Vivek Kathal and Others vs Delhi Special Police Establishment (CBI)

Narain Singh ''Azad'', J.

This common order shall dispose of M.Cr.C. No. 464/03, filed on behalf of Vivek Kathal, Bhagat Ram Agrawal, Subhash Chand Bansal and Basant Kumar Jain, M.Cr.C. No. 1438/03, filed on behalf of Pradeep Kumar Mittal and Manish Kumar Jain, so also M.Cr.C No. 2010/03, filed on behalf of Umesh Bahadur Singh, against the common respondent, seeking the relief of quashment of order of taking cognizance of offences against them, in Criminal Case No. 2/2001, pending in the Court of Special Magistrate (CBI), Jabalpur, and the entire proceedings of aforesaid criminal case, which pertains to offences punishable u/s 420, 468 and 471 of the Indian Penal Code, in exercise of inherent powers.

This is not being disputed that during the year 1999, Vivek Kathal was functioning as partner of Anju Fuels, Bhagatram Agrawal was functioning as Managing Partner of Ma Sharda Coal Manufacturing Co. Pvt. Ltd., Umesh Bahadur Singh was functioning as Proprietor of M/s Gaurav Fuels, Subhash Bansal was functioning as Director of M/s Vandana Fuels Pvt. Ltd., Pradeep Kumar Mittal was functioning as Partner of M/s Sanjay Fuels, Manish Kumar Jain was functioning as Proprietor of M/s Appollo Coal Briquettes and Basant Kumar Jain was functioning as Managing Director of M/s Pawan Wires Pvt. Ltd. All these Units were registered with District Industries Centre, Panna, and were having coal linkages from Coal India Ltd. Ma Sharda Coal Manufacturing Company Pvt. Ltd., so also M/s Pawan Wires Pvt. Ltd., were registered for manufacturing Special Smokeless Fuel (S.S.F.) and rest of the Units were registered for manufacturing Coal Briquettes.

According to the prosecution, during the year 1999, the above 7 Units lifted the coal from South Eastern Coalfields Ltd., (SECL), as per recommendations of D.I.C. Panna, and linkage of Coal India Ltd., but did not use the coal so received for manufacturing of briquettes and SSF but sold it in black market and accordingly made bogus entries in their books for showing the utilisation of the coal received, for production of coal briquettes and SSF. Bogus entries were in books of these Units, made for showing manufacture and sale of S.S.F. so also coal briquettes, and thus the petitioners are alleged to have cheated both the Coal India Ltd., and D.I.C. The photocopy of charge sheet is marked Annex. 1, in M.Cr.C No. 464/03.

It is submitted on behalf of the petitioners that as per F.I.R., Criminal Case No. 2/2001, which stood registered as RC No. 17(A)/99/CBI/JBR, on 25-10-1999, and the photocopy of which is marked as Annex, P/2, initially, the offences punishable u/s 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988, stood registered against A.L. Bhattacharya, Officer Incharge, Burhar Railway Siding, Suhagpur Area, SECL, Shahdol, Ajay Tyagi, Officer Incharge Amlai Railway Siding, Suhagpur Area, SECL, Shahdol, Gopal Logun, Weigh-Bridge Clerk, S.E. Railway, Burhar Railway Siding, SECL, Shahdol, and Farid-ul-Haq, Weigh-Bridge Clerk, SECL, Amlai Railway Siding, Shahdol, also along with all these seven petitioners but since the Railway authorities did not accord sanction of prosecution against all the aforesaid four Railway employees, who may be said to be the main accused, by way of scapegoat arrangements, these petitioners are being prosecuted. It is further submitted on behalf of the petitioners that there is not an iota of evidence to prove the fact of sale of coal by any of these petitioners or to prove the fact that the coal is diverted for any other purpose. The great stress is laid on this argument that in an inquiry conducted by General Manager, D.I.C., Panna, a finding is returned against the case of the prosecution. (Photocopy of this report is marked on pages 166, 167 and 178) and in another enquiry conducted by SDO Pavai, Distt. Panna, all the Units, except two, in respect of which information about closure had already been sent to D.I.C. Panna, were found in working condition. (Photocopy of this report is marked as page No. 185).

Now, it would be useful to examine and consider the legal position on the point of quashment of prosecution at the initial stage, in exercise of inherent powers. As repeatedly explained by their Lordships in Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, , State of M.P. Vs. Harsh Gupta, , and M/s. Medchl Chemicals and Pharma P. Ltd. Vs. M/s. Biological E. Ltd. and Others, , it is the settled position of law that at the initial stage, if the prosecution is sought to be quashed, the Court has to apply this test that whether the uncontroverted allegations, as made, prima-facie establish the offence.

Then, in proceedings u/s 482 of the Criminal Procedure Code, this Court is not required to examine the defence in detail and record a finding of not guilty, as explained by this court in State of M.P. vs. Harsh Gupta (supra), but the Court has to consider whether the complaint and the documents filed along with complaint discloses any or all of the offences, alleged against the petitioners. Further it is laid down by this Court in Anjum @ Baby vs. Iqbal Hasan, reported in 1999(1) MPJR SN 40, that no evidence can be taken in a proceeding u/s 482 of the Criminal Procedure Code, nor the photocopy being inadmissible in evidence, can be admitted. It is also explained by this Court in aforesaid case that the proceeding in section 482 of the Criminal Procedure Code are not to be heard as appeal or revision and if lower Court has considered the material on record, no interference is called for, therefore, the defence of the petitioners, as found contained in aforesaid two inquiry reports (conducted by General Manager, D.I.C. Panna and S.D.O. Pavai, Distt. Panna), are not to be taken into account at this stage.

As per uncontroverted position contained in the papers filed by the prosecution, specially the Police statements of Shivgopal, Manoj Kumar Bansal, Akhilesh Mishra, Ramesh Chandra Jain, Kedar Prasad Saravgi, Rameshprasad Saravgi, Pramod Kumar Jain, Rajkumar Savlani and Subhodh Sharma, the petitioners did not utilise the coal received by them from Coal India Ltd., in the year 1999, for the purposes for which it was recommended to be given to them by D.I.C. i.e. for manufacturing coal briquettes and S.S.F. instead sold the same directly for dishonestly earning the profits by playing a fraud and thus, they have cheated the Coal India Ltd., so also D.I.C. and for furthering this intention, they have made bogus entries in their books showing utilisation of coal in manufacturing of coal briquettes and SSF and then sale of finished goods.

It is lastly argued on behalf of the petitioners that all the 7 petitioners having different entities, cannot be prosecuted together in one case in respect of various transactions which are not common between them. But this ground is not taken in this petition and the learned Special Magistrate (CBI) Jabalpur, has already framed charges against all these petitioners on 26-2-2003, for offences punishable under sections 420, 468 and 471 of the Indian Penal Code, therefore, the petitioners are at liberty to take up this ground in appropriate proceedings.

Thus, I do not find any substance in these petitions in the absence of any illegality or exceptional circumstance necessitating exercise of inherent powers and hence these petitions are disallowed and rejected.