A. Srinivasulu vs The State Rep.By The Inspector Of Police

2023 INSC 971 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2417 OF 2010

A. SRINIVASULU …APPELLANT (S)

VERSUS

THE STATE REP. BY THE INSPECTOR OF POLICE …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.16 OF 2011

CRIMINAL APPEAL NO.2444 OF 2010

JUDGMENT

V. RAMASUBRAMANIAN, J.

1. These three criminal appeals arise out of a common Judgment

passed by the Madurai Bench of the Madras High Court confirming the

conviction of the appellants herein for various offences under the Indian

Penal Code, 18601 and the Prevention of Corruption Act, 19882.

2. We have heard Shri Huzefa A. Ahmadi, Shri S. Nagamuthu, Mrs. V.

Mohana, learned senior counsel and Shri S.R. Raghunathan, learned Signature Not Verified Digitally signed by NIRMALA NEGI Date: 2023.06.15 15:32:41 IST Reason:

1 For short, “IPC” 2 For short, “PC Act”

1 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 IPC 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 High Court dismissed the appeals, forcing A-1, A-3, A-4 and A-7 to come up with four criminal appeals, namely, Appeal Nos.2417, 2443 and 2444 of 2010 and 16 of 2011.

(iv) However, during the pendency of the above appeals, A-3 (R. Thiagarajan) died and hence Criminal Appeal No.2443 of 2010 filed by him was dismissed as abated.

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(v) Therefore, what is now before us, are three criminal appeals, namely, Criminal Appeal Nos.2417 and 2444 of 2010 and 16 of 2011 filed respectively by A-1, A-7 and A-4.

4. Since the charges framed against all the appellants were not the

same and also since all the appellants herein were not convicted

uniformly for all the offences charged against them, we present below in

a tabular form, the offences for which charges were framed against each

of them, the offences for which each of them was held guilty and the

offences for which they were not held guilty.

Status Name & Charges Convicted for Not of Occupation framed by offences convicted Accused Special Court under for offences under A1 A. Srinivasulu, Section 120B Section 120B - Executive Director read with 420, read with 420, of BHEL 468, 471 read 468, 471 read with 468 and with 468 and 193 IPC and 193 IPC and Section 13(2) Section 13(2) read with and 13(1)(d) of 13(1)(d) of the PC the PC Act. Act. A2 Krishna Rao, Section 120B Nil Acquitted General Manager, read with 420, of all BHEL 468, 471 read charges with 468 and 193 IPC and Section 13(2) read with 13(1)(d) of the PC Act. A3 R. Thiagarajan, Section 120B Section 109 IPC Not Assistant General read with 420, read with 420, convicted Manager of 468, 471 read 468, 471 read for offences Finance with 468 and with 468 and under the 193 IPC and 193 IPC. PC Act, Section 13(2) since the read with competent 13(1)(d) of the PC authority Act. refused to grant

3 In addition, he sanction for was charged also prosecution under Section against him. 109 IPC. Not found guilty of Section 120B. A4 K. Chandrasekaran, Section 120B Section 109 Sanction for Senior Manager in read with 420, read with 420, prosecution BHEL 468, 471 read 468, 471 read was not with 468 and with 468 and granted by 193 IPC and 193 IPC. the Section 13(2) competent read with authority 13(1)(d) of the PC for the Act. offences under the In addition, he PC Act. was charged also under Section Not 109 IPC. convicted for offence under Section 120B. A5 Mohan Ramnath, Section 120B - proprietor of read with 420, Died during the Entoma Hydro 468, 471 read pendency of Systems with 468 and trial. A6 NRN Ayyar, Father 193 IPC and of A-5 Section 13(2) read with 13(1)(d) of the PC Act. In addition, he was charged also under Section 109 IPC. A7 N.Raghunath, Section 120B Section 471 Not found Brother of A-5 and read with 420, read with 468 guilty of the son of A-6 468, 471 read and 109 IPC offences with 468 and read with under 193 IPC and Section 13(2) Section Section 13(2) read with 120B read read with 13(1)(e) of the with Section 13(1)(d) of the PC PC Act. 420 and Act. 193 IPC. In addition, he was charged also under Section 109 IPC.

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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 Punishment Section A1 120B read with Section RI for 3 years and fine of 420 IPC Rs.2000/- 468 IPC RI for 3 years and fine of Rs.2000/- 193 IPC RI for 1 year

13(2) read with 13(1)(d) of RI for 3 years and fine of the PC Act Rs.2000/-

A3 Section 109 read with RI for 2 years and fine of Section 420 Rs.1000/- Section 468 IPC RI for 2 years and fine of Rs.1000/- Section 471 read with RI for 2 years and fine of Section 468 Rs.1000/- Section 193 RI for 1 year A4 Section 109 read with RI for 2 years and fine of Section 420 Rs.1000/- Section 468 IPC RI for 2 years and fine of Rs.1000/- Section 471 read with RI for 2 years and fine of Section 468 Rs.1000/- Section 193 RI for 1 year A7 Section 471 read with 468 RI for 1 year and fine of Rs.1000/-

Section 109 IPC read with RI for 1 year and fine of Rs.1000/- Section 13(2) read with Section 13(1)(e) of the PC Act

6. The background facts leading to the prosecution of the appellants

herein and their eventual conviction, may be summarised as follows:-

(i) During the period 1991-92, the Tamil Nadu Water Supply and Drainage Board decided to set up “ROD Plants” (Reverse Osmosis Desalination Plants) to provide potable water to

5 drought-prone areas in Ramnad District of Tamil Nadu. They entrusted the work to BHEL, Tiruchirapalli.

(ii) After resorting to limited/restricted tenders, BHEL awarded the contract to one Entoma Hydro Systems.

(iii) A Letter of Intent was issued to the said Company on 06.07.1994 and on 02.08.1994, an interest free mobilisation advance to the tune of Rs.4.32 crores was released to M/s Entoma Hydro Systems.

(iv) But subsequently, the contract was also cancelled on 04.10.1996; the bank guarantee furnished by the Contractor was invoked on 27.09.1996; and a payment of Rs.4,84,13,581/- was realised by BHEL.

(v) Thereafter, on 31.01.1997, CBI registered a First Information Report in Crime No. RC 8(A) of 97 against four individuals, three of whom were officials of BHEL and the fourth, the contractor. It was alleged in the First Information Report that the three officials of BHEL and the contractor entered into a criminal conspiracy to cheat BHEL and caused loss to BHEL to the tune of Rs.4.32 crores by awarding the contract to the aforesaid concern. The FIR was for offences under Section 120B read with 420, Section 420 IPC 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.

6 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 Executive Director, BHEL; (ii) R. Krishna Rao, Retired General Manager, BHEL; (iii) R. Thyagarajan, Assistant General Manager (Finance), BHEL; (iv) K. Chandrasekaran, Deputy General Manager, BHEL; (v) Mohan Ramnath Proprietor, Entoma Hydro Systems; (vi) NRN Ayyar; and (vii) N. Raghunath. The final report was filed directly before the Principal Special Court for CBI Cases, Madurai.

(ix) In the final report, the prosecution charged:-

❖ A-1 to A-7 for the offences under Section 120B read with Sections 420, 468, Section 471 read with Section 468, Section 193 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act.

❖ A-1 and A-2 for offences under Section 13(2) read with Section 13(1)(d) of the PC Act, 1988 and Section 109 IPC read with Sections 420, 468, Section 471 read with Section 468 and Section 193 IPC.

7 ❖ A-3 and A-4 for offences under Section 109 IPC read with Sections 420, 468, Section 471 read with Section 468 and Section 193 IPC.

❖ A-5, A-6 and A-7 for offences under Sections 420, 468, Section 471 read with Section 468, Section 193 IPC and Section 109 IPC read with Section 13(1)(d) of the PC Act.

(x) The Special Judge framed the charges on 04.07.2003.

(xi) The prosecution examined 44 witnesses and marked 94 documents. A-5 and A-6 died pending trial and hence the charges against them were abated.

(xii) By a judgment dated 08.09.2006, the Principal Special Judge for CBI cases acquitted A-2 but convicted A-1, A-3, A-4 and A-7 for various offences indicated in Column No. 4 of the Table under paragraph 4 above.

(xiii) Challenging the conviction and punishment, A-1 filed a separate appeal in Criminal Appeal No.437 of 2006 on the file of the Madurai Bench of the Madras High Court. A-3 and A-4 joined together and filed a common appeal in Criminal Appeal No.469 of 2006. A-7 filed a separate appeal in Criminal Appeal No.445 of 2006.

(xiv) By a judgment dated 17.09.2010, the Madurai Bench of the Madras High Court dismissed all the three appeals.

