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IN THE COURT OF SH. BHARAT PARASHAR, SPECIAL JUDGE (PC ACT) (CBI)-7, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI CNR No. DLND01-000411-2014 CC No. 8524/16 (Old CC No. 03/16) RC No. 219 2012 E 0014 Branch: CBI/EO-I/New Delhi CBI Vs. M/s Vikash Metal & Power Ltd. & Ors. U/s. 120-B IPC; 420 IPC; Sec 13(1)(d) (ii)/13(1)(d) (iii) P. C. ACT, 1988 & 120-B IPC r/w S. 420 IPC & Sec 13(1)(d) (ii)/13(1)(d) (iii) P. C. ACT, 1988 Date of order on cognizance : 05.02.2016 Date of framing of charge : 19.08.2016 Date of final arguments : 18.09.2018 Date of judgment : 30.11.2018 In re: Central Bureau of Investigation (CBI) Vs. (1) M/s Vikash Metal & Power Ltd. Registered office: 35, Chittranjan Avenue, 6th Floor, Kolkata - 700012, (West Bengal) Corporate Office: 21 Hemanta Basu Sarani, 3rd Floor, Room No. 312, Kolkata -700001 (West Bengal) (Convicted) (2) Vikash Patni S/o Sh. Vimal Kumar Patni R/o 227/1A, 2nd Floor, Room 2B, AJC Bose Road, Kolkata-20 (Convicted) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 1 of 467 (3) Anand Mallick S/o Sh. Trilok Nath Mallick R/o Flat No. 202, Charmes Solitaire, Near DPS, Indirapuram, Ghaziabad. (Convicted) (4) Harish Chandra Gupta S/o Late Shri Kishan Lal Gupta, R/o 377, Sector 15-A, NOIDA-201301, Uttar Pradesh (Convicted) (5) K.S. Kropha S/o Late Sh. Sukh Das Kropha R/o Circuit House Complex, Kenche's Trace, Laban, Shillong-793004, Meghalaya (Convicted) (6) K.C. Samria S/o Sh. G.L. Samria, R/o H. No. 81, Rabinder Nagar, New Delhi-03 (Convicted) APPEARANCES Present : Ld. Senior Advocate, Sh. R.S. Cheema, Special P.P., alongwith Ld. Senior P.P. Sh. Sanjay Kumar, Ld. DLA Sh. V. K. Sharma, Ld. Senior P.P. Sh. A.P. Singh, and Ld. Advocate Ms. Tarannum Cheema for CBI. Ld. Counsel Sh. Sougat Sinha for A-1 M/s Vikash Metal & Power Ltd. (M/s VMPL), Ld. Counsel Dr. Sushil Kumar Gupta for A-2 Vikash Patni, Ld. Counsels Dr. Sushil Kumar Gupta and Sh. Ratnesh Deo for A-3 Anand Mallick, Ld. Counsels Sh. B.S. Mathur and Sh. Rajat Mathur for A-4 H.C. Gupta and Ld. Counsel Sh. Rahul Tyagi for A-5 K.S. Kropha and A-6 K.C. Samria. JUDGEMENT
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 2 of 467 INDEX TO THE JUDGMENT S.NO HEADING PAGE NO(s) (A) Facts 7 A (i) Investigation by CBI 11 A (ii) Proceedings before the Court. 14 (B) Charges Framed 16 (C) Evidence 19 C (i) Prosecution Evidence 20 C (ii) Defence Evidence 26 (D) Arguments D (i) Arguments on behalf of Prosecution 29 D (ii) Arguments on behalf of company A-1 M/s VMPL. 33 D (iii) Arguments on behalf of A-2 Vikash Patni 34 D (iv) Arguments on behalf of A-3 Anand Mallick. 46 D (v) Arguments on behalf of A-4 H.C. Gupta. 50 D (vi) Arguments on behalf of A-5 K.S. Kropha and 60 A-6 K.C. Samria.
(E) Prelude to my discussion of the prosecution case. 75 (F) Role of private parties i.e. A-1 M/s VMPL, A-2 Vikash Patni 86 and A-3 Anand Mallick in the allocation of Moira- Madhujore Coal Block in favour of A-1 M/s VMPL by Ministry of Coal.
F (i) Actual purpose of seeking allocation of a captive coal 117 block situated in state of West Bengal by A-1 M/s VMPL.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 3 of 467 F (ii) Whether the application of M/s VMPL was complete in terms of the guidelines issued by MOC governing 119 allocation of captive coal blocks.
F (iii) Whether the company M/s VMPL mentioned inflated 146 figures of financial strength in its application.
F (iv) Whether A-1 M/s VMPL, A-2 Vikash Patni and A-3 147 Anand Mallick were aware of the factum of cancellation of allotment of 300 acres of land to A-1 M/s VMPL by BIADA.
F (v) Whether Ministry of Steel relied upon the aforesaid 154 highly inflated claims about the financial strength and capacity of the end use project made by the company M/s VMPL in its application.
F (vi) Whether the data furnished by A-1 M/s VMPL in its 160 application and the feed-back form was considered by the Screening Committee, MOC.
F (vii) Whether issuance of letter of allotment of coal block 163 amounted to delivery of property resulting in wrongful gain to A-1 M/s VMPL.
F (viii) Whether the dishonest misrepresentation continued 168 before Prime Minister as Minister of Coal and thereby cheating MOC, Government of India.
F (ix) Role of A-3 Anand Mallick. 172 F (x) Role played by A-2 Vikash Patni 179 F (xi) Role played by A-1 M/s VMPL. 186F (xii) Whether the ingredients of the offence of cheating 187 stands proved.
F (xiii) Whether the accused persons i.e. A-1 M/s VMPL, A-2 188 Vikash Patni and A-3 Anand Mallick acted in pursuance to a criminal conspiracy.
F (xiv) Conclusion 195CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 4 of 467 (G) Role of accused Ministry of Coal officers i.e. A-4 H.C. 195 Gupta, A-5 K.S. Kropha And A-6 K.C. Samria G (i) Whether the process of receiving the applications or 209 their subsequent processing in Ministry of Coal was dealt with in accordance with the Provisions of Central Secretariat Manual Of Office Procedure.
G (ii) Whether the Provisions of Manual of Office Procedure 226 were applicable to the proceedings of Screening Committee.
G (iii) Whether the guidelines issued by MOC governing 233 allocation of captive coal blocks were binding and were mandatorily to be followed by MOC officers and by the Screening Committee.
G (iv) Whether in the processing of applications in MOC 252 there was any violation of guidelines governing allocation of captive coal blocks i.e. whether the applications were checked for their eligibility and completeness or not.
G (v) Whether senior MOC officers were responsible for 262 ensuring checking of applications for their eligibility and completeness in terms of the guidelines and also whether accused MOC officers were aware of the process undertaken in MOC in processing of applications before they were considered by the Screening Committee.
G (vi) Whether there was any violation of guidelines in the 283 Screening Committee meeting.
G (vii) Whether the recommendations made by 36th 288 Screening Committee meeting were unanimous.
(a) Constitution of Screening Committee. 291 (b) Working of 36th Screening Committee 300b(i) Whether State Government of Bihar was a necessary invitee to 36th Screening Committee Meetings Or Not.
b(ii) Whether the comments of State Government of 310 Bihar were necessary to be placed before the Screening Committee.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 5 of 467 b(iii) Whose responsibility was it to ensure that notice of Screening Committee meetings is issued to all members and to also ensure that comments of all concerned are made available to the Screening Committee for its consideration.
(c) Process followed by 36th Screening Committee 325 which led to selection of A-1 M/s VMPL as a joint allocatee for allocation of Moira-Madhujore Coal Block.
(d) Significance of signing the recommendation 348 sheets by the members of Screening Committee in its meeting held on 03.07.2008 and whether it conveys unanimity.
G (viii) Processing of minutes of 36 th Screening Committee 360 meeting in Ministry of Coal and in Prime Minister Office leading to approval of the recommendations by Prime Minister as Minister of Coal.
G (ix) Whether Company A-1 M/s VMPL was recommended 370 for allocation of Moira-Madhujore Coal Block by 36 th Screening Committee only for its proposed iron and steel project at Bihar or also for its existing plant at West Bengal.
(H) Checking of applications post-approval of 396 recommendations of Screening Committee by Prime Minister as Minster of Coal.
(I) Offence of criminal misconduct i.e. u/s 13 (1) (d) P.C. Act, 403 1988.
(J) Criminal conspiracy u/s 120-B IPC 408(K) Section 409 IPC and Section 13 (1) (c) P.C. ACT, 1988 as 410 against A-4 H.C. Gupta (L) Validity of sanction u/s 19 PC Act, 1988 as accorded 412 against A-5 K.S. Kropha and A-6 K.C. Samria by the Competent Sanctioning Authority.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 6 of 467 (M) Whether sanction u/s 197 Cr. PC was required against A-4 426 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria (N) Effect of Prevention of Corruption (Amendment) Act, 2018 431 on the present proceedings.
(O) Final Conclusion 461 (P) Epilogue 4631. The present case pertains to allocation of Moira and Madhujore (North and South), Raniganj, West Bengal, coal block in favour of M/s Vikash Metal and Power Ltd. (hereinafter referred to as "M/s VMPL") by Ministry of Coal (MOC), Government of India.
(A) FACTS
2. Briefly stated the necessary facts of the prosecution case are as under:
In November 2006, Ministry of Coal (MOC), Government of India issued an advertisement inviting applications for allocation of 38 Coal Blocks for captive coal mining from companies engaged in generation of power, production of iron and steel and production of cement. The advertisement stated that out of 38 Coal Blocks, 15 Coal Blocks were earmarked for power sector and 23 Coal Blocks were earmarked for non-power sector i.e iron, steel and cement. The companies which were registered under Indian Companies Act, 1956 were eligible to apply for one or more of such Coal Blocks. The CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 7 of 467 application form to be filled up, documents to be enclosed, coal blocks on offer or other guidelines as to how the applications shall be processed or the factors on which inter-se priority may be decided from amongst competing applicant companies for any given coal block were all made available on the website of MOC i.e. www.coal.nic.in. The applications were to be submitted in five copies. The details filled in the application form were also to be furnished in soft copy in a CD alongwith the application.
3. The applications were also to be accompanied with a demand draft of Rs. 10,000/- beside other documents as were asked for in the detailed guidelines. The prescribed format of the application form also required the applicant companies to submit various details about their company or the end use project if already established by them or proposed to be established by them regarding which Coal Block allocation was sought for. The companies were required to mention their turnover of the last three preceding years beside mentioning the profit earned in the last three years and the net worth as on 31.03.2006. The details of the end use project viz. the existing capacity, if any, alongwith proposed capacity of the project and the ultimate capacity (total) and "ROM Coal" requirement were also required to be mentioned. Various other details regarding the status of the end use project with respect to land, water, equipments, civil construction, finance etc. and also the clearances which were already obtained or were applied for were also required to be mentioned. The details of the investment already made or proposed to be made was CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 8 of 467 also required to be mentioned in the application form. Further the applications were to be submitted in five copies.
4. As regard coal blocks reserved for companies engaged in non-power sector, MOC received about 674 applications from 184 companies. For Moira and Madhujore (North and South) coal block a number of companies including M/s VMPL applied for its allocation. The application of M/s VMPL (Accused No. 1) dated 11.01.2007 was signed by its authorised signatory/Director namely Anand Mallick (Accused No. 3) and was submitted to MOC on 12.01.2007. While 35th Screening Committee dealt with applications received for allotment of coal blocks reserved for companies engaged in power sector, the applications received for allocation of coal blocks reserved for end use other than power were considered by 36th Screening Committee.
5. In accordance with the procedure provided in the guidelines for processing of applications, four copies of all the applications were sent to Administrative Ministries (Ministry of Steel in the present case), Central Mine Planning & Design Institute Limited, (CMPDIL) and the State Governments concerned where the Coal Block applied for was situated [State of West Bengal in the present case] or the end use project was situated or was proposed to be established (State of Bihar in the present case) for their views and comments. One copy of all the applications was however retained in MOC. The applications were thereafter referred to 36th Screening Committee for its consideration with comments/views of various stakeholders as were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 9 of 467 received in MOC.
