2024:MLHC:1168
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.Rev.P. No. 6 of 2017
Date of Decision: 27.12.2024
Central Bureau of Investigation,
Anti-Corruption Branch, Oakland,
Shillong, Meghalaya-793001,
represented by its Head of Branch.
……..Petitioner
- Vs-
1. Shri. Uday Nath Majhi,
Son of Late Kuani Majhi,
The then Financial Adviser NEC,
Shillong, Resident of RP-29 Pandav
Nagar, Tonkpani Road,
Bhubaneshwar-18.
2. Shri. Richard Patrick Kharpuri,
Son of Late R.M. Hithcock,
Resident of Lummawrie,
Laitumkhrah, Shillong-793003.
3. Shri. Albert Donbor Kharshiing,
Son of Shri. Alexander Warjri,
Extension Officer (S), NEC,
Shillong, Resident of Upland Road,
Laitumkhrah, Shillong-793003.
4. Shri. Peter A. Thorose,
Son of Late A.A. Thorose,
Principal, St. Peter’s College,
Shillong, C/o St. Peter’s School,
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Dhankheti, Shillong-793003.
5. Smti. Dancy Dura Syiem,
D/o Shri. Shron Singh Nongkhlaw,
Vice Principal, St. Peter’s College,
Shillong, Resident of Risa Colony,
Shillong-793003.
……..Respondents
Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Ms. N.A.V. Sogra, Adv. vice
Dr. N. Mozika, DSGI.
For the Respondent(s) : Mr. P. Yobin, Adv. (For R 1 & 2)
Mr. M.F. Qureshi, Adv. (For R 3)
Ms. P.D. Bujarbaruah, Sr. Adv. with
Mr. B.A. Wanswett, Adv. (For R 4 & 5)
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER
1. Challenged in this petition is the impugned order dated
05.05.2016 passed by the learned Special Judge (CBI), Shillong in Special
Case No. 5/2009 under Section 120B, 420, 467 and 471 IPC and Section
13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
1988, whereby the respondent Nos. 1-5 as accused persons therein have
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been discharged from the liability of the case at the stage of consideration
of charges.
2. The background facts leading to the filing of this petition is
that the Principal of St. Peters College (Respondent No. 4) had undertaken
a project named and styled as “Holistic Cluster Approaches at Grassroots
Level for Sustainable Development in the North Eastern Region” in the
State of Assam, Meghalaya and Arunachal Pradesh for which the North
Eastern Council (NEC) was approached for sanction of the required funds.
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3. Accordingly, the NEC had sanctioned an amount of
4,98,50,000/- on 18.03.2005, the same to be released in installments. At
the first instance, the NEC had released the fund in three installments, the
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first being 47,00,000/- on 22.03.2005, the second installment of
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20,00,000/- released on 20.06.2005 and the third installment of
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2,00,00,000/- on 25.11.2005, the total being 2,67,00,000/-.
4. Records would show that there were allegations of
irregularities in the implementation of the said project which prompted the
Central Bureau of Investigation (CBI) to conduct a fact-finding inquiry.
Eventually, an FIR dated 08.05.2009 was filed alleging that the
respondents herein, the respondent Nos. 1, 2 and 3 respectively, being
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public servants as officials of the NEC, have entered into criminal
conspiracy with each other and also with the respondent No. 4, the
Principal, St. Peter’s College, Shillong and respondent No. 5, the Vice
Principal, St. Peter’s College, Shillong and in abuse of their official
power and position, had fraudulently and dishonestly processed and
recommended the sanction for the said project submitted by respondent
No. 4 without proper evaluation of the same and also for failing to
incorporate the suggestions of the Advisor (Forest & Environment), NEC
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while releasing the said fund of 2,67,00,000/-.
5. In course of investigation, the CBI has recorded the statements
of 41 witnesses under Section 161 Cr.P.C and has also collected as many
as 124 documents to form the basis for making out a case against the
accused persons/respondents herein for the said offences aforementioned.
A charge sheet dated 30.07.2010 corresponding to FIR No. RC 6 of 2009
was submitted before the Court of the learned Special Judge (CBI)
following which a regular case was registered as Special Case No. 5 of
2009.
