AI Structured Summary
Not yet generated for this judgment
Judgment
By way of the present Revision Application, the
original accused no.5 - present applicant has
preferred the present application under the provision
of Sections 397 read with Section 401 of the Code of
Criminal Procedure, 1973 for quashing and setting
aside the order dated 8th July, 2016 passed below
Exh.27 by the learned Special Judge, Court No.4,
Mirzapur, Ahmedabad in the Special C.B.I. Case No.15
of 2012 arising out of the F.I.R. being RC
No.00292011A003.
The facts of the present Revision Application are
that the Applicant is a citizen of India and is the
Managing Director of M/s.Khimji Poonja Freight
Forwarders / Pvt.Ltd. carrying on business as Freight
Forwarders and Customs House Agents (Customs Brokers)
functioning out of all major Ports in India including
Port of Ahmedabad.
An FIR was registered on 7th March, 2011, by CBI,
Gandhinagar against officers of the Applicant''s
Company. The name of the Applicant was not mentioned
in the FIR. However, after a period of nine months,
when the C.B.I. filed the Charge-Sheet, the name of
the applicant was included therein as accused no.5.
As per the allegation made in the charge-sheet as
well as the reply to the discharge application
preferred by the present applicant that along with
public servants and private persons, the present
applicant hatched criminal conspiracy to execute the
acts of bribery.
The present applicant preferred an Application
for Discharge before the Special Court, C.B.I.,
Mirzapur, Ahmedabad. The prosecution also filed the
reply against the same. Arguments were also canvased
by the learned advocates for both the parties. Written
submissions were also filed on behalf of both the
parties. Thereafter, on 8th July, 2016, the Ld. Special
Sessions Judge dismissed the Discharge Application.
Being aggrieved and dissatisfied by the impugned
Order dated 8th July. 2016, the present applicant has
preferred the Revision Application. The prosecution
also filed the affidavit-in-reply against the same.
Mr.S.V.Raju, learned counsel for the applicant
contended that the learned Judge failed to appreciate
the law laid down by the Supreme Court in the
Judgments cited by the applicant. The entire approach
of the learned Special Judge was erroneous and
illegal. He further contended that learned Sessions
Judge failed to appreciate that the Applicant was not
named in the FIR but later on, his name was added as
an accused at the event of filing of the Charge-Sheet.
Learned counsel further submitted that there was no
evidence or instance where the applicant was caught in
the exchange and/or transfer of alleged gratification
and therefore, no offence under the Prevention of
Corruption Act, 1888 is made out. He further submitted
that the prosecution failed to prove the involvement
of the applicant in the Charge-Sheet and no offence is
made out against the present applicant. He further
submitted that even though the entire case of the
Prosecution is based on presumptions, assumptions.
surmises and conjectures, the learned Judge has
rejected the discharge application preferred by the
present applicant. He further submitted that the said
order passed by the learned Special Judge is required
to be quash and set-aside.
It is further contended that in the FIR and as
per the contents of the charge-sheet that on 19th July,
2010, upon the instructions of Mr.Mehul Jhaveri, the
accused no.1 - Mr.Tushar Vaghela, the accused no.3 had
paid Rs.58,000/- to Mr.Chandubhai Kalal, - accused
no.2, which was 1.25% of the total amount of duty
refund claims i.e. Rs.46,87,000/- for clearing three
pending files. With respect to the said allegation, no
role has been attributed to the applicant.
It is further submitted that the learned Special
Judge has rightly observed that "so far as the alleged
bribe of Rs.58,000/- is concerned, no any
incriminating material has been recovered which shows
the involvement of the present applicant in the said
alleged exchange of illegal gratification." It is
further contended that as per the investigation, one
Mr.R.C.Pagaria (witness no.40), who was in charge of
the Delhi office of the said Company had received
Rs.5,00,000/- on 28th August, 2010, through M/s.
Poornima Angadia from the Company''s Head Office at
Mumbai and as per the direction of Mr.Mehul Jhaveri,
Mr.R.C.Pagaria had paid Rs.3,50,000/- to Mr.Kishan
Rajwar whose telephone number was given by Mr.Anand
Singh Mall during conversation. The learned Special
Judge grossly failed to appreciate that the statement
of Mr.Kishan Rajwar has not been recorded. Moreover,
neither has he been charged with any offence nor has
been made a witness, for the reasons best known to the
prosecution. The learned Special Judge ought to have
considered that there is no involvement of the
applicant in the said transfer and/or exchange of the
alleged illegal gratification of Rs.3,50,000/-. He
further argued that there is no evidence on record to
show that the amount of Rs.3,50,000/- was handed over
to Mr.Kishan Rajwar under the directions of the
applicant and further there is no evidence to show
that money was received by Mr.Kishan Rajwar at Delhi.
