9911796707
TMI Blog2019 (3) TMI 2015X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondents : Sangram Das, Standing Counsel. JUDGMENT D. Dash, J. 1. The petitioner, by filing this revision, has prayed for examination of the legality and propriety of an order dated 19.8.2017 passed by the learned Special Judge (Vigilance), Cuttack in T.R. No. 35 of 2017. 2. By the impugned order, the court below, upon receiving the charge-sheet placing several accused persons including the petitioner named therein for trial for commission of offence under section 13(2) read with section 13(i)(d) of the Prevention of Corruption Act (for short hereinafter 'the PC Act') and section 420/468/471/120-B of the Indian Penal Code (in short, 'the IPC), has taken cognizance of those offences and issued process against all to face that proceeding. Under the said order, the trial court had also issued process against two more persons, for whom there was no sanction by the Government and competent authority as required under section 19 of the PC Act, to face the criminal proceeding for offence under section 420/468/471/120-B of the IPC. Those two persons who were issued with the process by the above order, are now no more within the arena of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this court passed in CRLREV No. 907 of 2017 and 364 of 2018, which have not been further challenged, the petitioner cannot be proceeded in the case as he had only carried out the orders in discharge of the duty entrusted to him under the agreement when there stands no such material to show that he himself carried the coal and sold the same in open market. 6. The allegations constituting offences and as to the role of the petitioner and others, find mention at page 6 and 7 of the charge-sheet. For better appreciation, it is felt necessary to reproduce the same: During investigation and as per the guidelines of new coal policy, it came to light that the coal consuming MSME unit whose annual consumption is less than 4200 MT are eligible to get coal through State Nodal Agency. The said MSME unit has to first registered his registration in D.I.C. (District Industry Centre) either E.M-I or E.M-II (Entrepreneurs Memorandum). The eligibility of supply and distribution of coal under this policy is that MSME unit has to apply the requirement of coal for his unit and in recommendation of coal has been made by the concerned D.I.C. on the following basis:- The General Manage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Asok Mohanty, learned Senior Counsel for the petitioner submitted that even accepting the allegations, as laid, the petitioner has been unnecessarily arraigned in the case when he has no role in selecting the MSMEs eligible to get the benefit under the Coal Distribution Policy and in the preparation of the list of MSMEs which is said to be bogus. He further submitted that the role of the petitioner, as an marketing agent, in the matter of distribution of coal in favour of MSMEs is based on the recommendation of the DIC and order of the OCCF, the nodal agency. The lifting of coal by MSMEs is done by their own conveyance and the marketing agent is simply to hand over the coal at the ex-colliery point as per the, delivery order and form-G under intimation of DIC in acting as a facilitator. He, therefore, submitted that when the petitioner has no role in selecting the MSMEs after identifying those and has acted strictly in terms of the orders of the nodal agency, in terms of the agreement and in consonance with the direction of the DIC, he cannot be said to be having any involvement in commission of those offences. It was further submitted that when the persons associated with the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the New Coal Distribution Policy formulated by the Government of India on 18.10.2007 are that:- the State Nodal Agency (here is OCCF) will distribute coal to the MSMEs on the recommendation of the General Manager/Project Manager of the DICs (here we are concerned with General Manager) and the distribution to any other MSMEs not so reflected in the list, as above, is impermissible. It is the responsibility of the General Manager of DIC for proactive identification of coal consuming MSMEs having valid Permanent (PMT)/Entrepreneur Memorandum-II (EM- II) and for realistic assessment of other equipment and utilization of coal by the MSMEs. The MSMEs not having the PMT/EM-II, but having obtained the Provisional Registration Certificate (PRC)/Entrepreneur Memorandum Part-I (EM-I) upon being inspected and those units if would be so found to be in existence and running, may be recommended for quantity of coal as per the requirement as would be assessed. The General Manager/Project Manager of the DIC accompanied by an officer of Micro, Small and Medium Enterprises Development Institution (MSMEDI)/National Small Industries Corporation (NSIC) etc. dealing with the MSMEs has th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... colliery point-coming in contact with the MCL personnel in place for the purpose and to handover the Road Delivery Order and Form-'G' followed by the intimation of the DIC. 14. The prosecution case is that those five units recommended by the DIC for supply of the coal, vide their letters dated 4.11.2008, 13.1.2009 and 28.2.2009 are non-existent. Almost all the letters however provide that the concerned units had applied to the DIC for allotment of appropriate graded coal in their favour for own consumption giving all the required details and thus being verified as required under the prescribed policy, the concerned Project Manager of the OCCF has been given with the recommendation in taking action for onward supply of the coal. The MSMEs thereafter have deposited the cost of the coal directly with the OCCF as also the money towards the value of the coal. Thereafter, the delivery of the coal has been made with the facilitations made by the petitioner in terms of the agreement as such and that being informed, the OCCF has communicated about the delivery by letters dated 16.1.2009, 11.2.2009, 28.2.2009,6.5.2009, 4.6.2009, 15.7.2009 and 10.8.2009. Then those MSMEs have als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Be that as it may, this petitioner is not said to have any such association with those MSMEs nor it is said that he played any role therein thus having the knowledge. So the persons who are the officials of the DIC associated in preparing the list of MSMEs are not within the arena of this criminal trial for offence under section 13(2) read with 13(1)(d) of the PC Act nor facing trial for offence under section 420/468/471 IPC nor under ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
