T.K. Bandopadhyay vs Union Of India

Heard Mr. Ashish Chandra Kumar, counsel appearing on behalf of the petitioner along with Mr. Rakesh Kumar Sinha, Advocate.

Heard Mr. Rajiv Nandan Prasad, counsel appearing on behalf of the CBI.

This petition has been filed for the following reliefs:-

“For quashing the entire criminal proceeding initiated against the petitioner in connection with RC 1(A) of 2011 (D) including the order

dated 16.01.2016 passed therein by the learned Special Judge, CBI cum 1st D.J. Dhanbad whereby he has been pleased to take cognizance

of the offences punishable under Section 120B read with Section 409 of the Indian Penal Code and Section 13(2) read with Section 13(1)

(d) of the Prevention of Corruption Act, 1988, against the petitioner and directed for issuing Summon, and all proceedings subsequent

thereto in the said R.C. 1(A) of 2011 (D), now pending in the court of learned Special Judge, CBI cum 1st D.J., Dhanbad.â€​

Counsel for the petitioner submits that the petitioner had moved earlier before this court in Cr. M.P. No. 2883 of 2014 challenging the order taking

cognizance dated 02.07.2014 against the petitioner under Section 120B read with Section 409 of the Indian Penal Code and Section 13(2) read with

Section 13(1) of the Prevention of Corruption Act, 1988 and the said order taking cognizance was set aside and the matter was remanded back to the

learned court below to pass a fresh order. The fresh order passed by the learned court below is impugned in this case.

He further submits that there was no material against the petitioner during investigation to sustain the order taking cognizance. Learned counsel has

also referred to the judgment passed by this court in the case of co-accused, namely, Subir Ghosh in Cr. M.P. No. 2272 of 2012 which was allowed

vide order dated 18.01.2014 and the order taking cognizance was set aside. He submits that the case of the petitioner is identical with that of Subir

Ghosh, therefore, the petitioner is also entitled to the same relief.

Learned counsel appearing on behalf of the CBI on the other hand submits that during relevant point of time, the petitioner was General Manager of

Lodhna Area of BCCL, Dhanbad and he was supposed to take care and maintain the stock on the spot. He further submits that as per the impugned

order passed by the learned court below, the learned court, upon going through the case diary found complicity of the present petitioner, although in the

charge sheet submitted by the CBI, the present petitioner was not charge sheeted, but his misconduct has been duly projected in the charge sheet

recommending departmental proceeding. Learned counsel further submits that the learned court below has taken into consideration the materials

linking the petitioner with the alleged offence and accordingly the impugned order taking cognizance under Sections 120B read with Section 409 of the

Indian Penal Code and Section 13(2) read with Section 13(1) of the Prevention of Corruption Act, 1988 does not call for any interference. Learned

counsel further submits that more than prima-facie case is made out against the petitioner.

After hearing counsel for the parties and considering the facts and circumstances of this case, this court finds that as per the allegation made in the

F.I.R., the petitioner while posted and functioning as General Manager of Lodhna Area, along with others, entered into a criminal conspiracy amongst

themselves and other unknown during the period 20th April, 2009 to May 2010 and misappropriated huge quantity of coal of North Tisra and South

Tisra, OCP, Lodna Area worth Rs. 34 crores (approximately) which was entrusted to them/came under their dominion and control in their capacities

as public servants and thereby misused their official position as public servants and caused wrongful gain to themselves and others to the tune of Rs.

34 Crores(Approx.) and corresponding loss to BCCL Dhanbad.

So far as charge sheet is concerned, it was observed that during investigation criminality of the petitioner and another co-accused both the then

General Manager Lodhna Area was not found however they failed to maintain the stock of coal. The court below passed a detailed order dated

13.09.2012 indicating the materials showing criminality of the petitioner in the alleged offence and summons were issued against the co-accused

persons and cognizance was taken fixing 12.12.2012 for their appearance and awaiting sanction for prosecution.

