Prakash Joseph vs State Of Kerala

R. Narayana Pisharadi, J

The petitioner is the first accused in the case C.C.No.4/2021 pending in the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur.

The offences alleged against the petitioner in the above case are under Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 409, 420 and 120B of the Indian Penal Code.

The petitioner, the first accused in the case, was the Legal Officer in M/s.Malabar Cements Limited (for short 'the MCL Company'), a Government Company. The second accused in the case was the Managing Director of that company. The third and the fourth accused in the case were the Managing Director and the Director of the company "M/s.ARK Wood and Metals Private Limited" (for short 'the ARK Company').

The MCL Company had entered into an agreement on 18.11.2004 with the ARK Company for supply of fly ash for a period of nine years. As per Clause 19 of the agreement, it was provided that any dispute arising out of the contract shall be within the jurisdiction of the courts of Tuticorin, from where the supply is effected. As per Clause 20 of the agreement, it was provided that the MCL Company had the liberty to terminate the contract by giving notice of three months in writing and in that event, the ARK Company was entitled to get compensation of 50 lakhs rupees and in order to ensure it, the MCL Company shall furnish bank guarantee for equal amount.

Meanwhile, due to alleged non-payment of amount within the agreed time, the supply of fly ash to the MCL Company was stopped by the ARK Company. As per letter dated 17.09.2008, which was also sent by fax on 18.09.2008, the ARK Company informed the MCL Company that, if the issues were not settled within a week, it would invoke the bank guarantee.

The allegation against the first accused is that, pursuant to a conspiracy entered into by him with the third and the fourth accused, instead of filing suit against invocation of bank guarantee in the court at Tuticorin, he instituted a suit as O.S.No.555/2008 in the Munsiff's Court, Palakkad for that purpose, that too only on 23.09.2008. The Munsiff's Court, Palakkad returned the plaint with a direction to present it before the proper court having jurisdiction to entertain the dispute.

It is further alleged that, after return of the plaint by the Munsiff's Court, Palakkad, the first accused misled the company and filed an appeal before the District Court, Palakkad against the order of the Munsiff's Court, knowing fully well that there was no scope for an appeal. An appeal was filed as C.M.A.No.7 of 2009 but it was dismissed by the District Court, Palakkad on 31.10.2011.

It is also alleged that, the first accused misled the company and the Managing Director of the company and filed a petition before the Banking Ombudsman against the Canara Bank, Palakkad but it was dismissed on 03.03.2019.

It is alleged that the first accused had wasted precious time and failed to take effective steps to file suit against the ARK Company in the proper court and as a result, the bank guarantee of fifty lakhs rupees was invoked by the ARK Company, resulting in pecuniary advantage to that company and loss to the MCL Company.

The petitioner, the first accused in the case, has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-L final report and all proceedings against him in the case pending in the Special Court.

Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the second respondent.

Learned counsel for the petitioner submitted that it was not the duty of the petitioner to advise the company regarding the forum for filing a civil suit. The duty of the petitioner was only to get legal opinion and convey it to the Managing Director and to act upon the instructions given by the Managing Director. Learned counsel would submit that it was not for the petitioner to take a decision as to whether any case had to be filed or not. Learned counsel would submit that the petitioner was exonerated from all charges in the departmental enquiry conducted against him by the company. Learned counsel further contended that, even if the entire allegations against the petitioner in the final report are accepted as true, the offences alleged against him would not be attracted.

Learned Public Prosecutor has invited the attention of this Court to various documents filed by the investigating officer along with the final report and submitted that there are sufficient materials produced by the prosecution in the trial court which would bring out commission of the offences alleged against the petitioner.

