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TMI Blog2023 (6) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel appearing for the Appellants and Shri Sanjay Jain, learned ASG assisted by Shri Padmesh Misra, learned Counsel for the Central Bureau of Investigation. 3. The brief facts leading to the above appeals are as follows: (i) Seven persons, four of whom were officers of BHEL, Trichy (a Public Sector Undertaking), and the remaining three engaged in private enterprise, were charged by the Inspector of Police, SPE/CBI/ACB, Chennai, through a final report dated 16.07.2002, for alleged offences Under Section 120B read with Sections 420, 468, Section 471 read with Section 468 and Section 193 Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the PC Act. Cognizance was taken by the Principal Special Judge for CBI cases, Madurai in CC No. 9 of 2002. During the pendency of trial, two of the Accused, namely, A-5 and A-6 died. (ii) By a judgment dated 08.09.2006, the Special Court acquitted A-2 and convicted A-1, A-3, A-4 and A-7 for various offences. These four convicted persons filed three appeals in Criminal Appeal (MD) Nos. 437, 445 and 469 of 2006, on the file of the Madurai Bench of the Madras High Court. (iii) By a common judgment dated 17.09.2010, the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Code. Sanction for prosecution was not granted by the competent authority for the offences under the PC Act. Not convicted for offence Under Section 120B. A5 Mohan Ramnath, proprietor of Entoma Hydro Systems Section 120B read with 420, 468, 471 read with 468 and 193 Indian Penal Code and Section 13(2) read with 13(1)(d) of the PC Act. In addition, he was charged also Under Section 109 Indian Penal Code Died during the pendency of trial. - A6 NRN Ayyar, Father of A-5 A7 N.Raghunath, Brother of A-5 and son of A-6 Section 120B read with 420, 468, 471 read with 468 and 193 Indian Penal Code and Section 13(2) read with 13(1)(d) of the PC Act. In addition, he was charged also Under Section 109 Indian Penal Code. Section 471 read with 468 and 109 Indian Penal Code read with Section 13(2) read with 13(1)(e) of the PC Act. Not found guilty of the offences Under Section 120B read with Section 420 and 193 Indian Penal Code. 5. For easy appreciation, the punishments awarded offence-wise to each of the Accused, by the Special Court and confirmed by the High Court, are again presented in a tabular column as follows: Accused Offence under Section Punishment A1 120B read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 420 Indian Penal Code and Section 13(2) read with Section 13(1)(d) of PC Act. (vi) In November 1998, the person first named in the FIR namely K. Bhaskar Rao, DGM, was arrested and released on bail by CBI itself. Thereafter, he gave a confession before the XVIII Metropolitan Magistrate, Chennai Under Section 164 of the Code of Criminal Procedure. After the confession so made, CBI moved an application in Criminal Miscellaneous Petition No. 562 of 2000 Under Section 306 of the Code, before the Chief Judicial Magistrate, Madurai for the grant of pardon to K. Bhaskar Rao. The petition was made over to the Additional Chief Judicial Magistrate, Madurai, who passed an order dated 18.07.2000 granting pardon to Bhaskar Rao. (vii) Thereafter, CBI requested the Chairman, BHEL to grant sanction to prosecute the other two officials named in the FIR, for the offences under the PC Act. But by letter dated 02.05.2001, the Chairman, BHEL refused to grant the permission to prosecute those two officers named in the FIR for the offences under the PC Act. (viii) After completion of investigation, CBI filed a final report on 16.07.2002 against seven Accused namely, (i) A Srinivasulu, formerly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, we are now left with three appeals filed by A-1, A-4 and A-7 arising out of concurrent judgments of conviction. 7. In brief, the case of the prosecution was that A-1 to A-7 entered into a criminal conspiracy to cheat BHEL in the matter of award of contract for the construction of desalination plants. In pursuance of the said conspiracy, A-1, the then Executive Director of BHEL instructed Bhaskar Rao, the DGM (who turned Approver) to go in for limited/restricted tenders without following the tender procedure of pre-qualification of prospective tenderers before inviting limited tenders. According to the prosecution, A-1 dictated the names of four bogus firms along with the name of M/s. Entoma Hydro Systems represented by its proprietor A-5, for inviting limited tenders. As per the dictates of A-1, the Approver put up a proposal suggesting the names of the five firms (including four bogus firms) together with the names of two companies which were not in the similar line of work. Thereafter, A-2, knowing well that the firms were bogus and were neither pre-qualified nor selected from the approved list