6. The Screening Committee as was constituted in MOC by Government of India was given the task of screening the applications of various applicant companies and to thereafter make recommendation for allotment of various Coal Blocks in favour of eligible companies. The 36th Screening Committee thus conducted its meetings on 7/8.12.2007, 7/8.02.2008 and 03.07.2008 to consider applications qua coal blocks reserved for companies engaged in non- power sector. The Screening Committee also gave all the applicant companies an opportunity to present their case before it beside also requiring them to fill up a feedback form, containing details of "Latest Status of End Use Project". The format of the feedback form was also uploaded on the website of MOC. The applicant companies were supposed to fill-up the said feedback form and were to submit the same to Screening Committee in 25 copies at the time of making presentation.
7. On 07.02.2008 A-2 Vikash Patni, A-3 Anand Mallick alongwith one Ranjan Barman (PW-15) appeared on behalf of A-1 M/s VMPL for presentation before the Screening Committee and also submitted the feed-back form. Subsequently, the Screening Committee in its meeting held on 03.07.2008 recommended allocation of 23 Coal Blocks earmarked for non-power sector in favour of different applicant companies. Moira and Madhujore (North and South) Coal Block was however recommended for being allotted jointly in favour of six companies including A-1 M/s VMPL.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 10 of 467
8. However, after some time a lot of hue and cry came to be raised in the public alleging that Coal Blocks have been allotted by Government of India not only illegally but in furtherance of a criminal conspiracy entered into by different applicant companies and the MOC officers. Central Vigilance Commission thus chose to look into the entire allocation process as there were large number of allegations of corruption against the public servants involved. After examining various files of allocation of Coal Blocks, the Central Vigilance Commission made a reference to CBI to investigate into the allegations of alleged corruption by the public servants in the matter of allocation of Coal Blocks to private companies during the period 2006-2009.
A (i) INVESTIGATION BY CBI
9. On the basis of said reference a preliminary enquiry was instituted on 01.06.2012 by CBI with respect to allocation of various coal blocks including Moira and Madhujore (North and South) Coal Block to A-1, M/s VMPL. During the course of said preliminary enquiry, the CBI prima facie found an element of truth in the allegations of corruption in the allocation of impugned Coal Block to A-1 M/s VMPL warranting further investigation. Accordingly an FIR was registered on 13.10.2012 against A-1 M/s VMPL and others including unknown public servants for the offences punishable u/s 120B r/w Section 420 IPC and Section 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption, Act 1988. The investigation of the case CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 11 of 467 was thereafter carried out by IO Inspector Rajbir Singh.
10. During the course of preliminary enquiry it was found that the allotment of about 300 acres of land earlier allotted to M/s VMPL was in fact already cancelled by Bihar Industrial Area Development Authority (BIADA) vide their letter dated 21.09.07. However M/s VMPL was found to have concealed this fact of cancellation of allotment of land before the Screening Committee when they appeared for their presentation and even in the feed back form filled and submitted by them they continued to represent that 300 acres of land stand allotted to them. It was also found that the figures of turnover, profit and net-worth of the company as were mentioned in the application form was also not correct. It even did not tally with copy of the balance sheets of the company for the past 3 years as were annexed with the application. It was also found that the application of company M/s VMPL was also not complete as it had not annexed with it the project report as was mandated by the guidelines issued by MOC.
11. Subsequently during the course of investigation the company however claimed that the letter of cancellation of allotment of land issued by "BIADA" was not received by them though they admitted having received earlier letters from "BIADA" where on account of non- compliance with certain conditions the land was proposed to be cancelled by "BIADA". The investigating officer, Insp. Rajbir Singh accordingly sought to collect information regarding receipt of letter of cancellation of allotment of land sent by "BIADA" through registered CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 12 of 467 post to M/s VMPL from the concerned post office. However the post office authorities claimed inability to make available record pertaining to the postage or receipt of said letter as the record which was more than 2 years old was stated to be not available with them. During the course of investigation IO Insp. Rajbir Singh also recorded statements of various persons from Ministry of Coal and Ministry of Steel who were involved in the process of allotment of Coal Blocks and came to the conclusion that the allotment of land was neither a pre-requisite condition nor a mandatory condition for allotment of Coal Blocks. Accordingly a closure report was filed in the Court opining that the allegations either against M/s VMPL or its Directors or even against the public servants could not be substantiated during the course of investigation.
12. It was in these circumstances also concluded by IO Inspector Rajbir Singh that no cogent evidence could come to light which could prove that any wrongful gain was caused to the accused company in allocation of impugned Coal Block. As regard submitting the false data regarding its financial strength by the company, it was stated that the Ministry of Steel which was the administrative Ministry also did not consider the net-worth of the company for making their recommendation to MOC and thus it was of no consequence to Ministry of Steel in classifying the company under any of the category as were devised by it. The final report also stated that during investigation no evidence could emerge to establish that task of checking of applications as regard their completeness and eligibility CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 13 of 467 was not undertaken by the officers of MOC pursuant to any criminal conspiracy with any of the applicant companies including the accused company M/s VMPL. No offence was thus found to have been committed either by A-1 M/s VMPL or its Directors/officers or even by any of the public servants involved in the entire coal block allocation process.
A (ii) PROCEEDINGS BEFORE THE COURT
13. However vide a detailed order dated 15.10.2014, this Court disagreed with the conclusion so drawn by the CBI and ordered further investigation in the matter. Accordingly a supplementary final report was filed on 07.04.2015 by IO Insp. Rajbir Singh. In the said supplementary report filed u/s 173 (8) Cr.PC, the CBI changed its stand and charge-sheeted three accused persons i.e. company M/s VMPL, Vikash Patni, Managing Director of M/s VMPL, and Anand Mallick, the authorised signatory of company M/s VMPL for the offence u/s 120-B/420 IPC. As regard all other directors of the company or the public servants involved in the process of allocation of coal block to the company it was stated that no offence was found to have been committed by them.
14. The said supplementary report filed by CBI was considered by this Court vide a order dated 05.08.2015. After detailed discussion it was observed that prima facie H.C. Gupta, the then Secretary, Coal and Chairman, Screening Committee, K.S. Kropha, Joint Secretary, Coal and Member Convener, Screening Committee and K.C. Samria, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 14 of 467 Deputy Secretary/Director, CA-I Ministry of Coal were found to have conspired with private parties involved. Offences under Section 120- B/409 IPC r/w Section 13 (1) (c)/13 (1) (d) P C Act, 1988 were found to have been committed by them. However as except for H.C. Gupta the other two public servants were still in Government service and thus congnizance of offences under P.C. Act 1988 could have been taken against them only if prior sanction u/s 19 P.C. Act, 1988 is accorded by the Competent Sanctioning Authority. Accordingly vide order dated 05.08.2015 itself, the matter was sent for further investigation to CBI u/s 173 (8) Cr.PC with the direction that during the course of further investigation CBI shall place before the Competent Sanctioning Authority, the records of the case so as to consider according of sanction u/s 19 P.C. Act to prosecute the two public servants i.e. K.S. Kropha and K.C. Samria for the offences under P.C. Act. Accordingly during the course of further investigation, CBI sent the records of the case to the competent sanctioning authority for considering according of sanction u/s 19 P.C. Act, 1988 against the two public servants. The competent sanctioning authority thereafter accorded sanction u/s 19 P.C. Act to prosecute both accused K.S. Kropha and K.C. Samria for the offence u/s 13 (1) (d) P.C. Act and also for any other offences punishable under other provisions of law in respect of the acts mentioned in the sanction order.
15. Thereafter vide order dated 05.02.2016 cognizance of the offence u/s 13 (1) (d) P.C. Act was taken against accused H.C. Gupta CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 15 of 467 (A-4), K.S. Kropha (A-5) and K.C. Samria (A-6) and also cognizance was taken of the offence U/S 409 IPC and of the offence U/S 13 (1)
(c) P C Act, 1988 against accused H C Gupta. Cognizance for the offence u/s 120-B/420 IPC was taken against A-1 M/s VMPL, its director Vikash Patni (A-2) and also against Anand Mallick (A-3). Cognizance was thus also taken against all the six accused persons namely company M/s Vikash Metal & Power Ltd, its Directors Vikash Patni, Anand Mallick and public servants namely H. C. Gupta, K. S. Kropha and K. C. Samria for the offences u/s 120-B/409/420 IPC read with Section 13 (1) (c)/13 (1) (d) P C Act, 1988.
(B) CHARGES FRAMED
16. Subsequently, when all the accused persons put in their appearance, copies of the charge sheet were supplied to them. After due compliance of Section 207 Cr.PC, when the matter was fixed for arguments on the point of charge, Ld. Counsels for the accused persons very fairly stated that though charges may be framed against the accused persons for the offences u/s 120-B IPC and for the offences u/s 120-B/409/420 IPC and also u/s 13 (1) (c)/13 (1) (d) P.C. Act, 1988 but they shall be demonstrating, during the course of trial, that the allegations levelled against the accused persons are completely false.
17. Accordingly, vide order dated 12.08.2016 charge for the various offences as are mentioned in the table below were framed against the accused persons on 19.08.2016.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 16 of 467 CHARGES FRAMED (I) (II) S.No Name of accused Charges Common to all Charges separately framed 1 A-1 M/s VMPL (i) 120-B IPC 420 IPC
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 2 A-2 Vikash Patni (i) 120-B IPC
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 3 A-3 Anand Mallick (i)120-B IPC
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 4 A-4 H.C. Gupta (i) 120-B IPC (i) Sec. 409 IPC
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC (ii) 13 (1) (c) / and Section 13 (1) (c) and 13 (1) (d) 13 (1) (d) P.C. Act, P.C. Act, 1988 1988 5 A-5 K.S. Kropha (i) 120-B IPC 13 (1) (d) P.C. Act,
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 1988 and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 6 A-6 K.C. Samria (i) 120-B IPC 13 (1) (d) P.C. Act,
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 1988 and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 All the accused persons however pleaded not guilty to the charges so framed against them and claimed trial.
18. At this stage it would be worthwhile to mention that as regard CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 17 of 467 company A-1 M/s VMPL, it was informed by Ld. Counsel Sh. Saugat Sinha that winding up orders have since been issued against the company by Hon'ble High Court of Kolkata and an official liquidator has been appointed by the Hon'ble High Court. Accordingly Ld. Counsel Sh. Sougat Sinha stated that he has been accordingly appointed by the Official Liquidator to represent and protect the interest of company M/s VMPL in the present proceedings.
19. Soon after framing of charges for various offences against the accused persons and before commencement of recording of prosecution evidence the accused persons were also called upon u/s 294 Cr.PC to admit/deny the genuineness of documents relied upon by the prosecution. The accused persons were also given an option that qua any document if they are unable to admit or deny the genuineness thereof, for want of knowledge then they may so mention against it in the remarks column in the list of documents supplied to them by the prosecution.
20. Prosecution thereafter in order to prove its case examined 22 witnesses. Examination-in-chief of three witnesses namely Sh. V.P. Sharma, Sh. Ram Naresh and Sh. K.P. Singh was however led by way of affidavit u/s 296 Cr.PC as their evidence was of formal character only. Ld. Counsels for the accused persons were thereafter given liberty to cross-examine the said three witnesses, if they intend to. However Ld. Counsels for all the accused persons chose not to cross-examine them. Thus evidence of said three witnesses CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 18 of 467 remained completely unimpeached at the altar of cross-examination. Statement of all the accused persons were thereafter recorded u/s 313 Cr.PC. A-2 Vikash Patni, A-4 H.C. Gupta and A-5 K.S. Kropha however also chose to submit their written statements u/s 313 (5) Cr.PC but the other accused persons did not file any such written statement u/s 313(5) Cr.PC despite liberty having been given to them. Accused persons however thereafter also examined seven (7) witnesses in their defence. Detailed final arguments in the matter were thereafter heard as were addressed by Ld. Sr. P.P. Sh. Sanjay Kumar on behalf of prosecution and by Ld. Counsel Sh. Sougat Sinha for A-1 M/s VMPL, Ld. Counsel Dr. Sushil Kumar Gupta for A-2 Vikash Patni, Ld. Counsels Dr. Sushil Kumar Gupta and Sh. Ratnesh Deo for A-3 Anand Mallick, Ld. Counsel Sh. Rajat Mathur for A-4 H.C. Gupta, Ld. Counsel Sh. Rahul Tyagi for A-5 K.S. Kropha and A-6 K.C. Samria.
Written submissions were also filed on behalf of all the accused persons.
