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Cri-WP-3024-3137-12.sxw
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)Respondents
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).. Petitioner
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ALONG WITH
CRIMINAL WRIT PETITION NO. 3137
Shasheel Vasantrao Karade
37 years, Permanently residing at Flat No.206,
Mahadeo Apartment, Pipeline Road,
Ahmednagar 414 111.
vs.
2.
The Deputy Superintendent of Police
Economic Offences Wing, Central
Bureau of Investigation, 3rd floor,
Kitab Mahal, 192,Dr. D.N. Road, Fort,
Mumbai 400 001.
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).. Petitioner
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)Respondents
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B
OF 2012
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Mr. Subhash Jha a/w Ms. Rushita Jain i/.b. M/s. Law Global for the petitioner.
Ms. Rebecca Gonsalves for CBI.
Mr. S.S.Pednekar, APP, for the respondent-State.
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JUDGMENT:.
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the proceedings pending before the Special Court in Special Case No.19 of 2011,
wherein the petitioners are being prosecuted for the offence punishable under
Sections 406, 420 read with Section 120B of Indian Penal Code pursuant to
Crime No.13/E/2009/CBI/EOW/MUMBAI.
2
The petitioners are public servants. They are the officers of Small
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1989 of
3.
Deputy General Manager in SIDBI, whereas the petitioner in Writ Petition No.
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3173 of 2012 was, at the relevant time, working as Manager at Pune Branch
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No.3173 of
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office and was assigned direct business and accounts. The petitioner in W.P.
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therefore one special officer was assigned the work to handle the transactions
relating to Tata Motors Ltd. and the other officer was entrusted with the work in
relation to other corporates other than TML.
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5.
was handled by
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6.
The facts are that one MOU was signed between SIDBI and Tata
Motors Ltd. mutually agreeing with the details of transactions and the amount due
would be furnished by TML and the payment would be sent directly by SIDBI as
per the MOU. The payment was to be sent by cheque to the vendors. No other
mode of remittance was agreed between TML and SIDBI. One of the vendors
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introduced by TML was Ranflex India Pvt.Ltd. situated at Banglore. Tata Motors
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Ltd. had not furnished the bank account details of Ranflex India with Federal
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Bank to SIDBI. TML had never advised SIDBI for remittance of the amount to
RIPL through RTGS. However, the money was transferred through RTGS.
7.
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and was authorised to file the report. It was informed to the police that SIDBI
operates a Scheme know as MSME Receivable Finance Scheme. Large
corporates furnish a list of such MSME vendors who make supplies to it to whom
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the payment is due from them along with the name and address of such vendor,
code numbers and invoice details etc. are furnished. Payment is made by SICBI
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to such vendor directly and such corporate pays the amount due to SIDBI. By
the said scheme, MSME vendors get advantage of timely payment. Tata Motors
Ltd. has been sanctioned a limit under the above Scheme covering its purchasers
from MSME. Tata Motors Ltd. had introduced Ranflex India as one of the
MSME vendor under the arrangement. SIDBI based on intimation received from
TML had made payment to RIPL of Rs.1,51,97,111/- only through various
cheques from 31.3.2009 to 29.4.2009. On 25.5.2009, SIDBI received an e-mail
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message purportedly from Ranflex India giving RTGS details and requesting
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SIDBI for making future payments through RTGS instead of cheque payments.
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made through RTGS by SIDBI in the account mentioned in e-mail with Federal
Bank. The payments were made during the period 27.5.2009 to 4.8.2009.
8.
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payments. RIPL was informed that payment had been made to the account of
RIPL with Federal Bank Ltd. Thiruppurur. The details were received through an
e-mail dated 25.5.2009. SIDBI had contacted Federal Bank telephonically and by
e-mail and informed them about the non-receipt of payments by RIPL. The
Federal Bank informed SIDBI that out of the total amount of Rs.1,64,17,000/-,
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Ltd. Selaiyur, Chennai through RTGS and an amount of Rs. 37,50,000/- has been
withdrawn in cash between 29.5.2009 and 16.7.2009 from Federal Bank. Federal
Bank therefore requested to freeze the account and not allow further withdrawals.