(xv) Therefore, A-1, A-3, A-4 and A-7 filed four independent appeals before this Court respectively in Criminal Appeal Nos.2417, 2443 and 2444 of 2010 and 16 of 2011. But A-3, the appellant in Criminal Appeal No.2443 of 2010 died pending appeal and hence his appeal was dismissed as abated. Therefore, we are now left with three appeals filed by A-1, A-4 and A-7 arising out of concurrent judgments of conviction.

8 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-1. When tender enquires were made, A-5

responded to the same not only in the name of M/s Entoma Hydro

Systems but also on behalf of the four bogus firms. A-7, the brother of

A-5 obtained demand drafts for Rs.20,000/- each in the names of the

bogus firms by remitting cash into Indian Bank, Royapettah Branch,

State Bank of India, Velachery Branch, State Bank of Mysore, T. Nagar

9 Branch and Bank of Madura, Mount Road Branch and also by filling up

demand draft applications and signing the same in the names of the

bogus firms. Thereafter, the Tender Committee consisting of the

Approver, A-3 and A-4 processed the names of all these firms and

recommended the award of contract to M/s Entoma Hydro Systems,

giving false justifications for recommending them though the said firm

did not have necessary experts or technical expertise. The Committee

even recommended the sanction of interest free mobilisation advance, in

violation of existing practice, to cause pecuniary advantage to A-5.

Accordingly, an interest free mobilisation advance of Rs.4.32 crores was

paid to A-5’s firm. The amount was deposited in the account of the firm

with Indian Bank. From the said account, a sum of Rs.1.52 crores was

diverted to a sister concern of A-5, in which A-5, his father (A-6) and his

brother (A-7) were partners. By such an action, A-5 to A-7 obtained

wrongful gain from BHEL. The Prosecution alleged that by these actions,

A-1 to A-7 committed the offences charged against them.

8. As stated in para 6 above, the Prosecution examined 44 witnesses,

which included the Approver, who was examined as PW-16. 94

documents were marked as exhibits on the side of the prosecution. One

witness was examined on the side of the defence as DW-1 and 6

documents were marked as exhibits Ex. D-1 to D-6.

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9. In its judgment dated 08.09.2006, the Special Court brought on

record the charges, the evidence and the rival contentions from

paragraphs 1 to 60. The actual discussion and analysis by the Court

began from paragraph 61.

10. To begin with, the Special Court took up for consideration the

contention of the accused that BHEL did not suffer any wrongful loss

and that, therefore, the charge under Section 420 IPC does not lie. But

this contention of the accused was rejected by the Trial Court on the

ground that the entire interest free mobilisation advance of Rs.4.32

crores was deposited 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

11 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 IPC was made out.

11. The Trial Court then took up for consideration, the argument that

the confession statement of PW-16 (Approver) marked as Exhibit P-44

had to be rejected, in view of the fact that PW-16 had not stated anything

self-incriminating in his confession statement. But this contention

advanced on behalf of A-1 was rejected by the Court on the ground that

Exhibit P-26 is the chit in which PW-16 admittedly wrote down the

names of four bogus firms and the name of M/s Entoma Hydro Systems,

as dictated by A-1 and that this was sufficient to show that PW-16 was

incriminating himself in the charge of criminal conspiracy with A-1.

12. When it was pointed out that as per the evidence on record, PW-1

was on leave26.11.1992, due to the death of his mother-in-law and that

therefore, he could not have had any discussion on that date, the Trial

Court turned this very argument against A-1 and held that A-1 should

not have approved the Approval Note dated 25.11.1992 marked as

Exhibit P-27, if he was on leave and had not carried out a background

check.

13. The Trial Court thereafter held that the prosecution had

successfully proved that the four other firms whose names were found in

12 the chit Exhibit P-26 were all bogus. This was on the basis of the

evidence of PW-2, PW-3, PW-5, PW-6, PW-7, PW-9, PW-10 and PW-13.

14. Believing the statement of PW-16 to be true, the Special Court came

to the conclusion that A-1 predetermined the award of contract to A-5

and created circumstances and records to show as though proper

procedure was followed and that therefore A-1 was guilty of the charges.

15. Coming to the charges against A-2, the Special Court held that the

only role played by him was to prepare the Approval Note dated

25.11.1992 and that in view of the overwhelming evidence against A-1,

the contract would have, in any case, been awarded to the firm in

question. Therefore, the Special Court came to the conclusion (in

paragraph 79 of the judgment) that A-2 was merely asked to sign in

Exhibit P-27, only to give credibility to the list prepared by A-1 and the

Approver acting in conspiracy. After reaching such a finding, the Special

Court acquitted A-2 of the charges framed against him.

16. Insofar as A-3 and A-4 are concerned, it was argued that they came

into the picture only after 23.12.1992, when the Negotiation Committee

comprising of A-3, A-4 and the Approver was formed. But this argument

was rejected by the Trial Court by holding that what 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,

13 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, A-3 and A-4

were Officers of BHEL, while A-7 was a private individual.

19. On the complicity of A-1, A-3 and A-4, the High Court primarily

relied upon the evidence of PW-8, the Technical Examiner of the Central

Vigilance Commission as well as the evidence of PW-16, the Approver. On

the basis of their evidence, supported by documents, the High Court held

that the complicity of A-1, A-3 and A-4 was proved. On the question as to

whether the action of the accused resulted in monetary loss to BHEL, the

High Court held that the subsequent remedial measure taken by BHEL

14 by invoking the bank guarantee and realizing the money, cannot lead to

the conclusion that there was no wrongful loss.

20. Insofar as the complicity of A-7 is concerned, the High Court held

that the signatures contained in the applications presented to various

banks for obtaining demand drafts for procuring the tender document,

were obviously that of A-7. In fact, the applications for securing demand

drafts were marked as Exhibits P-66, P-76, P-90 and P-92 and these

exhibits had been sent to a handwriting expert for his opinion. The

handwriting expert was examined as PW-30. His report was marked as

Exhibit P-68. The specimen writings and signatures of A-7 were marked

as Exhibit P-75 through PW-30.

21. But the High Court found in paragraph 44 of the impugned

judgment that the handwriting expert had not furnished any opinion in

his report as to the comparison of the writings found in Exhibit P-75 with

the demand draft application forms Exhibits P-66, P-76, P-90 and P-92.

The High Court also found (in paragraph 49 of the impugned judgment)

that the admitted handwritings and the signatures were not compared by

the handwriting expert. After recording such a finding, the High Court

took upon itself the task of making a comparison by itself, by invoking

Section 73 of the Evidence Act. By so invoking Section 73, the High

Court came to the conclusion that the signatures found in the demand

draft applications were that of A-7 and that the diversion of funds to

15 M/s. Insecticides & Allied Chemicals is a circumstance which

corroborated the same.

22. It was argued before the High Court on behalf of A-3 and A-4 that

BHEL Administration had refused to accord sanction to prosecute them

for the offences under the PC Act and that therefore they cannot be held

guilty of other offences. But this contention was rejected 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

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(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) of the PC Act.

25. Appearing on behalf of A-4, it was contended by Shri S.R.

Raghunathan, learned counsel:-

(i) that A-4 played no role either in the preparation of tender or in choosing the tenderers;

(ii) that what was constituted on 23.12.1992, after the tenderers were shortlisted, allegedly by PW-16 at the instance of A-1, was only a Negotiation Committee;

(iii) that in the said Committee comprising of three members, namely A-3, A-4 and PW-16, he (A-4) was the one who was subordinate to the other two members and hence the logic applied to A-2 should have been extended to him also;

(iv) that both the Special Court and the High Court overlooked the evidence of PW-14 to the effect that no tender committee was constituted;

(v) that no wrongful loss was caused to BHEL; (vi) that on the contrary, due to the role played by A-4, a bank

guarantee to the tune of Rs.4.84 crores was obtained from Entoma Hydro Systems;

(vii) that the bank guarantee was invoked and the entire amount paid by BHEL towards mobilization advance was recovered;

(viii) that as a matter of fact a sum of Rs. 2.60 crores is due and payable by BHEL to Entoma Hydro Systems, after the bank guarantee was invoked and the accounts reconciled;

17 (ix) that despite repeated requests of the CBI, the Management of BHEL refused to give sanction to prosecute A-3 and A-4, on the ground that they acted in the best commercial interest of the Company; and

(x) that once A-4 is not held guilty of the offence under Section 120B, it was not possible to convict him for the other offences, especially in the facts and circumstances of the case.