6. After the charge sheet was filed, on 04.07.2012, the Trial Court
proceeded to frame relevant charges against the respondents Nos. 1, 2 and
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3 respectively. At that point of time, the charges could not be framed
against the respondent Nos. 4 and 5, since they were not present in court
on the day the charges were framed.
7. However, the respondent Nos. 4 & 5 filed an application under
Section 91 Cr.P.C with a prayer for production of the complete set of audit
statement pertaining to the period 22.03.2005 to 31.03.2009, but the same
was rejected by the Trial Court vide order dated 21.09.2012.
8. Another application under Section 227 Cr.P.C seeking
discharge from the case was also preferred by the respondent Nos. 4 & 5
respectively, this too was rejected vide order dated 31.01.2013.
9. The orders dated 21.09.2012 and 31.01.2013(supra) was then
challenged by the said respondent Nos. 4 & 5 before this Court in Crl.Ptn.
No. (SH) 11 of 2013 and Crl.Ptn No. (SH) 12 of 2013. On consideration of
such petitions, and upon hearing the parties, this Court has, vide order
dated 20.03.2013 rejected the prayer made in both the petitions.
10. Yet again, the respondents Nos. 4 & 5 herein have filed an
application under Section 482 Cr.P.C read with Article 227 of the
Constitution of India, with a prayer to quash the FIR dated 08.05.2009, the
charge sheet dated 30.07.2010 and the entire proceedings in Special Case
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No. 5/2009. Such applications being registered as Criminal Misc.
Application Nos. 17 and 18(SH) of 2013 respectively, this Court on
consideration of the same has, vide order dated 31.12.2013 disposed of the
two applications by directing the Trial Court to look into the material
evidence/documents produced by the accused respondents at the time of
framing of charge and also the documents annexed with the revision
petitions at the time of consideration of charges.
11. In compliance with the said order dated 31.12.2013, the Trial
Court vide order dated 11.12.2014 observed that the charges already
framed against the accused respondents Nos. 1, 2 & 3 respectively on
04.07.2012 have become defunct, and hence, charges against all the
accused respondents are required to be considered afresh.
12. After allowing all the accused respondents to file documents,
the learned Special Judge vide order dated 05.05.2016, has, discharged all
the accused persons therein from the liabilities of the case by holding that
the charge sheet filed against the accused respondents Nos. 1, 2 & 3
respectively was based on invalid and incomplete documents as well as
suppression of relevant documents. As far as the accused respondent Nos.
4 & 5 are concerned, the Trial Court found that no prima facie case is
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made out against them.
13. Being highly aggrieved and dissatisfied with the said order
dated 05.05.2016 passed by the Trial Court, the petitioner/CBI have now
approached this Court with this instant revision petition with a prayer to
set aside the said impugned order dated 05.05.2016.
14. Dr. N. Mozika, learned DSGI appearing for the petitioner/CBI
in his argument has submitted that in the first instance, the respondent
Nos. 4 & 5/accused Nos. 4 & 5 realizing that the fact finding enquiry
would get them into trouble, they wrote to the NEC withdrawing their
earlier Utilization Certificates dated 15.06.2005 and 26.07.2005 with a
prayer for submission of a fresh Utilization Certificate. Such new UC
being prepared on 29.09.2009 and submitted on 12.11.2010, much after
the charge sheet was filed.
15. It is the contention of the learned DSGI that after four years of
submission of the Utilization Certificates, such certificates being
accompanied by an audited statement by a Chartered Accountant, the same
cannot be withdrawn or altered at any point of time.
16. Another attempt made by the said respondent Nos. 4 & 5 is that
on a finding that land was purchased by them out of the said sanctioned
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fund, which act of purchase was questioned, they immediately clarified
that the component of land was contributed from the college fund and not
from the NEC fund.
