Mauvin Godinho vs The State Of Goa

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 315/2011

MAUVIN GODINHO Appellant(s) VERSUS STATE OF GOA Respondent(s) WITH

CRIMINAL APPEAL NO. 314/2011

M/S MARMAGOA STEEL LTD.& ORS. Appellant(s)

VERSUS STATE OF GOA Respondent(s)

CRIMINAL APPEAL NO. 313/2011

T. NAGARAJAN Appellant(s)

VERSUS STATE OF GOA Respondent(s)

CRIMINAL APPEAL NO. 312/2011

KATREDDI VENKATA SAHAYA KRISHNAKUMAR Appellant(s) Signature Not Verified

Digitally signed by VISHAL ANAND Date: 2018.01.31 14:42:03 IST Reason:

VERSUS STATE OF GOA Respondent(s) 2

CRIMINAL APPEAL NO. 311/2011

M/S GLASS FIBRE DIVISION Appellant(s) (A Division of Binani Zinc Ltd.) presently known as M/S GOA GLASS FIBRE LTD.

VERSUS

STATE OF GOA Respondent(s)

JUDGMENT

N.V. RAMANA, J.

1. These Criminal Appeals, by way of special leave, are filed

by the appellants against a common order dated 26 th October, 2007

passed by the High Court of Bombay at Goa in Criminal Revision

Application Nos. 3, 10, 19, 21 and 22 of 2007, whereby the High

Court while setting aside the charges framed by the learned Special

Judge, Panaji against the accused—appellants for the offences

punishable under Sections 120-B, 409, 420, 465 and 471, IPCand

directed to frame charges against them under Sections 13 (1)(d)(i)

and 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 read with

Section 120-B, IPC.

3

2. In a nutshell, the genesis of the dispute in all these

appealspertains to a Notification dated 30 thSeptember, 1991 issued

by the Government of Goa, duly approved by the Cabinet, according

to which those industrial units who apply for bona fide use of High

Tension or Low Tension power supply to their industrial units

would be eligible for a rebate of 25% in their tariff for a period of five

years. The appellant in Criminal Appeal No. 315 of 2011 (Accused

No. 1) was the Minister of Power for the State of Goa during the

period 22-12-1994 to 29-07-1998 whereas the appellant in

Criminal Appeal No. 313 of 2011 (Accused No. 2) was also a public

servant at that time being Chief Electrical Engineer.Accused Nos. 3

and 4 were Managing Director and Executive Director, respectively,

of the appellant Company in Criminal Appeal 314 of 2011 (Accused

No. 6), while the appellant in Criminal Appeal No. 312 of 2011

(Accused No. 5) was the General Manager of appellant Company in

Criminal Appeal No. 311 of 2011 (Accused No. 7).

3. The Government of Goa, during the tenure of accused No.

1 as Minister of Power, with the consent of Cabinet, issued another

Notification dated 31-03-1995 cancelling the earlier Notification

dated 30-09-1991 without assigning any reason for its cancellation.

Afterwards, it is alleged that another Notification dated 15-5-1996 4

was issued, without approval of the Cabinet introducing another

category of ‘Extra High Tension’ power supply and after that one

more Notification dated 01-08-1996 was issued, again without

Cabinet approval, restoring the benefit of 25% rebate, at the

instance of accused No. 1, only to benefit accused nos. 6 & 7

Companies.

4. Acting upon a complaint lodged by an M.L.A., the State

levelled allegations against the accused individuals that by entering

into a criminal conspiracy they provided wrongful gains to both the

appellant Companies (Accused Nos. 6 & 7) and favored the two

Companies for availing 25% rebate on power tariff by illegal means

and thereby caused huge loss of Rs.4,52,77,856/- to the exchequer

of Government of Goa.