26. Appearing on behalf of A-7, it was contended by Shri S.

Nagamuthu, learned senior counsel:-

(i) that the confession statement of PW-16 was recorded by the XVIII Metropolitan Magistrate, Chennai, but pardon was granted by the Additional Chief Judicial Magistrate, Madurai and the final report was filed directly before the Special Court for CBI cases;

(ii) that since the Additional Chief Judicial Magistrate granted pardon in this case, this case is covered by Sub-section (1) of Section 306 and hence the prosecution ought to have followed the procedure prescribed under Section 306(4)(a) of the Code;

(iii) that there is no particular reason as to why the petition for pardon was made before the Additional Chief Judicial Magistrate, when the confession statement 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;

18 (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;

(viii) That in any case there was no loss caused to BHEL, which is a sine qua non for the offence under the PC Act; and

(ix) That by a strange logic A-7 was convicted for the offence under Section 13(1)(e) of the PC Act.

27. Countering the submissions made on behalf of the appellants, it was

argued by Shri Padmesh Mishra, learned counsel for the State:

(i) that there was cogent evidence, both oral and documentary, to connect all the accused with the offences for which they were found guilty;

(ii) that the evidence of the Approver (PW-16) stood corroborated by the testimonies of other witnesses, on all aspects such as the deliberate act of going in for limited tender, predetermining the person in whose favour the

19 contract was to be awarded, sanction of an interest free mobilisation advance far in excess of the normal business norm, diversion of such advance by the contractor to another firm in which he was a partner along with is father and brother and the eventual termination of the contract on account of these malpractices;

(iii) that there is no requirement in law that actual loss should have been suffered for an offence under Section 13(1)(d) of the PC Act to be made out;

(iv) that in any case what was recovered by the invocation of the bank guarantee was the loss suffered in the first instance;

(v) that it is well settled that previous sanction to prosecute under Section 197(1) of the Code is necessary only when the act complained of is in the discharge of official duties;

(vi) that an offence of cheating cannot by any stretch of imagination be seen as part of official duties;

(vii) that the power to grant pardon is available concurrently to the Chief Judicial Magistrate/ Metropolitan Magistrate as well as the Court of Session;

(viii) that therefore there was nothing wrong in the Additional Chief Judicial Magistrate, Madurai granting pardon; and

(ix) that therefore the concurrent judgments of conviction of the appellants do not warrant any interference.

28. We have carefully considered the rival contentions. For the purpose

of easy appreciation, we shall divide the discussion and analysis into

three parts, the first dealing with the contention revolving around Section

197 of the Code, the second dealing with the correctness of the

20 procedure adopted while granting pardon under Section 306 of the Code

and the third revolving around the 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 IPC, were ‘public servants’ within the definition of the

said expression under Section 21 of the IPC. 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 IPC 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

person who was” employed. By the amendment under Act 16 of 2018,

Section 19(1)(a) of the PC Act was suitably amended so that previous

21 sanction became necessary even in respect of a person who “was

employed at the time of commission of the offence”.

31. The case on hand arose before the coming into force of the

Prevention of Corruption (Amendment) Act, 2018 (Act 16 of 2018).

Therefore, no previous sanction under Section 19(1) of the PC Act was

necessary insofar as A-1 was concerned, as he had retired by the time a

final report was filed. He actually retired on 31.08.1997, after 7 months

of registration of the FIR (31.01.1997) and 5 years before the filing of the

final report (16.07.2002) and 6 years before the Special Court took

cognizance (04.07.2003). But previous sanction under Section 19(1) of

the PC Act was required in respect of A-3 and A-4, as they were in service

at the time of the Special Court taking cognizance. Therefore, the Agency

sought sanction, but the Management of BHEL refused to grant sanction

not once but twice, insofar as A-3 and A-4 are concerned.

32. It is by a quirk of fate or the unfortunate circumstances of having

been born at a time (and consequently retiring at a particular time) that

the benevolence derived by A-3 and A-4 from their employer, was not

available to A-1. Had he continued in service, he could not have been

prosecuted for the offences punishable under the PC Act, in view of the

stand taken by BHEL.

33. It appears that BHEL refused to accord sanction by a letter dated

24.11.2000, providing reasons, but the CVC insisted, vide a letter dated

22 08.02.2001. In response to the same, a fresh look was taken by the CMD

of BHEL. Thereafter, by a decision dated 02.05.2001, he refused to

accord sanction on the ground that it will not be in the commercial

interest of the Company nor in the public interest of an efficient, quick

and disciplined working in PSU.

34. The argument revolving around the necessity for previous sanction

under Section 197(1) of the Code, has to be considered keeping in view

the above facts. It is true that the refusal to grant sanction for

prosecution under the PC Act in respect of A-3 and A-4 may not have a

direct bearing upon the prosecution of A-1. But it would certainly provide

the context in which the culpability of A-1 for the offences both under the

IPC and under the PC Act has to be determined.

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.

23

36. Dr. Hori Ram Singh vs. The Crown3 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 IPC 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 this question is substantially one of fact, to be

determined with reference to the act complained of and the

attendant circumstances. The Federal Court then referred by way of

analogy to a number of rulings under Section 197 of the Code and held

as follows:-

“The reported decisions on the application of sec. 197 of the Criminal Procedure Code are not by any means uniform. In most of them, the actual conclusion will probably be found to be unexceptionable, in view of the facts of each ease; but, in some, the test has been laid down in terms which it is difficult to accept as exhaustive or correct. Much the same may be said even of decisions pronounced in England, on the language, of similar statutory provisions (see observations in Booth v. Clive . It does not seem to me necessary to review in detail the decisions given under sec. 197 of the Criminal Procedure Code which may roughly be classified as falling into three groups, so far as they attempted to state something in the nature of a test. In one group of cases, it is insisted 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: cf. In re Sheik Abdul Khadir

3 1939 SCC OnLine FC 2

24 Saheb ; Kamisetty Raja Rao v. Ramaswamy, AmanatAli v. King-emperor, King-

Emperor v. Maung Bo Maung and Gurushidayya Shantivirayya Kulkarni v. King-Emperor. In another group, 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. It seems to me that the first is the correct view. In the third group of cases, 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 [see Gangaraju v. Venki , quoting from Mitra's Commentary on the (criminal Procedure Code). The use of the expression “while acting” etc., in sec. 197 of the Criminal Procedure Code (particularly its introduction by way of amendment in 1923) has been held to lend some support to this view.

While I do not wish to ignore the significance of the time factor, it does not seem to me right to make it the test. To take an illustration suggested in the course of the argument, if a medical officer, while on duty in the hospital, is alleged to have committed rape on one of the patients or to have stolen 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

25 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

theft of a jewel from the patient’s person.

38. In Matajog Dobey vs. H.C. Bhari 4 a Constitution Bench of this

Court was concerned with the interpretation to be given to the words,

“any offence alleged to have been committed by him while acting or

purporting to act in the discharge of his official duty” in Section 197 of the

Code. After referring to the decision in Dr. Hori Ram Singh, the

Constitution Bench summed up the result of the discussion, in

paragraph 19 by holding: “There must be a reasonable connection

between the act and the discharge of official duty; the act must

bear such relation to the duty that the accused could lay a

reasonable, but not a pretended or fanciful claim, that he did it in

the course of the performance of his duty.”

39. In State of Orissa through Kumar Raghvendra Singh vs.

Ganesh Chandra Jew5, a two Member Bench of this Court explained

that the protection under Section 197 has certain limits and that it is

available only when the alleged act is reasonably connected with the

discharge of his official duty and is not merely a cloak for doing the

4 (1955) 2 SCR 925 5 (2004) 8 SCC 40:

26

objectionable act. The Court also explained that if in doing his official

duty, he acted in excess of his duty, but there is a reasonable connection

between the act and the performance of the official duty, the excess will

not be a sufficient ground to deprive the public servant of the protection.

40. The above decision in State of Orissa (supra) was followed

(incidentally by the very same author) in K. Kalimuthu vs. State by

DSP6 and Rakesh Kumar Mishra vs. State of Bihar7.

41. In Devinder Singh vs. State of Punjab through CBI8, this Court

took note of almost all the decisions on the point and summarized the

principles emerging therefrom, in paragraph 39 as follows:

“39. The principles emerging from the aforesaid decisions are summarised hereunder:

39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC 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 CrPC.

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 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected

6 (2005) 4 SCC 512 7 (2006) 1 SCC 557 8 (2016) 12 SCC 87

27 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 CrPC would apply.

….”

42. In D. Devaraja vs. Owais Sabeer Hussain9, this Court explained

that sanction is required not only for acts done in the discharge of official

duty but also required for any act purported to be done in the discharge

of official duty and/or act done under colour of or in excess of such duty

or authority. This Court also held that to decide whether sanction is

necessary, the test is whether the act is totally unconnected with official

duty or whether there is a reasonable connection with the official duty.