The summary of the allegations against the accused, as mentioned in Annexure-L final report, is as follows:

"Accused 1, Sri.K.Prakash Joseph S/o M.P.Joseph, Manooreptonnil House No. 238, Chandranagar Extention Colony, Chandranagar, Palakkad (Former Legal Officer, Malabar Cements Limited, Walayar) and A2 Sri.Sundaramoorthy, S/o Marimuthu, No.3, Trichi main road, Ganeshapuram, Puliyur, Karur District, Tamilnadu (Former Managing Director, Malabar Cements Limited, Walayar) while working in the capacities and such as being public servants abused their official positions, committed criminal misconduct, entered into criminal conspiracy with each other in different occasions and also with accused 3, Sri.V.M.Radhakrishnan, S/o. Velayudhan Nair, 18/7/14, Nineetita, DPO Road, Palakkad (former Managing Director, M/s.ARK Wood and Metals Pvt.Limited, Coimbatore) and Sri.Vadivel, S/o. Subbayya Kounder, House No.62/73, Orkaliyur Kalam, Jamin Oothukuli P.O, Pollachi Taluk, Coimbatore District, Tamil Nadu (former Executive Director, M/s.ARK Wood & Metal Pvt. Ltd., Coimbatore) and in pursuance of the conspiracy allowed M/s.ARK Wood & Metal Pvt. Ltd. to invoke bank guarantee of an amount of Rs.50,00,000/-from the Canara Bank, Palakkad Branch, without taking proper actions and by delaying the legal proceedings and by filing case before the court having improper jurisdiction and thereby M/s.ARK Wood & Metal Pvt. Ltd., have obtained undue pecuniary advantage of an amount of Rs.50,00,000/-and M/s.Malabar Cements Ltd. sustained huge financial loss including the bank guarantee amount and its interest and thereby the above mentioned persons have committed criminal conspiracy and criminal misconduct and whereas the said actions on the part of Sri.Prakash Joseph (Legal Officer, Malabar Cements Limited, Walayar) and Sri.M.Sundaramorrthy (former Managing Director, Malabar Cements Limited, Walayar), Sri.V.M.Radhakrishnan (former Managing Director, M/s. ARK Wood & Metal Pvt. Ltd., Coimbatore) and Sri.Vadivel (former Executive Director, M/s. ARK Wood & Metal Pvt. Ltd., Coimbatore) amounts to Prevention of Corruption Act, 1988 (sic) and Sections 409,420 and 120B of Indian Penal Code."

The allegations specifically raised against the petitioner, who is the first accused, in the final report read as follows:

"A1 Sri.K.Prakash Joseph, is the authorized officer of Malabar Cements Limited, Walayar having the power to sue and defend in the cases of Malabar Cements Limited, on behalf of the company with the approval of Managing Director A1 while officiating as the Legal Officer of Malabar Cements Ltd., Walayar conspired with A3 and A4, filed a suit at the Addl.Munsiff Court, Palakkad against the invoke of Bank Guarantee provided by MCL for the due performance of contract. A1 Prakash Joseph accord sanction to sign the Vakkalath/plaint to be filed at the Munsiff Court, Palakkad as advised by the Adv.M.Damodaran. A1 not sought written legal opinion from the Advocate. A1 prepared the plaint himself for filing suit before the Addl.Munsiff Court, Palakkad knowingly with dishonest intention since A3 already filed a Caveat at the same court on 20.09.2008. A2 wasted precious time of 3 days from 19.09.2008 to 22.09.2008 and filed the O.S only on 23.09.2008 at the Additional Munsiff Court, Palakkad having no jurisdiction to maintain the suit and paved the way to cover up the period of time given by A3's firm in their letter dated 17.09.2008. As per the Clause No.19 of the agreement signed on 18.11.2004 between the Company and the contractor clearly agreed as "any disputes arising out of this contract shall be within the jurisdiction of the court at Tuticorin from where the supplies are effected". When the O.S No.555/2008 was returned by the Addl.Munsiff Court, Palakkad with direction to file at the proper court having jurisdiction, A1 again misled the management and had sought permission to file a Criminal Miscellaneous Petition (?) at District Court, Palakkad against the lower court judgment. A1 advised the MANAGEMENT AND BOARD of Malabar Cements Ltd., to settle the matter amicably, out of the court, by which agenda notes prepared jointly with A2. A2 also advised the management to file Memorandum of appeal (Referred First Appeal) before the High Court of Kerala when the District Court, Palakkad rejected the CMA 7/2009 during October 2012. A1 also advised the MD, MCL to file petition before the Banking Ombudsman against the illegal invoking of BG by A3's firm even though Bank is not one of the party in the signed agreement. As per the clause No.2 of the Bank Guarantee No.2/2004, the Canara Bank provided the BG on irrevocably, unconditionally and without regardless of any objects and protests by the Buyer and expressly refusing any profit or becoming party to any dispute or termination of the said contract. From 2008 to 2013, till his replacing from the charge of ARK cases, claimed that he made proposal before the Board that Criminal case can be initiated against Canara Bank, Palakkad on the illegal invoke of Bank Guarantee to ARK. But the Bank officials effected the BG to ARK was in order, since the clause 2 of BG and the indemnity provided by MCL agrees such provision. A1 being the Legal Officer of Malabar Cements Ltd., Walayar and Asst.Public Information Officer, had provided hundred pages of documents to the Manager, M/s.Cresent Mines Minerals, Lalgudi, Trichy even though court litigation exist at the Sub Court, Ariyallur, Peramballur. Hence the above act of A1 with the connivance and conspiracy of A2,A3 which finally resulted in to the pecuniary loss of Rs.1,61,02,150.00 (Rupees One Crore sixty one lakh two thousand one hundred and fifty only) to Malabar Cements Ltd., Walayar a Public Sector Undertaking, Govt. of Kerala and corresponding gain to M/s.ARK Wood and Metal Pvt.Ltd., Coimbatore on the invoking of BG during 2008 by cheating the company."