(C) EVIDENCE
21. Thus in the aforesaid factual matrix before adverting further it will be worthwhile to give a brief reference of the deposition of various prosecution witnesses and defence witnesses so examined in the present trial.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 19 of 467 C (i) PROSECUTION WITNESSES PW Name and Deposition/Role of the witness in the present case No. designation of the Witness PW-1 V.S. Rana, He was posted as Under Secretary, Ministry of Coal Deputy from August 2005 till December 2013. He was Secretary, associated with the processing of applications of Ministry of various private companies received by Ministry of Home Affairs Coal seeking allocation of coal blocks including that of A-1 M/s VMPL. He accordingly proved various files/ notings/ documents as were prepared in Ministry of Coal either by him or by other officers/ officials of Ministry of Coal during that period or documents/communications which were received by them in MOC during that period.
PW-2 Sh. Anil He was the Executive Director, BIADA in the year Kumar 2006. He deposed about the allocation of 300 acres Thakur, of land to M/s Vikash Metal and Power Ltd. by BIADA (Retired) Joint for establishing its proposed integrated steel plant. He Director, Govt. also deposed about subsequent cancellation of said of Bihar allotment of land to M/s VMPL by BIADA vide order dated 21.09.2007 on account of non-payment of cost of land and also for non-construction of boundary wall around the land by the time limit fixed by BIADA.
PW-3 Sh. Arbinda He was a public independent witness who Roy, (Retired) accompanied the CBI team in the search operation Sr. Manager carried out at the office of M/s VMPL at Hemant Basu, Vigilance, Sarani, Kolkata on 22.09.2012. He thus deposed UCO Bank about the various documents collected by CBI during the said search operation.
PW-4 Sh. Devanand In January 2007 he was posted in Darbhanga office of Dutta, BIADA and was looking after the dispatch section. He (Retired) Area had posted the cancellation order of land issued by Incharge, BIADA dated 21.09.2007 to M/s VMPL by registered BIADA post and had made necessary entry in the dispatch register. He also had pasted the postal receipt of the letter addressed to M/s VMPL in the dispatch register.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 20 of 467 PW-5 Sh. Raj Kumar He was the public independent witness who joined Handa, Dy. SP T.P. Singh of CBI in the search operation (Retired) carried out at the residence of accused Anand Mallick Head Clerk, on 22.09.2012. He thus deposed about the various Vigilance documents collected by CBI during the said search Department, operation.
SDMC PW-6 Sh. Sulpani He was the public independent witness who joined Chaudhari, CBI officers in the search operation of a flat at AJC (Retired) Sr. Bose Road, Kolkata belonging to Akash Patni, Vimal Manager, Patni and A-2 Vikash Patni as was carried out on PNB, Kolkata 22.09.2012. He thus deposed about the various documents collected by CBI during the said search operation.
PW-7 Sh.Manas In January 2007 he was posted as Assistant in the Kumar office of Coal Controller, Kolkata. He deposed that in (Retired) January 2007 he alongwith his three colleagues from Assistant from the office of Coal Controller had come to MOC Delhi the office of on the directions of his senior officers. At MOC the Coal officers told them to report at Scope Minar, Laxmi Controller, Nagar office. He further deposed that at Laxmi Nagar Kolkatta office, Sh. R.S. Negi, an official of MOC asked them to segregate the various applications already received from different applicant companies into 5 sets i.e. for CMPDIL, MOC, Ministries and State Governments. He further deposed that beside doing the aforesaid work of segregating they did not undertake any other work. He also deposed that while R.S. Negi from MOC was supervising their work, V.S. Rana (PW-1) also visited them on 2-3 occasions. He also staed that on one occasion even A-5 K.S. Kropha also met them and told them to complete the work assigned to them. He also deposed that subsequently upon completion of work he alongwith his colleagues had written a request dated 08.02.2007 for grant of honorarium of Rs. 5000/- per person and the same was given to Sh. R.S. Negi by them.
PW-8 Sh. Sumanta He was LDC in the office of Coal Controller, Kolkata.
Biswas, UDC He deposed that in July 2007, he alongwith his three from the colleagues from the office of Coal Controller had office of Coal come to MOC office, New Delhi and from there Sh.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 21 of 467 Controller, R.S. Negi and Sh. V.S. Rana had taken them to Kolkatta Scope Minar, Laxmi Nagar Office. He further stated that at Laxmi Nagar office they were asked to arrange the applications in alphabetical order and accordingly they did no other work. He also deposed that subsequently in the month of August 2007 he alongwith three other officials of the office of Coal Controller again reported at the office of MOC, New Delhi and on this occasion they were simply asked to flag the balance sheets as were available in the various applications and they accordingly did so.
PW-9 Sh. Jaish He was an officer of United Bank of India, Kaushambi Kumar Branch, Ghaziabad, UP. In February 2015 on the Bhasin, Dy. request of IO Insp. Rajbir Singh he had provided him Manager, the original account opening form and other identity United Bank documents of A-3 Anand Mallick as were available in of India the bank records with respect to saving bank account of Anand Mallick as was maintained in their bank.
PW-10 Ms. Vini She was initially posted as Director and thereafter as Mahajan, Joint Secretary in PMO from 2006 to 2008. She was Additional associated with the processing of various files in PMO Chief regarding Coal Block Allocation matters and Secretary accordingly proved the same. She also deposed that (Health), Govt. after recommendation of 36th Screening Committee of Punjab meeting were received in PMO from MOC then Principal Secretary to the PM had discussed the matter with Secretary (Coal) and Secretary (Steel) on 16.07.2008 and in which meeting it was confirmed that the proposals were based strictly on merits of the applicants, including the recommendations of the state governments where the blocks are located. She had accordingly put up a note dated 16.07.2008 in file Ex. PW 28/C (colly) (D-120) and pursuant to which Hon'ble Prime Minister Dr. Manmohan Singh as Minister (Coal) approved the recommendations of 36th Screening Committee on 17.07.2008 subject to consideration of certain issues relating to Urtan, Behraband (North) Extension and Vijay Central coal block and also that MOC may satisfy itself that there is no undue delay in development of any earlier allotted coal blocks to the allocatee companies. She further deposed that the fact as to whether CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 22 of 467 proposals were based on merit or not were however not got verified in PMO.
PW-11 Sh. Rahul He was operation head in Axis Bank, Swasthya Vihar Tyagi, Branch, Delhi. In March 2015 he had handed over to Operation CBI original account opening form of saving bank A/c Head, Axis of Anand Mallick alongwith other identity documents Bank Noida of Anand Mallick as were available in their records Branch with respect to saving bank A/C of Anand Mallick.
PW-12 Sh. N.R. He was posted as Director Ministry of Steel from Dash, October 2006 till October 2011 and was Incharge of Executive ID Wing i.e. Industrial Development Wing. He was Director, associated with the processing of applications of Railway various applicant companies including that of M/s Board, Delhi VMPL as were received in Ministry of Steel from Ministry of Coal for obtaining their views/ comments regarding allotment of captive coal blocks. Under his signatures the comments of Ministry of Steel placing various applicant companies under different categories as were devised by Ministry of Steel were communicated to Ministry of Coal. He also deposed that M/s VMPL was kept in category-VI. He also deposed that no comparative statement detailing the inter-se priority of various applicant companies was provided by MOC to the members of the Screening Committee in the meeting held on 03.07.2008.
PW-13 Sh. A Sanjay He was Under Secretary, MOC, Government of India Sahay, from November 2012 till 01.07.2015. Vide letter dated Director 26.03.2014 he had provided IO Insp. Rajbir Singh, (Personnel) copy of joint allocation letter dated 06.10.2009 issued South Delhi, by MOC qua allocation of Moira-Madhujore coal block MCD in favour of six joint allocatee companies including M/s VMPL. He also provided copy of letter dated 14.02.2014 vide which allocation of Moira-Madhujore coal block in favour of all the six joint allocatee companies was canceled by MOC. He was also associated with the proceedings which finally resulted in de-allocation of Moira-Madhujore coal block in favour of all the six joint allocatee companies.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 23 of 467 PW-14 Sh. Shashi From December 2005 till March 2011 he was posted Ranjan as Dy. Secretary/Director in DIPP. He had Kumar, IAS, accordingly attended meetings of 36 th Screening Jt. Secretary Committee in MOC including the final meeting held on in the 03.07.08. He deposed that in the said meeting he had Department of reiterated the recommendation of DIPP qua Moira- Telecommunic Madhujore coal block as were already communicated ation, Govt. of to MOC. He further deposed that 36th Screening India Committee had recommended joint allocation of Moira-Madhujore coal block in favour of six applicant companies including M/s VMPL.
PW-15 Sh. Ranjan He deposed that on 07.02.08 he had accompanied A-
Barma, 2 Vikash Patni and A-3 Anand Mallick to the Chartered Screening Committee meeting held in MOC. He Accountant deposed that at that time he had read out the presentation before the Screening Committee on behalf of M/s VMPL. He also deposed that as the presentation was in English so on the request of Vimal Kumar Patni i.e. father of A-2 Vikash Patni he had only come to the Screening Committee to read out the presentation which was in English and especially since Vikash Patni was not proficient in English. He also claimed that some feed-back form which was already filled up and signed was also brought by the other persons and was submitted to Screening Committee. He however but claimed ignorance as regard the details filled therein.
PW-16 Sh. Yogesh He was a Chartered Accountant working in a firm M/s Gupta, S. Jaykishan. The said firm was the Statutory Auditor Chartered of M/s VMPL from 2003 to 2011. He accordingly Accountant proved the audited balance sheets of M/s VMPL as were annexed with the application Ex. P-96 (Colly) (D-8) of the company submitted to MOC seeking allocation of a coal block. He also identified the balance sheets of the company M/s VMPL i.e. Ex. P- 80 (Colly) (D-87) as were collected by CBI during the course of investigation. He also identified the stamp of his firm M/s S. Jaykishan beside also identifying his own signatures and that of his partner Sh. B.K.
Newatia on the said balance sheets.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 24 of 467 PW-17 Sh. Rajkishan He was Under Secretary, DOPT, Government of India.
Vats, Under He proved the sanction u/s 19 PC Act, 1988 accorded Secretary in by the competent sanctioning authority with respect to Department of necessary prosecution of A-5 K.S. Kropha and A-6 Personnel and K.C. Samria for the offences u/s 13 (2) r/w 13 (1) (d) Training, Govt. and for any other offences punishable under other of India provisions of law in respect of said offences by the Court of Competent Jurisdiction.
PW-18 Dr. Sabya During the year 2007-08 he was Secretary, Sachi Sen, Commerce and Industries, Government of West (Retired) Bengal. He proved the various recommendations as Commissioner were sent to MOC by Government of West Bengal General Land qua allocation of coal blocks including Moira- Reforms and Madhujore coal block situated in state of West Additional Bengal. He also deposed that in the Screening Chief Committee meetings Sh. Bhaskar Khulbe, the then Secretary, Advisor Industries, Government of West Bengal had Govt of West represented the Government of West Bengal. He also Bengal. deposed that subsequent to Screening Committee meeting held on 03.07.08, Sh. Bhaskar Khulbe had written a letter dated 04.07.08, Ex. PW 18/C to K.S. Kropha, Joint Secretary, Coal mentioning therein the end use capacity of the companies in West Bengal who were recommended for allocation by the Screening Committee on 03.07.08 and requested that the share allocated to each of the said companies may be indicated so that the same may be conveyed to Commerce and Industries Department, Government of West Bengal. He further stated that in the said communication dated 04.07.08 the names of six (6) companies were mentioned but the name of M/s VMPL was not mentioned.
PW-19 IO Inspector, He was the main investigating Officer of the case. He Rajbir Singh deposed extensively about the investigation carried out by him and also about the collection of various documents from different authorities by him during the course of investigation.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 25 of 467 PROSECUTION WITNESSES WHOSE EVIDENCE WAS LED BY WAY OF AFFIDAVITS U/S 296 CR. PC.
S. Name and Deposition/Role of the witness in the present No. designation of case. the Witness 1 Ram Naresh, In the year 2012, he was working as Section Officer, Under Secretary, CA-1 (A) Section, Ministry of Coal. He had handed Ministry of over various documents/files relating to coal block Agriculture, Govt allocation matters to Dy.SP S.P. Rana during the of India, New Delhi course of preliminary inquiry registered by CBI vide receipt memo dated 06.06.2012. 2 Ved Prakash He was working as Section Officer CA-1 (B) section,
Sharma, Retired Ministry of Coal in the year 2012. In the year 2012 he Section Officer, too had handed over various files/ documents of MOC CA-1, Section, to Dy. SP S.P. Rana CBI and who seized them vide Ministry of Coal production-cum-receipt memo dated 18.06.2012 (D-
16) during the course of preliminary inquiry No. PE 219-2012-E-0002 registered by CBI.
