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SUPREME COURT OF INDIA
(From the High Court of Judicature at Madras)
K.M. JOSEPH, S. RAVINDRA BHAT, JJ.
The State By S.P. Through the Spe CBI – Appellant
Versus
Uttamchand Bohra – Respondent
Criminal Appeal No. 1590 of 2021 (@ Special Leave Petition (Crl.) No. 9608 of 2021 (@SLP (Crl.) Diary No. 42589 of 2018)
Decided on : 09-12-2021
Prevention of Corruption Act, 1988 – Section 13(2) read with Section 13(1)(e) – Indian Penal Code, 1860 – Sections 120B and 109 – Criminal Procedure Code, 1973 – Section 239 – Conspiracy and abetment – Quashing of charge-sheet by High Court – Respondent is accused of abetting and/or conspiring with principal accused, a public servant (A-1), so as to permit him to accumulate assets disproportionate to his known sources of income – Role attributed to respondent is that he helped in execution of sale deed of property and kept custody of title deed to it – Respondent was not a public officer or public servant – He cannot be charged with committing an offence under Section 13(1)(e) read with Section 13(2) of PCA – There is no allegation against Respondent that he received any monetary or other benefit, or that he held property in his name for benefit of A-1 – There is no evidence against respondent linking him to transaction relating to execution of sale deed, or alleging that he had an agreement with A-1 and others to commit an illegal act. Further, there is no allegation of a legal act being done in an illegal manner – Alleged offence under Section 120-B IPC against respondent is also not made out from charge-sheet – Charge-sheet further does not contain any allegation which can amount to an offence under Section 109 IPC – Witnessing a sale deed is a formal requirement – Likewise, fact that the sale deed was in Respondent’s residence cannot satisfy ingredient of any of offences alleged against him – Statements of approvers who were tendered pardon by Court, do not reveal any involvement by Uttamchand in commission of alleged offence – Law required Court to consider only charge-sheet and materials adduced with it – Material to implicate someone as a conspirator acting in concert with a public servant, alleged to have committed misconduct under PCA or amassed assets disproportionate to a public servant’s known sources of income, has to be on firm ground – In present case, only two circumstances - custody of sale deed and fact that it was witnessed by Respondent’s employee - are alleged against respondent – These are wholly insufficient to raise a reasonable suspicion, or make out a prima case against him, for conspiracy – No material which can prima facie support an inference that Respondent was either a conspirator or had abetted commission of offences alleged against accused A-1 is made out – Appeal dismissed. (Paras 22, 23, 24, 25, 28, 29, 32 and 33)
Facts of the case:
CBI is, in this appeal, aggrieved by a judgment of the Madras High Court by which, exercising jurisdiction under Section 397 and Section 401 of Code of Criminal Procedure it quashed charge-sheet against the respondent who was arrayed as fifth accused in C.C. No.5 of 2015, before Special Judge for CBI cases (XII Addl. Judge, City Civil Court, Chennai). The trial court had, by its order dated 29.12.2015, rejected Crl.M.P.No.6873/2015, which was an application under Section 239 Cr.P.C. seeking Respondent’s discharge.
Findings of Court:
An entire overview of the material produced before the trial court, with charge-sheet and final report, as well as deposition of the 74 witnesses who were examined during the trial, does not support CBI’s allegation of Uttamchand. He did not directly or indirectly finance the transaction by which property was sold to M/s Raviteja Trading Co. Pvt. Ltd, which, according to that prosecution, was in fact by A-1.
Result : Appeal dismissed.
JUDGMENT
S. RAVINDRA BHAT, J.
1. This special leave petition was filed after a delay of 447 days. The successful respondent (Uttamchand Bohra, hereinafter “Uttamchand/respondent”), who was issued notice as to why delay in filing the petition should not be condoned, objected to the Court’s entertaining the petition, urging that the certified copy of the impugned order (delivered on 25.05.2017), was applied for on 13.03.2018 and eventually the petition was filed on 13.11.2018. Thus, total delay of 447 days occurred in filing of the petition, which is inordinate. It was urged that the application for condonation should not be countenanced, as no sufficient cause was shown.