of contractors, processed the note submitted by the Approver and sent it to A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the account of M/s. Entoma Hydro Systems with Indian Bank and that out of the same, a sum of Rs. 1,52,50,000/- was transferred to a firm by name M/s. Insecticides & Allied Chemicals, of which A-5 to A-7 were partners. Therefore, the Special Court came to the conclusion that on the date on which the transfer of money took place, a direct wrongful monetary loss was caused to BHEL and a direct wrongful monetary gain caused to A-5 to A-7. The Special Court also held that after the termination of the contract with M/s. Entoma Hydro Systems, BHEL divided the contract into several parts and awarded the contracts to various persons and that, therefore, the money paid to each of such contractors was a wrongful loss to BHEL. Though the Special Court also found that BHEL actually recovered Rs. 4.32 crores (by invoking the bank guarantee), the Court concluded that there was no proof to show that money was paid out of the firm M/s. Insecticides & Allied Chemicals. Therefore, the Special Court first concluded that BHEL suffered wrongful loss and that therefore, the offence Under Section 420 Indian Penal Code was made out. 11. The Trial Court then took up for consideration, the argument tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was constituted was a Tender Committee, as seen from Exhibit P-36 (proceedings of the Committee) and that therefore if they were innocent, they should have questioned and sought details regarding the contractors. Interestingly, the Trial Court after holding in paragraph 79 that the charges against A- 2 were not proved, again went back to the question of guilt of A-2, after holding A-3 and A-4 guilty, through a reversal of the logic. 17. Coming to the role played by A-7, the Trial Court held that it was he who purchased the demand drafts in the names of the bogus firms, with a view to cheat BHEL and that he obtained wrongful gain for himself as a partner of the firm Insecticides & Allied Chemicals. On the basis of these findings, the Trial Court convicted the Accused for the offences mentioned by us in the table under paragraph 4 and sentenced them to imprisonment and fine indicated in the table under paragraph 5. 18. While dealing with the appeals filed by A-1, A-3, A-4 and A-7, the High Court divided the same into two categories, the first dealing with the complicity of A-1, A-3 and A-4 and the second dealing with the complicity of A-7. This was perhaps for the reason that A-1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the High Court, on the ground that the decision taken by the Management of the Company cannot have a bearing upon the prosecution case. 23. On the basis of the above findings, the High Court dismissed the appeals and confirmed the conviction and sentence awarded by the Trial Court. 24. Appearing on behalf of A-1, Shri Huzefa Ahmadi, learned Senior Counsel contended: (i) That there was no evidence to connect A-1 with the commission of any of the offences and that none of the charges stood established beyond reasonable doubt; (ii) That the substratum of the allegations was based entirely upon the statement of the approver (PW-16), but the same suffers from serious irregularities; (iii) That though no sanction was required to prosecute A-1 for the offences under the PC Act in view of his retirement before the filing of the final report, a previous sanction was necessary Under Section 197(1) of the Code, but the same was not obtained; and (iv) That the prosecution failed to establish the necessary ingredient of "obtaining any valuable thing or pecuniary advantage either for himself or for any other person" for holding him guilty of the offences Under Section 13(1)(d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement was recorded by the Metropolitan Magistrate and there is no reason why the prosecution chose to file the final report directly before the Special Court Under Section 5(1) of the PC Act 1988; (iv) that neither the evidence of PW-44 (I.O.) nor the evidence of PW-16 (approver) had anything incriminating A-7; (v) that A-7 has been roped in, merely because of his relationship with A-5 and also on account of a sum of Rs. 1,52,50,000/- being transferred to the firm of which he is a partner, from out of the account of Entoma Hydro Systems; (vi) that while the Special Court, without going into the report of the handwriting expert marked as Exhibit P-68 and without putting any question to A-7 Under Section 313 of the Code in relation to his specimen signatures marked as Exhibit P-75 came to the conclusion that the applications for demand drafts bore his handwriting and signatures, the High Court rejected the said reasoning but took to the route available Under Section 73 of the Indian Evidence Act, 1872. (vii) That the procedure Under Section 73 of the