The officials of SIDBI visited the Regional and Branch office of Federal Bank
Ltd. at Chennai and Thirupporur. The officials of Federal Bank informed that
the said Current Account No. 16110200000734 in the name of Ranflex India
Pvt.Ltd. was opened on 24.5.2009 by one S.Babu who was purportedly
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authorized by the Board Resolution. A copy of the Board Resolution was signed
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by M. Anand. The last operation in the said Account took place on 17.7.2009
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and the credit balance available in the said account was Rs. 10,64,000/-. As on
5.8.2009, the balance in the said account was Rs.34,73,193/-. An enquiry was also
made with Axis Bank, Chennai and ICICI Bank, Chennai and it was realized that
huge amounts were being transferred from the account of RIPL with Federal
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Bank to the accounts maintained in the name of Sneha Services and J. Raja
respectively. The officials of Axis Bank informed SIDBI that a current account
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a loss
of equal amount
to SIDBI.
The
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9.
issued to him as he was working as Deputy General Manager at the Bank, Pune
Branch Office.
10.
dated 21.5.2010, had exonerated the petitioner of the charges and advised him
that he must be more pro-active and vigilant in discharging his official duty as a
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senior officer so that the Bank's interest are safeguarded at all times irrespective
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The learned Counsel appearing for the petitioner submits that the Executive
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in the said order. There is a reference to the account of Vaishnair Engineers dated
16.4.2008. It is in respect of the visits to the units under implementation as
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several witnesses, including the statement of the Chief General Manager, S.V.G.
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Nandagopal. He had stated before the police that the payment made through
RTGS to M/s. Ranflex is totally wrong. The reason being SIDBI had to approach
Tata Motors Ltd. for verifying the details of the customs i.e. Ranflex India
Pvt.Ltd. There is clause No.5 in the proposed mechanism for MSME facility in
the agreement. He had further disclosed that the General Manager or any senior
officer had not authorized the petitoner to look after the business affairs of the
branch as the then General manager was transferred to Chennai. He had further
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disclosed that upon receiving the name from Ranflex on 26.5.2009, without
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obtaining the Bank mandate form, Ashoo Tiwari had gone ahead for making
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payment to Ranflex through RTGS. He had further stated that Ashoo Tiwari,
Muthukumar had violated all the norms. The reason is best known to them. The
other responsible officers had also reiterated the statement of the General
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Manager.
13.
The petitioners are the public servants and hence the CBI had
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that there was no adequate evidence in the CBI report to suggest any malafide
intention, involvement, connivance/conspiracy, meeting of the minds or any
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criminal misconduct having been committed by the two officials of SIDBI and
hence sanction was refused. The CBI then challenged the said order refusing
Vigilance Commission.
Commission had taken into consideration the conduct of the petitioner in freezing
the accounts of RIPL with Federal Bank and thus prevented and saved withdrawal
of Rs.34 lakhs lying in their account and hence CVC had concluded that it
supports the case of its non-involvement. The CVC had thus passed an order that
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prima facie charges do not seem to be established against Ashoo Tiwari and
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refusing sanction to prosecute Ashoo Tiwari and Shasheel Karade. Hence, charge
sheet was filed before the Sessions Judge by CBI against the petitioner for the
offence punishable under Section 120B of IPC read with Sections 420, 406, 467,
468 and 471 of IPC and under Section 13(2) read with Section 13(1)(d) of
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14.
227 of Cr.P.C. The main contention of the petitioners was that the Competent
Authority had refused to sanction prosecution after a full-fledged enquiry and,
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therefore, there was no question of prosecuting them for the offence punishable
under the Indian Penal Code. According to the petitioners, there was no iota of
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evidence to warrant framing of charge against them as they had acted in the
bonafide manner.
petitioners to verify the credentials of the e-mails raised from RIPL and,
therefore, they prayed for discharge.
15.