3 K.P. Singh, He was Incharge Malkhana, EO-1, CBI, New Delhi.
I/c Malkhana, He proved the relevant entries of the register CBI, EO-I maintained in the malkhana by him vide which various files/documents/memos were deposited with him by various CBI officers initially during the course of preliminary enquiry and subsequently during the course of investigation.
C (ii) DEFENCE WITNESSES DW Name and Deposition/Role of the witness in the present No. designation of case. the Witness DW- Inspector He was IO of another coal block allocation matter 1 Jitender Sharma, registered by CBI for allocation of a coal block to M/s
CBI, EO-I, New Grace Industries Ltd. by 34th Screening Committee of Delhi MOC. He was examined as regard statement u/s 161 Cr.PC of Sh. Prem Raj Kuar, the then Section (examined on Officer, MOC recorded by him during the course of behalf of A-5 K. investigation of the said other case. S. Kropha) CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 26 of 467 DW-2 M. R. Atrey, He was though the initial IO of the present case but Inspector, EO-I, was also associated with the preliminary enquiry CBI, New Delhi conducted by CBI prior to registration of the present case against M/s VMPL. He deposed that during the (examined on course of PE he had verified various claims made by behalf of A-3, company M/s VMPL in its application and the feed- Anand Mallick) back form and in this regard photocopies of various documents were handed over to him by Anand Mallick and Vikash Patni. After registration of the present case he had only issued the necessary authorisation in favour of different CBI officers for conducting search and seizure operation at different places.
DW-3 Ms. Saswati She was senior Manager (Legal) in Bengal Poddar, Sr. Aerotropolis Projects Ltd. at Kolkata. She was Manager (Legal), examined so as to prove that the area falling under Bengal Moira-Madhujore coal block was in fact overlapping Aerotropolis with the area acquired by Government of West Projects Ltd., Bengal for the Aerotropolis Projects. Kolkata (examined on behalf of A-2, Vikash Patni) DW-4 Arun Kumar He was Assistant Land Acquisition Officer Purba Dhar, Assistant Burdwan District, West Bengal. He had produced Land Acquisiton copy of various notifications issued by Government Officer at Purba of West Bengal u/s 4 and Section 6 of Land Burdwan District, Acquisition Act, 1894 with respect to various parcels West Bengal of land as were acquired by Government for establishing and developing an Airport at Andel (examined on District Burdwan. He also produced a chart showing behalf of A-2, comprehensively at one place the details of parcels Vikash Patni) of land which were acquired by way of various notifications u/s 4, Land Acquisition Act, 1894 by Government of West Bengal.
DW-5 Bhaskar Khulbe, He was the then Industrial Advisor, Government of Secretary PMO, West Bengal. He had attended both 35 th and 36th Govt. of India Screening Committee meetings in MOC as a (examined on representative of Government of West Bengal. He behalf of A-4 accordingly deposed about the proceedings so H.C. Gupta) conducted in the various meetings attended by him CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 27 of 467 and the final recommendation made by 36 th Screening Committee.
DW-6 Shivraj Sing, He was the then Chief Secretary, Government of Retired IAS Chattisgarh. He had attended 36th Screening officer of Committee meeting held on 03.07.08 as a Chattisgarh representative of Government of Chhattisgarh. He Cadre. accordingly deposed about the proceedings which took place in the said meeting and the final (examined on recommendations made by the Screening behalf of A-4 Committee.
H.C. Gupta) DW-7 Prem Raj Kuar He was the then Section Officer of CA-I Section, Deputy MOC. He was examined as regard his statement Secretary in recorded u/s 161 Cr.PC by DW-1 Insp. Jitender Department of Sharma during the investigation of the case Consumer registered against M/s Grace Industries Ltd. He was Affairs, Govt. of also examined as regard the scrutiny of the India application if undertaken by MOC with respect to (examined on applications received qua 34th Screening Committee. behalf of A-5 K.
S. Kropha)
22. After having briefly mentioned the deposition of various prosecution witnesses and defence witnesses as were examined during the course of trial, it will be now appropriate to briefly mention the rival contentions of both prosecution as well as that of Ld. Counsels for the accused persons. The deposition of the aforesaid prosecution and defence witnesses shall be however referred to in detail wherever required in the later part of the present judgment.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 28 of 467 (D) ARGUMENTS D (i) Arguments on behalf of Prosecution
23. It was vehemently argued by Ld. Sr. P.P. Sh. Sanjay Kumar that the present case is a classic example of collusion between private parties and public servants involved in the allocation process of Moira-Madhujore coal block in favour of A-1 M/s VMPL. It was submitted that not only in its application submitted to MOC, the company M/s VMPL had misrepresented about the status and stage of its progress made towards establishing the proposed integrated steel project by falsely continuing to represent that it has been alloted 300 acres of land by BIADA but it also misrepresented about its financial strength i.e. turnover, profit and net-worth by mentioning financial figures of other companies. It was also submitted that as per the guidelines governing allocation of captive coal blocks issued by MOC, the applicant company M/s VMPL was not authorised to mention the financial figures of any other company as it was neither a Special Purpose Vehicle (SPV) nor a Joint Venture company. It was also submitted that even the entire application as was submitted to MOC was completely silent that M/s VMPL was in any manner related to Impex Group of Companies much less was a company of Impex Group. It was further submitted by Ld. Sr. PP Sh. Sanjay Kumar that in fact from the records of Government of Bihar, it is apparent that M/s VMPL never intended to establish any integrated steel plant in Bihar much less in District Begusarai and had changed the very proposed end use project by representing to Government of Bihar that they now intend to establish a power plant of 2000 MW capacity.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 29 of 467 It was also submitted by Ld. Sr. P.P. that from the aforesaid facts, it is crystal clear that the applicant company M/s VMPL and its directors and officers were having guilty intention from the beginning itself to cheat MOC, Government of India and thereby obtaining allocation of a captive coal block in favour of the company. It was submitted that the company never disclosed before 36 th Screening Committee that it is no longer interested in establishing the proposed integrated steel plant.
24. As regard the role of MOC officers, it was submitted that the said officers did not ensure that the applications so received by MOC were got duly checked for their eligibility and completeness before copies thereof were sent to various stakeholders. It was submitted that from the evidence led on record by prosecution, it has been clearly established that accused MOC officers were well aware that the applications have not been so checked for their eligibility and completeness in MOC. It was also submitted that no project report was in fact filed with the application and accordingly the application of of M/s VMPL was liable to be perse rejected. It was also submitted that even if it is presumed for the sake of arguments that company M/s VMPL was entitled to use the figures of financial strength of Impex Group of companies then also the audited annual accounts/reports of the said companies were not annexed with the application and on this score also, the application was liable to be rejected in MOC itself on account of being incomplete. It was also submitted by Ld. Sr. P.P. that despite company M/s VMPL having been not recommended by the coal bearing state i.e. state of West CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 30 of 467 Bengal for allocation of any coal block much less for Moira-Madhujore coal block and at the same time Ministry of Steel had put M/s VMPL under category-VI, so there was no reason as to why the Screening Committee could have recommended the name of M/s VMPL for allocation of Moira-Madhujore coal block. It was also submitted by Ld. Sr. P.P. that despite the company M/s VMPL having applied for allocation of a coal block for its captive use in the integrated steel plant to be established in Bihar and the 36 th Screening Committee having also recommended it for allocation of Moira-Madhujore coal block for its proposed plant in Bihar but for reasons best known to the accused MOC officers, final allocation letter was issued jointly to six allocatee companies including M/s VMPL for Moira-Madhujore coal block stating that the coal block has been allocated to M/s VMPL for its proposed project at Bihar and also for its existing plant at West Bengal.
25. It was thus submitted by Ld. Sr. P.P. that the aforesaid circumstances clearly proves the existence of a criminal conspiracy amongst the accused persons. It was also submitted that here is a case where actions of accused MOC officers goes beyond the stage of carelessness, negligence and culpability in their actions is evident on the face of record.
26. In the light of aforesaid submissions, it was submitted by Ld. Sr. P.P. that the prosecution has been clearly successful in proving its case against all the six accused persons for the various charges framed against them. All the six accused persons were thus prayed to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 31 of 467 be convicted.
27. In support of his submissions Ld. Senior P.P. placed reliance upon the following case law:
S. Title Citation No. 1 Kanak Lata Ghosh Vs Amal Kumar Ghose AIR 1970 Cal 328 2 G.H. Sridevi vs State of Mysore (1969) 19 Law Rep. 415 3 Smt. Janno devi Vs Gaja Singh 1966 All. L.J. 425 4 Ayisa beevi Vs Abboo Backer AIR 1971 Ker. 231 5 Sunil V/s. State of Haryana 2003 (2) RCR (Cri.) 314 6 Trimukh Maroti Kirkan vs State Of 2006 (1) SCC 681 Maharashtra 7 N. Vijaya @ Ameen Vs. State of Karnatka 2010 Crl. L J. 1050 8 Sardul Singh Vs. State of Haryana 2002(4) RCR (Criminal) 561 (SC) 9 C. Muniappan v. State of Tamil Nadu [(2010) 9 SCC 567] 10 State of Himachal Pradesh Vs. Krishan Lal 1987 Crl.L.J. 709, AIR Pradhan 1987 SC 773 11 M.S.Reddy Vs. State Inspector of Police 1993 Crl.L.J. 558 AP 12 Firozuddin Basheeruddin and others Vs. 2001 Crl.L.J 4215 State of Kerala 13 State to Superintendent of Police, CBI/SIT 1999 Crl.L.J. 3124 Vs. Nalini 14 Yashpal Mittal Vs. State of Punjab 1997(4) SCC 540 15 Kehar Singh and others Vs. State (Delhi 1989 Crl.L.J. 1 Administration) 16 Adnan Bilal Mulla V/s. State of Maharsthra 2006 Crl.L.J.564 17 Yogesh Sachin Jagdish Joshi Vs. State of 2008 Crl .L .J. 3872, SC Maharashtra 18 Ishwarlal Girdharilal Parekh Vs. State of AIR 1969 SC 40 Maharashtra & Ors. CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 32 of 467 19 Ram Prakash Singh Vs. State of Bihar 1998 Crl. L. J. 502 20 State of UP Vs. Lakhmi 1998 Crl.L.J. 1411 21 Gobin Saikia Vs. State of Assam 2006 Crl. L. J. 1815. 22 Prithi Singh Vs. Union of India AIR 1959 Manipur 43. 23 State Vs. K. Narasimhachary 2006 Cr. L. J. 518(Feb.) 24 Prem Prakash Vs. State of Rajasthan 1971 WLN 408 (Raj.) 25 R. V. E. Venkatachala Gounder Vs. Arulmigu 2003(4) RCR(Civil) 704. Viswesaraswami & V. P. Temple and others. 26 Channappa Vs. State 1980 Crl. L.J. 1022(Kant.) 27 Ladli Prasad Zutshi Vs. Emperor AIR 1931 All 364. 28 Rajeshwar Vs. State 1992 Crl. L. J.661(Mad) 1996 Crl. L. J. 889(SC) 29 Krishna Mochi Vs. State of Bihar 2002 (2) RCR (Criminal) 568 SC 30 Suchha Singh Vs. State of Punjab. 2003 (4) RCR (Criminal) 373 (SC). 31 Murari Lal Vs. State of M.P. 1980 Crl. L. J. 396 (SC). 32 Shyamal Ghosh Vs. State of West Bengal 2012 Crl.L.J. 3825. 33 Prithipal Singh Vs. State of Punjab (Criminal Appeal No.528 of 2009). (Decided on 04.11.2011) 34 Inspector of Police and Another Vs. 2015 (5) Scale 253 Battenapatla Venkata Ratnam and Another
D (ii) Arguments on behalf of company A-1 M/s VMPL.
28. It was submitted by Ld. Counsel Sh. Sougat Singha for A-1 M/s VMPL that the company has since gone in liquidation and an Official Liquidator has been appointed by Hon'ble High Court of Calcutta. It was accordingly submitted that throughout the present CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 33 of 467 proceedings, the company has been represented by the said Official Liquidator and whose primary job is to protect the interest of the company. It was submitted by him that in case, company A-1 M/s VMPL is held guilty of any offence whatsoever then no fine ought to be imposed upon the company and even under the law no fine can be imposed upon such a company which has since gone in liquidation.
