9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (6) TMI 1351 - SC - Indian LawsCriminal conspiracy to cheat BHEL in the matter of award of contract for the construction of desalination plants - Conviction of accused - Section 197 of the Code - correctness of the procedure adopted while granting pardon Under Section 306 of the Code - culpability of each of the Appellants. Revolving around Section 197 of the Code - HELD THAT - It must be remembered that in this particular case the FIR actually implicated only four persons namely PW-16 A-3 A-4 an A-5. A-1 was not implicated in the FIR. It was only after a confession statement was made by PW-16 in the year 1998 that A-1 was roped in. The allegations against A-1 were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting A-3 and A-4 twice on the ground that the decisions taken were in the realm of commercial wisdom of the Company. If according to the Management of the Company the very same act of the co-conspirators fell in the realm of commercial wisdom it is inconceivable that the act of A-1 as part of the criminal conspiracy fell outside the discharge of his public duty so as to disentitle him for protection Under Section 197(1) of the Code - the contention advanced on behalf of A-1 is upheld that the prosecution ought to have taken previous sanction in terms of Section 197(1) of the Code for prosecuting A-1 for the offences under the Indian Penal Code. Revolving around grant of pardon - HELD THAT - The approver was examined as PW-16 during trial and he was cross examined on the contents of the confession statement. The Magistrate who recorded the confession was examined as PW 17 and the Additional Chief Judicial Magistrate who granted pardon was examined as PW-18. The proceedings before the XVIII Metropolitan Magistrate the petition Under Section 306 of the Code and the proceedings on tender of pardon were marked respectively as EXX. P-50 51 and 52. All the Accused were given opportunity to cross examine these witnesses both on the procedure and on the contents - there was no violation of the procedure prescribed by Section 306(4)(a) of the Code. Revolving around the merits of the case qua culpability of each of the Appellants - HELD THAT - A-1 was found guilty of an offence Under Section 193. Section 193 applies only to false evidence given in any stage of a judicial proceeding or the fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding. The allegation against A-1 was not even remotely linked to any of the Explanations Under Section 193 of the Indian Penal Code. Therefore the judgment of the Trial Court and that of the High Court convicting A-1 for the aforesaid offences and sentencing him to imprisonment of varying terms and fines of different amounts are liable to be reversed. A-4 had no role in choosing the tenderers but entered the picture only after the offers were received from the tenderers. Admittedly A-4 was subordinate to both PW-16 and A-3 - Thus the competent authority refused to grant sanction to prosecute A-3 and A-4 for the offences under the PC Act. The Trial Court and the High Court did not find A-4 as a co-conspirator which is why he was not held guilty of the offence Under Section 120-B Indian Penal Code. Section 193 Indian Penal Code had been included completely out of context - the conviction of A-4 by the Trial Court as confirmed by the High Court is wholly unsustainable and is liable to be set aside. The finding recorded by the Trial Court and the High Court as though A-7 committed forgery and cheating by making applications for the issue of demand drafts in the names of bogus firms is wholly unsustainable - only connecting link pointed out against A-7 was the transfer of money to the total extent of Rs. 1, 52, 50, 000/- to the account of a firm of which he was a partner. This by itself will not constitute any offence. Therefore the charge that A-7 abetted the commission of the crime by the other Accused should also fail. This is especially so when A-5 whose proprietary concern bagged the contract not only lost the contract but also allowed the bank guarantee to be invoked by BHEL and in addition left a huge amount of Rs. 2.60 crores still with BHEL. Therefore the conviction and sentence awarded to A-7 cannot be sustained. The judgment of the Special Court for CBI cases convicting the Appellants for various offences and the judgment of the High Court confirming the same are set aside - Appellants are acquitted of all the charges - Appeal allowed.
Issues Involved:
1. Whether the prosecution of A-1 was vitiated due to the absence of previous sanction under Section 197 of the Code. 2. Whether the procedure for granting pardon to the approver was correctly followed. 3. Whether the evidence against A-1, A-4, and A-7 was sufficient to prove their guilt beyond a reasonable doubt. Issue 1: Previous Sanction Under Section 197 of the Code The Supreme Court held that A-1, being a public servant, required previous sanction under Section 197(1) of the Code for prosecution. The Court noted that A-1's actions, even if alleged to be in pursuance of a conspiracy, were taken in the discharge of his official duties, making the case fall within the parameters of Section 197(1). The failure to obtain such sanction vitiated the proceedings against A-1. The Court emphasized that no public servant is appointed with a mandate to commit an offense, and the requirement of previous sanction is not redundant. Issue 2: Procedure for Granting Pardon The Court found that the procedure for granting pardon to the approver (PW-16) was correctly followed. The Court noted that the Special Court has the power to take cognizance directly and tender pardon under Section 5(2) of the Prevention of Corruption Act, 1988. The Court held that the object of examining an approver twice is to ensure that the accused is aware of the evidence against him and can effectively cross-examine the approver during the trial. In this case, the confession statement of the approver was enclosed to the charge sheet, and the approver was cross-examined during the trial, fulfilling the object of the procedure. Issue 3: Sufficiency of Evidence Against A-1, A-4, and A-7 A-1: The Court found that the evidence of PW-16, the star witness, was not credible. PW-16's admissions during cross-examination showed that he was shifting the burden to A-1 to save himself. The Court noted that the prosecution failed to establish that BHEL suffered a wrongful loss or that A-5 or any other firm had a wrongful gain. The evidence showed that BHEL had not lost any money and that A-5 was owed money by BHEL. The Court concluded that the conviction of A-1 for the offenses under the IPC and the PC Act could not be sustained. A-4: The Court found that A-4 had no role in choosing the tenderers and entered the picture only after the offers were received. The competent authority had refused to grant sanction to prosecute A-4 for the offenses under the PC Act. The Court noted that the Trial Court and the High Court had wrongly convicted A-4 for the offense under Section 193 IPC without any specific allegation or finding. The Court held that the conviction of A-4 was wholly unsustainable. A-7: The Court found that the prosecution failed to establish that A-7 applied for demand drafts on behalf of bogus firms. The bank officials and the handwriting expert did not implicate A-7. The High Court's comparison of signatures under Section 73 of the Evidence Act was not based on admitted or proved signatures. The Court concluded that the conviction of A-7 for forgery and cheating was unsustainable. Conclusion: The Supreme Court allowed the appeals, set aside the judgments of the Special Court and the High Court, and acquitted the appellants of all charges. The bail bonds, if any, furnished by them were discharged.
|
