Cbi Gujarat vs Dilip Mulani

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1252 OF 2019 (Arising out of SLP(Crl.) No.8961/2018)

CBI, GUJARAT APPELLANT(S)

VERSUS

DILIP MULANI & ANR. RESPONDENT(S)

O R D E R

1. Leave granted.

2. Heard counsel for the parties.

3. This appeal takes exception to the

judgment and order dated 29.11.2017 passed by the

High Court of Gujarat at Ahmedabad in Criminal

Revision Application (Against order passed by

Subordinate Court) No.846 of 2016, whereby the High

Court was pleased to set aside the decision dated

08.07.2016 of the Trial Court rejecting the

discharge application filed by respondent No.1

(Accused No.5), Dilip Mulani.

Signature Not Verified 4. Respondent No.1 has been named as an Digitally signed by CHARANJEET KAUR Date: 2019.08.22 18:00:34 IST Reason: accused for having committed offence punishable

under Section 120-B of the Indian Penal Code and 2 Sections 7, 12, 13(2) read with Section 13(1)(d) of

Prevention of Corruption Act, 1988.

5. The Trial Court while rejecting the

discharge application filed by respondent No.1

adverted to relevant facts, as can be discerned

from paragraph Nos. 13 and 14 of the judgment dated

08.07.2016. The same read as thus:-

xxx xxx xxx

“13. Here in the present case, after registering the FIR, though investigation has been carried out by the Investigating Officer wherein it reveals that Shri Anand Singh Mall was posted as Assistant Commissioner of Customs, Shri Anand Singh Mall was looking after all the works related to export, import and refund. As Assistant Commissioner on Air Cargo Complex, it was his duty to sanction the SAD refund claim cheques in favour of the importers. Now, so far at the involvement of the present applicant accused is concerned, Rs.3.5 lacs and Rs.1.5 lacs of bribe money has been paid to Shri Anand Singh Mall. In the said transaction as per the investigation paper, the role of the present application accused is established. As per the investigation, One Shri R.C.Pagaria, Incharge of M/s Khimji Punja Freight Forwarders Private Limited, Delhi, had received Rs.5 lacs on 28/08/2010 through M/s. Purnima Angadia from the company's Head Office at Mumbai, and as per the direction of Shri Mehul Zaveri, Shri R.C.Pagraria, had paid Rs.3.5 lacs to Shri Kishan Rajwar whose telephone 3

number was given by Shri Anand Singh Mall during conversation. In this regard, the diary in which Shri R.C. Pagaria had written about the receipt of Rs.5 lacs from his Mumbai Office and delivery of Rs.3.5 lacs to Shri Kishan Rajwar, have also been recovered during the investigation. Not only that but during the search at the office of accused Shri Mehul Zaveri at Ahmedabad, one expenditure note book was also seized in which entry dated 29/07/2010 addressed to Shri Dilipbhai Mulani shows "A.Mall ad hoc as per the list attached show to D.M.Rs.3,50,000.-" From the above evidence, it transpires that on 29/07/2010, Shri Mehul Zaveri had sent Rs.3,50,000/- to his Mumbai Office for effecting the payment to Shri Anand Singh Mall at Mumbai, but, as Shri Anand Singh Mall wanted the delivery of the amount at Delhi while discussing with Shri Mehul Zaveri on 18/08/2010. Shri Mehul Zaveri intimated Shri Dushyant Mulani one of the Diretor of M/s Khimji Punja Freight Forwarders Private Limited, Mumbai unit he has sent "1.5" to Shri Dilipbhai which is to be handed over to Shri Anand Singh Mall. During the said conversation Shri Mehul Zaveri also said that he had already been given "3.5" at Delhi which was sent by Shri Dilip Mulani from Mumbai. He also told that he wants to clear dues regularly and told about making parking as required by Shri Mall. The conversation in entirety show that the conversation were for delivery of Rs.3.5 lacs and Rs.3.5 lakhs to Shri Anand Singh Mall which was not his legitimate dues. From the above conversation, the rule of the present applicant accused Shri Dilip Mulani is clearly established which incriminating him in the said offences. Further during the investigation, the voice of Shri Anand 4

Singh Mall and Shri Mehul Zaveri, in all the conversation, have been identified by the witnesses who are well acquainted with their voice, and this fact can be proved after leading the prosecution evidence and for that the full fledged trial is required to prove the guilt of the present applicant accused.

