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2015 (11) TMI 1862 - HC - Indian Lawspossession of disproportionate assets - allegations that accused Ramesh Nambiar while posted and functioning as AGM (Sport), Air India at New Delhi and other places, being a public servant, amassed assets - value of assets were disproportionate to his known sources of income or not - framing of charges - HELD THAT - It is settled law that the property in the name of income tax assessee cannot be a ground to hold that it actually belongs to such assessee. However, the Court would interfere only if uncontroverted allegations on their face value show that no evidence is on record to make out the case and there is an abuse of the process of the Court. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. The CBI failed to bring evidence on record to show that petitioner Bhojraj Teli had ever got any favour from accused Ramesh Nambiar, i.e., husband of petitioner Rekha Nambiar or that said accused was instrumental in awarding any contract to petitioner Bhojraj Teli from Railways during 1995-1996 or that any payment was made to M/s Archana Traders Pvt. Ltd. by petitioner Bhojraj Teli. However, the learned Trial Court while passing the order on charge recorded that in the absence of any record relating to consultancy, at this stage of charge, these entries have to be rejected and the entire such income is to be taken into account to see the extent of disproportion. The genuineness of the entries as submitted by the accused persons has to be established during trial only and no benefit of the same can be given to the accused at the stage of charge - The learned Trial Court has only considered the salary received from Deutsche Bank by petitioner Rekha Nambiar while calculating the disproportionate assets, however, ignored the consultancy fee, credit card used and travel expenses, which were duly intimated to the Income Tax Authority in ITRs. It shows that the learned Trial Court has ignored each and every aspect which is in favour of the petitioners and was on record. However, the learned Trial Court framed the charges only on the ground that petitioner Rekha Nambiar was not authorized to undertake any such consultancy work during the currency of her employment with Deutsche Bank without prior written approval of her employer. Thus, the very basis of alleging abetment was that husband of petitioner Rekha Nambiar had been earning substantial commission in connivance with various Industrialists and in this process had obtained unlawful commission through petitioner Bhojraj Teli in the name of consultancy fees for his wife and routed the same through a company under the name and style of M/s. Archana Traders Pvt. Ltd. . However, while filing the final report, CBI could not establish the complicity of M/s. Archana Traders Pvt. Ltd. - once the very basis and genesis of the allegation stood disappeared, then could still the petitioners be prosecuted, is a question to be considered. It is settled law that before framing the charge, the court must have some material on the basis of which it can come to the conclusion that there is a prima facie case against the accused. Before framing a charge, the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. The charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exists some materials. Therefore, suspicion cannot alone, without anything more, it is trite, form the basis or held to be sufficient for framing charge. The petitioners have been charged with offence punishable under Section 109 IPC read with Sections 13(1)(e) and 13(2) PC Act - The CBI itself recorded in the charge sheet that accused No.1 was posted as Private Secretary to the then Minister of State for Railways during September, 1995 to March, 1996 and the petitioner Bhojraj Teli used to receive orders for supply of machines from various Railway Zones from 1981 onwards. Hence, as per the case of the prosecution, there is no nexus between the said petitioner and accused No.1, and therefore, there was no occasion for the commission of any of the alleged offences. There is evidence on record to establish that money paid by the M/s HYT Group of Companies to petitioner Rekha Nambiar has been duly shown in the books of accounts and in the ITRs of the respective years. Moreover, petitioner Rekha Nambiar had also disclosed the income received from M/s HYT Group of Companies in her ITRs, however the learned Trial Court has ignored both the documents mentioned above and opined that these documents are matter of trial - It is true that the evidence in possession of the accused will be considered at the time of trial, however, the fact remains in the instant case is that documents taken into possession by the CBI establish that both the petitioners had declared the payments made and received in their ITRs and if any misconduct towards the employer has been committed by petitioner Rekha Nambiar, she can be liable for the departmental action, however cannot be booked in this case. It is not the case of the CBI that petitioner Rekha Nambiar has acquired the assets more than her known sources. Her sources are very much known; each and every document was recovered by the CBI, however that has been ignored. Therefore, in the present case, everything cannot be left for trial. The order on charge dated 01.05.2014 and charge dated 26.05.2014 have been passed by the learned Trial Court without application of mind by ignoring the clinching evidence available on record in favour of the petitioners - petition allowed.
Issues Involved:
1. Validity of charges framed against the petitioners under Section 482 of the Cr.P.C. 2. Allegations of disproportionate assets under Sections 13(1)(e) and 13(2) of the PC Act. 3. Allegations of abetment under Section 109 IPC. 4. Evaluation of the evidence and material on record. 5. Applicability of legal precedents and principles in framing charges. Issue-wise Detailed Analysis: 1. Validity of Charges Framed Against the Petitioners: The petitioners challenged the orders dated 01.05.2014 and 26.05.2014, framing charges against them. The court decided to dispose of both petitions through a common judgment due to their arising from the same order. 2. Allegations of Disproportionate Assets: The case was initiated on 22.02.2010 against accused No.1, Ramesh Nambiar, for allegedly amassing disproportionate assets worth Rs.2,39,21,165/- during his tenure at Air India. The investigation revealed that the total income of Ramesh Nambiar and his family was Rs.1,67,03,318.37/-. The CBI alleged that petitioner Rekha Nambiar received Rs.1,04,07,829/- as consultancy fees from petitioner Bhojraj Teli without rendering any real consultancy work, thereby aiding Ramesh Nambiar in acquiring disproportionate assets. 3. Allegations of Abetment: The chargesheet included allegations under Section 109 IPC read with Sections 13(1)(e) and 13(2) of the PC Act against Rekha Nambiar and Bhojraj Teli. The CBI claimed that Bhojraj Teli abetted the offence by paying consultancy fees to Rekha Nambiar without justification and allowing the use of his credit card by Ramesh Nambiar. 4. Evaluation of Evidence and Material on Record: The trial court's decision to frame charges was based on the absence of records relating to consultancy work. However, the court ignored several crucial pieces of evidence: - The MoU dated 04.06.2006, indicating Rekha Nambiar's 20% contribution to M/s HYT Innovative Projects Ltd. - Statements from witnesses and income tax returns showing declared income. - The CBI's failure to establish any direct or indirect investment by Ramesh Nambiar in M/s Archana Traders Pvt. Ltd. 5. Applicability of Legal Precedents and Principles: The court referred to several legal precedents, emphasizing that at the stage of framing charges, there must be some material indicating a prima facie case. It highlighted that suspicion alone is insufficient for framing charges. The court also noted that the CBI could not establish the involvement of M/s Archana Traders Pvt. Ltd., which was central to the allegations of abetment. Conclusion: The court concluded that the trial court's decision to frame charges was without proper application of mind and ignored crucial evidence favoring the petitioners. It quashed the orders dated 01.05.2014 and 26.05.2014, as well as the FIR and all proceedings emanating therefrom, thus allowing the petitions with no order as to costs.
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