17. The exchange of correspondences between the relevant
accused persons with the officials of the NEC, who happened to be co-
accused in the case as regard the re-submission of the Utilization
Certificates as well as the so called clarification as regard the expenditure
on the land component where the respondent Nos. 4 & 5 on behalf of the
College has stated that the fund for the same was procured from the
college funds is nothing but an eyewash to divert the course of
investigation. The reliance of the learned Trial Court on such
correspondences to discharge the said accused persons is a case of
miscarriage of justice, submits the learned DSGI,
18. However, the learned DSGI has submitted that this Court vide
order dated 31.12.2013 passed in Criminal Misc. Application Nos. 17 and
18(SH) of 2013 had allowed the accused/respondent Nos. 4 & 5 to
produce relevant documents to be considered by the Trial Court at the time
of consideration of charges, therefore, it is incumbent upon the learned
Trial Court to examine such documents to see whether they are suspicious
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or not, but relying on misplaced evidence, the impugned order of
discharge was passed, the same being passed without jurisdiction,
therefore, the said impugned order dated 05.05.2016 is liable to be set
aside and quashed and all the accused persons named in the charge sheet
be made to face trial on appropriate charges being framed.
19. Mr. P. Yobin, learned counsel for the respondent Nos. 1 and 2
replying to the argument of the learned DSGI in response, has submitted
that this Court exercising revisional jurisdiction under Section 397 Cr.P.C.
is very limited and cannot be done so in a routine manner. The case of
Amit Kapoor v. Ramesh Chander & Anr, (2012) 9 SCC 460 at para 20
was cited in this regard.
20. The learned counsel has also submitted that the petitioner/CBI
to support its case has chosen to rely on certain documents and has alleged
that the contents of such documents, would reveal the complicity of the
respondents herein, including respondent Nos. 1 & 2, however, such
reliance was made without reference to the other documents and
correspondences which has clearly shown that the accused persons in
question are not involved in any wrongdoing.
21. That the learned Trial Judge in the impugned order has
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specifically referred to certain documents which were produced by the
accused persons and which documents and correspondences were also
annexed with the petitions filed before this Court, that is, in Criminal
Misc. Application Nos. 17 and 18(SH) of 2013, wherein, vide order dated
31.12.2013, this Court had directed that the Trial Court should also rely on
such documents while considering whether charges are to be framed
against the accused persons or not, was also pointed out by the learned
counsel, particularly referring to para 80, 81, 82, 83, 84, 85, 86, 87, 88, 89
and 90 of the impugned order, and has submitted that it is apparent that the
learned Trial Judge has considered all aspects of the case of the parties
with reference to the relevant documents and correspondences which has
revealed that the respondent Nos. 4 & 5 have already started the project
even before the fund was sanctioned by the NEC and certain expenditures
have been incurred in this respect, including the purchase of land for the
said purpose, the revised Utilization Certificate have been submitted
taking this factor into account, but documents and correspondences in this
regard, have not been noted by the CBI while filing the charge sheet, thus,
causing prejudice to the accused persons therein who are the respondents
herein, including respondent Nos. 1 & 2.
22. As to the case against the respondent Nos. 1 & 2, the learned
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counsel has submitted that they are not the final authority as far as
sanction of the project fund is concerned, inasmuch as, the said
respondents have simply processed the paper works and on the same being
placed before the Secretary NEC, who is the sanctioning authority, their
role is very limited and as such, no charges could have been framed
against them. Reference is made to the observations of the learned Trial
Judge, who at para 93 and 94 of the impugned order, has come to a finding
that there is no evidence that the respondent Nos. 2 & 3 have received any
pecuniary benefits for themselves and, therefore, no prima facie case is
made out against them. At para 96, the learned Trial Judge has reiterated
that since the charge sheet has been filed on the basis of invalid
documents, the charges against the respondent Nos. 1, 2 & 3 are not
sustainable. In support of this contention, the case of State of Madhya
Pradesh v. Sheetla Sahai & Ors, (2009) 8 SCC 617, para 44, 45, 49 and
55 have been cited.
23. Mr. M.F. Qureshi, learned counsel for the respondent Nos. 3 in
his defence, has submitted that as far as this respondent/accused is
concerned, his role in the process is only to issue monitoring letters and
reminders to A4/respondent No. 4 for timely submission of physical and
financial progress reports, books of accounts and expenditure vouchers.