29. In support of his submissions Ld. Counsel for A-1 M/s VMPL placed reliance on the following case law:
S. Title Citations No. 1 D.K. Kapur vs. Reserve Bank of India & Ors. Decided on 19.01.2001 2 Krishna Texport Industries Ltd. vs. DCM Limited Decided on 23.05.2008 D (iii) Arguments on behalf of A-2 Vikash Patni
30. It was submitted by Ld. Counsel Dr. Sushil Kumar Gupta on behalf of A-2 Vikash Patni that prosecution has miserably failed in proving its case for any of the offence for which charges have been framed against the accused. It was submitted that there was no misrepresentation at all qua any of the information mentioned in the application. It was rather argued that prosecution has sought to place reliance upon the incomplete documents in as much as from the evidence led on record by the prosecution itself it stands well proved that not only the Techno Economic Feasibility Report (TEFR) was CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 34 of 467 duly submitted along with the application of M/s Vikash Metal & Power Ltd but even the balance sheet of M/s Impex Ferotech was also duly annexed. While referring to the deposition of PW 12 Sh. N.R. Dash, Director, Ministry of Steel, it was submitted that while placing M/s Vikash Metal & Power Ltd under category-VI it was well to the knowledge of Ministry of Steel officers that the existing capacity of the company as was mentioned in the application as being 0.13 MT was at Purulia, West Bengal and not in Begusarai, Bihar where the proposed end use plant was to be established. It was submitted that PW-12 N.R. Dash though stated that Ministry of Steel placed company M/s VMPL under category VI since its existing and proposed capacity were not at the same place, but it was submitted that such an explanation was contrary to internal guidelines issued by Ministry of Steel itself. It was stated that as per the criteria laid down by Ministry of Steel, the company M/s VMPL ought to have been placed in category II and not in category VI.
31. Ld. Counsel also referred to the statement recorded u/s 161 Cr. PC of PW 12 N.R. Dash to highlight that the application of M/s Vikash Metal & Power Ltd was considered by Ministry of Steel while also referring to the TEFR as was attached with the application. It was thus submitted that from the aforesaid circumstances, it was clear that M/s Vikash Metal & Power Ltd had duly annexed TEFR with its application and its application was complete in terms of the guidelines issued by MOC.
32. As regard the figure of net-worth mentioned in the application CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 35 of 467 beside that of profit and turnover it was submitted that in accordance with the Accounting Standard-18 the figure of turnover and profit were mentioned as that of M/s Vikash Metal & Power Ltd and M/s Impex Ferrotech which was an associate company being managed by the same management. It was further submitted that as in accordance with Accounting Standard-18 for the purposes of calculating the net- worth the figure of associate companies could not have been considered so it was only the net-worth of M/s Vikash Metal & Power Ltd which was mentioned in the application. It was however also pointed out that the figure of net-worth of M/s Vikash Metal & Power Ltd was also mentioned on a lower side at Rs. 60 crore even though from the balance sheet attached, the figure was more than Rs. 64 crore.
33. It was thus submitted by Ld. Defence Counsel that it has clearly come on record that the application as is available in D-8 is an incomplete application and thus on the basis of said incomplete application no inference can be drawn. It was also submitted that even otherwise for drawing any conclusion from the application the same ought to have been read as a whole and not in piecemeal as is sought to be done by the prosecution.
34. It was also submitted that during the course of search operation carried out at the registered office of M/s Vikash Metal & Power Ltd, a copy of presentation was also recovered. While referring to the contents of the said presentation as is available in D-33, it was submitted that the same is the copy of presentation which was made CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 36 of 467 before the Screening Committee on behalf of M/s Vikash Metal & Power Ltd. It was pointed out that in the presentation it was stated that the existing capacity of sponge iron existed at Purulia, West Bengal. It was also submitted by Ld. Defence Counsel that as per the guidelines governing allocation of coal blocks issued by Ministry of Coal the application was also to be submitted in soft copy in a CD. While referring to a reply given by CMPDIL to CBI during the course of investigation as is available in D-44 [Ex. P-37 (colly)] it was submitted that CMPDIL had considered the details provided by the applicant companies including M/s Vikash Metal & Power Ltd as was available in a CD supplied to them. It was submitted that PW 19 IO Inspector Rajbir Singh has admitted that except collecting copies of application from Ministry of Coal he had not collected the same from any other authority be it the Ministry of Steel, State of West Bengal, State of Bihar or CMPDIL. It was thus submitted that the CD submitted by M/s Vikash Metal & Power Ltd along with the application has also not been placed on record by the prosecution. It was thus submitted that it was the claim of M/s Vikash Metal & Power Ltd that all the information/documents as were required to be filed along with the application were there in the CD be that TEFR or balance sheet of M/s Impex Ferrotech. It was thus reiterated that on the basis of incomplete document no inference at all can be drawn against the accused persons. Similarly, it was argued that no inference can even be drawn against the accused public servants as doubts have clearly emerged on record that the documents relied upon by the prosecution during the trial of the case are not complete. It was thus CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 37 of 467 submitted that accused Vikash Patni (A-2) deserves the benefit of doubt in this regard.
35. Ld. Counsel Sh. Sushil Kr. Gupta while referring to the form of feed back Ex. P-98 (Colly) also submitted that no misrepresentation was even made in the said feed back form. As regard the figures of net-woth as on 31.03.2006 or as on 31.03.2007 as were mentioned in the said feedback form it was submitted by Ld. Counsel Sh. Sushil Kr. Gupta that not only during the course of investigation PW 15 Ranjan Barma stated the calculation by which networth of the company seems to have been calculated by the company officials but also during the course of his deposition in the Court he demonstrated as to how the networth seems to have been calculated by the company and had conclusively shown that figures of networth mentioned in the feedback form were correctly mentioned by the company on the basis of said formula. It was again reiterated that while the application contained relevant figures of networth for the year 2005-06 as being Rs. 60 crores but in the feedback form networth figure was mentioned after undertaking proper calculation. It was thus submitted that there was no misrepresentation of any nature whatsoever in mentioning of networth in the feedback form.
36. As regard the issue of land, it was submitted by Ld. Counsel that admittedly 300 acres of land was allotted in favour of company by BAIDA. A number of correspondences in this regard were shown as having been undertaken between the company and BAIDA before allocation of said land. It was also submitted that in the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 38 of 467 communications made by the company it was duly clarified that till the time any iron ore mine or coal mine is allotted, it will not be in a position to take any action qua allocation of land though initially a sum of Rs. 6 lacs as was demanded by BAIDA was duly deposited by the company. It was also submitted that circumstances both before and after impugned allocation of land clearly demonstrate that M/s VMPL had all good intention to establish the proposed steel project and it was always willing to undertake all necessary formalities for allocation of land only with the rider that keeping in view the market conditions it would not have been viable for the company to make any further payment to BAIDA or incur any other expenditure qua construction of boundary wall till the time an iron ore mine and coal block is allotted to it which were essential raw materials for running a sponge iron plant.
37. Ld. Counsel while referring to other communications undertaken by company with BAIDA and Department of Industries, Bihar of which BAIDA was a part, pointed that M/s VMPL had also intended to establish a power plant of 2000 MW capacity and in this regard also entered into an agreement with Bihar State Electricity Board.
38. It was further submitted that prosecution has also miserably failed in proving that company M/s VMPL and much less A-2 Vikash Patni had ever gained knowledge about cancelleation of said allotment of 300 acres of land. It was submitted that though factum of recovery of cancellation order of land issued by BAIDA during the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 39 of 467 search operation from the corporate office of M/s VMPL is not disputed but it was also pointed out that during the course of investigation itself, it was communicated to the IO that as registered office of the company at Chittaranjan Park was under renovation so all the correspondence stood diverted to corporate office at Hemant Basusarai. It was further submitted that from mere recovery of impugned letter from inside a file containing 86 pages no knowledge can be attributed to the company or any officer/official that they gathered knowledge of any such letter issued by BAIDA cancelling allocation of land to the company. It was also submitted that even the cancellation letter mentions that if desired the company may ask for renewal of allotment of land but the company never undertook any such steps or asked for refund of Rs. 6 lacs as company did not gather any knowledge till December 2008 that land allotted has been cancelled.
39. Ld. Counsel also referred to a letter written to the Chief Minister of Bihar in the month of March 2008 by Sh. Vimal Kumar Patni, Chairman, M/s VMPL. It was submitted that soon after company gathered knowledge of cancellation of land the company took necessary steps to meet Chief Minister of Bihar so that problems being faced by the company could be addressed. It was also submitted that from the documents of the prosecution seized, it has come on record that the company was even facing law and order problems in construction of boundary wall in the impugned land even in the year 2012. It was also submitted that from the dispatch register record of BAIDA as have been proved by PW-4 Devanand Dutta, it CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 40 of 467 was clear that the said cancellation letter was sent to the registered office of the company which was under renovation and thus there was no way that the company which was operating at that time from its corporate office could have known about the same.
40. As regard knowledge of Vikash Patni about the contents mentioned in the feedback form, it was submitted that from the deposition of PW-15 Ranjan Barma, it was clear that the feedback form when it was brought to the Screening Committee meeting was already typed. It was submitted that like PW-15 Ranjan Barma, A-2 Vikash Patni had also gone to the Screening Committee meeting only for the purposes of making representation. It was thus submitted that prosecution has failed to prove any malafides on the part of A-2 Vikash Patni in making any misrepresentation to the Screening Committee.
41. It was further submitted on behalf of A-2 Vikash Patni by Ld. Counsel Dr. Sushil Kumar Gupta that prosecution has also failed to prove that any inducement was caused to Screening Committee, Ministry of Coal on account of any representation made by M/s VMPL much less on account of allotment of land, as the same was never considered as a relevant factor in recommending allocation of a coal block in favour of any applicant company. It was further submitted that during the course of cross-examination of PW 1 V.S. Rana the then Under Secretary, it has come on record that there were number of companies which were considered by the Screening Committee and even recommendations for allocation of captive coal blocks by CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 41 of 467 the Screening Committee was made in favour of certain companies which were not having any land with them. It was also submitted that from the evidence led by the prosecution, it has also come on record that the feedback form submitted by various companies were neither considered by the Screening Committee nor by the Ministry of Coal and were not even sent to PMO when the recommendations of Screening Committee were sent for approval from Prime Minister as Minister of Coal. It was thus submitted that in these circumstances it cannot be stated that the land which though was one of the factor towards showing progress made by a company towards establishing the proposed end use project was either taken into consideration or was a factor which induced Screening Committee, Ministry of Coal in making recommendation of allocation of a coal block in favour of M/s VMPL.
42. As regard another important ingredient of the offence of cheating i.e. delivery of property it was submitted that from the evidence led by the prosecution as well as by the accused persons in their defence it has clearly been established that initial offer letter issued in favour of six joint allocatee companies was defective in as much as it considered an enhanced mine capacity of 4 million tonnes of Moira Madhujore coal block instead of actual mining capacity of 2 million tonnes and as a result enhanced amount of bank guarantee was asked for by Ministry of Coal from the joint allocattee companies. It was also submitted that from the evidence led on record it has come on record that area of proposed allocatted coal block overlapped with that of the Aerotropolis Project of Government of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 42 of 467 West Bengal and the area overlapping was to the tune of 83% of the area of coal block in question. Under the said Aerotropolis project an airport was to be established. It was submitted that from the notings on the files of Ministry of Coal i.e. in file Ex. P-10 (colly) (D-14) it is clear that till the year 2009 the issue of bank guarantee was not resolved and the issue of overlapping of area of impugned coal block with the Aerotropolis Project was also not resolved even till the time coal block in question was deallocated by Ministry of Coal in the year 2014. It was in these circumstances submitted that the issuance of any such offer letter or even any final allocation letter by Ministry of Coal on 06.10.2009 cannot be termed as "property" within the meaning of Section 420 IPC as the very letter so issued was defective and could not have been put to any use. It was submitted that the said defective offer letter or allocation letter was of no value in the hands of allocattee companies. It was also submitted that in fact no wrongful loss could have been caused to any one by not developing any such coal block by joint allocattee companies including M/s VMPL as land falling in the said coal block was acquired for the airport project and no one thus could have mined the said coal block. It was further submitted that wrongful loss was rather caused to M/s VMPL on account of misrepresentation made by officers of West Bengal in Screening Committee as on the date of final meeting of 36th Screening Committee meeting held on 03.07.2008 it was well to the knowledge of officers of Department of Industries that the land falling in Moira Madhujore Coal Block has been identified for the said Aerotropolis project and a joint venture CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 43 of 467 agreement Ex. PW 3/B (colly) in this regard was also entered into by WIMBC which is a part of Department of Industries, Government of West Bengal. Reference in this regard was made to the Deposition of DW 3 Ms. Saswati Poddar. It was thus submitted that even at the time of final Screening Committee meeting held on 03.07.2008 it could have been disclosed by the officers of Government of West Bengal who were present in the Screening Committee as members thereof that the said coal block i.e. Moira Madhujore can no longer be mined as the said land has been identified for the development of an airport.