Allegations Against the Petitioner

The allegations specifically raised against the petitioner in the final report can be enumerated as follows: (1) The petitioner, instead of filing the suit against invocation of bank guarantee in the court at Tuticorin, filed the suit in the Munsiff's Court, Palakkad, which had no jurisdiction to entertain the suit, that too only on 23.09.2008, after wasting precious time. (2) The petitioner was very well aware that the ARK Company had filed a caveat in the Munsiff's Court, Palakkad on 20.09.2008. (3) The petitioner misled the management and sought permission to file appeal against the judgment of the Munsiff's Court. (4) The petitioner advised the management of his company to amicably settle the dispute out of court. (5) The petitioner advised the Managing Director of his company to file petition against the bank before the Banking Ombudsman even though the bank was not a party to the agreement. (6) The petitioner, being the Legal Officer and the Assistant Public Information Officer of the MCL Company, provided hundred pages of documents to the Manager, M/s.Cresent Mines Minerals, Lalgudi, Trichy even though court litigation existed at the Sub Court at Ariyallur.

The offences alleged against the petitioner are under Sections 13(1)(c) and 13(1)(d) read with Section 13(2) of the Act and also under Sections 409,420 and 120B of the Indian Penal Code.

It shall be now considered whether the allegations against the petitioner, as stated in the final report, prima facie, make out the ingredients of the offences alleged against him.

Offence Under Section 13(1)(c) of the P.C. Act

Section 13(1)(c) of the Act provides that, a public servant is said to commit the offence of criminal misconduct, if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do.

A plain reading of Section 13(1)(c) of the Act makes it clear that a person will be liable for the offence under the said section only if the following ingredients are established: (i) that he was entrusted with certain property or that such property was under his control and (ii) that he dishonestly or fraudulently misappropriated or otherwise converted such property for his own use or allowed any person to do so.

In a case under Section 13(1)(c) of the Act, there shall be specific allegation that some property was misappropriated and that such property was either 'entrusted' with the accused or was under his control. To constitute an offence under clause (c) of Section 13(1) of the Act, it is necessary for the prosecution to allege that the accused has dishonestly or fraudulently misappropriated or converted for his own use any property entrusted to him or under his control as a public servant or allowed any other person to do so (See Purushothaman v. State of Kerala : AIR 2006 SC 35).

Nowhere in the charge-sheet it is stated that any property was entrusted with the petitioner or that any property was under his control and that he misappropriated or converted such property for his own use or allowed any other person to do so. In the absence of such an allegation made against the petitioner, there is no basis for the accusation made against him that he has committed an offence under Section 13(1)(c) of the Act.

Offence Under Section 409 I.P.C

Section 409 of the I.P.C deals with the offence of criminal breach of trust by a public servant. It states that, whoever, being in any manner entrusted with property, or with any dominion over property in his capacity as a public servant, commits criminal breach of trust in respect of that property, shall be punished.

Section 405 of the Indian Penal Code states that, whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust."