43. Keeping in mind the above principles, if we get back to the facts of

the case, it may be seen that the primary charge against A-1 is that with

a view to confer an unfair and undue advantage upon A-5, he directed

PW-16 to go for limited tenders by dictating the names of four bogus

companies, along with the name of the chosen one and eventually

awarded the contract to the chosen one. It was admitted by the

prosecution that at the relevant point of time, the Works Policy of BHEL

marked as Exhibit P-11, provided for three types of tenders, namely (i)

Open Tender; (ii) Limited/Restricted Tender; and (iii) Single Tender.

44. Paragraph 4.2.1 of the Works Policy filed as Exhibit P-11 and relied

upon by the prosecution laid down that as a rule, only works up to

9 (2020) 7 SCC 695

28 Rs.1,00,000/- should be awarded by Restricted Tender. However,

paragraph 4.2.1 also contained a rider which reads as follows:

“4.2.1 … However even in cases involving more than Rs.1,00,000/- if it is felt necessary to resort to Restricted Tender due to urgency or any other reasons it would be open to the General Managers or other officers authorised for this purpose to do so after recording reasons therefor.”

45. Two things are clear from the portion of the Works Policy extracted

above. One is that a deviation from the rule was permissible. The second

is that even General Managers were authorised to take a call, to deviate

from the normal rule and resort to Restricted Tender.

46. Admittedly, A-1 was occupying the position of Executive Director,

which was above the rank of a General Manager. According to him he

had taken a call to go for Restricted Tender, after discussing with the

Chairman and Managing Director. The Chairman and Managing Director,

in his evidence as PW-28, denied having had any discussion in this

regard.

47. For the purpose of finding out whether A-1 acted or purported to

act in the discharge of his official duty, it is enough for us to see whether

he could take cover, rightly or wrongly, under any existing policy.

Paragraph 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

29 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 vs. State of Punjab10.

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 of the above observation, it was contended by the

learned counsel for the respondent that any act done by a public servant,

which constitutes an offence of cheating, cannot be taken to have been

committed while acting or purporting to act in the discharge of official

duty.

50. But the above contention in our opinion is far-fetched. The

observations contained in paragraph 50 of the decision in Parkash

Singh Badal (supra) are too general in nature and cannot be regarded

as the ratio flowing out of the said case. If by their very nature, the

offences under sections 420, 468, 471 and 120B cannot be regarded as

having been committed by a public servant while acting or purporting to

10 (2007) 1 SCC 1

30 act in the discharge of official duty, the same logic would apply with

much more vigour in the case of offences under the PC Act. Section 197

of the Code does not carve out any group of offences that will fall outside

its purview. Therefore, the observations contained in para 50 of the

decision in Parkash Singh Badal cannot be taken as carving out an

exception judicially, to a statutory prescription. In fact, Parkash Singh

Badal cites with approval the other decisions (authored by the very same

learned Judge) where this Court made a distinction between an act,

though in excess of the duty, was reasonably connected with the

discharge of official duty and an act which was merely a cloak for doing

the objectionable act. Interestingly, the proposition laid down in Rakesh

Kumar Mishra (supra) was distinguished in paragraph 49 of the

decision in Parkash Singh Badal, before the Court made the

observations in paragraph 50 extracted above.

51. No public servant is appointed with a mandate or authority to

commit an offence. Therefore, if the observations contained in paragraph

50 of the decision in Parkash Singh Badal are applied, any act which

constitutes an offence under any statute will go out of the purview of an

act in the discharge of official duty. The requirement of a previous

sanction will thus be rendered redundant by such an interpretation.

52. It must be remembered that in this particular case, the FIR actually

implicated only four persons, namely PW-16, A-3, A-4 an A-5. A-1 was

31 not implicated in the FIR. It was only after a confession statement was

made by PW-16 in the year 1998 that A-1 was roped in. The allegations

against A-1 were that he got into a criminal conspiracy with the 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 IPC.

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 Section 164 of the Code before the XVIII

32 Metropolitan Magistrate, Chennai on 16.11.1998. On the basis of the

statement so given by K. Bhaskar Rao, prosecution filed a petition in

Criminal M.P No.562 of 2000 before the Chief Judicial Magistrate,

Madurai under Section 306 of the Code for the grant of pardon. On the

said petition so filed on 22.06.2000, the Additional Chief Judicial

Magistrate, Madurai (to whom it was made over) summoned K. Bhaskar

Rao to appear before him on 17.07.2000. After broadly informing K.

Bhaskar Rao of the consequences of his action, the Additional Chief

Judicial Magistrate adjourned the matter to 18.07.2000. On 18.07.2000,

the Additional Chief Judicial Magistrate read out the contents of his

confession statement and asked Bhaskar Rao whether it was voluntarily

given by him after knowing the consequences. Once K. Bhaskar Rao

answered the questions in the affirmative, the Additional Chief Judicial

Magistrate passed an order on 18.07.2000 granting pardon to K.

Bhaskar Rao under Section 306 of the Code. Thereafter, the respondents

filed a final report on 16.07.2002 directly before the Special Judge for

CBI cases, Chennai, without the case being committed by the Magistrate.

Since the aforesaid K. Bhaskar Rao had already been granted pardon by

the Additional Chief Judicial Magistrate, the prosecution examined him

as PW-16 before the Special Court for CBI cases and marked (i) the

statement of K. Bhaskar Rao under Section 164 of the Code as Exhibit P-

44; (ii) the copy of the petition filed under Section 306 of the Code dated

33 22.06.2000 as Exhibit P-51; and (iii) the proceedings dated 17.07.2000

and 18.07.2000 of the Additional Chief Judicial Magistrate, Madurai,

relating to the tender of pardon, as Exhibit P-52.

55. Appearing on behalf of A-7, Shri S. Nagamuthu, learned senior

counsel assailed the procedure so followed. According to the learned

senior counsel, the Chief Judicial Magistrate/Metropolitan Magistrate is

empowered to grant pardon during investigation, inquiry or trial and a

Magistrate of first class is empowered to grant pardon while inquiring

into or trying an offence. This is by virtue of sub-section (1) of Section

306 of the Code. In the case on hand, the Additional Chief Judicial

Magistrate granted pardon at the stage of investigation. Therefore, it is

contended by the learned senior counsel that the approver, in cases

covered 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

34 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 an approver once as a court witness before

committal and then as a prosecution witness during trial, prescribed by

Section 306(4)(a), will not be applicable to a case covered by Section 307

of the Code, which empowers the Court to which the case is committed

for trial, itself to grant pardon. But in the case on hand, the case was not

committed by any Magistrate/Additional Chief Judicial Magistrate to the

Special Court and hence, the prosecution cannot even rely upon Section

307 of the Code.

57. Adverting to the provisions of sub-sections (1) and (2) of Section 5 of

the PC Act, it was contended by Shri S. Nagamuthu, learned senior

counsel that the power to tender a pardon was available even to the

Special Court. The pardon so tendered by the Special Court is deemed

under sub-section (2) of Section 5 to be a pardon tendered under Section

307 of the Code. But this deeming fiction is limited in its applicability

only for the purposes of sub-sections (1) to (5) of Section 308 of the Code.

35 In other words, the power of the Court to grant pardon under Section

307 of the Code is materially different from the power of the Special

Court under Section 5(2) of the PC Act. In fact, Section 5(1) of the PC Act

empowers the Special Court to take cognizance without the case being

committed to it by any Magistrate. The provisions of Section 193 of the

Code thus stand excluded in their application. The Special Court is thus

conferred by Section 5(1) of the PC Act, original jurisdiction to take

cognizance. This principle has been recognized by this Court in Bangaru

Laxman vs. State (through CBI)11, wherein it was held that the Special

Judge has a dual power, namely that of a Court of Session and that of a

Magistrate. Relying upon the decision in Harshad S. Mehta vs. State of

Maharashtra12 and the decisions in P.C. Mishra vs. State (Central

Bureau of Investigation)13 and State through Central Bureau of

Investigation, Chennai vs. V. Arul Kumar14, the learned senior counsel

contended that the request for pardon should have been made in this

case at the stage of investigation only before the Special Court. Even

assuming that it was a curable defect, there must be an evidence of good

faith on the part of PW-18 (the Additional Chief Judicial Magistrate). In

the absence of such an evidence, it is contended that the testimony of

the approver was liable to be eschewed in this case.

11 (2012) 1 SCC 500 12 (2001) 8 SCC 257 13 (2014) 14 SCC 629 14 (2016) 11 SCC 733 36

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, 1952 (46 of 1952)

(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub- section (1) shall record-

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section (1)—

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any,

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-

section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,

(a) commit it for trial-

(i) to the Court of Session if the offence is

37 triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court;

(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

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.”

60. Section 5 of the PC Act reads as follows:

“5. Procedure and powers of special Judge.—(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrates.

(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true 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

38 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 a Magistrate.