Evidence Act is available to a Court only when there are admitted or proved handwritings, which were absent in this case; (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits of the case qua culpability of each of the Appellants before us. Discussion and Analysis Part-I (Revolving around Section 197 of the Code) 29. There is no dispute about the fact that A-1 to A-4, being officers of a company coming within the description contained in the Twelfth item of Section 21 of the Indian Penal Code, were 'public servants' within the definition of the said expression Under Section 21 of the Indian Penal Code. A-1 to A-4 were also public servants within the meaning of the expression Under Section 2(c)(iii) of the PC Act. Therefore, there is a requirement of previous sanction both Under Section 197(1) of the Code and Under Section 19(1) of the PC Act, for prosecuting A-1 to A-4 for the offences punishable under the Indian Penal Code and the PC Act. 30. Until the amendment to the PC Act under the Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018), with effect from 26.07.2018, the requirement of a previous sanction Under Section 19(1)(a) was confined only to a person "who is employed". On the contrary, Section 197(1) made the requirement of previous sanction necessary, both in respect of "any person who is" and in respect of "any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined. 35. It is admitted by the Respondent-State that no previous sanction Under Section 197(1) of the Code was sought for prosecuting A-1. The stand of the prosecution is that the previous sanction Under Section 197(1) may be necessary only when the offence is allegedly committed "while acting or purporting to act in the discharge of his official duty". Almost all judicial precedents on Section 197(1) have turned on these words. Therefore, we may now take a quick but brief look at some of the decisions. 36. Dr. Hori Ram Singh v. The Crown 1939 SCC OnLine FC 2 is a decision of the Federal Court, cited with approval by this Court in several decisions. It arose out of the decision of the Lahore High Court against the decision of the Sessions Court which acquitted the Appellant of the charges Under Sections 409 and 477A Indian Penal Code for want of consent of the Governor. Sir S. Varadachariar, with whose opinion Gwyer C.J., concurred, examined the words, "any act done or purporting to be done in the execution of his duty" appearing in Section 270(1) of the Government of India Act, 1935, which required the consent of the Governor. The Federal Court observed at the outset that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... len a jewel from the patient's person, it is difficult to believe that it was the intention of the Legislature that he could not be prosecuted for such offences except with the previous sanction of the Local Government. 37. It is seen from the portion of the decision extracted above that the Federal Court categorised in Dr. Hori Ram Singh (supra), the decisions given Under Section 197 of the Code into three groups namely (i) cases where it was held that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it; (ii) cases where more stress has been laid on the circumstance that the official character or status of the Accused gave him the opportunity to commit the offence; and (iii) cases where stress is laid almost exclusively on the fact that it was at a time when the Accused was engaged in his official duty that the alleged offence was said to have been committed. While preferring the test laid down in the first category of cases, the Federal Court rejected the test given in the third category of cases by providing the illustration of a medical officer committing rape on one of his patients or committing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal activities. To that extent Section 197 Code of Criminal Procedure has to be construed narrowly and in a restricted manner. 39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection Under Section 197 Code of Criminal Procedure. There cannot be a universal Rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule. 39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary Under Section 197 Code of Criminal Procedure, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 Code of Criminal Procedure would apply. .... 42. In D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC 695, this Court explained that sanction is required not only for acts done in the discharge of official du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 4.2.1 of the existing policy extracted above shows that A-1 at least had an arguable case, in defence of the decision he took to go in for Restricted Tender. Once this is clear, his act, even if alleged to be lacking in bona fides or in pursuance of a conspiracy, would be an act in the discharge of his official duty, making the case come within the parameters of Section 197(1) of the Code. Therefore, the prosecution ought to have obtained previous sanction. The Special Court as well as the High Court did not apply their mind to this aspect. 