According to Section 405 of the Indian Penal Code, the offence of criminal breach of trust involves the following ingredients:

(a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; and (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust (See Indian Oil Corporation Limited v. NEPC India Limited : AIR 2006 SC 2780).

In order to attract the offence under Section 409 of the Indian Penal Code, it must be alleged by the prosecution that there was entrustment of property with the accused or that he had dominion over property and that he had dishonestly misappropriated the same.

The allegations necessary to attract an offence under Section 409 of the I.P.C. are: (i) The accused must be a public servant or a banker, merchant or agent; (ii) He/She must have been entrusted, in such capacity, with property; and (iii) He/She must have committed breach of trust in respect of such property (See N. Raghavender v. State of Andhra Pradesh : 2021 SCC OnLine SC 1232).

In the present case, there is no allegation in the charge-sheet that the petitioner was entrusted with any property or that he had dominion over any property and that he committed criminal breach of trust in respect of such property. Therefore, there is no basis for the accusation made against the petitioner that he has committed an offence under Section 409 of the Indian Penal Code.

Offence Under Section 420 I.P.C

Another offence alleged against the petitioner is under Section 420 of the I.P.C. Section 420 of the I.P.C states that, whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable to being converted into a valuable security, shall be punished.

The ingredients of an offence under Section 420 of the I.P.C are the following: i) a person must commit the offence of cheating under Section 415 of the I.P.C; and ii) the person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.

It is paramount that in order to attract the provisions of Section 420 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence, i.e., (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement. (See N. Raghavender v. State of Andhra Pradesh : 2021 SCC OnLine SC 1232).

There is no allegation against the petitioner that he had dishonestly induced the MCL Company to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. The mere allegation that the petitioner misled the company to initiate wrong or improper legal proceedings against the ARK Company does not attract the ingredients of the offence under Section 420 of the I.P.C.

Offence Under Section 13(1)(d) of the P.C. Act

The question now remains whether the allegations against the petitioner would, prima facie, make out an offence under Section 13(1)(d) of the Act read with Section 120B of the I.P.C against him.

Section 13(1)(d) of the Act provides that, a public servant is said to commit the offence of criminal misconduct, if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

A perusal of the above provision makes it clear that if the elements of any of the three sub-clauses are met, the same would be sufficient to constitute an offence of 'criminal misconduct' under Section 13(1)(d) of the Act. Undoubtedly, the three wings of clause(d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i) of the Act, obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. On the same reasoning, under Section 13(1)(d)(ii) of the Act, obtaining any valuable thing or pecuniary advantage by abusing his official position as a public servant, either for himself or for any other person would amount to criminal misconduct. Under Section 13(1)(d)(iii) of the Act, while holding office as a public servant, if a person, without any public interest, obtains for any person any valuable thing or pecuniary advantage, it would amount to criminal misconduct (See Rajiv Kumar v. State of U.P : AIR 2017 SC 3772).

Admittedly, the responsibilities of the petitioner, as a person employed as Legal Officer of the MCL Company, were the following: (i) Liaison with Advocates - Legal Advisors. (ii) Conduct of court cases, domestic enquiries. (iii) Maintenance of files.(iv) Co-ordination with various departments in the company relating to court cases. (v) Liaison with court officers and correspondence. (vi) Any other responsibilities assigned by superiors from time to time.

Further, the Board of Directors of the MCL Company had specifically authorized the petitioner to institute and defend cases on behalf of the company.

Now, it shall be examined whether the allegations against the petitioner would, prima facie, attract an offence under Section 13(1)(d) of the Act.

Institution of Suit Against Invocation of Bank Guarantee

The notice issued by the ARK Company to the MCL Company regarding invocation of bank guarantee was dated 17.09.2008. The copy of the aforesaid notice had been sent on 18.09.2008 by fax also by the ARK Company to the MCL Company. Therefore, the MCL Company would have become aware of the intention of the ARK Company regarding invocation of the bank guarantee at least by 18.09.2008.

It was mentioned in the notice dated 17.09.2008 sent by the ARK Company to the MCL Company that they would invoke the bank guarantee, if the issues were not settled within a week. The petitioner had instituted the suit against invocation of bank guarantee in the Munsiff's Court, Palakkad on 23.09.2008. Therefore, it cannot be found that the petitioner had wasted precious time before the institution of the suit in the Munsiff's Court, Palakkad. The ARK Company had given one week's time to the MCL Company to settle the issues. But, the bank guarantee was invoked on 22.09.2008.