(5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.

(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944).”

61. A careful look at the anatomy of Section 306 of the Code shows that

it provides a plethora of steps either in the alternative or in addition.

They are as follows:-

(i) Section 306(1) divides a criminal case into three stages, namely, (i) investigation; (ii) inquiry; and (iii) trial of the offence.

(ii) A Chief Judicial Magistrate or a Metropolitan Magistrate is empowered to grant pardon to any person, at any of the three stages, namely the stage of investigation, the stage of inquiry or the stage of trial. In contrast, the Magistrate of the first class can grant pardon only in two stages, namely the stage of inquiring into or the stage of trying the offence.

(iii) Sub-section (2) of Section 306 makes the provisions of Section 306 applicable to any offence triable exclusively by a Court of Session or a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 and to any offence punishable with imprisonment which may extend to seven years or more.

(iv) Sub-section (3) of Section 306 obliges the Magistrate tendering pardon, not only to record reasons for doing so but also to

39 state whether the tender was accepted by the person to whom it was made;

(v) Sub-section (4) of Section 306 makes it mandatory that every person accepting a tender of pardon made under sub-section (1) shall be examined as a witness both in the Court of the Magistrate taking cognizance and in the subsequent trial. Sub-section (4) also imposes an additional condition that the person accepting a tender of pardon shall be detained in custody till the termination of the trial, except when he is already on bail.

(vi) A careful look at clauses (a) and (b) of sub-section (4) shows that the procedure prescribed therein is applicable only to cases covered by sub-section (1).

(vii) Sub-section (5) prescribes that once a person has accepted a tender of pardon under sub-section (1) and has been examined under sub-section (4) then the Magistrate taking cognizance should commit the 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

40 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 was

whether the pardon tendered by the Special Judge, one day before the

filing of the charge sheet, was correct or not. This court found the same

to be in order.

64. Interestingly, sub-section (2) of Section 5 which empowers the

Special Judge to tender a pardon, does not speak about the stage at

which a Special Judge may tender pardon. This point can be appreciated

if we go back once again to Sections 306 and 307 of the Code which lays

down the following rules:-

(i) A Chief Judicial Magistrate or a Metropolitan Magistrate is empowered to tender pardon at any of the three stages;

(ii) The Magistrate of first class is empowered to tender pardon at two stage; and

(iii) The Court to which commitment is made (meaning thereby either a Court of Session or a Court of Special Judge named

41 in sub-clauses (i) and (ii) of clause (a) of sub-section (5) of Section 306) is empowered to tender pardon at only one stage namely the trial of the offence. Though the word trial, used in Section 306(1) is not used in Section 307, the words appearing in Section 307, namely “at any time after commitment of a case but before judgment is passed” can only indicate the stage of trial, in view of the fact that under sub-section (5) of Section 306, committal takes place after cognizance is taken.

65. In contrast, Section 5(2) of the PC Act does not speak about the

stage at which pardon may be tendered by a Special Judge. This is

perhaps in view of the express provisions of sub-section (1) of Section 5

which empowers the Special Judge himself to take cognizance without

the accused being committed to him for trial. But the second part of

sub-section (2) of Section 5 of the PC Act creates a deeming fiction that

the pardon tendered by the Special Judge shall be deemed to be a

pardon tendered under Section 307 of the Code. However, as rightly

contended by the learned Senior Counsel for A-7, this deeming fiction is

limited for the purposes of Sub-sections (1) to (5) of Section 308 of the

Code.

66. It appears that before the advent of the Code of Criminal Procedure,

1973, the Courts were taking a view that the Magistrates had the power

to tender pardon even after the commitment of the case for trial to the

42 Court of Session/Special Judge. This was because of the way in which

Section 338 of the Code of Criminal Procedure, 1898 was worded. A

comparison of Section 307 of the Code of Criminal Procedure, 1973

with Section 338 of the Code of Criminal Procedure, 1898 will make the

position more clear.

Section 307 of the Code of Section 338 of the Code of Criminal Procedure, 1973 Criminal Procedure, 1898

307. Power to direct 338. Power to direct tender tender of pardon.—At any of pardon. - At any time after time after commitment of a commitment, but before case but before judgment is judgment is passed, the Court passed, the Court to which to which the commitment is the commitment is made made may, with the view of may, with a view to obtaining on the trial the obtaining at the trial the evidence of any person evidence of any person supposed to have been directly supposed to have been or indirectly concerned in, or directly or indirectly privy to, any such offence, concerned in, or privy to, tender, or order the any such offence, tender a committing Magistrate or pardon on the same the District Magistrate to condition to such person. 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 vs. State of T.N.15. Incidentally, a question

arose in A. Devendran (supra) as to whether the non-examination of the

Approver as a witness after grant of pardon was a non-compliance of

sub-section (4)(a) of Section 306 and whether it would vitiate the

15 (1997) 11 SCC 720

43 proceedings. Paragraph 10 of the decision in A.Devendran is of

importance and hence it is extracted as follows:-

“10. The next question that arises for consideration is as to whether non-examination of the approver as a witness after grant of pardon and thereby non-compliance of sub- section 4(a) of Section 306 vitiates the entire proceeding. In the case in hand there is no dispute that after the Chief Judicial Magistrate granted pardon to the accused he was not examined immediately after the grant of pardon and was only examined once by the learned Sessions Judge in course of trial. The question that arises for consideration is: When an accused is granted pardon after the case is committed to the Court of Session would it be necessary to comply with sub-section (4)(a) of Section 306 of the Code. The contention of Mr Mohan, the learned counsel appearing for the State, in this connection is that Section 307 merely mandates that pardon should be tendered on the same condition and such condition obviously refers to the condition indicated in sub-section (1) of Section 306, namely, on the accused making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. According to the learned counsel, sub-section (4) of Section 306 is not a condition for tendering pardon but is merely a procedure which has to be followed when a person is tendered pardon by a Magistrate in exercise of power under Section 306. Since after a case committed to the Court of Session pardon is tendered by the court to whom the commitment is made, it would not be necessary for such court to comply with sub-section (4)(a) of Section 306. Mr Murlidhar, the learned counsel appearing for the appellants, on the other hand contended, that the object and purpose engrafted in clause (a) of sub-section (4) of Section 306 is to provide a safeguard to the accused who can cross-examine even at the preliminary stage on knowing the evidence of the approver against him and can impeach the said testimony when the approver is examined 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

44 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 before the commitment of the same to the Court of

Session and a case where pardon is tendered after commitment. After

making such a distinction, on the basis of whether pardon was tendered

before or after the committal, this Court held in Devendran (para 11) as

follows:-

“11. … A combined reading of sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if an accused is tendered pardon and is taken as an approver before commitment then compliance of sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 then in such a case the provisions of sub-section (4) of Section 306 are not attracted. …”

45

70. To come to the above conclusion, this Court relied upon its previous

decision in Suresh Chandra Bahri vs. State of Bihar16, wherein it was

held as follows:-

“30. A bare reading of clause (a) of sub-section (4) of Section 306 of the Code will go to show that every person accepting the tender of pardon made under sub-section (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.

Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further enquiry in the case commit it for trial to any one of the courts mentioned in clauses (i) or (ii) of clause (a) of sub-section (5), as the case may be. Section 209 of the Code deals with the commitment of cases to the Court of Session when offence is tried exclusively by that court. The examination of accomplice or an approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. As envisaged in sub-section (1) of Section 306, the tender of pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Consequently, the failure to examine the approver as a witness before the committing Magistrate would 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

16 1995 Supp (1) SCC 80

46 examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with, the accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approver's evidence as unreliable. Further clause (b) of sub-section (4) of Section 306 of the Code will also go to show that it mandates that a person who has accepted a tender of pardon shall, unless he is already on bail be detained in custody until the termination of the trial. We have, therefore, also to see whether in the instant case these two mandatory provisions were complied with or not and if the same were not complied with, what is the effect of such a non-compliance on the trial?”

71. It is interest to see that in Suresh Chandra Bahri, this court first

held that the procedure prescribed in Section 306(4)(a) of the Code is

mandatory and not directory and that its non-compliance will render the

committal order illegal. After so holding, this court raised a question in

the last line of para 30 extracted above, as to what is the effect of such

non-compliance on the trial. While answering this question, this court

found in Suresh Chandra Bahri, that the Court to which the case was

committed, noticed this irregularity even at the threshold and hence

remanded the matter back to the Magistrate for recording the evidence of

the approver. Thus the defect got cured before trial and hence this court

held in paragraph 31 of the decision that eventually no prejudice or

disadvantage was shown to have been caused to the accused.