48. Shri Padmesh Mishra, learned Counsel for the Respondent placed strong reliance upon the observation contained in paragraph 50 of the decision of this Court in Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1. It reads as follows: 50. The offence of cheating Under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence. 49. On the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 53. In view of the above, we uphold the contention advanced on behalf of A-1 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. Part-II (Revolving around grant of pardon) 54. As we have indicated elsewhere, the FIR was filed on 31.01.1997 against 4 persons namely K. Bhaskar Rao (the person who turned Approver later) and A-3 to A-5. K. Bhaskar Rao, who later turned approver, was arrested in August, 1998 and released on bail by the Respondents themselves. After his release, the said K. Bhaskar Rao gave a confession statement Under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Section 306(1), should be examined twice, once before committal and then at the time of trial. The difference between the examination of an approver at these two stages is that the approver is examined as a court witness before committal, but as a prosecution witness during trial. Therefore, the learned Senior Counsel contended that such examination of an approver twice, is a mandatory requirement of Clause (a) of Sub-section (4) of Section 306 and that it has been held by a catena of decisions that the non-compliance with Section 306(4)(a) would vitiate the proceedings. It is the contention of the learned Senior Counsel that if the Magistrate, who grants pardon, has failed to examine him as a witness as soon as pardon is accepted by the approver, the evidence of the approver is liable to be eschewed from consideration. It is submitted by the learned Senior Counsel that in this case, the Additional Chief Judicial Magistrate examined as PW-18 had not complied with the requirement of Section 306(4)(a) of the Code and that therefore the evidence of the approver is liable to be eschewed. 56. Shri S. Nagamuthu, learned Senior Counsel also submitted that the requirement of examining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the approver was liable to be eschewed in this case. 58. We have carefully considered the above submissions. 59. Before we proceed with our analysis, it is necessary to bring on record Sections 306 and 307 of the Code and Section 5 of the PC Act. Section 306 and 307 of the Code reads as follows: 306. Tender of pardon to accomplice.-(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this Section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) This Section applies to- (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of Sub-sections (1) to (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered Under Section 307 of that Code. (3) Save as provided in Sub-section (1) or Sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor. (4) In particular and without prejudice to the generality of the provisions contained in Sub-section (3), the provisions of Sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case for trial either to the Court of Session or to the Court of Special Judge. In cases not covered by Clause (a) of Sub-section (5), the Magistrate taking cognizance should make over the case to the Chief Judicial Magistrate in terms of Clause (b). 62. Section 307 of the Code empowers the Court to which the commitment is made, to tender pardon. The power can be exercised at any time after the commitment of the case but before judgment is passed. 63. Coming to Section 5 of the PC Act, it is seen that Sub-section (1) empowers the Special Judge to take cognizance of offences without the Accused being committed to him for trial. It also says that while trying the Accused persons, the Special Judge is obliged to follow the procedure prescribed by the Code for the trial of warrant cases by the Magistrates. This is why this Court held in Bangaru Laxman (in para 40 of the report) that the Special Judge under the PC Act, while trying offences, has a dual power of the Sessions Judge as well as that of the Magistrate and that such a Special Judge conducts the proceedings both prior to the filing of the charge sheet and for holding trial. In fact what was in question in Bangaru Laxman wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure, 1973 with Section 338 of the Code of Criminal Procedure, 1898 will make the position more clear. Section 307 of the Code of Criminal Procedure, 1973 Section 338 of the Code of Criminal Procedure, 1898 307. Power to direct tender of pardon.-At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person. 