So far as petitioner is concerned, this court finds that the learned court below vide order dated 02.07.2014 took cognizance of the offence under

Sections 120B read with Section 409 of the Indian Penal Code and Section 13(2) read with Section 13(1) of the Prevention of Corruption Act, 1988

after obtaining sanction by simply stating that perusal of the order dated 13.09.2012 indicates that the predecessor court has found sufficient material

against the accused persons. The order taking cognizance dated 02.07.2014 was challenged by the petitioner in Cr. M. P. No. 2883 of 2014 which

was disposed of vide order dated 22.05.2015 by indicating that admittedly charge sheet was not submitted against the petitioner though it has been

submitted that against some of the accused persons, in spite of that, the court took cognizance of offence without assigning any reason and has come

to the conclusion that prima-facie case is made out against the petitioner. The matter was remanded back and upon remand the learned court below

has passed detailed order dated 16.01.2016 after considering the materials available on record and found as under :-

“From careful perusal of the materials whatever available in the case record as well as case diary, it appears that, the check period as

per FIR is from April 2009-May 2010, and during the aforesaid period Shri T.K. Bandopadhyay happens to be the General Manager,

Lodna Area, BCCL, Dhanbad, and he handed over the charge of Coal Stock of North and South Tisra OCP, BCCL, Dhanbad on

14.08.2010 i.e. much after the check period. It further appears from the statement of witness namely Shri R.K. Nigam u/s 161 of the Cr.

P.C. available in the case diary that, charge handed over to Shri A.K. Dutta by Shri T.K. Bandopadhyay on 03.05.2010 i.e. during the check

period, and he has also identified the signature of Shri A.K. Dutta on letter No. 611, by which Shri A.K. Dutta wrote to the Director (Tech.),

BCCL, Koyla Bhawan, BCCL, Dhanbad, that he took over the conventional charge of Coal Stock. During course of perusal of the case

diary, it also appears that, vide office order dated 30.06.2010 of GM, Lodna Area Responsibility and Authority were assigned to the A.G.M.

of Lodna Area, which is also much after the check period. Further I find copy form ‘H’ in the Case diary which relates to the coal

stock of South Tisra OCP (Grade wise, Despatch wise, Colliery Offtake and Difference) of March, 2010, which bears the signature of the

then G.M. Shri T.K. Bandopadhyay apart from other officials. It further appears from the perusal of the case diary that as per provisions

contained in Para 66(IV) of the Code of Uniform of Maintenance, Control and verification of Coal Stock commonly known as ‘Yellow

Book’ issued by the Coal India Limited, the concerned General Manager, Agent/Project Officer and Manager of concerned colliery will

be held responsible for Coal shortage.

In view of the facts discussed in preeciding paras, it appears that, Shri T.K. Bandopadhyay was posted and working as General Manager in

Lodna Area, BCCL, Dhanbad during the check period, although he handed over the charge of Office of the G.M. Lodna Area to his

successor Shri A.K. Dutta, but not handed over the charge of physical Coal Stock during check period.â€​

Thereafter, having found prima-facie case against the petitioner, the court took cognizance of offence against the petitioner which is under

challenge. This court finds that the court below has discussed materials which have been collected against the petitioner while passing order taking

cognizance dated 16.01.2016. This court finds that the learned court below has not committed any illegality in referring to the materials which have

been collected and taking cognizance of offence against the petitioner being satisfied that prima facie case is made out against the petitioner. This

court is also of the considered view that merely because the petitioner was not charge sheeted by CBI, same does not prevent the court from taking

cognizance of offence against the petitioner if the court finds materials against the petitioner to constitute a prima facie case.

So far as case of the co-accused, namely, Subir Ghosh is concerned, this court finds that it was specifically recorded that Subir Ghosh was not

responsible for doing anything in the material loading coal stock. Upon this submission, this court also found that Subir Ghosh did not sign in any of the

stock while issuing coal in form H and one of this signatories was successor in office of Sri Subir Ghosh. Accordingly aforesaid judgment passed in

the case of Subir Ghosh is clearly distinguishable from the case of the petitioner, in as much as, the petitioner was posted as General Manger, Lodhna

Area BCCL, Dhanbad and he was very much concerned with the maintenance of the stock of the coal and the copy of form-H relating to the coal

stock of South Tisra OCP, bears the signature of the petitioner. This is apart from other evidences as discussed by the learned court below in the

impugned order. Thus there is enough material against the petitioner to constitute a prima facie criminal case against the petitioner.

Consequently this Court does not find any merit in the present case challenging the entire criminal proceeding including order taking cognizance,

which is hereby dismissed.

Pending I.A., if any, stands dismissed as not pressed.

Interim order, if any, stands vacated.

Let this order be communicated to the court concerned through FAX.