72. Thus, there were two distinguishing features in Suresh Chandra

Bahri. The first was that the Chief Judicial Magistrate who tendered

pardon in that case committed the case to the Court of Session for trial

(unlike the case on hand) without examining the approver as a witness in

47 the Court. The second distinguishing feature was that the Court to whom

the case was committed for trial noticed the defect and hence remanded

the case back to the Court of Chief Judicial Magistrate. Therefore, this

court applied the prejudice test in that case.

73. But more importantly, what was held in Suresh Chandra

Bahri to be vitiated, was the committal order. Therefore, it was

concluded eventually in Suresh Chandra Bahri that the moment the

defect in the committal order is cured before trial, the trial does not 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 vs. V. Arul Kumar17. 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 vs.

State (CBI)18 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

17 (2016) 11 SCC 733 18 (2014) 14 SCC 629

48 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 the cognizance cannot be taken by the Magistrate at all. There is, thus, an option given to the Special Judge to straightaway take cognizance of the offences and not to have the committal route through a Magistrate. However, normal procedure prescribed under Section 190 of the Code empowering the Magistrate to take cognizance of such offences, though triable by the Court of Session, is not given a go-by. Both the alternatives are available. In those cases where charge-sheet is filed before the Magistrate, he will have to commit it to the Special Judge. In this situation, the provisions of Section 306 of the Code would be applicable and the Magistrate would be empowered to exercise the power under the said provision. In contrast, in those cases where Special Judge takes cognizance of offence directly, as he is authorised to do so in view of Section 5(2) of the PC Act, 1988, Section 306 of the Code would get bypassed and as the Special Judge has taken cognizance, it is Section

307 of the Code which would become applicable. Sub-section (2) of Section 5 of the PC Act, 1988 makes this position clear by prescribing that it is the Special Judge who would exercise his powers to tender of pardon as can clearly be spelled out by the language employed in that provision. Section 5(2) is to be read in conjunction with Section 5(1) of the PC Act, 1988. The aforesaid legal position would also answer the argument of the learned counsel for the respondent based on the judgment of this Court in A. Devendran [A. Devendran v. State of T.N., (1997) 11 SCC 720 : 1998 SCC (Cri) 220] . In that case, this Court held that once the proceedings are committed to the Court of Session, it is that court only to which commitment is made which can grant pardon to the approver. The view taken by us is, rather, in tune with the said judgment.”

75. In other words, this Court recognised in Arul Kumar two types of

cases, namely (i) those which come through the committal route; and (ii)

those where cognizance is taken directly by the Special Judge under

Section 5(1) of the PC Act. In the second category of cases, the Court held

that Section 306 of the Code would get by-passed.

76. Therefore, it is clear that when the Special Court chooses to take

cognizance, the question of the approver being examined as a witness in

49 the Court of the Magistrate as required by Section 306 (4)(a) does not

arise. Shri Padmesh Mishra, learned counsel for the respondent is

therefore right in relying upon the decisions of this Court in Sardar

Iqbal Singh vs. State (Delhi Administration)19 and Yakub Abdul

Razak Memon vs. State of Maharashtra20

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

stands fulfilled in this case, since the confession statement of the

approver before the XVIII Metropolitan Magistrate was enclosed to the

19 (1977) 4 SCC 536 20 (2013) 13 SCC 1

50 Charge Sheet. The approver was examined as PW-16 during trial and he

was cross examined on the contents of the confession statement. The

Magistrate who recorded the confession was examined as PW 17 and the

Additional Chief Judicial Magistrate who granted pardon was examined

as PW-18. The proceedings before the XVIII Metropolitan Magistrate, the

petition under section 306 of the Code and the proceedings on tender of

pardon were marked respectively as EXX. P-50, 51 and 52. All the

accused were given opportunity to cross examine these witnesses both

on the procedure and on the contents.

79. In view of the above, we are of the considered view that there was no

violation of the procedure prescribed by Section 306(4)(a) of the Code.

Thus, we answer the second issue against the appellants.

Part-III (Revolving around the merits of the case qua culpability of each of the appellants before us)

As regards A-1

80. Though we have found in Part-I of this judgment that the failure of

the prosecution to take previous sanction under Section 197(1) of the

Code has vitiated the proceedings against A-1, we would nevertheless

deal with his case on merits to see if the offences under the IPC or under

the PC Act stood proved beyond reasonable doubt.

81. To recapitulate, the allegations against A-1 are (i) that by entering

into a criminal conspiracy to cheat BHEL and award the tender to A-5’s

firm and by instructing PW-16 to go in for limited tenders without

51 following the procedure of pre-qualification of prospective tenderers and

without selecting any one from the approved list of contractors, he

committed various offences punishable under the IPC; and (ii) that by

abusing his official position and awarding the contract to A-5, he caused

a wrongful loss to the tune of Rs.4.32 crores to BHEL.

82. For proving the allegations with regard to the criminal conspiracy

and for establishing that A-1 decided to go in for Restricted Tender for

the purpose of awarding the contract to a chosen firm and also for

showing that A-1 directed the inclusion of four bogus firms, the

prosecution relied upon its star witness, namely PW-16. But PW-16 was

the first-named accused in the FIR, who later turned approver by giving a

confession statement.

83. As rightly contended by Shri Huzefa Ahmadi, learned senior

counsel, this Court has laid down two tests in Sarwan Singh vs. State

of Punjab21, 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 vs. State of Haryana22 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

21 1957 SCR 953 22 (1975) 3 SCC 742

52 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 beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based.”

84. Section 133 of the Indian Evidence Act, 1872 declares an

accomplice to be a competent witness and that a conviction is not illegal

merely because it proceeds upon the uncorroborated testimony of an

accomplice. However, while considering the import of Section 133. this

Court held in M.O. Shamsudhin vs. State of Kerala23 that the court is

bound to take note of a precautionary provision contained in

Illustration (b) to Section 114 of the Evidence Act, which provides

that an accomplice is unworthy of credit unless he is corroborated

in material particulars.

23 (1995) 3 SCC 351

53

85. Keeping the above principles in mind, if we turn our attention to the

evidence of PW-16, it will be seen that he was trying to shift the burden

on A-1, to save his own skin. The following admissions made by him

during the cross-examination showed that he was unworthy of credit:-

(i) There was no approved list of contractors maintained at BHEL, Trichy, till 1994;

(ii) It is not correct to say that open tender system was not at all resorted to by Civil Engineering Department in BHEL, Trichy till 1994. I cannot recollect single instance of open tender as I have forgotten;

(iii) During my tenure I did not initiate anything to cancel the award of contract to Entoma Hydro Systems. It is true that I did not take steps to annul the contract as the circumstances did not warrant that;

(iv) I am the competent person to call the tenderers for negotiation and in that capacity I wrote several letters to the contractors;

(v) Exhibit P-55 is the letter dated 02.01.1993 by me to Entoma Hydro Systems asking them to send fresh offer before 07.01.1993;

(vi) Exhibit P-53 is one such letter dated 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.

54 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

has happened subsequently is narrated by PW-16 in chief examination

as follows:

“… After some time A1 again called me to his office and told me that he had collected the names and addresses of some contractors from TWAD Board who were in a position to take up the work if awarded. Then I told him that the tender documents were ready and that I could send the same if it was furnished with the names and address of the contractors. Then, A1 dictated the following 5 names

1) Entomo Hydro Systems, Madras.

2) East Coast Builders, Madras.

3) Turn Key Construction Company, Madras.

4) Raghava Engineers and Builders, Madras.

5) Mercantile Construction Company, Madras.

I noted down these names. Then I told him that I had no knowledge of any of these 5 companies, might be they were exclusively the TWAD Board contractors and I might not be

55 aware of them. Some of these names like East Coast Builders, Turn Key Construction Company, Raghava Engineers and Builders appeared to be similar to the names of big companies i.e. may be subsidiaries of some big companies. I further told him that big companies like L&T and Geo Miller could also be included in that list because it would give some respectability to the list. A1 thought for some time and told me that these two companies may also be included.”

87. But in cross-examination, he admitted that Exhibit P-33 was a

letter dated 22.10.1992 written by one Sri Kantarao, Manager

(Civil/Design) to Ganesan (PW-14) and that there was a note in that

letter to the effect that Ganesan has discussed this matter with DGM,

Civil. PW-16 further admitted that it was possible that Ganesan might

have discussed with him.

88. The above statement in cross-examination shows that the

discussion between PW-16 and PW-14 took place on 22.10.1992. But

the discussion with A-1 and the dictation of five names took place even

according to PW-16, only in November, 1992. In fact, Exhibit P-33 letter

which was dated 22.10.1992, according to PW-16 dealt with inviting

limited tender.