338. Power to direct tender of pardon. - At any time after commitment, but before judgment is passed, the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order the committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person. 67. The change brought about by the legislature to the procedure prescribed in Sections 306 and 307 of the Code of 1973 was noted by this Court in A. Devendran v. State of T.N. (1997) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined in court during trial, if any contradictions or improvements are made by him. This right of the Accused cannot be denied to him merely because pardon is tendered after the proceeding is committed to the Court of Session. 68. As seen from what is extracted above, the Chief Judicial Magistrate granted pardon to the Accused in that case but he was not examined immediately after the grant of pardon and was only examined once before the Sessions Judge in the course of trial. Therefore, the question that arose was whether it was necessary to comply with Sub-section (4)(a) of Section 306, when an Accused is granted pardon after the case is committed to the Court of Session. As seen from the argument advanced before this Court in A. Devendran was that the object of Clause (a) of Sub-section (4) of Section 306 is to provide a safeguard to the Accused so that he can cross examine even at the preliminary stage on knowing the evidence of the approver and can impeach the said testimony when the approver is examined in Court during trial. 69. For finding an answer to the said question, the Court in A. Devendran, first made a distinction between a case where tender of pardon was made befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not only amount to breach of the mandatory provisions contained in Clause (a) of Sub-section (4) of Section 306 but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all stages. The breach of the provisions contained in Clause (a) of Sub-section (4) of Section 306 is of a mandatory nature and not merely directory and, therefore, non-compliance of the same would render committal order illegal. The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the Accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the Accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing court itself at the very threshold so that he may take steps to show that the approver's evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial. It is for this reason that the examination of the approver at two stages has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get vitiated. 74. But in cases where a Special Court itself is competent to take cognizance and also empowered to grant pardon, the procedure Under Section 306 of the Code gets by-passed, as held by this Court in State through CBI v. V. Arul Kumar (2016) 11 SCC 733. An argument was advanced in Arul Kumar (supra) (as seen from paragraph 20 of the Report) that Section 306 of the Code has no application to cases relating to offences under the PC Act. In support of the said argument, the decision in P.C. Mishra v. State (CBI) (2014) 14 SCC 629 was also relied upon. While dealing with the said contention, this Court held in Arul Kumar as follows: 21. Sub-section (1) of Section 5, while empowering a Special Judge to take cognizance of offence without the Accused being committed to him for trial, only has the effect of waiving the otherwise mandatory requirement of Section 193 of the Code. Section 193 of the Code stipulates that the Court of Session cannot take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Thus, embargo of Section 193 of the Code has been lifted. It, however, nowhere provides that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Padmesh Mishra, learned Counsel for the Respondent is therefore right in relying upon the decisions of this Court in Sardar Iqbal Singh v. State (Delhi Administration) (1977) 4 SCC 536 and Yakub Abdul Razak Memon v. State of Maharashtra (2013) 13 SCC 1. 77. In Sardar Iqbal Singh (supra) the offence was triable by the Special Judge who also took cognizance. Therefore, there were no committal proceedings. Though Sardar Iqbal Singh arose under the 1898 Code, Sub-section (2) of Section 337 of the 1898 Code was in pari materia with Section 306(4)(a) of the 1973 Code. Therefore, the ratio laid down in Sardar Iqbal Singh was rightly applied in Yakub Abdul Razak Memon (supra) for coming to the conclusion that where a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once. 78. In any case, all decisions cited so far, uniformly say that the object of examining an approver twice, is to ensure that the Accused is made aware of the evidence against him even at the preliminary stage, so as to enable him to effectively cross examine the approver during trial, bring out contradictions and show him to be untrustworthy. The said object s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fession statement. 