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This role was duly recognized by the learned Trial Court and observations
in this respect was made in the impugned order when it was remarked that
the A3/respondent No. 3 is not the sanctioning authority and thus, he has
not obtained any pecuniary benefits whatsoever, therefore, no prima facie
case is made out against him.
24. The learned counsel has also referred to para 93 and 94 of the
impugned order, wherein is found the findings of the learned Trial Court
justifying the discharge of A3/respondent No. 3 from all liabilities in the
case.
25. Mrs. P.D. Bujarbaruah, learned Sr. counsel appearing for the
respondent Nos. 4 & 5 respectively has, at the outset stated the facts of the
case before the Trial Court referring to the FIR filed by the CBI on
08.05.2009, wherein the respondent Nos. 4 & 5 herein have been
implicated as accused persons being A4 and A5 on the allegation of mis-
utilization of the sanctioned money under the said Project, namely
‘Holistic Cluster Approaches at Grassroots Level for Sustainable
Development in the North Eastern Region’ including the dispute arising
out of purchase of land, the relevant sections of law involved being
Section 120B, 420, 467, 471, IPC read with Section 13(1)(d) of the
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Prevention of Corruption Act, 1988.
26. It is the submission of the learned Sr. counsel that in course of
investigation, the CBI have seized a number of documents, however, on
inspection of the documents by the respondent Nos. 4 & 5 herein, it was
found that most of the vital documents such as the audited statement of
accounts, bills and vouchers marked as M5 and M6 were not forwarded by
the CBI to the court along with the charge sheet which was submitted on
30.07.2010. Also notable amongst these documents is the consolidated
Utilization Certificate dated 29.09.2009 submitted by the College to the
NEC on 12.11.2010 and received by NEC on 18.11.2010, but the same
was forwarded to CBI by the NEC only on 13.02.2013, much after the
charge sheet was filed, hence, there has occurred a non-consideration of
the relevant documents at that point of time, which has prejudiced the case
of the accused Nos. 4 & 5, who are the respondent Nos. 4 & 5 herein.
27. In the light of the facts and circumstances of the case, the
learned Trial Court have come to a correct finding as far as the impugned
order is concerned, and as such, the same having been passed within
jurisdiction, it may not be upset by this Court, further submits the learned
Sr. counsel.
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28. This Court has considered the submission and contention
raised by the respective parties herein and in the context of the issues
raised, the propriety or impropriety as well as the scope of jurisdiction
exercised by the learned Special Judge(CBI) in the impugned order dated
05.05.2016 will be tested on the anvil of law and facts.
29. To briefly summarized, the contents of the impugned order, at
the first instance referred to the order dated 31.12.2013 passed by this
Court in Criminal Misc. Application (SH) No. 17 and Criminal Misc.
Application (SH) No. 18 of 2013 preferred by the respondent Nos. 4 & 5
herein. This Court, in the operative portion of the said order, has at para 24
of the same directed that “For the foregoing discussions, in the given
case, the trial court can look into the material evidence produced by the
petitioners accused at the time of framing of charge and the core question
no. 1 formulated above is answered accordingly. The core question no. 2
formulated above is also answered that this Court can exercise its
jurisdiction under Section 482 Cr.P.C in the present revision petition and
present revision petition is maintainable. Corollary of the answers are that
the trial court shall look into the documents mentioned above and also the
documents annexed to the revision petition, if not suspicious, at the time of
consideration of the charge or at the time of consideration as to whether
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or not prima facie case against the present petitioners has been made out.
The accused petitioners are to place the documents mentioned above and
the documents annexed to the present revision petition before the trial
court at the time of consideration of the charge.”
30. Records would also show that vide order dated 11.12.2014, the
learned Special Judge(CBI) had allowed the petition filed by the
respondent Nos. 2 & 3 herein to the effect that they were allowed to also
produce relevant documents before the Trial Court and the same to be
considered. The charges already framed against them have been directed
to be considered afresh.
31. The learned Special Judge(CBI) then went on to hear the
argument of the parties on consideration of charges, that is, whether
charges are to be framed or not and whether there are sufficient material
evidence for doing so. After hearing the parties, and on consideration of
the materials on records including the documents as indicated in this
Court’s order dated 31.12.2013 (supra), the impugned order was passed by
the learned Special Judge (CBI) finding that on the basis of the available
materials and evidence, no charges could be framed against all the accused
persons, who are the respondents herein.
