K.K. Sood vs State by CBI/ACB/Chennai

A. Ramamurthi, J.—Petitioner, who is the 4th accused in C.C. No. 184 of 1997 on the file of Principal Special Judge for CBI cases at Chennai, has filed the revision petition aggrieved against the orders passed in Crl.M.P. No. 238 of 2000 dated 17.11.2000.

The case in brief is as follows:

The Petitioner is the 4th accused and according to the prosecution, the South Railway have placed orders with M/s-Indian Iron and Steel Limited, Calcutta for supply of 48.20 M. Ts. of MS Plates and as per order, the goods were sent from Sitarampur to Arakonam by Wagon No. ER 98983 on 22.3.1993. The consignment reached the station Palasa on 2.5.1993. According to the prosecution case, during March to May 1993, accused 1 to 6 entered into a criminal conspiracy with absconding accused by name Venkata Krishnaji Rao and Venkatasami to cheat the Railway Department by diverting the wagons and in pursuance of the above conspiracy, the accused Srinivasa Rao boarded the train in his capacity as Chief Controller of Train and got the vehicle guidance from the guard of the train. He submitted another vehicle guidance to effect diversion of the wagon as if the wagon was to deliver the goods in Royapuram instead of Arakonam. Fort his purpose, RR 658553 was utilised by the accused. It is alleged to have been taken from a book of RRS which was missing from south Eastern Railway and was later traced in the possession of the accused Subhir Kumar Das. The goods were taken delivery by a porter by name A. Bhaskar and delivered to Bharat Industries which according to the prosecution was owned by Mr. Kaushik, 5th accused in the case. The accused Venkatasami sold to the Petitioner for a sum of Rs 2.30 lakhs while the value of the goods was Rs. 5, 57, 312-82. The accused Venkatasami is alleged to have paid Rs. 1,30,000/- to the accused Vendetta Krishnaji Rao and retained the balance.

There is no iota of evidence to prove either the conspiracy or the alleged offences by the Petitioner. He was summoned to appear before the Respondent with records, but they did not find anything incriminating in the records and hence no records were seized from the Petitioner. None of the prosecution witnesses has stated that the Petitioner has entered into a criminal conspiracy and now based upon the confession statement of the absconding accused, the Petitioner is implicated in the case. This is a weak place of evidence and the confession statement given by the co-accused cannot be used against the Petitioner. There is no prima facie material to proceed further against the Petitioner and as such, he should be discharged.

The Respondent opposed the application and after hearing the parties, the learned Judge dismissed the application and aggrieved against this, the present revision has been filed.

Heard the learned Counsel of both sides.

The points that arise for consideration are

1) whether the order passed by the Court below is proper and correct?

2) To what relief?

Points: There is no dispute that the Petitioner is the 4th accused in C.C. No. 184 of 1997 and the Petitioner filed the application u/s 239 of the Code of Criminal Procedure to discharge him from the case on the ground that none of the prosecution witnesses has implicated him. The prosecution mainly relied upon the confession statement said to have been given by the two absconding accused. There is no sufficient material to proceed against the Petitioner. Moreover, the case against the two absconding accused had already been split up on the request of the prosecution itself. The material object has not been recovered in pursuance of the statement of the accused. Moreover, the statement recorded by the police is also not admissible in evidence. The railway officials, who were shown as accused in the first information report, have been exoneraed and shown as witnesses. There is absolutely no material to connect the Petitioner with the alleged conspiracy to frame a charge u/s 120-B IPC. The learned Judge erred in taking into consideration the petition filed by the Petitioner for anticipatory bail as if it was a document seized during the investigation and relied on by the prosecution. None of the 12 witnesses cited in the charge sheet has whispered a word about the Petitioner. The prosecution also relied upon a petition for anticipatory bail by one Subhash Goel who was neither witness nor an accused during the investigation. The learned Special Judge has also misinterpreted the judgment of the Supreme Court in Ram Khilari v. State of Rajasthan (1999 SCC (CRI.) 376).

Learned Counsel for CBI cases contended that there is prima facie material to proceed against the Petitioner as well as other accused. The Petitioner fraudulently and dishonestly had taken delivery of goods 48.30 M. Ts. of ms plates of 50 x 12 mm through a fabricated Railway Receipt with the conspiracy of other accused. Moreover, he had purchased the same for 50% of the value from the absconding accused. The statement recorded by the Railway Protection Police is admissible in evidence. The offence was committed by the Petitioner with the Criminal conspiracy with other accused mentioned in the charge sheet. As per the decision of the Apex Court, the confession statement of one accused person can be used against him as well as the other accused. There is a prima facie material to frame charge against the Petitioner also. Necessary statement of witnesses and documents were already filed by the Respondent along with final report.

It is necessary to state that the statement from the co-accused has been recorded only by the Railway Protection Police Force, and, as such, certainly it is admissible in evidence. Both of them have specifically stated about the part played by the Petitioner. In fact, the goods worth about Rs. 5 lakhs has been purchased by the Petitioner only for a paltry sum of Rs. 2 lakhs and odd. For framing a charge, if the court comes to the conclusion that there is prima facie material to proceed against them, it is sufficient compliance. It is not necessary for the Court to analyse the probative value of the evidence of the witnesses for framing charges. No doubt, the averments in the anticipatory bail application can be considered or not is a matter to be concluded only during the course of trial. For the purpose of framing charge, the trial court has come to the conclusion that there is material and I am of the view that there is no reason to interfere with the same.

Learned Counsel for the CBI Cases also relied on the decision reported in Mahin-der Kaur v. Rajinder Singh and Ors. (1992 SCC (Crl) 522 for the proposition that the High Court was not justified in quashing the proceedings at the initial stage so as to strangulate it at its inception. The accused have all their rights preserved under law at the stage of the enquiry as also at the trial, if there is one, eventually. Therefore, the High Court''s Order is set aside and the Magistrate is directed to proceed further with the complaint in accordance with law.

Reliance is also placed upon in another decision of the Apex Court in State of Maharashtra And Ors. v. Som Nath Thara and Ors. (1996 SCC (Cri) 820) that if there is ground for presuming that the accused has committed the offence it can be said that a prima facie case has been made out against the accused. Even if the court thinks that the accused might have committed the offence it can frame the charges. At the stage of framing of charge, probative value of the materials on record cannot be gone into.

It has also been held in Umar Abdul Sakoor Sorathia Vs. Intelligence Officer, Narcotic Control Bureau, that at the stage of framing of charges, the Court need not deeply examine the probative value of the materials on record. If on the basis of such material the Court could come to the conclusion that the accused would have committed the offence, the court is obliged to frame the charge. These decisions are applicable to the case on hand and in the present case, there is material to proceed further against the Petitioner and hence, the points are answered accordingly.

For the reasons stated above, the revision petition fails and is dismissed. Consequently, Crl. M.P. No. 9300 of 2000 is also dismissed.