83. As rightly contended by Shri Huzefa Ahmadi, learned Senior Counsel, this Court has laid down two tests in Sarwan Singh v. State of Punjab 1957 SCR 953, to be satisfied before accepting the evidence of an approver. The first is that the approver is a reliable witness and the second is that his statement should be corroborated with sufficient evidence. Again, in Ravinder Singh v. State of Haryana (1975) 3 SCC 742 this Court pointed out that, "an approver is a most unworthy friend" and that he having bargained for his immunity, must prove his worthiness for credibility in court. The test to be fulfilled was pithily put in paragraph 12 of the Report by this Court as follows: 12. ... This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the Accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.12.1992 written by me to Mercantile Construction Corporation; (vii) In Exhibits P-53 and P-54 it is mentioned as "in continuation of the telephonic conversation we had"; (viii) As per Exhibit P-39, one Mr. R. Ilango represented Mercantile Construction Corporation in the meeting held on 11.01.1993. As per Exhibit P-40 one Mr. J.N.J. Chandran attended the meeting held on 11.01.1993 representing Raghav Engineers and Builders; and (ix) As per the limited tender policy, tender enquiry ought to be addressed only to eligible and qualified parties. Keeping it in my mind I have prepared Exhibit P-27 note, dated 25.11.1992. 86. In his examination-in-chief, PW-16 claimed that somewhere in 1992 he came to know for the first time from A-1 regarding the proposal for construction of Desalination Plants and that one day A-1 called him to his office and said that he had located a person in Chennai who was a dynamic person, resourceful person, go-getter and an achiever. It was his positive assertion in chief examination that on the same day A-1 told him to prepare tender documents and hence he returned to his office and instructed the Tender Department to prepare the tender document. What ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective contractor allegedly took place. 90. PW-16 admitted during cross-examination that he discussed with A-1 on the day when tender documents were dispatched through 'speed post' and that was on 26.11.1992. But it was brought on record through the evidence of DW-2 and DW-3 that A-1 was absent on 26.11.1992 due to the death of his mother-in-law. In any case, PW-16 admitted in cross- examination that he had signed Exhibit P-27 note even on 25.11.1992, which was one day before the date on which he had discussion with A-1. 91. The story advanced by PW-16 that the other four firms were actually bogus firms, is belied by his own statement to the effect that as per Exhibits P-39 and P-40, two individuals represented two out of those four firms in the meeting held on 11.01.1993. If those firms were bogus firms, there is no explanation as to how they were represented in the meeting. 92. It was admitted by PW-16 that in Exhibits P-53 and P-54, (letters written to two of those firms) there was an indication as though the letters were in continuation of the telephonic conversation they had. 93. In other words, two of the four firms, which were branded as bogus firms by PW-16, hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess unlawful gain, the contractor has lost the above two amounts, in addition to having the bank guarantee invoked. 100. Unfortunately, the Trial Court fell into a trap because of the statement that an amount of Rs. 1,52,50,000/- was transferred by Entoma Hydro Systems from the amount of mobilization advance, to the account of another firm of which A-5 to A-7 were partners. The Trial Court concluded that the partnership firm M/s. Insecticides & Allied Chemicals had a wrongful gain to the extent of this amount, forgetting for a moment that if it was BHEL's money that was received by the said firm, what was paid back, by the same logic should have been the firm's money. There cannot be two different yardsticks, one relating to the money received by the partnership firm and another relating to the money realized by BHEL. As a matter of fact, mobilization advance is intended to be used for the purchase of materials. The DGM (EMS), BHEL, examined as PW-34 stated even in chief examination that in the initial stages, the contract had gone very well and that up to the stage of water quality testing, the contractor was doing well. Therefore, the mobilization advance was necessarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into a criminal conspiracy, to cause wrongful loss to BHEL and to confer a wrongful gain to A-5 to A-7. Once an offence of Section 120B is not made out against A-5 to A-7, the very foundation for the prosecution becomes shaky. Therefore, we are of the view that the conviction of A-1 for the offences Under Section 120B read with Sections 420, 468, Section 471 read with Section 468 and Section 193 Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the PC Act cannot be sustained. 