43. In these circumstances, it was submitted that prosecution has miserably failed to prove the important ingredients of the offence of cheating against the accused persons. Even as regard the offence of criminal conspiracy while referring to the observations of Hon'ble Supreme Court in "State through Superintendent of Police, CBI/SIT Vs. Nalini", 1999 (5) SCC 235, it was submitted that under the garb of the charge of criminal conspiracy i.e. section 120-B IPC any evidence which may be admissible against some of the accused cannot be automatically read against other accused persons unless prosecution shows that the said accused was also knowingly involved with the common object of the said conspiracy and so acted in furtherance of common object of the said criminal conspiracy. Prosecution was also stated to have miserably failed in proving on record that there was any meeting of minds amongst the various accused persons which could lead to hatching of any criminal conspiracy amongst them. The charge of criminal conspiracy was CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 44 of 467 thus also stated to have been not made out against A-2 Vikash Patni and prosecution was thus stated to have miserably failed in proving its case against the accused. A-2 Vikash Patni was thus prayed to be acquitted.
44. Ld. Counsel for A-2 Vikash Patni also placed reliance on the following case law in support of his submissions.
S. Title Citations No. 1 Delhi Development Authority vs Durga Chand AIR 1973 SC 2609 Kaushish 2 Ganesh Prasad Kapoor vs State of U.P. & Ors 1986 CRL.L.J. 1607 3 G.S. Ramasami Iyer vs Emperor MANU/TN.0309/1917 4 Rabindra Kumar Dey vs State of Orissa AIR 1977 SC 170 5 Sharad Biridhichand Sarda vs State of AIR 1984 SC 1622 Maharashtra 6 L.K. Advani vs CBI 1997 CRL.L.J. 2669 7 Prem Kumar Gulati vs State of Haryana 2015 Crl.L.J. 159 8 Raj Kumar Singh @ Raju vs State of Rajasthan 2013 5 SCC 722 9 Ashish Batham vs State of M.P. AIR 2002 SC 3206 10 K.R. Purushothaman vs State of Kerala AIR 2006 SC 35 11 State of Kerala vs P. Sugathan Anr. AIR 2000 SC 3323 12 State of T.N. vs Nalini and Ors AIR 1999 SC 2640 13 M.M.S.T. Chidambaram Chettiar AIR 1938 MAD 129 14 Common Cause, A registered Society vs Union Or AIR 1999 SC 2979 India Ors 15 A.P. Narang vs CBI Crl. Rev. P. No. 397/2010 16 Wolfgang Reim Vs State 2012 (3) JCC 2042 17 Sunil Bharti Mittal vs CBI AIR 2015 SC 923 18 Manohar Lal Sharma v The Principal Secretary& W.P. (Crl.) 120/2012 Ors CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 45 of 467
D (iv) Arguments on behalf of A-3 Anand Mallick.
45. As regard A-3 Anand Mallick, it was submitted by Ld. Counsel Dr. Sushil Kumar Gupta that the only role attributed to accused Anand Mallick by the prosecution is that he acted as an authorized representative on behalf of company i.e. M/s VMPL and the application form as well as the feedback form were submitted under his signatures. In this regard it was submitted that as per the guidelines issued by Ministry of Coal governing allocation of coal blocks it was clearly mandated that the applicant company was to appoint a person authorized to sign on behalf of the applicant company while dealing with any or all matters connected with allocation of coal blocks and that the said documents should be duly signed and stamped by the company secretary of the company. It was submitted that as per the guidelines itself, in the absence of the said documents the application of the company was liable to be summarily rejected as being incomplete. It was submitted that during the course of trial, it has come on record that A-3 Anand Mallick was simply appointed as an authorized signatory on behalf of A-1 VMPL, since he was a resident of Delhi NCR and was thus readily available to deal with all the queries which may be raised by Ministry of Coal. It was thus submitted that accused Anand Mallick simply signed various documents as and when received from the company which was based in Kolkata. In these circumstances, it was submitted that the only issue which remains to be looked into is as to whether the acts of A-3 Anand Mallick were bonafide or not. It was however stated that CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 46 of 467 from the evidence led by the prosecution it can not be concluded that A-3 Anand Mallick was acting with any malafide intention or malice in undertaking any such act.
46. As regard the recovery of copy of cancellation order dated 21.09.2007 of 300 acres of land issued by BIADA with respect to the land earlier allotted to company M/s VMPL it was submitted that during the deposition of DW 2 Inspector M.R. Attrey who was associated with the preliminary enquiry registered by CBI from which the present case was registered as an offshoot it has come on record that during the course of preliminary enquiry A-3 Anand Mallick and A-2 Vikash Patni had joined enquiry on a number of occasions and had also supplied various documents to him. It was submitted that A- 3 Anand Mallick had himself gone to the office of BIADA to collect various documents as and when required by CBI and handed over the same to the CBI during the course of preliminary enquiry. It was also pointed out that admittedly a search operation was carried out by CBI after the registration of a regular case and thus recovery of copy of any such cancellation letter issued by BIADA, which was already supplied to CBI during the course of preliminary inquiry from the car of A-3 Anand Mallick in any search operation simply shows that after supplying all such documents to CBI, copies thereof were kept by A-3 Anand Mallick in his car. It was thus submitted that in these circumstances no adverse inference can be drawn as against A-3 Anand Mallick with respect to recovery of copy of any such cancellation letter issued by BIADA. Reference was also made to Section 79 IPC stating that the actions of accused stands well CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 47 of 467 covered by the provisions of Section 79 IPC as the same were undertaken by him under mistake of facts.
47. While referring to show cause notice issued by MOC as available in D-99 it was submitted that in the reply submitted by A-2 Vikash Patni it was stated on behalf of the company that the cancellation letter was sent by ordinary post. It was thus pointed out that now prosecution has led evidence to show that the letter in question was sent by BIADA by registered post and this fact goes to show that even company was not aware as to by what mode the said letter was sent by BIADA. It was thus submitted that in these circumstances no presumption can be drawn as against A-3 Anand Mallick that he was having any knowledge about cancellation of land when he sent the feedback form and submitted the same to Screening Committee, Ministry of Coal. The prosecution was thus stated to have failed to prove its case against A-3 Anand Mallick and he was thus prayed to be acquitted.
48. It was also submitted by Ld. Counsel Sh. Ratnesh Deo for A-3 Anand Mallick that the role of A-3 Anand Mallick was merely that of a post office and he signed various documents on behalf of M/s VMPL to be submitted to Ministry of Coal only because he was the authorized representative but he neither had any mandate to deal with MOC on any matter nor had any knowledge of the facts to be communicated to MOC. It was however submitted that IO had not carried out any investigation to show that A-3 Anand Mallick was in Kolkata on the day when the application or feedback form were CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 48 of 467 prepared. It was submitted that all such documents used to be received by A-3 Anand Mallick in Delhi from M/s VMPL and he simply used to forward them to MOC after signing them. As regard the factum of attending the MOC meeting at the time of presentation and submission of feedback form it was submitted that A-3 Anand Mallick attended the said meeting only under the belief that in case the authorized representative is not present then the Screening Committee may not even consider the case of VMPL and it was thus submitted that A-3 Anand Mallick except being present in the Screening Committee meeting did not play any other role. It was further submitted that after allocation of land by BIADA there is no evidence to show that A-3 Anand Mallick ever visited BIADA even till the stage of cancellation of allotment of land.
49. Ld. Counsels for A-3 Anand Mallick further placed reliance on the following case law in support of their submissions:
S. Title Citations No. 1 Rajkapoor vs Laxman AIR 1980 SC 605 2 Rakesh Omprakash Mehra & Anr vs Govt. of NCT {197 (2013) DLT 413} of Delhi and Anr. 3 State (Delhi Admn.) vs V.C. Shukla and another AIR 1980 Supreme Court 1382 4 Saju vs State of Kerala 2004 (4) Crimes 247 (SC) 5 Shripad Shivram Kulkarni vs State of Maharashtra AIR 1981 SCC 34 6 State of Orissa vs Bhagaban Barik 1987 STPL 2190 SCa CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 49 of 467 D (v) Arguments on behalf of A-4 H.C. Gupta.
50. It was submitted by Ld. Counsel Sh. Rajat Mathur that prosecution has miserably failed in proving its case against accused A-4 H.C. Gupta either for the charge of criminal conspiracy or for the charge of criminal misconduct. While referring to the note dated 04.11.2006 in D-17 in the file of Ministry of Coal, it was submitted that on account of past experience and expecting that large number of applications will be received it was decided that all such applications be received in Scope Minar, Laxmi Nagar, New Delhi. It was thus submitted that in accordance with the Provisions of Manual of Office Procedure reasons for adopting course different from the given procedure was duly recorded in the noting. It was also submitted that prosecution is primarily trying to impute the charge of conspiracy on A-4 H.C. Gupta on the ground that checking of applications for their eligibility and completeness was deliberately not got conducted despite having knowledge of the same. While referring to the deposition of PW 1 V.S. Rana the then Under Secretary, Ministry of Coal, it was submitted that the said witness is completely unreliable witness as he apparently made material improvements over his statement u/s 161 Cr. PC made before the IO during the course of investigation. It was also submitted that PW 1 V.S. Rana has stated various facts which were contrary to the written record placed and proved on record by the prosecution and thus it was submitted that no oral evidence in contravention of the written record can be held to be admissible. It was also submitted that from the evidence led by the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 50 of 467 prosecution and especially from the deposition of PW 1 V.S. Rana it has been clearly established that to carry out checking of the applications in accordance with the guidelines issued by Ministry of Coal governing allocation of coal blocks, was the sole duty of CA-1 Section and in case any difficulty was being faced by them in complying with the said guidelines then it was mandatry for them to bring the same to the notice of senior officers by way of written noting in the file. It was submitted that the deposition of PW 1 V.S. Rana that he verbally informed the senior officers in this regard cannot be of any help to the prosecution in proving its case against the accused persons as there are number of notings available in the file where for various small matters notings have been put up by the CA-1 Section and thus there was no reason as to why for such an important deviation from the given guidelines no noting was put up. It was also submitted that from the notings available in D-17 Ex. P-13 (colly) it is clear that when the applications were to be dispatched to various stakeholders then the noting in this regard did not travel beyond the desk of PW 1 V.S. Rana and in these circumstances it cannot be inferred merely on the basis of conjectures and surmises or on the basis of oral deposition of witnesses that the senior officers of Ministry of Coal were having knowledge of even dispatch of applications much less that of applications having been sent without checking them for their completeness and eligibility. It was also submitted that PW 1 V.S. Rana in his cross-examination has admitted that the applications were to be sent to different stakeholders only after they were found to be complete in accordance with the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 51 of 467 guidelines issued by Ministry of Coal. While also referring to the deposition of DW 7 Prem Raj Kuar beside that of PW 1 V.S. Rana, it was also submitted that CA-1 Section was not required to carry out any technical evaluation of the applications and thus the claim made by PW 1 V.S. Rana that due to lack of technical, legal and financial knowledge they were not in a position to carry out any scrutiny of the applications was clearly wrong.
51. Ld. Defence Counsel in fact while referring to the deposition of DW 1 Inspector Jitender Sharma, who was the investigating officer of another coal block allocation matter i.e. CBI vs Grace Industries Limited and Ors., stated that in the said matter it has clearly come on record that while dealing with the applications received for 34 th Screening Committee meeting the same were checked in Ministry of Coal and even two lists of applications were prepared titled "List of complete applications on first scrutiny" and "List of incomplete applications found on first scrutiny". It was thus submitted that from the deposition of PW 1 V.S. Rana it has come on record that the applications on this occasion i.e. 35 th and 36th Screening Committee were also dealt with by CA-1 Section as per the past practice. It was thus submitted that from the past practice, it is thus clear that the applications were checked on this occasion also.