89. If discussions had taken place between PW-16 and someone else in

October, 1992 and a decision taken in that meeting to go for limited

tender, it is inconceivable as to how the original sin can be attributed to

A-1, especially when the discussion between PW-16 and A-1 took place

only in November, 1992 wherein the dictation of four bogus names and

that of the prospective contractor allegedly took place.

56

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, have had discussions with PW-16 and they have also

attended the meetings.

94. To cap all this, PW-16 admitted:

“I recommended the contract to be given to Entoma who was the lowest tenderer. I recommended the contract to be given to A5 not because of A1’s interest.”

57

95. Therefore, nothing more was required to show that PW-16 was

unworthy of credit and the conviction based upon such a person as a

star witness, cannot be sustained.

96. On the question whether BHEL suffered a wrongful loss or whether

A-5 or any other firm with which he was associated had a wrongful gain,

the evidence of PW-24 who was the Deputy Manager (Finance) BHEL is

crucial. In his cross-examination, PW-24 stated as follows:-

“…In the course of the enquiry by the CBI official they asked me to send a detailed account copies. As per their request I sent them. Ex. D1 is the true copy of the accounts I sent to CBI. As far as this contract is concerned as the bank guarantee was revoked M/s BHEL Trichy has not lost any money in this contract. As a matter of fact A.5 the contractors’ money to the tune of Rs.1,61,86,234/- in with M/s BHEL Trichy. Apart from this amount an amount of Rs.98,52,286/- is payable to accused No.5 by BHEL towards the work done by him…”

97. Two things are borne out of the above admission made by PW-24.

The first is that even at the time of investigation, PW-24 had provided to

the I.O., a detailed accounts copy showing that BHEL had not suffered

any loss and that on the contrary, a sum of Rs.2.60 crores was payable

to Entoma. But for some inexplicable reason, the copy of the said

accounts statement was not produced by the CBI before the Court. The

same had to be marked as Defense Exhibit D-1 while cross-examining

PW-24. Therefore, it is clear that this statement of account was burked,

so that a picture is painted as though BHEL suffered wrongful loss.

98. The second thing that flows out of PW-24’s cross-examination

extracted above, is that even after invoking the bank guarantee and

58 appropriating the same towards the monies already paid, BHEL was still

left with the contractor’s money of Rs.1,61,86,234/- apart from an

amount of Rs.98,52,286/- payable to A-5 by BHEL towards the work

done.

99. Therefore, it is clear that it was A-5 who actually got into a mess,

both financially and legally, by bagging the contract. Rather than making

any gain much less 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

59 water quality testing, the contractor was doing well. Therefore, the

mobilization advance was necessarily to be spent. A suspicion cannot be

thrown, solely on the basis of the person to whom the payments were

made. If what was paid by BHEL to A-5 had been shared by A-6 and A-7,

what was realized from A-5 through the invocation of the bank

guarantee, cannot be taken advantage of to contend that A-6 and A-7 did

not repay the money. The logic adopted by Trial Court in this regard was

completely flawed.

101. Both the Trial Court and the High Court considered the oral

evidence of PW-2 (a Chartered Accountant), PW-3 (an officer of the

Chennai Telephones) and a few others to come to the conclusion that the

names of four other firms included in Exhibit P-26 chit were bogus. But

both the Trial Court and the High Court overlooked the admissions made

by PW-16 that he held negotiations at least with two out of those four

firms and that the representatives of those two firms even attended the

meetings.

102. The Trial Court and the High Court came to the conclusion that the

names of two big companies were included in Exhibit P-26 chit only to

lend credibility to the process adopted. But it was on record through the

statement of PW-4, Manager of L&T Company that a tender enquiry was

received by them from BHEL. If the inclusion of the names of those two

companies were intended to be a make belief affair, A-1 would not have

60 taken the risk of sending the letter and that too to a company like L&T.

Therefore, we are of the view, (i) that the evidence of PW-16 was not

worthy of credit; (ii) that even assuming that it has some

credibility, his statement that “he recommended the contract to be

given to A-5 not because of A-1’s interest”, made the whole edifice

upon which the case of the prosecution was built, collapse; and (iii)

that there was no other evidence to connect A-1 with the

commission of these offences.

103. In fact, the only person found by both the Courts to be guilty of the

offence under Section 120B was A-1. Therefore, an argument was

advanced that a single person cannot be held guilty of criminal

conspiracy. But this contention was repelled by the Courts on the ground

that PW-16 was the second person with whom A-1 had entered into a

conspiracy. In other words, the reasoning adopted by the Trial Court and

the High Court was that only A-1 and PW-16 were part of the conspiracy.

Such a reasoning was a huge climbdown from the original charge that A-

1 to A-7 entered 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 IPC and

61 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 IPC. 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 was

convicted for the offences under Section 109 read with Section 420, 468

IPC, Section 471 read with 468 IPC and Section 193 IPC.

106. As we have pointed out in the last paragraph dealing with the case

of A-1, Section 193 IPC deals with punishment for false evidence, given

intentionally in any stage of a judicial proceeding. It also includes

fabrication of false evidence for the purpose of being used in any stage of

a judicial proceeding. There are three Explanations under Section 193.

Explanation 2 under Section 193 makes an investigation directed by law

preliminary to a proceeding before a Court of Justice, to be a stage of

62 judicial proceeding, though that investigation may not take place before a

Court of Justice. Similarly, Explanation 3 makes an investigation

directed by a Court of Justice according to law, and conducted under the

authority of a Court of Justice, to be a stage of judicial proceeding,

though that investigation may not take place before a Court of Justice.

107. Interestingly, there was no allegation that either A-1 or A-3 or A-4

either gave false evidence or fabricated false evidence in any stage of a

judicial proceeding, falling within any of the three Explanations under

Section 193. But unfortunately, the Trial Court found A-4 guilty of the

offence under Section 193, without there being any specific allegation in

the charge-sheet and without there being any specific finding on merits.

108. As rightly contended by Shri S.R. Raghunathan, learned counsel

for A-4, no Court shall take cognizance of any offence punishable under

Section 193 IPC, except on a complaint in writing of that Court or of

some other Court to which that Court is subordinate. This bar is found

in Section 195(1)(b)(i) of the Code. No complaint was ever made by any

Court or by any officer authorized by any Court that A-1 or A-3 or A-4

committed an offence punishable under Section 193 IPC. But

unfortunately, the Trial Court convicted A-1, A-3 and A-4, of the offence

under Section 193 without any application of mind and the same has

been upheld by the High Court.

63

109. Even according to the prosecution, the only role played by A-4 was

that of being a member of a Committee constituted on 23.12.1992. Much

ado was sought to be made, about the nature of the Committee and as to

whether it was 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 noting all these particulars, the Note date dated

64 23.12.1992 proceeds to state the object behind the constitution of the

Committee as follows:-

“As the quoted value by the tenderers are very high, it is proposed to conduct negotiation with the lowest three tenderers under Serial Nos.1 to 3.”

110. Therefore, the reading of the trial Court and the High Court as

though this Committee of which A-3, A-4 and the Approver were a part,

was actually a Tender Committee having a larger role to play, is

completely misconceived.

111. In fact, the prosecution had to stand or fall on the strength of the

testimony of the Approver namely PW-16. But this is what PW-16 said

about the role played by A-3 and A-4.

“A3 Thiagarajan and A4 Chandrasekaran had absolutely nothing to do in choosing the contractors in this case. Their only job was to negotiate with the three lowest tenderers. With that their job will be over. As the members of the committee A3 and A4 did their job well. In this case the contractor awarded 50% as mobilization advance and that was reduced to 30% because of the negotiation by the committee. The negotiation committee had insisted the bank guarantee for the amount and obtained the bank guarantee also. Though the negotiations were completed as early as in January, 1993 letter of intent came to be issued only in July 1994 i.e. after 18 months. It is true that because of the efforts of the negotiation committee the contractor was persuaded not to hike the rate because of the delay of 18 months in issuing the work order.”

112. Despite the above assertion on the part of PW-16 giving a clean chit

to A-3 and A-4, the Trial Court found both of them guilty on a convoluted

logic that they were part of a Tender Committee and that “every word

and every description in Exhibit P-36 (Tender Committee proceedings) had

been written by them with a view to cheat BHEL” and that “if A-3 and A-4

65 were innocent they should have questioned and asked for details

regarding the contractors.” Such a reasoning given by the trial Court and

approved by the Trial Court and approved by the High Court was

completely perverse.

113. As rightly contended by the learned counsel, A-4 had no role in

choosing the tenderers, but entered the picture only after the offers were

received from the tenderers. Admittedly, A-4 was subordinate to both

PW-16 and A-3.