104. We are surprised 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. As regards A-4 105. As can be seen from the judgment of the Trial Court, A-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Tender Committee or Negotiation Committee. Due to the heat and dust created about the role and the name of the Committee, it was completely overlooked that this Committee came into the picture only after much water had flown under the bridge, by (i) deciding to go for a Restricted Tender; (ii) by issuing tender notices to seven identified contractors; (iii) by receiving the offers from five contractors; and (iv) by opening the tender documents on 18.12.1992 for the purpose of further processing. For the purpose of establishing an offence of cheating, what is important is the mindset at the beginning, when the criminal conspiracy was hatched. At the time when the criminal conspiracy was allegedly hatched in October/November, 1992, A-3 and A-4 were not at all in the picture. They came into the picture only on 23.12.1992. The Note dated 23.12.1992 by which the Negotiation Committee was constituted brings on record the fact that five named contractors had submitted their offers. The names and addresses of all the five contractors, the amounts quoted by them and the date and mode of receipt of the offers are all presented in the form of a table in the Note dated 23.12.1992. After no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be pointed out that 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. 115. For all the above reasons, we are of the view that 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. As regards A-7 116. The role attributed to A-7 was that he applied for and obtained demand drafts, in the names of four different bogus firms, drawn in favour of BHEL for a sum of Rs. 20,000/- each to make it appear as though they were real firms, though they were not in existence. A-7 was also Accused of causing wrongful loss to BHEL along with A-5 and A-6 to the tune of Rs. 4.32 crores. A-7 was also Accused of abetting A-1 and A-2 to commit criminal misconduct by misusing their official position and obtaining pecuniary advantage to themselves. 117. To establish that A-7 filed applications with different banks for the issue of demand d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied for demand drafts on behalf of four bogus firms, did not identify A-7 as the person who applied for the demand drafts. They did not also identify the handwriting in Exhibits P-66, P-90 and P- 92 as that of A-7. The only person who stated something in favour of the prosecution was PW-32 and it was in relation to Exhibit P-76. 123. It is on account of the slippery nature of their evidence that the prosecution chose to send Exhibits P-66, P-76, P-90 and P-92 for examination by the handwriting expert. The handwriting expert was examined as PW-30 and his Report dated 16.09.1998 was marked as Exhibit P-68. 124. The specimen writings and signatures of A-5 were identified by PW-30 as S1 to S31 and marked as Exhibit P-70. The specimen writings/signatures of A-7 were identified as S63 to S73A and marked as Exhibit P-75 series. 125. In the chief-examination, PW-30, the handwriting expert stated that in his opinion, the writer of the specimen writings/ signatures marked as S1 to S31 in Exhibit P-70, was the person responsible for writing the red-encircled questioned writings in certain documents. The writer of the specimen writings and signatures identified in Exhibit P-70 was A-5 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... route, namely that of undertaking the task of comparing the admitted signatures/ handwritings with the disputed ones Under Section 73 of the Evidence Act. 131. For invoking Section 73, there must first have been some signature or writing admitted or proved to the satisfaction of the Court, to have been written or made by that person. The Section empowers the Court also to direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures. 132. There was no signature or writing available before the High Court, which had been admitted or proved to the satisfaction of the Court to have been written or made. The High Court did not also direct A-7 to write any words or figures for the purpose of enabling a comparison. Without following the procedure so prescribed in Section 73, the High Court invented a novel procedure, to uphold the conviction handed over by the Trial Court through a wrong reasoning. 133. In fact, the High Court considered Exhibit P-75 to be the document containing the admitted handwritings and signatures of A-7 and compared what was found therein with the handwritings/signatures found in Exhibits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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