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TMI Blog2024 (8) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitted to carry forward prosecution against Petitioners in the light of ratio of the judgment of the Delhi High Court in Kartongen Kemi Och Farvaltning AB and Ors. Versus. State through CBI [ 2004 (2) TMI 745 - DELHI HIGH COURT] ., holding that once charge of conspiracy against the main public servant is dropped, then the charge of abatement of conspiracy can neither be framed nor can be subjected to trial. Thus, no case of grave suspicion is made out on the basis of material available on record. Continuation of proceedings against Petitioners would therefore be a mere empty formality, with no chance of prosecution securing conviction. Continuing of prosecution in such circumstances would be abuse of process of law. The order dated 23 November 2017 passed by the learned Special Judge is set aside and Petitioners are discharged - petition allowed. - SANDEEP V. MARNE, J. For the Petitioner : Mr. Kumar Abhishek Singh with Mr. Pulkit Dhawan, Ms. Sonali Mukherjee, Mr. Rohan Mathur and Mr. Shubham A. i/by. Anoma Law Group LLP,. For the State-Respondent No. 1 : Ms. Shilpa G. Talhar, APP. For the Respondent No. 2-CBI : Mr. Kuldeep S. Patil with Mr. Ashish Kumar Srivastava,. JUDGMENT : 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the total six accused, Shri. D.P. Revawala had retired from the services of SCI on 31 December 2005 and Shri. Hari Prakash Kamath had resigned on 6 January 2010. CBI therefore did not seek prosecution sanction against them. Since Petitioners are private persons, there was no question of seeking prosecution sanction qua them. So far as the other two accused-Mr. N.R. Saraiya and Smt. Vaishali Ladi are concerned, the competent sanctioning authority viz. Chairman and Managing Director of SCI refused to grant prosecution sanction by order dated 18 September 2010. 4) On account of refusal to grant prosecution sanction, Shri. N.R. Saraiya and Smt. Vaishali Ladi sought discharge from Special Case, but their application came to be rejected on 18 September 2012. Therefore, the said two officials filed Criminal Writ Petition No.322 of 2013 challenging the order dated 18 September 2012. Their petition came to be allowed by this Court by order dated 15 February 2017 holding that since there were no separate and independent allegations against them, their prosecution was not maintainable in absence of sanction. Accordingly, Shri. N.R. Saraiya and Smt. Vaishali Ladi came to be discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unnecessarily overstretching the entire issue despite noticing that none of the subject invoices are ultimately cleared. Thus, there is neither any wrongful gain to Petitioners nor any corresponding losses to SCI in the present case. Mr. Singh would rely upon orders passed by this Court discharging the three public servants particularly, the order passed in the case of Hari Prasad Kamath in support of his submission that this Court has relied upon the CMD s sanction order at length and has recorded a finding that there is no wrongful loss caused to SCI in respect of the invoices amounting to Rs. 6,29,893/-. That the charge ultimately relates to only invoices relating to FY 2005-06 and FY-2006-07, totaling to Rs. 6,29,893/- which is also clear from perusal of the audit report dated 9 September 2009 of CBIs auditor M/s. R.D. Jain and Associates. That the recovery of amounts towards corrective measure of Rs. 17.8 lacs and Rs. 53,336/- pertain to previous bills and that there is no recovery to be made in respect of FY 2005-06 and FY 2006-07. Since the subject bills relating to the said period were not cleared, he would therefore submit that there is neither any wrong doing, much less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available on record and that therefore the prosecution must be permitted to prove the accusations against Petitioners rather than discharging them at this premature stage. He would pray for dismissal of the petitions. 9) Rival contentions of the parties now fall for my consideration. 10) In the present case, CBI initially sought to prosecute four officials of SCI alongwith Petitioners, with whom Agency Agreement dated 20 April 1999 was executed. It appears that in the Agency Agreement, certain remittances were provided to Petitioners in the Agent Disbursal Account on current basis to fulfill their continuing obligations for SCI s ship and port related activities in the concerned territory. The Agent was supposed to utilize such amounts remitted by SCI in Agent s Disbursement Account where bills and demands were received in the name of the Agent. Under Article 26 of the Agreement, in addition to agent s fees and commission, the agent was also entitled to claim courier charges, expenses, transportation, space handling service tax etc. by producing supporting original bills, invoices of the cash memos etc. 11) It is prosecution s case that four officials of SCI, Shri. D.P. Revawala, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegation of non-compliance with other agreement conditions under Articles 15, 16, 17 and 26. 