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2019 (3) TMI 2015 - HC - Indian LawsCriminal Conspiracy - distribution of coal to the consumers as per the agreement terms and conditions or not - case of petitioner is that petitioner has played no role in carrying out the obligations under the said agreement as the marketing agent of the OCCF in the direction of commission of offence as alleged and, therefore, issuance of process against the petitioner in the criminal proceeding for the offences is illegal. HELD THAT - The duties and responsibilities of the petitioner as such find mention at Clause-2 of the terms of reference, a document which has been relied upon by the prosecution to fasten the criminal liability upon the petitioner. It is pertinent to mention here that the OCCF had entered into an agreement called Fuel Supply Agreement with M/s. MCL in furtherance of that New Coal Distribution Policy of Government of India as has been earlier referred to. The marketing agent is to function under the authority and management of the OCCF. The terms and reference make it obligatory on the part of the marketing agent to take necessary step to obtain trading licence for the OCCF for sale of coal, ex-colliery against 'G' Form and submit the list of MSMEs in whose favour bills and 'G Forms would be issued from the ex-colliery of MCL - There stands no such allegation that the petitioner, acting on behalf of the marketing agent as engaged by the OCCF, has done any such manipulation in the list of MSMEs or to have made any such departure by bringing in any new MSME or reading a new MSME into the list so supplied, as also on any such other aspect as to the quantity of coal allowed to be lifted and supplied and etc. There is no allegation or material on record to the effect that the coal has not been physically lifted by the MSMEs and it is not stated that this petitioner misappropriated the coal from that MCL for illegal use or distribution or sale at his end or that he himself directly did anything for that purpose by creating any false documents and putting those on record. It is also not the prosecution case that the petitioner himself used any document as genuine knowingly and having reason to believe the same to be forged. The very list of MSMEs forming the basis of supply of coal at the final round of the exercise is being said to have been made knowing fully well that those MSMEs were non-existent or non-functional or we may say having no such requirement of coal But in that, this petitioner appears to have nothing to do. The prosecution case is that the persons associated in the process at the commencement point of the process of distribution of coal by preparing the list of MSMEs and all other accused persons including the petitioner have conspired amongst themselves and have committed the offence and as such are liable. In so far as this petitioner is concerned, the case against him is conspiracy under section 120-B IPC and it is said that this petitioner finally facilitated the process of supply of coal to those listed MSMEs, which are non-existent. The prosecution has not specially come up with the stand as to which of the MSMEs are not there in the place so as to say that those are non-existent and as such the supply is fake or which in terms of the guidelines are not eligible. The prosecution case against the petitioner is that he entered into a criminal conspiracy with others in finally distributing coal to the non-existent or non-functional MSMEs as given in the list prepared by the persons other than the petitioner as required under the policy. Once the persons preparing the list are kept out of the arena of the case to face trial for offence in relation to conspiracy as also all other offences, the petitioner cannot be proceeded with for the conspiracy. Moreover, in the absence of the persons preparing the list of MSMEs where the petitioner has no role and that very list of those MSMEs which were said to be non-existent or non-functional having no requirement of user of coal and it is said that such distribution was thus to make gain by selling in open market at higher price which has been done, in the trial no such fault can be found with those two personnel of the DIC as to have prepared the bogus list of MSMEs. In view of that issuance of process against the petitioner to face the criminal proceeding for entering into conspiracy with them, who are said to have been involved at the very source and are not within the arena of the case, is not sustainable. Application allowed.
Issues Involved:
1. Legality of the issuance of process against the petitioner. 2. Role of the petitioner in the alleged offences. 3. Impact of quashing the process against other officials on the petitioner's case. 4. Examination of the petitioner's duties and responsibilities as a marketing agent. 5. Compliance with the New Coal Distribution Policy and Orissa Coal Distribution Policy. Issue-wise Detailed Analysis: 1. Legality of the Issuance of Process Against the Petitioner: The petitioner challenged the legality of the order dated 19.8.2017 by the Special Judge (Vigilance), Cuttack, which took cognizance of offences under the Prevention of Corruption Act (PC Act) and the Indian Penal Code (IPC) and issued process against several accused, including the petitioner. The petitioner argued that the issuance of process against him was illegal as he played no role in the alleged offences. 2. Role of the Petitioner in the Alleged Offences: The petitioner contended that he had no involvement in the selection of MSMEs eligible for coal distribution and acted solely as a marketing agent for the Orissa Consumer Cooperative Federation Limited (OCCF), following the directions of the District Industry Centre (DIC) and OCCF. The court noted that the petitioner’s duties involved facilitating the distribution of coal at the ex-colliery point based on the list provided by DIC and OCCF, without any role in preparing the list of MSMEs or manipulating it. 3. Impact of Quashing the Process Against Other Officials on the Petitioner's Case: The court observed that the process against two DIC officials involved in preparing the list of MSMEs was quashed by the High Court in Criminal Revision No. 907 of 2017 and 364 of 2018 due to lack of sanction for prosecution. Since these officials, who were pivotal in identifying and recommending MSMEs, were not facing trial, the petitioner, who acted based on their recommendations, could not be held liable for conspiracy or other offences. 4. Examination of the Petitioner's Duties and Responsibilities as a Marketing Agent: The court examined the petitioner’s responsibilities as outlined in the agreement with OCCF, which included obtaining a trading license, submitting the list of MSMEs, and facilitating the coal distribution at the ex-colliery point. The court found no evidence that the petitioner manipulated the list of MSMEs or engaged in illegal activities beyond his contractual obligations. 5. Compliance with the New Coal Distribution Policy and Orissa Coal Distribution Policy: The court reviewed the procedures under the New Coal Distribution Policy and Orissa Coal Distribution Policy, highlighting the roles of DIC officials in identifying and recommending MSMEs. The petitioner’s role was limited to facilitating the distribution based on these recommendations. The court noted that the prosecution failed to establish that the petitioner was aware of any non-existent MSMEs or engaged in any fraudulent activities. Conclusion: The court concluded that the petitioner could not be held liable for conspiracy or other offences as the primary officials responsible for identifying and recommending MSMEs were not facing trial. The issuance of process against the petitioner was deemed unsustainable, and the order dated 19.8.2017 by the Special Judge (Vigilance), Cuttack, was quashed in relation to the petitioner.
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