2. On behalf of the Central Bureau of Investigation (hereinafter “CBI/prosecution”), Mr. Vikramjit Banerjee, learned Additional Solicitor General (hereinafter “ASG”) pointed to averments in the affidavit and supported the application seeking condonation of delay on the ground that the certified copy which had been originally applied for, could not be collected since the receipt was misplaced and as a result, the second certified copy was applied for. The matter had to be processed and official approvals obtained, which took some time. The final clearance for filing the petition was given in mid-June 2018 after which it was drafted and eventually filed. The ASG contended that having regard to these facts, this Court should condone the delay for filing the petition.
3. After hearing the rival arguments, this Court is of the opinion that though the delay of over 447 days is considerable, nevertheless explanation given by the petitioner that it lost the original receipt and had to apply for a fresh certified copy, has to be taken note of. The delay which occurred after the receipt of the certified copy in the opinion of the Court is not of such magnitude as to warrant dismissal of the application i.e., I.A. No. 178754/2018. The application is allowed and the delay in filing the petition, condoned.
4. Special leave granted. With the consent of counsel for the parties, the appeal was heard finally.
5. The CBI is, in this appeal, aggrieved by a judgment of the Madras High Court1[ Dated 25.05.2017 in CRP 73/2017.] by which, exercising jurisdiction under Section 397 and Section 401 of the Code of Criminal Procedure (hereinafter “CrPC”) it quashed the charge sheet against the respondent (who was arrayed as fifth accused in C.C. No.5 of 2015, before the Special Judge for CBI cases (XII Addl. Judge, City Civil Court, Chennai (hereinafter “trial court”)). The trial court had, by its order dated 29.12.2015, rejected Crl.M.P.No.6873/2015, which was an application under Section 239 CrPC seeking Uttamchand’s discharge.
6. The CBI, through its Investigating Officer (hereinafter “IO”), after completing investigation, filed a final report on 20.02.2012 under Section 173 CrPC against five (out of seven) accused. Badhe Rathnam Mahesh, s/o B. S. Rathnam (A-3) and Badhe Anandh Chaitanya, s/o B.R. Mahesh (A-4) were pardoned and became approvers; they were not sent for trial. Those sent up for trial were: (i) Andasu Ravindar, (A-1); (ii) Kavitha Andasu, wife of A-1 (A-2); (iii) Uttamchand (A-5); (iv) Uday K. Agarwal, (A-6); and (v) Pothapragada Srinivas, (A-7). CBI alleged that the accused committed offences punishable under Section 120B and Section 109 of the Indian Penal Code (hereinafter “IPC”) and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter “PCA”).
7. It was alleged in the final report that A-1, in collusion with the other accused, during the period of 01.01.2005 to 29.08.2011 amassed wealth in his name, as well as in the name of his wife (A-2) to the tune of Rs. 2,32,20,296/-which was disproportionate to his known sources of income for which he was not able to account satisfactorily. It was alleged that A-2 was a house wife. She had filed her income tax returns for the assessment years 2005-06, 2006-07, 2007-08, 2009-10 and 2011 through t
(1) Material to implicate someone as a conspirator acting in concert with a public servant, alleged to have committed misconduct under PCA or amassed assets disproportionate to a public servant’s kno....
The prosecution must prove a public servant's disproportionate assets; upon such proof, the burden shifts to the accused, including non-public servants, to explain the source of their wealth.
The court emphasized that public servants must satisfactorily account for assets acquired during their tenure, and joint ownership does not exempt several parties from prosecution under the PC Act wh....
Framing of charge – Even a very strong suspicion founded upon materials and presumptive opinion would enable Court to frame charge against accused.
(1) Simply because of death of Government Servant pending prosecution, prosecution cannot be said to be handicapped in adducing evidence of accumulation of assets disproportionate to known sources of....
Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law. The essence of the offence of co....
At the stage of framing charges, the court is required to evaluate whether there is a ground for presuming that the offence has been committed, without delving into the probative value of the materia....
The offence of abetment of the offence committed by the Government Servant cannot be proved against remaining accused, who have been roped in with the aid of section 109 of the I.P.C. read with the o....
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