14. Further, the alleged payment of illegal gratification of Rs.1,50,000/- to Shri Mall has been corroborated by the receipt entry of dated 19/10/2010 available in the expenditure note book maintained by Shri Mehul Zaveri which was seized during search at his office. The said entry in the note book is also mentioned as "Anand Mangal- Trans to B.M. @ APO Rs.1,50,000/-. Further, from the telephonic conversation dated 21/10/2010 between Shri Mehul Zaveri has stated to have sent Rs.1.5 lakhs to the present applicant Shri Dilip Mulani for payment to Shri A. Mall From the above entry in expenditure note book, and telephonic conversation in transcription that the present applicant accused Shri Dilip Mulani in conspiracy with Shri Mehul Zaveri had abated the offence of bribery and had arranged for the payment of illegal gratification of Rs.3.5 lacs to Shri Anand Singh Mall at Delhi through his nephew Shri Krishna Rajwar and also Shri Mehul Zaveri in conspiracy with Shri Dilip Mulani and Dushyant Mulani had arraigned for delivery of illegal gratification of Rs.1.5 lacs to Shri Anand Singh Mall at Mumbai. From the above acts on the part of the present applicant accused has not been charge-sheeted only on the basis of Managing Director of M/s. Khimji Punja Freight Forwarders Private Limited, Ahmedabad, but he has played an active role in the present offences. So, here in 5

the case on hand looking to the charge- sheet and documentary evidence along with the statement of witnesses, there is a prima facie case against the present applicant accused to frame the charges as alleged against him.”

xxx xxx xxx

Again in paragraph No.16, it concluded as follows :

xxx xxx xxx

16. Further, it is submitted by the LA for the applicant accused that so far the charge against the applicant accused under the offence of criminal conspiracy is concerned, there must be meeting of minds to commit some illegal act, and here in the present case, the basic ingredient of the offence of criminal conspiracy is hatched in secrecy. Further more, the acts, omissions and conduct of the accused are required to be considered and to arrive at the conclusion as to whether the accused was involved in the conspiracy or not? The same can be decided only at full-

fledged trial.”

xxx xxx xxx

6. Respondent No.1 carried the matter before

the High Court by way of revision application. The

High Court vide impugned judgment has set aside the

order passed by the Trial Court and instead allowed

the discharge application by observing as follows,

as noted in paragraph 19 of the impugned judgment.

6 The same reads thus :

xxx xxx xxx

19. I have minutely gone through the entire charge-sheet papers as well as the reply filed by the C.B.I. and the contents of the impugned order. As per the arguments made by the learned advocates for both the parties, the question as to whether the sufficient evidence with regards criminal conspiracy by the present applicant is produced on record by prosecution or not to show that there was meeting of minds and agreement between the accused to commit the said offence in so called conspiracy. So far as the main ingredient of the criminal conspiracy is concerned, it is a base of the law to have an agreement and meeting of minds. I have minutely perused the telephonic conversation as well as the reply and documents, statements of the witnesses and at which place that agreement was made by the present applicant which is not prima facie disclosed in charge-sheet papers. So far as abetment regarding illegal gratification and bribery are concerned, I have also perused the ingredients of Sections 107 and 108 of the Indian Penal Code. So far as the main ingredients of both the provisions of law are concerned, it is the duty of the prosecution to establish real evidence to show that under which circumstances the present applicant has abetted. It is true that originally in the FIR, name of the accused is not mentioned as alleged by the applicant but it is established law that when the name of the accused is not mentioned in the FIR, even though the case of the prosecution cannot be resulted in fatal. But, it is required to be considered that it is the duty of the prosecution to 7

produce sufficient and cogent evidence regarding involvement of the accused. In the present case, the prosecution has relied upon the statements of the witnesses and so called name which is disclosed whose statement is not recorded to show that the investigation is defective and even from the documents produced on record i.e. receipt, conversation etc. could not connect the present applicant-accused in the alleged offence cited by the prosecution in the charge-sheet.

xxx xxx xxx”

If we may say so, this is the only relevant

analysis of the correctness of the decision of the

trial Court.