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However, before receipt of the reply, charge-sheet was filed in the Court on
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27.9.2011. In any case, the sanction was refused. The learned Special Court had
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The learned Special Judge has observed that the statements of the
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Section 120B read with Sections 420 and 406 of IPC. Hence, by these Writ
officers of TML clearly indicated that no intimation was given to the officers of
SIDBI, Pune Branch to remit the amount to the vendor by RTGS on the Federal
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Bank, Thiruppurur. The Special Judge has further observed that in the course of
investigation it had transpired that the account was opened by accused No.2
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offence punishable under Section 120B of Indian Penal Code. The petitioners had
claimed benefit of the provisions of Section 45 of SIDBI Act, 1949. However, the
learned Special Judge had rightly observed that regarding criminal conspiracy to
cheat the Bank and to defraud it cannot be treated as an act done in good faith
and, therefore, it refused to grant protection under Sec.45 of the said Act.
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17.
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The learned Counsel appearing for the petitioner submits that the
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petitioner was not directly handing the portfolio related to the scheme/bill section
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and that he had forwarded the e-mail to Shri S. Muthukuamr, the then Manager
handling Bill Section for verifying the correctness of the supplier and correctness
of RTGS details. He had marked the printed copy of the said e-mail to A-5 with
the remark Please check and verify the update. The learned Counsel further
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submits that all the e-mails received from the vendors were marked to S.
Muthukumar. He has narrated the instances to demonstrate the diligence of the
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the ordeal of trial. In the alternative, it is submitted that in the eventuality this
Court comes to a conclusion that the charges restrict the culpability of the
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learned Counsel for the petitioners, the Special Court cannot try the case in
absence of the inability to frame charge under the provisions of Prevention of
Corruption Act. It is specifically submitted that the petitioner has not denied
approving transactions but on the other hand, he had done so in good faith and
without there being any malice. It is urged that the petitioner has not received
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The learned Counsel for the petitioner further submits that at the time
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when the said payments were made in the RTGS, the concept of RTGS was at an
evolutionary stage and there was no formal guideline issued by the Bank on the
provisions of accepting intimation for RTGS transactions and therefore, the
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petitioner had worked in good faith by following the precedents and prevailing
practices in the Bank. According to the learned counsel, the compilation of
charge sheet does not establish any nexus between the petitioners and any other
accused person and therefore, there is no cause to frame charge under Sec. 120B
19.
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has drawn attention of this Court to the statements of the witnesses/officials of the
Bank recorded under Section 161 of the Cr.P.C. She has pointed out Mathew
Harris who was working with Mathew Ibrahim. It was his duty to perform the
daily routine work in TML such as keeping of track for the material, shortage of
related items, collection room, hundies collection, cheque collection and keeping
a track of payment of Ranflex India. Mathew Ibrahim runs the office from his
residence. The wife of Mathew Abraham is handling the work of Ranflex India
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Pvt. Ltd. He had been relegated to Ashoo Tiwari i.e. the present petitioner by ..
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Senior manager (Accounts) TML and he had contacted the petitioner in regard to
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payment of Rs.22 lakhs. According to him, in his presence, the petitioner had
enquired with Muthukumar regarding payment of Rs.22 lakhs to Ranflex and the
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payment. The disputed e-mail was received on 25.5.2009 and the payments were
made during 27.5.2009 to 4.8.2009. On 5.8.2009, Ranflex had informed SIDBI
about on-receipt of these payments and hence there is a link evidence between the
activities of the present petitioners, Mathew Abraham and others. The chargesheet indicates that there was a conspiracy/connivance between Muthukumar,
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He had
resigned from the job soon after the fraud had come to light. The statement of
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respondents further submits that during the same period, SIDBI had followed the
established procedure in respect of M/s. Paracoat vendors of TML. According to
her, there is sufficient material for proving that the petitioners were members of
conspiracy along with co-accused. That they had committed offences such as
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cheating, criminal breach of trust and that they had not acted in good faith. That
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they do not deserve to be discharged and the mens rea has to be proved by
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20.