Attention was also drawn by the learned counsel for
the applicant that the case of the prosecution that
they have recovered the diary in which Mr.R.C.Pagaria
had written about the receipt of Rs.5,00,000/- from
Mumbai Office and delivery of Rs.3,50,000/- to
Mr.Kishan Rajwar. Learned counsel for the applicant
has read contents of the diary entry of Mr.R.C.Pagaria
and argued that there is not a single evidence on
record to show that the money was transferred from
Company''s Head Office at Mumbai to Delhi. The learned
Special Judge ignored the statement of Mr.Pitaram
Otaji Prajapati (Witness of M/s.Poornima Angadiya) and
the documents produced by him regarding the transfer
of money. Assuming whilst of admitting that the same
were true, the statement and documents clearly shows
that money were always sent from Mumbai to Ahmedabad
and from the statement and documents produced by
Pitaram Otaji Prajapati and argued that in absence of
any evidence with regards to the transfer from Mumbai
to Delhi, the prosecution cannot simply rely upon the
entry made by Mr.R.C.Pagaria in his diary. Learned
Counsel for the applicant has further contended that
as per the case of the prosecution, during search at
the office of the accused no.1 - Mr.Mehul Jhaveri at
Ahmedabad, one expenditure notebook was seized in
which entry dated 29th July, 2010 addressed to
Mr.Dilipbhai Mulani shows "A-Mall-Adhoc as per the
list attach show to DM-Rs.3,50,000/-" is addressed to
the present applicant. He has read the contents and
argued that the learned Judge failed to appreciate
that a preliminary examination of the said entry would
make it clear that the money was not sent by accused
no.1, but the same was received by him, as it is shown
under the caption "Receipts". The learned Special
Judge failed to appreciate that the prosecution has
not given any explanation to the fact that the money
was not sent but received by the accused no.1. It is
further contended that the learned Special Judge has
wrongly mentioned in para 13 of the impugned order
that the entry dated 29th July, 2010 has been addressed
to "Shri Dilipbhai Mulani". Nowhere in the said entry
the name "Shri Dilipbhai Mulani" has been mentioned.
The said entry is referred to one, Mr.Dilipbhai.
However, there is not a single statement / evidence on
record to show that the name of Dilipbhai / DM
mentioned in the entry dated 29th July, 2010 is
confirmed as the applicant. Furthermore, there are no
statements of any witnesses whereby "A-Mall" mentioned
in the entry dated 29th July, 2010 is confirmed as
Anand Singh Mall - accused no.4. It is further
contended that the learned Special Judge has failed to
consider that the prosecution has failed to establish
that money was sent. It is further contended that as
per the Apex Court''s judgments on diary entries, it is
made clear that the entries are an admission against
the person who makes the entries and not against any
third party. The entire case of the prosecution is
based upon the entries made by Mr.R.C.Pagaria and
Mr.Mehul Jhaveri. The learned Judge ought to have
considered that the applicant''s involvement in the
exchange of the alleged illegal gratification cannot
be drawn by the references / entries made by
Mr.Pagaria and Mr.Mehul in their diary/expenditure
book. It is further contended that as per the
prosecution case, Mr.Mehul Jhaveri had sent
Rs.3,50,000/- to his Mumbai Office for effecting the
payment to Mr.Anand Singh Mall at Mumbai but as
Mr.Mall wanted the delivery at Delhi while discussing
with Mr.Mehul Jhaveri on 18th August, 2010, Mr.Mehul
Jhaveri made the arrangement of Rs.3,50,000/- through
Mr.R.C.Pagaria. A transcript of the conversation dated
18th August, 2010 annexed charge-sheet, even though the
learned Special Judge failed to appreciate that there
is no evidence on record to show the amount of
Rs.3,50,000/- was sent to Mumbai Office. Further, the
telephonic conversation dated 18th August, 2010 was
between Mr.Mehul Jhaveri and Mr.Mall. The applicant
was not a party to the said conversation nor was his
name taken in the same. No reference was made against
the applicant in the said conversation. Further, there
is no reference of Rs.3,50,000/-in the said
conversation. The said conversation refers to a
parking of money, apparently of Mr.Mall but does not
indicate as payment made to Mr.Mall. Thus, the case of
the prosecution that Mr.Mall wanted the delivery of
the amount at Delhi as per the conversation dated 18th
August, 2010 is totally false and frivolous.