5. Taking note of the allegations levelled against the

accused, the Special Judge, Panaji by order dated 8 thDecember,

2006 framed charges against the accused—appellants for the

offences punishable under Sections 120-B, 409, 420, 465, 468 and

471, IPC and also under Section 13(1)(d)(i) and 13(1)(d)(ii) read with

Section 13(2) of the Prevention of Corruption Act, 1988. The

aggrieved appellants approached the High Court by way of Criminal 5

Revision Applications. The High Court on the analysis of facts,

arrived at the conclusion that the facts of the case do not disclose

an offence of cheating and there was no offence of criminal breach

of trust. Accordingly, the appellants were discharged from the

offences punishable under Sections 120-B, 409, 420, 465, 468 and

471, IPC. However, the High Court observed that there is sufficient

prima facie material against the accused for framing charges

against them under Section 13(1)(d)(i) and 13(1)(d)(ii) read with

Section 120-B, IPC. Feeling aggrieved thereby, the accused—

appellants are before us in these appeals.

6. We have heard Mr. M.L. Varma, learned Senior counsel

appearing for the appellant in Criminal Appeal No.315/2011, Ms.

Binu Tamta, learned counsel appearing for the appellant in

Criminal Appeal No.311 of 2011, Ms. Asha Gopalan Nair, learned

counsel appearing for the appellant in Criminal Appeal No.313 of

2011 and alsothe learned counsel appearing for the State of Goa at

length.

7. Learned senior counsel for the appellant in Criminal

Appeal No. 315 of 2011 relying upon this Court’s order in Civil

Appeal Nos. 3206-3217 of 1999, passed on 13 th February, 2001 6

while dealing with the same Notifications, submitted that there is

no need to continue further criminal proceedings against the

appellants herein. The said order reads thus:

“The High Court by the impugned judgment has held that the circular dated 31st March, 1998 issued by the Government of Goa suspending the release of rebate with immediate effect as well as suspension of rebate agreed to be governed in sixty monthly installments has no legal efficacy and is, therefore, invalid. The High Court has further held that the notification dated 24th July, 1998 is legal and valid. Consequently the High Court directed that the writ petitioners are entitled to 25% rebate in power tariff till 26th July, 1998. This has been challenged by means of the present appeals. Second set of appeals have been filed by the writ petitioners against the judgment of the High Court whereby and whereunder the High Court has held that notification dated 27th July 1998 is valid.

We have heard counsel for the parties and perused the record. The High Court has taken the aforesaid view after taking into consideration overall facts and circumstances and inasmuch as public interest which, according to us, is very balanced view of the matter. We, therefore, are not inclined to interfere with the matters Both the sets of appeals fail and are accordingly dismissed. There shall be no order as to costs”.

8. It is further argued before us that the High Court erred in

not taking into account the factum that the complaint against the

accused—appellants was filed by political opponent of the appellant

whohad foisted the charges which are mala fide, misconceived and 7

concocted with a view to score political vendetta.Whereas power

rebate policy was existing in the State since 1991 and in 1993, out

of the High Tension category an Extra High Tension category was

carved out by the Government for the purpose of providing

additional benefit to industrial consumers. Drawing our attention to

a judgment of this Court in MRF Limited vs. Manohar Parrikar &

Others, (2010) 11 SCC 374, learned senior counsel submitted that

this Court has already considered the Notifications in question, in

an earlier round of litigation and expressed the view that the

decision taken by the appellant herein—accused No. 1 as a Minister

was balanced.

9. Ms. Binu Tamta, learned counsel appearing for the

appellantsin Criminal Appeal Nos. 311 & 312 of 2011 submitted

that as a matter of fact, the complaint in question was already

closed on 2.2.1999, but to meet the political will of the complainant

when he came to power in the State, the complaint was reopened at

his instance. The view taken by the Courts below in framing

charges against the accused is entirely wrong inasmuch as the trial

Court made an observation that the circumstances give rise to

suspicion that accused Nos. 1 to 5 conspired to extend benefit to

the accused Nos. 6 & 7 Companies. Mere suspicion does not 8

warrant framing of charges against the appellants. learned counsel

wrongly placed reliance on a decision of this Court in Hira Lal

Hari Lal Bhagwati Vs. CBI, New Delhi, (2003) 5 SCC 257 and

submitted that by virtue of the Notifications in question, no benefit

was got by the appellant and whatever amount had to be paid, has

already been paid, and accordingly the charges against the

appellant should be dropped.