The learned counsel for petitioner has placed reliance upon the
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judgment of the Hon'ble Apex Court in the case of Vasanti Dubey vs. State of
Madhya Pradesh (2012) SCC 731. The learned counsel has drawn the attention
of this Court to the observations of the Hon'ble Apex Court wherein the Hon'ble
Apex Court had held that the Special Judge could not have directed that sanction
be obtained or order re-investigation and thereafter refused to accept closure
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report. Therefore, the Hon'ble Apex Court had held that the said procedure
adopted by the Special Court was an abuse of process of law. In the present case,
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the Special Judge has neither directed re-investigation nor has caused any doubt
21.
the case of Hardeep Singh vs. State of Madhya Pradesh (2012) 1 SCC 748,
wherein the Apex Court had upheld the judgment of the Division Bench of
Madhya Pradesh High Court thereby upholding the refusal of sanction or to
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enforce that the decision of the said refusal to accord sanction and awarded a
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The learned Counsel has also relied upon the following Judgments
(2)
(3)
Uttam Chand & Ors. vs. Income Tax Officer,Central Circle, Amritsar,
(1982) 2 SCC 543.
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(1)
Goondla Venkateswarlu vs. State of A.P. & Anr. (2008) 9 SCC 613.
(5)
State of Punjab & Anr. vs. Mohammed Iqbal Bhatti (2009) 17 SCC 92.
(6)
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(7)
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(4)
(8)
G.L.Didwania & Anr. vs. Income Tax Officer & Anr. (1995) Supp.(2) SCC
724.
(9)
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(14) Ttchut Mucund Alornekar vs. CBI 2012 BCR (Cri.) 477
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(15) Abdul Wahab Ansari vs. State of Bihar (2008) 8 SCC 500.
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(13) TSK Reddy vs. State of Mah. & Ors. CDJ 2013 BHC 1254.
(16) Lokesh Kr. Jain vs. State of Rajasthan CDJ 2013 SC 583.
Upon perusal of the citations relied upon by the learned Counsel for the
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petitioners, this Court has observed that on facts, the material before the Court in
the said cases was different from the material brought about by the prosecuting
agency in the present case. The decisions in the said cases have no relevance to
the case in hand and therefore are not being considered.
The learned counsel for the respondent has placed reliance upon the
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Judgment of the Hon'ble Apex Court in the case of Prakash Singh Badal and
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another vs. State of Punjab & Ors. (2007) 1 SCC. However, in the said case,
the Hon'ble Apex Court had held that since the accused had ceased to be a public
servant
and had ceased to hold the office where the alleged offence was
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case of In Bholu Ram vs. State of Punjab & Another reported in (2008) 9
SCC 140.
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Code.
submissions of the learned Counsel, this Court is of the opinion that the act of the
petitioners in transferring the amount by RTGS without there being proper
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them from the alleged offence punishable under Sections 406 and 420 of IPC.
The amount that is involved is Rs.1,64,17,551/-. The prosecution need to be
given an opportunity to lead evidence to establish the guilt of the accused. In the
eventuality that the prosecution fails to meet the charges, the accused would be
acquitted. However, the prosecution of the petitioners cannot be said to be an
abuse of process of law. The reason assigned by the learned Special Judge for
proceeding to frame charge under Sections 406, 420 and 120B do not call for any
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interference.
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accused had committed offence punishable under Sections 406 and 420 of IPC.
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The details of the payment transactions approved in the bills finance system
software owned by RIPL indicate that it was Ashoo Tiwari who forwarded the e-
mail to IDBI Bank Ltd. and the name of the maker of payment is shown as
Sasheel Karade in the transactors dated 7.7.2009, 21.7.2009, 29.7.2009 and
Hence connivance
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between the officers/accused who made the said payments is writ large on the
24.
The learned Counsel for the petitioners submits that since the Central
Vigilance Commission had exonerated the petitioners of all the charges, there is
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no reason why they should be proceeded for the offence punishable under the
Indian Penal Code. The CVC Report has observed as follows :it is transpired that the fraud has been perpetrated by Shri
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Muthukumar who was the officer of SIDBI at that time and entered
into conspiracy with various other people including his relatives.