Mr.S.V.Raju, learned advocate for the applicant
has read the contents of the charge-sheet regarding
the allegation in which, the prosecution has relied
upon the telephonic conversation dated 21st October,
2010 and argued that even the prosecution or
Investigating Agency has never bothered to investigate
specific voice as per the system establish in Forensic
Science Laboratory i.e. Spectrography Test. It is
further submitted that as per the case of the
prosecution that in the telephonic conversation dated
21st October, 2010, Mr.Mehul Jhaveri intimated
Mr.Dushyat Mulani - accused no.6 that he had sent
Rs.1,50,000/- to Mr.Dilipbhai which is to be handed
over to Mr.Mall. Mr.Mehul Jhaveri further told that he
had already been given Rs.3,50,000/- at Delhi which
was sent by Mr.Dilip Mulani from Mumbai. He further
told that he want to clear dues regularly and told
about making parking as required by Mr.Mall. As per
the prosecution , the conversation in entirety show
that the conversation was for alleged delivery of
Rs.1,50,000/- and Rs.3,50,000/- to Mr.Mall which was
not his legitimate dues. The learned Special Judge has
grossly failed to appreciate that the applicant is not
even a part of that conversation. The said
conversation refers to make parking, apparently making
parking of money of Mr.Mall but does not indicate as
payment made to Mr.Mall. It is also contended that as
per the prosecution case that there was a payment of
illegal gratification of Rs.1,50,000/- to Mr.Mall at
Mumbai. To corroborate the same, the prosecution has
based its case on the ''receipt entry'' dated 19th
October, 2010 available in the expenditure notebook
maintained by accused no.1 which shows ''Anand Mangal -
Trans to DM @ APO-Rs.1,50,000/-. It is further
contended that the learned Special Judge however
failed to appreciate that after careful examination of
the said entry, it reveals that the money was not sent
by Mr.Mehul Jhaveri but the same was received by him,
as it is shown under the caption ''Receipts".
Learned Counsel for the applicant has read the
impugned order and contended that the learned Judge
has rightly observed that the entry dated 19th October,
2010 of Rs.1,50,000/- as the ''receipt entry'' however,
the learned Judge further has wrongly observed that
the above entry transpires that the present applicant
in conspiracy with Mr.Mehul Zaveri had abated the
offence of bribery and had arranged for the payment of
illegal gratification of Rs.3,50,000/- and
Rs.1,50,000/- to Mr.Mall.
It is also contended that there is not a single
statement / evidence on record to show that the name
of Dilipbhai / DM mentioned in the entry dated 19th
October, 2010 is confirmed as the applicant.
Furthermore, there are no statements of any witnesses
whereby ''Anand Mangal'' mentioned in the same dated 19th
October, 2010, respectively are confirmed as Anand
Singh Mall - accused no.4. Further, there is no
evidence on record to show that the amount of
Rs.1,50,000/- was handed over by Mr.Jadhav to Mr.Anand
Singh Mall and further there is no evidence to show
that money was received by Mr.Anand Singh Mall at
Mumbai.
It is further contended that the learned Special
Judge failed to appreciate that there is no evidence
of movement of any funds from Ahmedabad to Mumbai nor
is there any evidence of the payment made by any
person to Mall or on his behalf to any person. It is
further contended that no evidence was produced by the
prosecution to prove that mother-in-law of Mr.Mall was
actually sick to corroborate that there was actually
an exchange of alleged illegal gratification of
Rs.1,50,000/- for the said purpose.
Learned Counsel for the applicant has argued that
it has been wrongly observed by the learned Special
Judge in his impugned order without appreciating the
facts mentioned above that from the entry in
expenditure notebook and telephonic conversation
dated 21st October, 2010, it transpires that the
present applicant in conspiracy with MR.Mehul Jhaveri
had abated the offence of the bribery and had arranged
for the payment of illegal gratification of
Rs.3,50,000/- to Mr.Mall at Delhi through his nephew
Mr.Kishan Rajwar and also Mr.Mehul Jhaveri in
conspiracy with the present applicant had arraigned
for the payment of illegal gratification of
Rs.1,50,000/- to Mr.Mall at Mumbai. The learned
Special Judge has come to said conclusion only on the
basis of assumptions, presumptions, surmises and
conjectures. There is no evidence on record to show
the involvement of the applicant in the present
matter. It is argued that even as per the main
ingredients of the definition of the criminal
conspiracy, agreement or meeting of mind, the learned
Judge has wrongfully held that the present applicant
is involved in the said so-called offence. It is
further contended that the prosecution has tapped the
mobile phone conversation of Mr.Mehul Jhaveri -
accused no.1 for a period of six months; thereafter
they have annexed the transcripts of allegedly
applicable conversations. It is the prosecution''s case
that the accused no.1 was acting on the instructions
of the applicant. The learned Special Judge has failed
to appreciate that in the six months of the tapping
not even one single conversation is recorded between
the accused no.1 and applicant whereby evidence of any
such discussions with reference to the alleged illegal
exchange of gratification is discussed. The learned
Special Judge failed to appreciate that in the six
months of the tapping not even one single conversation
is recorded between the accused no.1 and the applicant
whereby evidence of any such discussions with
reference to the alleged illegal exchange of
gratification is discussed.
