliberately made any false statement or that he has not fabricated any material evidence, the conviction of such person should invariably follow in the Criminal Court.
In the case of Khatri, the Apex Court has observed that, when the Court trying the writ petition proceedings to inquire into the issue whether the petitioners were blinded by police officials at the time of arrest or whilst in police custody, it does so not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation. The Court further held that, the nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect in any criminal proceeding which may be taken against a particular police officer. It was further held that the pendency of a criminal proceeding cannot be urged as a bar against the Court trying a civil proceeding or a writ petition where a similar issue is involved and the two are entirely distinct and separate proceedings and neither is a bar against the other.
In the case of Kishan Singh, the Apex Court has laid down the law on this aspect thus at para 18:
Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the Court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.
Yet, another case to be taken note of is that of Anil Behari Ghosh''s case, and where, in a proceeding for revocation of the grant of probate u/s 263, Succession Act, the question is, whether the son of the testator murdered him, it cannot be assumed on the basis of a previous judgment of a Criminal Court convicting the son of the murder of his father and sentencing him to transportation for life, that the son was the murderer of the testator. The Apex Court observed that the judgment of the Criminal Court is relevant only to show that there was such a trial resulting in the conviction and sentence of the son to transportation for life. It is not evidence of the fact that the son was the murderer of the testator and that question has to be decided on evidence.
There is great substance in the argument advanced by the learned Senior Counsel Sri C.V. Nagesh referring to the aforesaid decisions of the Apex Court, that the Criminal Court will have to decide on the basis of evidence let in before it whether the respondents herein have committed the offences with which they were charged and put on trial. As the evidence placed before the Trial Court by the prosecution does not establish the charge levelled against the accused persons beyond all reasonable doubt, the decision rendered by this Court in the aforementioned Division Bench ruling cannot itself be taken as having established the guilt of the accused persons.
Since the Trial Court was called upon to record its finding as to the commission of the offences punishable u/s 120-B of IPC read with Section 13(2) read with Section 13(1)(d) of the PC Act, it is only the Trial Court that can record its finding on these charges based on the evidence let in before it. No doubt, in the Division Bench ruling referred to by the Appellate Court, it has held that the procedure followed in placing the purchase orders with A3 was unconstitutional and void. It is one thing to say that the procedure followed by A1 and A2 in placing the purchase orders with A3 being not in accordance with law and being violative of Article 14 of the Constitution and hence unconstitutional, but it is another thing to say that the respondents 1 to 3 therefore have committed the offences with which they were put on charge before the Trial Court. In the light of the law laid down by the Apex Court in the aforementioned decisions, the prosecution will have to establish by placing evidence before the Criminal Court that the offences with which the accused stood charged have been established beyond all reasonable doubt, but in this endeavour, the prosecution has failed.
As rightly argued by the learned Counsel Sri Kiran S. Javali for R3, the Trial Court has considered the entire evidence in proper perspective and has not left any stone unturned in analysing the evidence and recording its finding on all the charges. Therefore, as rightly submitted by the learned Counsel for A3 and also by Sri C.V. Nagesh, learned Counsel for A1 and A2, the finding recorded by the Trial Court cannot be termed as perverse, nor can it be said that the learned Trial Judge has ignored the admissible evidence. The view taken by the Trial Court being a possible view emerging from the evidence on record, this Court sitting in appeal against the judgment of acquittal cannot therefore interfere with the Trial Court''s judgment unless the judgment suffers from the defect of perversity of finding or the view taken being unreasonable one.
For the aforesaid reasons, this appeal lacks merit and it is dismissed.