13) After considering the allegations in the above five headings, the CMD, SCI held that so far as the allegation of non-forwarding of bills of user departments for scrutiny was concerned, the concerned bills have factually not been settled and no payment has been made to the Petitioners in respect of the said bills. The relevant findings recorded by the CMD, SCI in his order dated 18 September 2010 read thus: The aforesaid facts clearly show that the bills for the said F.Y. 2005-06 and 2006-07 have not been settled and that payments have not been made for the said bills to M/s. J.M. Baxi Co., in view of the fact that the scrutiny and authorization of the said bills is still pending to be done by the Operating Division of the SCI. Therefore, it is submitted that the CBI is not correct to presume that the said accounts have been settled merely because of the fat that the bills were included in the accounts of the respective years, which was required to be done as a legal necessity of the accounts having to be prepared on the accrual basis. It is germane to note that there is no financial lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I were responsible for that ? SCI officials can possible be said to be responsible only if they had wrongfully sanctioned/ authorised the said bills and had actually paid the amounts to the said agent, however, in the absence of any such act on their part and when the said bills were yet to be sanctioned/authorised, the officials of SCI cannot be held responsible, much less for a criminal act. 16) So far as the role required to be played by an agent of Shipping Company for faster clearance related to port related activities, the CMD recorded following findings: In the light of the above observations, it may be appreciated that escorting of Customs officers is a standard practice followed in all the ports by shipping companies. It is true that the Customs officers might have generally been provided with conveyance by their own depatment, however, the experience of various shipping companies has been that such conveyance is generally insufficient or is not available to all officers at all relevant times or is not available at the right time on urgent basis when the visits to the ships have to be organized. The same problem is faced practically with other authorities who have to exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the entire evidence on record, the CMD, SCI recorded an emphatic finding that even if the above practice internationally followed by shipping companies was to be momentarily ignored, ultimately the fact remains that the claims of Rs. 3,08,246/- and Rs. 3,21,647.57/- were never settled/authorized/sanctioned and no payments were made therefor. It further held that Petitioners had already reversed the said claims by issuing credit notes in favour of SCI. The relevant findings in this regard reads thus: Without prejudice to what is stated above, it is reasserted that in so far as the impugned claims of Rs. 3,08,246 and Rs. 3,21,647.50 are concerned, the said claims were never settled/authorized/sanctioned by the SCI and no payments were made therefor. On the contrary, as mentioned earlier, on the insistence of the SCI, the aid agent M/s. J.M. Baxi Co. has already reversed the said claim by issuing credit notes in favour of SCI. So, nothing survives for the said claims as far as SCI is concerned. 18) The CMD, SCI has also criticized CBI s report in seeking to rely upon statement of Smt. Sandhya Jadhav, Senior Tax Assistant in Customs Department wherein she denied using of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertaining to the bills of earlier years reporting that suitable corrective measures were already been taken by SCI. The main accusations in the report of CBI s auditor was in respect of bills pertaining to the year 2005-06 and 2006-07 (for Rs. 3,21,647.50/- and Rs. 3,08,246/-). However, It is ultimately found that even those bills are not cleared by SCI. I therefore do not find that any material now remains for permitting the prosecution to take the case for trial. The material sought to be produced by CBI clearly falls short of the accusations that are sought to be pressed. From the material available on record and in the light of discharge of the SCI officials, it cannot be stated that any grave suspicion can be raised against Petitioners. As held by the Apex Court in Union of India Versus. Prafulla Kumar Samal and anr. (1979) 3 SCC 4 if the judge is satisfied that only suspicion arises on prima-facie examination of evidence and not grave suspicion, the accused is entitled to discharge. 22) In absence of prosecution of public servants, it otherwise becomes questionable as to whether CBI can be permitted to carry forward prosecution against Petitioners in the light of ratio of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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