Further, as per clause 20 of the agreement dated 18.11.2004, the ARK Company could have invoked the bank guarantee only on termination of contract by the MCL Company.

Admittedly, the petitioner had obtained legal advice from a lawyer before the institution of the suit in the Munsiff's Court, Palakkad. Even in the charge-sheet, the allegation is only that he did not obtain written legal opinion from the lawyer before the institution of the suit. There is no material to find that it was mandatory on the part of the petitioner to obtain written legal opinion from the lawyer before institution of any suit on behalf of the his company.

The petitioner had instituted the suit in the Munsiff's Court, Palakkad after obtaining legal advice from a senior lawyer. The suit was instituted through the very same lawyer. Then, it cannot be found that his act was not bonafide or that it was done  with dishonest intention.

Further, as the bank guarantee was invoked by the ARK Company on 22.09.2008, institution of the suit on 23.09.2008 against invocation of the bank guarantee, was of no consequence.

Further, it is a debatable question whether the Munsiff's Court, Palakkad had jurisdiction or not to entertain the suit. In fact, the ARK Company had instituted suits against the MCL Company in the Courts at Palakkad for realisation of amount.

Even if the suit had been filed in the proper court, that is, in the Court at Tuticorin, there was no assurance that the court would have granted an order of injunction restraining the ARK Company from invoking the bank guarantee.

Bank guarantee is an independent contract between the bank and the beneficiary. The bank is always obliged to honour its guarantee as long as it is an unconditional and irrevocable one. The dispute between the beneficiary and the party at whose instance the bank has given the guarantee is immaterial and is of no consequence. The courts ordinarily will not interfere with the invocation or encashment of the bank guarantee so long as the invocation is in terms of the bank guarantee [See Standard Chartered Bank v. Heavy Engineering Corporation Limited : (2020) 13 SCC 574].

Unless fraud or special equity exists and it is pleaded and prima facie established by strong evidence as a triable issue, the beneficiary will not be restrained from encashing the bank guarantee even if dispute between the beneficiary and the person at whose instance the bank guarantee was given by the bank, had arisen in performance of the contract. The liability of the bank is absolute and unequivocal. What would be material is the quantification of the liability in the letter of revocation. [See Ansal Engineering Projects Ltd. v. Tehri Hydro Development Corporation Ltd : (1996) 5 SCC 450].

In view of the above legal position, even if the MCL Company had instituted the suit against invocation of bank guarantee in the proper court, the chance of getting an order of injunction from the court against such invocation was very remote.

In the above circumstances, it is very doubtful whether institution of a suit by the MCL Company even in the Court at Tuticorin would have resulted in preventing the ARK Company from invoking the bank guarantee.

Assuming that the petitioner had given wrong advice to his company with regard to the institution of the suit, without anything more, it will not attract an offence under Section 13(1)(d) of the Act. There is world of difference between giving improper legal advice and giving wrong legal advice. Even a lawyer cannot assure his client that he shall win the case in all circumstances [See C.B.I v. Narayana Rao: (2012) 9 SCC 512].

Filing of Caveat by the ARK Company

Even if it is assumed that the ARK Company had filed a caveat in the Munsiff's Court, Palakkad, it does not mean that the petitioner had entered into a conspiracy with that company and that it was pursuant to such conspiracy that he instituted the suit in the Munsiff's Court at Palakkad. Since the ARK Company had issued notice to MCL Company regarding invocation of the bank guarantee, it is reasonable to presume that the ARK Company had anticipated some legal action against it on the part of MCL Company. Filing of the caveat by the ARK Company on 20.09.2008 in the Munsiff's Court, Palakkad cannot be considered as a circumstance indicating conspiracy between the petitioner and the ARK Company.

Filing of Appeal in the District Court

True, appeal was filed in the District Court, Palakkad against the judgment of the Munsiff's Court, Palakkad, directing return of plaint for presentation in the proper court. But, filing of the appeal was immaterial and inconsequential. Even before the institution of the suit, the bank guarantee had been invoked by the ARK Company. Therefore, the suit had practically become infructuous. Therefore, there was no meaning in filing appeal against the judgment of the Munsiff's Court.