52. It was also submitted that prosecution has in fact led contradictory evidence even as regard checking of applications in as much as PW 1 V.S. Rana stated that only availability of draft of Rs. 10,000/- towards processing of applications was checked beside CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 52 of 467 giving a cursory glance to the applications. It was however submitted that in the list prepared qua applications received for 34 th Screening Committee meeting names of applicant companies were mentioned in the list of incomplete applications even though the drafts of Rs. 10,000/- were very much available. It was also pointed out that PW 1 V.S. Rana in his deposition stated that no incomplete applications were received in Ministry of Coal.
53. As regard the meeting held on 11.05.2007 in Ministry of Coal, it was submitted that firstly there was no reference of the said meeting in the charges framed against the accused and secondly even from the minutes of the said meeting, if read along with the agenda note as has been placed on record by the accused persons no knowledge of the fact that applications were checked for their eligibility and completeness by the CA-1 Section can be imputed to any senior officer including A-4 H.C. Gupta. It was submitted that mere knowledge even if attributed to the accused persons that the applications have not been checked cannot per se prove meeting of any mind with the other co-accused persons so as to prove existence of any criminal conspiracy, as it was submitted that prior meeting of minds was a condition sine-qua-non for establishing the charge of criminal conspiracy. It was also submitted by Ld. Defence Counsel that the claim of PW 1 V.S. Rana that there was shortage of manpower and on account of which no checking of applications was carried out was also wrong as from the evidence led on record by the prosecution itself it is clear that number of officials from the office of coal controller were available at different point of time to CA-1 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 53 of 467 Section, MOC to assist with the work relating to applications received by it. It was thus submitted that PW 1 V.S. Rana was now trying to introduce new facts primarily in order to save his own skin as being Under Secretary, CA-1 Section it was his duty to ensure compliance of guidelines issued by Ministry of Coal and in case of any difficulty faced by them to bring it to the notice of senior officers. It was thus submitted that in the aforesaid circumstances there is no reason to doubt the correctness/notings and other documents available in Ministry of Coal files and prosecution cannot be permitted to lead oral evidence contrary to the contents of said documentary evidence. It was submitted that prosecution cannot by way of any such oral deposition made by way of improvement and in contradiction to the written record impute any knowledge to the accused persons so as to bring home the charge of criminal conspiracy. It was also submitted that during the course of investigation of various coal block allocation matters only it has come to the knowledge of accused persons that no checking of applications for their eligibility or completeness was carried out in Ministry of Coal by CA-1 Section.
54. While referring to the observations of Hon'ble Surpeme Court in the case V.C. Shukla Vs. State, Delhi Administration (1980) 2 SCC 665, Ld. Counsel Sh. Rajat Mathur submitted that mere act of recommendation cannot amount to an act of criminal conspiracy. It was also submitted that from the deposition of PW 1 V.S. Rana it has come on record that though application of M/s VMPL was sent to State of Bihar but notice of Screening Committee meeting was not sent inadvertently and this fact came to the notice of Ministry of Coal CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 54 of 467 officers only during the course of investigation of the present case. While referring to the deposition of PW 12 N.R. Dash it was submitted that Ministry of Steel had in fact considered the existence as well as proposed end use projects of the company both at West Bengal and Bihar and even this fact was brought to the notice of Ministry of Coal officers by Ministry of Steel only. It was also pointed out from the deposition of PW 1 V.S. Rana that in the initial letter of offer, the allocation of end use plant at West Bengal was inadvertently mentioned but in the subsequent letter of allocation finally issued, the allocation of coal block for end use projects both at Bihar and West Bengal was mentioned. In the light of aforesaid circumstances, it was submitted that on account of aforesaid inadvertent mistake on the part of officers of Ministry of Coal, it cannot be concluded that there was any act of criminal conspiracy committed by them or that there was any meeting of minds between them and the private parties. It was also submitted that even the prosecution has failed to prove the complete chain of circumstances, which may go on to establish the charge of criminal conspiracy against accused H.C. Gupta.
55. It was also submitted that in the absence of any note of dissent having been expressed by any of the members of the Screening Committee much less that by representative of Government of West Bengal, it is to be presumed that they all had agreed to the decision taken in the Screening Committee and the same was taken after due deliberation and discussion and with the consent of all. It was in this light reference was also made to the deposition of DW 6 Shiv Raj Singh. Reference was also made to the CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 55 of 467 deposition of PW 12 N.R. Dash that in the meeting members were free to express their views. Ld. Counsel further submitted that in the minutes of the meeting discussion qua major discrepancies/objections were to be recorded and not the entire discussion. It was also submitted that after signing of recommendation sheets the members cannot have submitted any dissent note. In fact it was also pointed out that Government of West Bengal did not submit any dissent note even after the meeting was over and this again shows that they were in complete agreement with the decision taken in the Screening Committee. It was also pointed out that both PW 12 N.R. Dash and Sh. U.P. Singh Joint Secretary (Steel) had briefed Sh. R.S. Pandey and who thereafter participated in the meeting held at PMO qua which PW 10 Ms. Vini Mahajan has deposed to.
56. While referring to the deposition of PW 18 Sabya Sachi Sen, it was also submitted by Ld. Counsel that State Government was well within its powers to change its earlier recommendation. It was also submitted that PW 18 Sabya Sachi Sen has deposed that Sh. Bhaskar Kulbey who represented Government of West Bengal in the Screening Committee used to brief him about the proceedings of the meeting. It was also submitted that in the Screening Committee meeting only those States were invited where the coal blocks to be allotted are situated and not the states where the proposed end use projects were to be established.
57. As regard the working of 36th Screening Committee meeting, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 56 of 467 it was further submitted by Ld. Counsel Sh. Rajat Mathur for A-4 H.C. Gupta that prosecution has failed to establish that A-4 H.C. Gupta being Chairman, Screening Committee had any overriding powers over other members of the Screening Committee or that the said members were subordinate to the Chairman. It was also submitted that the signing of recommendation sheets by various members of the Screening Committee who were representing various State Governments or Administrative Ministries clearly signifies not only their presence during the meeting but their agreement with the final decision also. Moreover, the members of Screening Committee who were concerned with the matter of M/s VMPL such as officers of Ministry of Steel or that of State Government of West Bengal can not now claim that they were not in agreement with the decision taken in the meeting as the stage of giving any dissent was at the time of signing recommendation sheets only. It was submitted that Screening Committee members can not now turn around and state that they were not in agreement with the decision of the Screening Committee especially when they failed to give any dissent note or contrary view either during the meeting or at the time of signing of the recommendation sheets. It was also submitted that from the evidence led on record by the prosecution as well as from that of DW-6 Shivraj Singh and DW-5 Bhaskar Khulbe it is clear that there was no restriction on the members to express their views during the course of meeting and all members were free to express their views. As regard the recommendation from State of Bihar, it was submitted that the IO deliberately withheld the necessary records from this Court even CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 57 of 467 though Government of Bihar had duly recommended the case of M/s VMPL for the integrated steel plant as stands reflected from the document D-30. It was further pointed out that admittedly DW-5 Bhaskar Khulbe who was representing Government of West Bengal both in 35th and 36th Screening Committee had given a dissenting note in 35th Screening Committee but as he did not give any such dissenting note in 36th Screening Committee so it has to be presumed that there was no dissent on his part qua the said decision and the decision of Screening Committee was thus a unanimous one.
58. The prosecution was thus stated to have miserably failed in proving its case qua any of the charges framed against the accused.
Accused H.C. Gupta was thus prayed to be acquitted.
59. Ld. Counsel for A-4 H.C. Gupta further placed reliance on the following case law in support of his submissions:
S. Title Citations No. 1 Chandrakant Jha vs. State (Govt. of NCT Crl. A. No.656/13 of Delhi) Dated 27.01.2016 2 Runu Ghosh vs. CBI 2011 SCC ONLINE DEL 5501 3 S.P. Bhatnagar & Ors. v. State of (1979) 1 SCC 535 Maharashtra 4 V.C. Shukla v. State, Delhi Administration (1980) 2 SCC 665 5 Kehar Singh vs. State of NCT 1988 (3) SCC 6 6 State v. Nalini (1999) 5 SCC 253 7 Arun Kumar Aggarwal v. Union of India (2014) 2 SCC 609 8 Yogesh vs. State of Maharashta 2008 (10) SCC 394 9 State of Madhya Pradesh v. Sheetla Sahai (2009) 8 SCC 619 10 P.K. Narayan v. State of Kerala (1995) 1 SCC 142 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 58 of 467 11 Saju v. State of Kerala (2001) 1 SCC 378 12 Esher Singh v. State of A.P. (2004) 11 SCC 585 13 Ramachandran v. State of Kerala (2009) Cri LJ 168 14 Common Cause vs. Union of India (1999) 6 SCC 667 15 Nathiya vs. State 2016 (10) SCC 298 16 Subramanian Swamy v. A. Raja (2012) 9 SCC 257 17 TSR Subramanian & Ors. v. Union of India (2013) 15 SCC 732 & Ors. 18 State of Kerala v. (2000) 8 SCC 203 P. Sugathan 19 State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 20 Rajeev Kumar Goyal & Ors. v. State (2014) SCC Online Del. through CBI 4036 21 Sunil Kumar Sambhudayal Gupta v. State (2010) 13 SCC 657 of Maharashtra 22 Brij Lal & Ors. v. State of U.P. MANU/UP/0746/1988 23 Takhaji Hiraji v. Thakore Kubersing (2001) 6 SCC 145 Chamansing & Ors. 24 Harbeer Singh v. Sheeshpal (2016) 16 SCC 418 25 Ashok Vishnu Davare v. State of (2004) 9 SCC 431 Maharashtra 26 Baldev Singh v. State of Punjab (2014) 12 SCC 473 27 Commissioner of Police, Bombay vs. AIR 1952 SC 16 Gordhandas Bhanji 28 Mohinder Singh Gill vs. The Chief Election AIR 1978 SC 851 Commissioner, New Delhi & Ors. 29 Jugraj Singh & Anr. Vs. Jaswant Singh & (1970) 2 SCC 386 Ors. 30 Tawrku vs. Surti AIR 1997 HP 76 31 Kartar Singh vs. DDA & Anr. AIR 2000 Del 184 32 Govindaraju vs State (2012) 4 SCC 722 33 National Institute of Mental Health and 1992 Supp (2) SCC 481 Neuro Sciences vs. Dr. K. Kalyana Raman & Ors. 34 Dalpat Abasaheb Solunke & Ors. vs. Dr. (1990) 1 SCC 305 B.S.Mahajan & Ors. CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 59 of 467 35 C. Chenga Reddy & Ors vs. State of A.P (1996) 10 SCC 193 36 R. Sai Bharathi vs. J. Jayalalitha & Ors (2004) 2 SCC 9 37 Paramjit Singh vs. IOCL & Ors. W.P (C) No. 823/12, decided on 31.07.2017 38 Harchand Singh & Anr. vs. State of (1974) 3 SCC 397 Haryana 39 Krishan Bharti Co-operative Ltd. vs. UOI & W.P (C) No.4033/2007 Anr. 40 Grasim Industries Ltd. and Anr. v. Agarwal (2010) 1 SCC 83 Steel 41 Municipal Corp.,Greater Bombay v. P.S. AIR 1978 SC 1380 Malvenkar 42 Jose Mathew & Ors. vs._James Avirah & MANU/KE/0112/2016 Ors. 43 Saunders v. Anglia Building Society 1970(3) All ER 961) 44 Ravi Yashwant Bhior v. District Collector, AIR 2012 SC 1339 Raigad 45 Shreekantiah Ramayya Munipalli vs. State (1955) 1 SCR 1177: AIR of Bombay 1955 SC 287 46 Hori Ram Case (1939) 1 FCR159 47 Prof. N.K.Ganguly vs. CBI (2016) 2 SCC 143 48 Sanjay vs. State of Maharashtra Crl. Application (APL) No.716/16 decided on 10.04.2017 49 Matajog Dobey vs. H. C. Bhari 1955 (2) SCR 925 50 Amrik Singh vs. State of Pepsu (1955) 1 SCR 1302 51 Pawan @ Diggi Vs State Delhi High Court (DB) in Crl. Appeal No: 1297/2010 on 24.01.2014 52 Dinesh Kumar @ Kalu & Ors Vs State 2014 (145) DRJ 465 (DB) Govt. of NCT of Delhi
D (vi) Arguments on behalf of A-5 K.S. Kropha and A-6 K.C. Samria.