Learned counsel for the applicant further argued
that it is the sole duty of the prosecution to
establish prima-facie case against the present
applicant to prove main ingredients of the criminal
conspiracy as well as the allegations of the offence
punishable under the Prevention of Corruption Act .
Mr.S.V.Raju, learned Counsel for the applicant
further contended that in the present case, the
prosecution submitted the charge-sheet before the
learned Special Court, wherein the prosecution could
not produce any evidence to establish the direct
evidence or circumstantial evidence so that the
present applicant can be clubbed as an accused in
criminal conspiracy as well as bribery.
In this way, learned counsel for the applicant
has prayed to quash and set-aside the order dated 8th
July, 2016 passed below Exh.27 by the learned Special
Judge, C.B.I., Mirzapur Court, Ahmedabad in the
Special C.B.I. Case No.15 of 2012.
Mr.R.C.Kodekar, learned Special Public Prosecutor
for the C.B.I. has vehemently opposed the present
Revision Application and argued that as per the
statements of the witnesses and the documents attached
with the charge-sheet, prima-facie case is made out
against the present applicant. He has further argued
that the present applicant has filed the present
application on false and frivolous grounds and further
submitted that the transaction regarding the bribe
amount is within knowledge of the present applicant
-accused and from the contents of the receipt of
"Poormina Carriers'', the name of the present applicant
- accused is disclosed, which indicates involvement of
the present applicant - accused and also it is
established that the present applicant had arranged
for the delivery of illegal gratification for custom
officials. He further submitted that from the
telephonic conversation, the same amount was given and
therefore, presumption is also required to be drawn
against the present applicant. He has further drawn
attention towards the receipt and other documents and
contended that role of the present applicant is prima-
facie established. He has further drawn attention
towards the diary and conversation and argued that
even from the circumstantial evidence, the involvement
of the present applicant is prima-facie established.
He further argued that there is sufficient evidence to
frame charge against the present applicant - accused.
Learned Special Public Prosecutor has further
submitted that the learned Special Judge has rightly
dismissed the discharge application and the present
application also deserves to be rejected.
I have minutely gone through the entire charge-
sheet papers as well as the reply filed by the C.B.I.
and the contents of the impugned order. As per the
arguments made by the learned advocates for both the
parties, the question as to whether the sufficient
evidence with regards criminal conspiracy by the
present applicant is produced on record by prosecution
or not to show that there was meeting of minds and
agreement between the accused to commit the said
offence in so called conspiracy. So far as the main
ingredient of the criminal conspiracy is concerned, it
is a base of the law to have an agreement and meeting
of minds. I have minutely perused the telephonic
conversation as well as the reply and documents,
statements of the witnesses and at which place that
agreement was made by the present applicant which is
not prima-facie disclosed in charge-sheet papers. So
far as abetment regarding illegal gratification and
bribery are concerned, I have also perused the
ingredients of Sections - 107 and 108 of the Indian
Penal Code . So far as the main ingredients of both the
provisions of law are concerned, it is the duty of the
prosecution to establish real evidence to show that
under which circumstances the present applicant has
abetted. It is true that originally in the FIR, name
of the accused is not mentioned as alleged by the
applicant but it is established law that when the name
of the accused is not mentioned in the FIR, even
though the case of the prosecution cannot be resulted
in fatal. But, it is required to be considered that it
is the duty of the prosecution to produce sufficient
and cogent evidence regarding involvement of the
accused. In the present case, the prosecution has
relied upon the statements of the witnesses and so
called name which is disclosed whose statement is not
recorded to show that the investigation is defective
and even from the documents produced on record i.e.
receipt, conversation etc. could not connect the
present applicant - accused in the alleged offence
cited by the prosecution in the charge-sheet.
In the result, from the perusal of the order
passed by the learned Special Judge, it appears that
the learned Judge has not applied his mind and only on
the issue of presumption, the discharge application
was rejected. The learned Judge could not explain
cogent reasons regarding prima-facie involvement of
the present applicant in the said offence.
As per the above observation, I am of the opinion
that the learned Judge has committed grave error in
rejecting the discharge application and for the
foregoing reasons, the present Revision Application
deserves to be allowed and the order dated 8th July,
2016 passed below Exh.27 by the learned Special Judge,
Court No.4, Mirzapur, Ahmedabad in the Special C.B.I.
Case No.15 of 2012 is hereby quashed and set-aside.
Rule is made absolute.