Shri Tiwari and Shri Karade seem to have fallen for this
machinations by their acts of relying upon the verification report
submitted by Shri Muthukumar. They seem to be victims of his
fraud. Moreover, having friendly relations between employees of the
same Branch and having minor financial relationship like lending
and borrowing money in case of urgent needs, which in this case is
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that the money has come out of the amount cheated by Shri
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Shri Karade has benefited from Shri Muthukumar. The CVC ought not to have
observed that they are the victims of conspiracy specially when the CVC has
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observed that Muthukumar had entered into conspiracy with various other
people. The petitioners would fall into the category of various other people and
therefore they ought to be tried for the offence punishable under the Indian Penal
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Code specially for the offence punishable under Section 420 of IPC.
26.
is that the petitioners ought not to be tried by the Special Court since the offences
alleged against the present petitioners are the offences triable by the Court of
Magistrate. It is pertinent to note that the petitioners cannot be tried in isolation.
They are being tried with other co-accused/conspirators, who are not exonerated
under the Prevention of Corruption Act. The charge-sheet filed by the Deputy
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The
LearnedCounselforthePetitionersubmitsthattheveryfact
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that the appointing authority has exonerated the petitioners of all the
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offences and have only held that it could be negligence as far as the
Petitioner had believed Muthukumar. It is sufficient to infer that the
present Petitioner cannot be held liable for offence punishable under
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Section420,406etc.ofI.P.C.Itisfurthersubmittedthatthereisnothing
onrecordtoindicatethatthePetitionerAshukumarhadpersonallygained
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that his intention was dishonest at the time of making the promise. Such a
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dishonest intention cannot be inferred from the mere fact that the accused had
transaction had come to light, the petitioner is said to have taken abundant
caution to prevent further loss to SIDBI. This subsequent act by itself cannot be
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considered to infer that he had no dishonst intention at the time when the
fraudulent transaction had taken place or that he had wrongful gain which could
not be detected. It cannot be ignored that even if there is nothing to indicate that
there was no wrongful gain to the petitioner Ashokkumar, there was definitely
29.
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In the present case, the petitioners need to necessarily face the trial as
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30.
Corporation Pvt.Ltd. & Ors. reported in AIR 1996 SC 1100, the Hon'ble
Apex Court has held that mens rea is a state of mind. Under the criminal law,
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mens rea is considered as a guilty intention and unless it is found that the
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accused had the guilty intention to commit the crime. He cannot be held guilty
31.
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In view of this, the onus to prove that the accused had a guilty
intention at the time when the fraudulent transaction had taken place, lies
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opportunity to lead evidence to approve that the accused had the guilty mind
and therefore there was wrongful loss to SIDBI.
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32.
Pharma Pvt.Ltd. vs. Bioligical E Ltd. & Ors. AIR 2000 SC 1869 has held
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that mens rea is one of the essential ingredients of the offence of cheating. At
present, the CBI has adequate material against the present petitioners which
would enable the Court to frame charge against the petitioners for the offences
punishable under Sections 420 and 406 of IPC.
33.
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the time of trial cannot be ruled out. Under Section 14 of the Evidence Act,
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facts showing existence of state of mind are relevant. It is true that there
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relevant.
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34.
agreement with TML, the money could be sent through RTGS to Ramflex, the
absence of which is also not mandatory and that there is no question of
deliberately violating the rules.
contemplates when there is a question whether a particular act was done, the
existence of any course of business, according to which it naturally would have
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35.
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In view of the above observations, on the merits of the matter, this Court
is not inclined to quash the proceedings against the present petitioners for the
offences punishable under Section 120-B read with Sections 420, 406, 467,
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468 and 471 of IPC. The present petitioners have been discharged under the
Prevention of Corruption Act for want of sanction.
present petitioners, rest of the ten accused are all private persons and are not
public servants. S.Muthukumar is a public servant. He is absconding. His trial
be separated from the present petitioners and the other accused. Hence, the
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present petitioners can be tried by the Court of Judicial Magistrate, First Class
since all the rest of the offences for which they are charge-sheeted are triable
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(i)
ORDER
The prayer for quashing the proceedings concerning Special Case
No.19/2011 from the Court of the Learned Special Judge, CBI
(ACB), Pune, is hereby rejected.
(ii)
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(iii)
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with law.
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(iv)
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