7. After having considered the arguments

canvassed by both the sides, we refrain from

examining the agrument in support of the discharge

application on merits. We deem it just and proper

to set aside the impugned judgment passed by the

High Court which, in our opinion, to say least is

perverse. To observe sobriety, we say no more.

8. The High Court noted that it is a case of

no evidence against respondent No.1, whereas the

Trial Court had adverted to relevant evidence which

in its opinion pointed towards the involvement or 8

the complicity of respondent No.1 herein in the

commission of the alleged crime. It would have been

a different matter if the High Court was to analyze

the factual aspects taken note of by the Trial

Court and then record its finding that the facts so

stated by the Trial Court are not borne out from

the record. If such a finding was to be recorded by

the High Court, we would have had the advantage of

considering the correctness of the view so taken by

the High Court. However, as aforesaid, the High

Court, in the present case, without analyzing any

factual aspects of the matter proceeded to record

that it is a case of no evidence against respondent

No.1 and allowed the discharge application of

respondent No.1.

9. The approach of the High Court, in our

opinion, is unacceptable and does not stand the

test of judicial scrutiny.

10. We accordingly, set aside the impugned

judgment and order and remand the revision

application by restoring it to the file of the High

Court to its original number. The parties are 9

relegated before the High Court for reconsideration

of the Criminal Revision Application on its own

merits in accordance with law.

11. We make it clear that we have not

expressed any opinion either way, on the merits of

the discharge application. The High Court may deal

with all aspects in that regard as per law and

shall decide the Revision Application

expeditiously. We must remind the High Court that

as per the provisions of Section 19 of Prevention

of Corruption Act, in particular, the progress of

trial cannot be interdicted in any manner and is

required to be completed expeditiously.

12. The appeal and pending applications are

accordingly disposed of in the above terms.

..................,J.

(A.M. KHANWILKAR)

..................,J.

(DINESH MAHESHWARI) NEW DELHI AUGUST 20, 2019 10

ITEM NO.16 COURT NO.9 SECTION II-B

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

Petition(s) for Special Leave to Appeal (Crl.) No(s). 8961/2018 (Arising out of impugned final judgment and order dated 29-11-2017 in CRLRA No. 846/2016 passed by the High Court Of Gujarat At Ahmedabad)

CBI, GUJARAT Appellant(s)

VERSUS

DILIP MULANI & ANR. Respondent(s)

(IA No. 144153/2018 - EXEMPTION FROM FILING O.T. IA No. 144151/2018 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

Date : 20-08-2019 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE MR. JUSTICE DINESH MAHESHWARI

For Appellant(s) Mr. K.M. Nataraj, ASG Mr. Mukul Singh, Adv.

Ms. Snidha Mehra, Adv.

Mr. Debasis Rout, Adv.

Mr. Hemant Arya, Adv.

Mr. Chakitan V.S. Papta, Adv. Mr. Arvind Kumar Sharma, AOR

For Respondent(s) Mr. S.V. Raju, Sr. Adv.

Mr. Mohan Jayakar, Adv.

Mr. Abhay Dhadiwal, Adv. Mr. Devashish Jagirdar, Adv. Mr. Mehul M. Gupta, Adv.

Mr. R. P. Gupta, AOR

Ms. Deepanwita Priyanka, Adv. For Mr. Aniruddha P. Mayee, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal and pending applications are 11

disposed of in terms of the signed reportable

order.

(NEETU KHAJURIA) (VIDYA NEGI) COURT MASTER COURT MASTER

(Signed reportable order is placed on the file.)