114. At the cost of repetition, it should 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 IPC. Section 193 IPC 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

66 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 drafts in the names of four bogus firms, the prosecution

examined PW-22, a Senior Manager of Indian Bank, PW-32, the Branch

Manager of State Bank of India, PW-40, the Senior Manager of Bank of

Madura, PW-41, the Chief Manager of State Bank of Mysore and PW-30,

the handwriting expert. The prosecution marked Exhibits P-66, P-76, P-

90 and P-92, which were the applications submitted in the names of the

four bogus firms, to these banks for the issue of demand drafts.

118. PW-22 through whom Exhibit P-66 was marked did not say even in

the chief-examination that the application form was signed by A-7. PW-

32 through whom Exhibit P-76 was marked, stated in the chief-

examination that on the date of the application for the issue of demand

draft he was not working in that branch and that he joined the branch

six years later. He also admitted that he could not know anything about

the demand draft application personally. But he claimed in the chief-

examination that A-6, the father of A-5 and A-7, was the owner of the

premises in which the branch was located and that he could identify the

67 signature of A-7 in Exhibit P-76. However, in cross-examination he

admitted:

“the applicant’s signature was available in the branch. I did not compare the specimen signature with the signature in the DD Application. When I was examined by CBI, I did not ask for the specimen signature of the applicant.”

119. PW-40 through whom Exhibit P-90 was marked, did not say

anything in the chief-examination that A-7 signed the application form

for demand draft. He merely identified the demand draft application form

and the party on whose behalf the demand draft was taken. In other

words, PW-40, like PW-22 did not implicate A-7 as the person who

signed the application for the issue of demand draft on behalf of some

bogus firms.

120. PW-41 through whom Exhibit P-92 was marked, merely stated as

to who obtained the demand draft. He did not also specifically name A-7

as the person who signed the application form or who received the

demand draft.

121. In fact, PW-40 stated that no statement under Section 161 of the

Code was recorded by the I.O. though he was examined. Similarly, PW-

41 stated that he was examined by the Inspector, CBI but he did not

know whether a statement under Section 161 was recorded.

122. Thus, three out of four bank officials examined by the prosecution

to show that A-7 applied for demand drafts on behalf of four bogus firms,

did not identify A-7 as the person who applied for the demand drafts.

68 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 not A-7.

126. Similarly, PW-30 identified the writer of the specimen writings in

S40 and S41 marked as Exhibit P-73 as the person responsible for

writing Exhibit P-26. This related to K. Bhaskar Rao (PW-16) and the

reference was to the chit in which the names of five firms were originally

69 dictated and the names of two later included. Similarly, PW-30 identified

in chief examination, the specimen writings marked in S42 to S62 and

S93 to S96 in Exhibit P-74 as that of the person whose writings are

found in Exhibit P-26. S42 to S62 and S93 to S96 were that of A-6.

127. After thus relating the specimen writings and signatures of A-5,

PW-16 and A-6 to some of the questioned writings, the handwriting

expert made it clear even in his chief examination that it was not

possible for him to express any opinion on the rest of the questioned

items on the basis of the material on hand. In other words, the

handwriting expert examined as PW-30, did not go to the rescue of the

prosecution even in his chief examination in so far as A-7 is concerned.

His report marked as Exhibit P-68 did not implicate A-7 as the person in

whose handwriting and signature, Exhibits P-66, P-76, P-90 and P-92

were written and signed.

128. Thus, there was a colossal failure on the part of the prosecution to

establish that Exhibits P-66, P-76, P-90 and P-92 were in the

handwritings/signatures of A-7. This is despite the prosecution

examining the bank officials as PW-22, PW-32, PW-40 and PW-41 and

the handwriting expert as PW-30.

129. Unfortunately, the Trial Court adopted a very curious reasoning in

paragraph 91 (the only paragraph in which the reasons were given in this

regard) that since he was a beneficiary of the money diverted to the

70 account of Insecticides & Allied Chemicals, he must have had

participation and knowledge that the demand drafts were purchased to

cheat BHEL. Such a reasoning is wholly unacceptable in view of the fact

that A-7 was accused of forgery and charged under Section 468 IPC, in

relation to these very same applications for demand drafts. Therefore, it

was necessary for the prosecution to prove forgery and also to show that

the purpose of such forgery was cheating. Both were absent.

130. The High Court fortunately realised the pitfall in the reasoning of

the Trial Court. But in an over-anxiety to somehow convict A-7, the High

Court adopted a very peculiar 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.

71 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 P-66, P-76, P-90 and P-92.

134. But what was contained in Exhibit P-75 was never admitted by A-

7 to be in his handwriting. Exhibit P-75 was marked through PW-30, the

handwriting expert, and not even by the I.O. At least if the I.O. had

identified and marked the specimen writings and signatures of A-7 as

Exhibit P-75, it was possible for the prosecution to contend that the

specimen signatures stood proved. But the I.O. did not identify Exhibit

P-75. PW-30 through whom Exhibit P-75 was marked did not directly

obtain the specimen writings of A-7. The statement of PW-30 that the

specimen writings of A-7 are in Exhibit P-75 was only hearsay evidence,

as he did not directly obtain those specimen signatures. Thus, Exhibit P-

75 never stood proved.

135. Even in the questioning under Section 313 of the Code, no specific

question was put to A-7 whether Exhibits P-66, P-76, P-90, P-92 and P-

75 were in his handwritings and whether they contained his signatures.

72 Therefore, what was contained in Exhibit P-75 was not even admitted

signatures.

136. In the absence of either admission or proof of the admitted

signatures, the High Court could not have resorted to Section 73 of the

Evidence Act.

137. In view of the above, the finding recorded by the Trial Court and

the High Court as though A-7 committed forgery and cheating by making

applications for the issue of demand drafts in the names of bogus firms

is wholly unsustainable.

138. The only connecting link pointed out against A-7 was the transfer

of money to the total extent of Rs.1,52,50,000/- to the account of a firm

of which he was a partner. This by itself will not constitute any offence.

Therefore, the charge that A-7 abetted the commission of the crime by

the other accused, should also fail. This is especially so when A-5,

whose proprietary concern bagged the contract, not only lost the contract

but also allowed the bank guarantee to be invoked by BHEL and in

addition, left a huge amount of Rs.2.60 crores still with BHEL. Therefore,

the conviction and sentence awarded to A-7 cannot be sustained.

Conclusion

139. In the light of the above discussion, all the appeals are allowed and

the judgment of the Special Court for CBI cases convicting the appellants

for various offences and the judgment of the High Court confirming the

73 same are set aside. The appellants are acquitted of all the charges. The

bail bonds, if any, furnished by them shall stand discharged.

…………………………….. J.

(V. RAMASUBRAMANIAN)

………………………….. J.

(PANKAJ MITHAL) New Delhi;

June 15, 2023

74 ITEM NO.1502 COURT NO.7 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s).2417/2010

A. SRINIVASULU Appellant(s)

VERSUS

THE STATE REP.BY THE INSPECTOR OF POLICE Respondent(s)

WITH

Crl.A. No. 16/2011 (II-C)

Crl.A. No. 2444/2010 (II-C)

Date:15-06-2023 These appeals were called on for pronouncement of judgment today.

For Appellant(s) Ms. Ranjeeta Rohatgi, AOR Mr. Kaushik Mishra, Adv.

Mr. Nishant Sharma, Adv. Ms. Adviteeya, Adv. Mr. Rakesh K. Sharma, AOR

Mr. Vijay Kumar, AOR Mr. S Nagamuthu, Sr. Adv. Mrs. V Mohana, Sr. Adv. Mr. B. Ragunath, Adv. Mrs. N C Kavitha, Adv. Ms. Sneha Batwe, Adv. Ms. B. Pande, Adv.

Mr. S.R. Raghunathan, Adv.

For Respondent(s) Mr. Sanjay Jain, A.S.G. Mr. A K Kaul, Adv. Ms. Shraddha Deshmukh, Adv. Mr. Madhav Sinhal, Adv. Ms. Srishti Mishra, Adv. Mr. Padmesh Mishra, Adv. Mr. Rajan Kumar Chourasia, Adv. Ms. Sweksha, Adv. Mr. Arvind Kumar Sharma, AOR

Hon’ble Mr. Justice V. Ramasubramanian pronounced the

judgment of the Bench comprising Hon’ble Mr. Justice Pankaj Mithal and His Lordship.

The appeals are allowed in terms of the signed reportable

judgment. The operative portion of the order reads as follows:

“...all the appeals are allowed and the judgment of the Special Court for CBI cases convicting the appellants for various offences and the judgment of the High Court confirming the same are set aside. The appellants are acquitted of all the charges. The bail bonds, if any, furnished by them shall stand discharged.”

Pending application(s), if any, shall stand disposed of.

(RADHA SHARMA) (RENU BALA GAMBHIR) COURT MASTER (SH) COURT MASTER (NSH)

(Signed Reportable Judgment is placed on the file)