Other Allegations Against the Petitioner

The other allegations raised against the petitioner, that he advised his company to file a complaint against the bank before the Banking Ombudsman, that he advised his company to amicably settle the dispute out of court etc, do not attract the ingredients of the offence under Section 13(1)(d) of the Act.

It is alleged that, the petitioner, being the Legal Officer and the Assistant Public Information Officer of the MCL Company, provided hundred pages of documents to M/s.Cresent Mines Minerals, Lalgudi, Trichy even though court litigation existed at the Sub Court at Ariyallur. This is an allegation which has no connection whatsoever with the matter in issue or dispute with ARK Company.

Omission to File Suit for Recovery of Money

Learned Public Prosecutor submitted that, till the date the petitioner was removed from the post of Legal Officer, he did not take any steps to institute a suit for recovery of the money lost by the MCL Company on account of the invocation of the bank guarantee by the ARK Company and that he had deliberately allowed the institution of a suit for that purpose to become time barred. Learned Public Prosecutor would submit that conduct of the petitioner in this regard indicates the unholy nexus between the petitioner and the ARK Company.

There are materials produced by the prosecution before the trial court to establish that the petitioner was very well aware of the fact that institution of a suit for recovery of money from the ARK Company would become barred by limitation by the date 22.09.2011. The second accused, the Managing Director of the MCL Company, had sent a letter dated 05.03.2010 to the Government. It is mentioned in this letter that there was time till 22.09.2011 to institute a suit for recovery of the money from the ARK Company. The petitioner had put his initials in this letter. It indicates that he was very well aware of the fact that a suit for recovery of the money which was lost by the invocation of the bank guarantee would become barred by limitation by the date 22.09.2011. There are no materials to show that he had taken any legal steps, within the prescribed period of limitation, for institution of a suit against the ARK Company for recovery of the amount of the bank guarantee from that company.

When the allegations raised against an accused will not even prima facie attract the offences alleged against him in the final report, this Court would be justified in invoking the power under Section 482 of the Code and to quash the final report to prevent abuse of the process of the court and to do real justice to the party concerned. However, if the allegation raised against an accused in the final report needs further scrutiny by the trial court on the basis of the materials produced before it by the prosecution, such scrutiny has to be undertaken by the trial court at the stage of Section 239 of the Code.

In the present case, it is for the trial court to sift the materials produced by the prosecution and to decide whether the facts emerging from such materials are sufficient to indicate any deliberate or intentional omission on the part of the petitioner to take steps, within the prescribed period of limitation, to institute suit for recovery of the amount of the bank guarantee from the ARK Company, pursuant to any criminal conspiracy between him and the third and the fourth accused.

At this juncture, it is to be noted that there is no prohibition under law for quashing a charge-sheet in part. There is no requirement that the charge-sheet has to be quashed as a whole and not in part [See Ishwar Pratap Singh v. State of U.P. : (2018) 13 SCC 612].

Conclusion

The discussion above leads to the conclusion that the allegations against the petitioner in Annexure-L final report do not attract the ingredients of the offences under Section 13(1)(c) of the Act and under Sections 409 and 420 of the Indian Penal Code. The question, whether the omission on the part of the petitioner to take steps, within the prescribed period of limitation, to file suit for recovery of the amount of the bank guarantee from the ARK Company, was deliberate or intentional and pursuant to any criminal conspiracy, is a matter to be decided by the trial court.

Consequently, the petition is allowed in part. Annexure-L final report, as far as it relates to the petitioner, in respect of the offences under Section 13(1)(c) of the Prevention of Corruption Act and under Sections 409 and 420 of the Indian Penal Code, is quashed. The trial court is at liberty to proceed with the case against the petitioner for the offences under Section 13(1)(d) of the Prevention of Corruption Act and under Section 120B of the Indian Penal Code. The petitioner is at liberty to file application for discharge before the trial court under Section 239 Cr.P.C in respect of the offences under Section 13(1)(d) of the Prevention of Corruption Act and under Section 120B of the Indian Penal Code, if that stage is already not over. It is made clear that nothing mentioned in this order shall affect the proceedings against the other accused in the case before the trial court.