10. Learned counsel appearing for the appellant in Criminal

Appeal No.313 of 2011, Ms. Asha G. Nair, submitted that the

appellant in his official capacity had only made submissions in

accordance with the instructions received by superiors in the

normal course of discharging his official duties. By any stretch of

imagination, the appellant cannot be equated as conspirator when

the deciding authorities were the Secretary and the Minister. She

has further submitted that the appellant has already retired from

his service and virtually he has no role to play in the alleged

conspiracy and the allegation that he is close to Minister does not

form a ground for levelling charges against him.

11. Learned counsel for the State while supporting the

impugned judgment, submitted that there was enough material on 9

record to establish that accused Nos. 1 & 2, being public servants

at the relevant time, had entered into a criminal conspiracy to

facilitate wrongful gains to accused Nos. 6 & 7 Companies in

collusion with their officials (accused Nos. 3 & 4). In pursuit of their

criminal conspiracy, they abused their positions and caused huge

loss to the public exchequer and benefited accused Companies by

illegal means. It is also vehemently argued that accused No. 1 while

abusing his official capacity prepared a false document giving an

appearance of genuine one and deceived the Government in taking

policy decision and enabled the accused Companies to avail 25%

rebate on power supply. He ultimately made a submission that

taking note of misdeeds of all the accused, the High court has in

clear terms expressed the opinion that there is sufficient prima facie

material to frame charges against all the accused, hence there is no

occasion for this Court to interfere and revisit the matter.

12. At the outset it would be pertinent to note the law

concerning the framing of charges and the standard which courts

must apply while framing charges. It is well settled that a court

while framing charges under Section 227 of the Code of Criminal

Procedure should apply the prima facie standard. Although the

application of this standard depends on facts and circumstance in 10

each case, a prima facie case against the accused is said to be made

out when the probative value of the evidence on all the essential

elements in the charge taken as a whole is such that it is sufficient

to induce the court to believe in the existence of the facts pertaining

to such essential elements or to consider its existence so probable

that a prudent man ought to act upon the supposition that those

facts existed or did happen. However, at this stage, there cannot be

a roving enquiry into the pros and cons of the matter and weigh the

evidence as if he was conducting a trial. [Refer Sajjan Kumar v.

CBI, (2010) 9 SCC 368; State v. A. Arun Kumar, (2015) 2 SCC

417; State by the Inspector of Police, Chennai vs. S. Selvi and

Ors., (2018) 1 SCALE 5.]

13. Having thoughtfully considered the arguments advanced

by respective learned counsel and upon going through the record,

particularly the impugned judgment, in the light of sequence of

events, prima facie, it cannot be said that no case can be made out

against the accused—appellants. Allegedly, the Notifications dated

15-5-1996 and 1-8-1996 were issued without the approval of

Cabinet and by violation of rules. Looking at the facts of the case in

a holistic manner, we do not think it necessary to go into the aspect

of thorough examination of merits of the case, particularly when the 11

issue is still at the stage of framing of charges only. There is no

error in framing charges, as suggested by the High Court, when

presumably the material on record obligated the Court to do so.

14. In light of the above discussion, we do not see any

illegality in the impugned order. Therefore, we find no reason to

interfere with the order passed by the High Court. However, learned

counsel appearing for the appellants, at this stage wants to place

before the trial Court, the material, judgments and the earlier

passed order of this Court which are referred before us. We grant

liberty to the learned counsel to do so.

15. With the above observations, the appeals are disposed of.

..................................J. (N.V. RAMANA)

..................................J. (S. ABDUL NAZEER) NEW DELHI, JANUARY 17, 2018.