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32. It may be pointed out that the order dated 31.12.2013 have not
been challenged by the CBI/petitioner and the same has attained finality,
as such, the learned Trial Court, on being directed has taken up the case of
the parties for fresh consideration of charges, the same which cannot be
faulted. No infirmity in this regard can be found as far as the impugned
order is concerned.
33. The first contention of the CBI/petitioner is that the A4 and
A5/respondent Nos. 4 & 5 sensing trouble, just two days before the FIR,
that is, on 06.05.2009, the FIR being filed on 08.05.2009, had written to
the NEC to withdraw the Utilization Certificate filed earlier with a
request to file a fresh one. This could not have been done as once the
Utilization Certificate have been submitted, the same cannot be
withdrawn.
34. On the question as regard the controversy over the submission
of the Utilization Certificates and the subsequent withdrawal of the same
with request to furnish fresh UC, in the impugned order, the learned
Special Judge(CBI) have recorded the arguments of the parties and have
observed that on the basis of the available documents on record that on
receipt of the said letter dated 06.05.2009 from respondent No. 4 seeking
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to withdraw the said UCs, the NEC vide letters dated 25.05.2009,
16.06.2009 and 05.02.2010 have asked the College to furnish the detailed
item wise expenditure with supporting vouchers. On 17.12.2009, the NEC
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confirmed their acceptance of the expenditure of 2.67 crores following
which, on 12.11.2010, the College, represented by the respondent Nos. 4
& 5 have then submitted the consolidated Utilization Certificates dated
29.09.2009 for the period 22.03.2005 upto 31.03.2009. There is nothing
on record to show that the NEC has declined or refused to accept the said
consolidated Utilization Certificates filed by the College.
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35. It is in respect of this sum of 2.67 crores which was utilized
by the College, the concerned Official of the NEC, that is, the
Director(S&T), NEC, Dr. U.K. Mishra, who is not an accused person in
the case, in his communication to the Head of Branch, CBI-ACB,
Shillong, dated 17.12.2009, has clearly indicated the acceptance of the
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NEC as regard the expenditure of the said 2.67 crores.
36. As observed by the learned Special Judge (CBI), the above
aspect of the matter was not considered by the CBI in course of
investigation, nor was the same reflected in the charge sheet. As such, the
inference made by the Trial Court that relevant documents and material
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evidence was not taken note of by the CBI during investigation, resulting
in a finding that a prima facie case is made out against the accused
persons, such finding is incorrect and not based on evidence. This finding
is found acceptable by this Court.
37. Needless to say, even the controversy about the purchase of
land which was objected to by the NEC initially, when the same was
clarified that the cost of such land was borne by the College itself out of
its own fund, the NEC has accepted this explanation and as such, there
could not have been any controversy as far as this issue is concerned.
38. As has been observed by the learned Trial Court, the CBI has
not been able to clarify as to whether the documents and evidence relied
upon at the time the charge sheet was filed are valid or not, or rather as to
whether they are invalid and further, even in this instant case, nothing is
said as to whether the material evidence relied upon by the Trial Court to
discharge the accused persons are suspicious and as such, it can be
assumed that the learned Trial Court have found such documents/evidence
furnished by the accused persons at the time of consideration of charge not
suspicious at all.
39. The manner in which the learned Trial Court has elaborately
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addressed the issues involved in the impugned order, has convinced this
Court that the same has been passed within jurisdiction and no impropriety
can be imputed therein.
40. It may not be necessary to discuss the case laws cited or any
other legal authority as this Court is convinced that no infirmity has
occurred in the passing of the impugned order, factually or legally.
41. Consequently, this Court is of the view that the impugned order
dated 05.05.2016 suffers from no jurisdictional error, the same is hereby
upheld.
42. Petition disposed of. No costs.
43. The Trial Court records are to be returned back.
Judge
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Signature Not Verified
Digitally signed by
DARIKORDOR NARY
Date: 2024.12.27 18:58:01 IST