60. It was submitted by Ld. Counsel Sh. Rahul Tyagi for A-5 K.S.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 60 of 467 Kropha and A-6 K.C. Samria that the charges as have been framed against, the two accused persons pre-supposes certain facts in as much as that A-5 K.S. Kropha and A-6 K.C. Samria were responsible for ensuring checking of the applications received in MOC. It was submitted that from the charge of criminal conspiracy as has been framed against the accused, it is evident that certain illegal acts or acts of omission and commission have been attributed to A-5 K.S. Kropha and A-6 K.C. Samria. It was however submitted that prosecution has miserably failed to lead any evidence to show as to what such illegal acts were or what such acts of omission and commission were. It was also submitted that prosecution was duty bound to point out that any such acts alleged to have been committed by A-5 K.S. Kropha or by A-6 K.C. Samria were in violation of any provision of law. It was also submitted that in order to appreciate the role played by the public servants who were officers of MOC facing trial in the present case, it is imperative that the circumstances in which Government of India adopted the policy of allocating the coal blocks for captive use to private parties engaged in certain specific end uses be taken into consideration. In order to understand the arduous job assigned to MOC in the allocation of coal blocks reference was made to the legislative policy adopted by Government of India in early 90s. Reference was also made to Allocation of Business Rules, 1961 beside Transaction of Business Rules, 1961 notified by Government of India to show that though the job of allocation and exploration of coal blocks was assigned to MOC but the said working was closely interconnected with the working of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 61 of 467 Ministry of Power, Ministry of Steel or DIPP as they were respectively responsible for increasing generation of power, increased production of iron and steel in the country or for increased production of cement. While referring to the provisions of Manual of Office Procedure, it was pointed out that the work relating to allocation of captive coal blocks was interdependent with other Ministries/departments of Government of India so it was in these circumstances to have an expedite decision for allocation of coal blocks that an inter-departmental body i.e. a Screening Committee was constituted. It was also submitted that as the various State Governments where different coal blocks were situated were having control over the said coal blocks under MMDR Act, 1957 so in order to protect their interest they were also roped in as members of the Screening Committee. It was thus submitted that keeping in view the said broad based inter-departmental job assigned to Screening Committee, its working needs to be understood and appreciated. It was also submitted that the working of executive wing of the Government also needs to be understood as different from the working of Courts of Law or the requirements which are looked for by Courts of Law while undertaking judicial review of an action undertaken by the executive wing. It was also submitted that while judicial review of an executive wing can be undertaken but it is only the process which can be reviewed and not the end result thereof. It was submitted that by way of judicial review the Court can not substitute its own decision in place of the decision arrived at by the executive.
61. While referring to Transaction of Allocation Rules, 1961 it was CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 62 of 467 submitted that as per para 4, if the decision of the Screening Committee was not unanimous then it was incumbent upon various other departments which were members of the said Screening Committee to refer the matter to Cabinet as in case of difference of opinion the Cabinet has been empowered to take a final decision and no decision can be taken by interdepartmental Committee. It was also submitted that from the Transaction of Allocation Rules and Transaction of Business Rules, it was clear that if the job of checking of applications was to be undertaken by CA Section and the present accused persons have been arrayed to face the present prosecution on the ground of lapses on their part in not properly supervising the functioning of said CA Section then there is no logic as to why only some of the supervisory officers have been roped in to face trial while leaving others such as Under Secretary, Section Officer and other officers of concerned CA Section. It was thus submitted that if at all the present accused persons are to be held criminally liable for any act of supervisory lapses on their part then it needs to be spelled out as to on what criteria only these officers have been singled out while leaving other officers such as Section Officer and Under Secretary of the Ministry who admittedly were the Incharge of the concerned section. Reference was also made to report of CAG on the coal block allocation matters stating that the same is instructive for understanding the finer nuances of the present matter. As regard the functioning of MOC officers, it was also submitted that from the files of MOC itself it is evident that A-5 K.S. Kropha was a part of team of officers who had proposed that instead of adopting the Screening CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 63 of 467 Committee route the competitive bidding route be adopted but the said proposal put-forth by them was rejected not only by the State Governments but even at the level of Ministry, Parliamentarians, other politicians and other Ministries.
62. It was submitted by Ld. Counsel Sh. Rahul Tyagi that the guidelines issued by MOC were only in the nature of opinion to be followed by the Screening Committee in arriving at its decision since they were not having any statutory force. Distinction was sought to be made between guidelines having statutory force and guidelines which are in the nature of departmental instructions which are only for the guidance of the officers, but have no binding force. Ld. Counsel submitted that he is taking alternative argument in the present case that though guidelines were indeed followed in their letter and spirit but in case it is found that they were not followed then his argument is that they were not compulsorily followed as they were not having any statutory force since they were not issued under Article 77 of Constitution of India i.e. in the name of President of India.
63. Ld. Counsel Sh. Rahul Tyagi while referring to a book titled "Shackleton on the law and practice of meetings" tried to differentiate between the meaning of "Committee" and "Meeting" and also highlighted various aspects as to how the proceedings of a meeting are to be conducted right from the stage of convening the meeting. Ld. Counsel also highlighted as to what all requirements are to be complied with while convening a meeting. Ld. Counsel further highlighted the difference between Member Convener and Member of CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 64 of 467 the Screening Committee and as to how minutes of a meeting are to be recorded. Ld. Counsel while referring to various minutes available in the records of the present case itself pointed out as to how minutes of various meetings held in PMO were recorded and the meeting took place. As regard allocation of Moira Madhujore coal block to M/s VMPL, Ld. Counsel referred to the recommendation made by Administrative Ministry i.e. Ministry of Steel and that by State Government of West Bengal and submitted that on account of lack of industrial development in the Country and shortage of power and there being conflicting/different views of Members of various stakeholders in the Screening Committee some consensus was sought to be arrived at by the Committee and in that process only M/s VMPL came to be accommodated for Moira Madhujore coal block. It was also submitted that the decisions of the Screening Committee were taken by a majority view and that the Chairman had no overriding power over the decision of the majority. It was also submitted that by putting their signatures on the recommendation sheets, the various members of the Screening Committee agreed to the decision so taken in the Committee. It was also submitted that the said decision after it was accepted by the Members by signing on the recommendation sheets has to be treated in law as decision of the Screening Committee and cannot be said that the final decision was taken by the Chairman. It was submitted that Chairman merely summed up the decision and did not take any independent decision.
64. It was also submitted by Ld. Defence Counsel while referring to the file of Department of Industries, Government of Bihar i.e. Ex.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 65 of 467 PW P-26 (colly) (D-30) that from the documents available in the said file, it is clear that Government of Bihar had indeed made recommendation in favour of VMPL for allocation of a coal block. It was further submitted that being an old matter a number of documents are now found to be missing from the files of different Government Departments including that of Ministry of Coal. It was thus submitted that while appreciating the role played by the accused persons vis a vis the evidence of various prosecution witnesses so examined or the witnesses examined on behalf of the defence, the Court has to keep in mind the nature of executive functioning beside the fact that number of documents are still not traceable. It was also pointed out that from the deposition of PW-12 N.R. Dash and that of PW-1 V.S. Rana it is clear that TEFR report filed by M/s VMPL was indeed available but now the same is found missing from the files of Ministry of Coal. It was also submitted by Ld. Counsel that accused is only required to show by way of preponderance of probabilities that the case put forth by prosecution is not true or correct or is not believable and thus benefit in this regard be extended to the accused. It was also submitted that the investigation carried out in this case is also not fair in as much as no investigation was at all carried out as to the fate of application of M/s VMPL which was sent to Government of Bihar by Ministry of Coal vide letter of PW-1 V.S. Rana. It was also pointed out that from the file Ex. P-26 (colly) (D-30) it is clear that the said applications were being dealt with by department of mines in Government of Bihar and not by department of Industries.
65. It was also submitted by Ld. Counsel Sh. Rahul Tyagi that CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 66 of 467 while appreciating the evidence led by the prosecution in the present case the Court must take judicial notice of the natural conduct of human beings. It was submitted that the intention of the officers dealing with coal block allocation matters at the relevant time needs to be seen and not what is now being interpreted of the said actions. It was also submitted that there may be certain errors or acts of negligence on the part of officers dealing with the impugned matters at the relevant time but by no stretch of imagination the same can be termed as culpable in nature.
66. While referring to the provisions of Manual of Office Procedure vis-a-vis evidence led by the prosecution, it was submitted that the primary job of checking of applications for their eligibility and completeness was that of CA-I Section officials and if the said action was not undertaken in MOC and the present accused persons are being tried on account of no such action having been undertaken in MOC then the officials of CA-I Section are also clearly accomplice in the said act and their deposition thus needs to be seen and appreciated keeping in view the well settled principles which governs the rules of appreciation of deposition of an accomplice. It was also submitted that prosecution has deliberately chosen to withheld the best evidence from this Court and have rather led selective evidence in various coal block matters pending trial before this Court and have also chosen to place only selective documents on record.
67. While referring to the record notes of 7 th Energy Coordination Committee, it was submitted that pursuant to the directions of PMO, CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 67 of 467 the officers of MOC including the present accused persons had undertaken the entire exercise of allocation of coal blocks and it was submitted that every minute details could not have been looked into by the senior officers of MOC who are now facing trial and it was on account of necessity and urgency of the matter that the entire exercise was undertaken with a belief that CA-I, Section will duly play their role in the process. While referring to various notings recorded by the officials of CA-I Section and other senior officers of MOC, it was submitted that the entire exercise was undertaken as per the past practice being followed and it was in case of any deviation from the well settled past practice that the matter used to be put up before senior officers for their directions and approval. It was also submitted that from the deposition of PW-1 V.S. Rana and DW-7 P.K. Kuar, it was clear that in order to save their own skin they were blatantly telling lie and their deposition does not inspire confidence at all. While referring to the charges framed against the accused persons, it was submitted that the accused persons are required to meet the case of prosecution only to the extent as has been mentioned in the charges framed against them. It was also submitted that prosecution has failed to explain as to whose duty was it, at least from amongst the present officers of MOC facing trial to ensure checking/scrutiny of applications for the purposes of their eligibility and completeness. It was further submitted that it was the duty of PW-1 V.S. Rana, Under Secretary, MOC to ensure checking of applications with the help of CA-I Section officials.
68. It was submitted by Ld. Counsel Sh. Rahul Tyagi that from a CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 68 of 467 bare perusal of the deposition of PW-1 V.S. Rana it is clear that whatever facts have been stated by him are as per the records available and not as per his memory. While pointing out various facts deposed to by PW-1 V.S. Rana it was submitted that despite certain facts having been stated by him contrary to the case of prosecution still no request was made by prosecution to challenge or to re- examine the witness and in these circumstances the said facts stands duly established. It was also submitted that PW 1 V.S. Rana who is the star witness of prosecution in almost all cases where the present accused persons are facing trial in one or the other coal block allocation matters has taken different stands in various cases qua same issues and on account of the said changing stand, it is clear that his deposition cannot be relied upon at all. It was also submitted that in the present matter PW 1 V.S. Rana never stated that he informed any of the senior officers of MOC that scrutiny/checking of applications for their eligibility and completeness has not been carried out. As regard the repeated stand taken by PW 1 V.S. Rana that various actions were undertaken by them under the guidance of senior officers it was submitted that in view of Section 68 of Evidence Act the same is clearly hearsay as prosecution has not tried to bring on record any evidence which could show that whatever was being deposed to by PW 1 V.S. Rana was direct evidence having been observed by him by one of his cognative faculties. It was also submitted that from the records of prosecution case itself it is clear that the project report though titled "TEFR" was very much available. It was pointed out that the said report was very much available with CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 69 of 467 Ministry of Steel as well as Government of Bihar and the fact that it was not available in Ministry of Coal is clearly on account of the fact that certain documents have gone missing from the files of MOC. It was also pointed out that at the time of receipt of applications acknowledgment thereof was duly given by MOC officers on a covering letters wherein details of the documents enclosed with the applications were mentioned. Copy of the said covering letter was stated to have been recovered during the course of search operation carried out at the house of co-accused Anand Mallick.
69. It was further submitted by Ld. Counsel Sh. Rahul Tyagi on behalf of A-5 K.S. Kropha and A-6 K.C. Samria that from the deposition of various prosecution witnesses and defence witnesses, it is clear that wherever certain facts have been stated by the witnesses against the case of prosecution then the said witnesses have not been confronted by the prosecution either by re-examining or by putting any suggestion. It was however submitted that on the other hand whenever such a situation has arisen qua the accused persons be it during the cross-examination of prosecution witnesses or defence witnesses then a request has always been made on behalf of accused persons to grant an opportunity to re-examine the witnesses. It was further submitted that such a request was however turned down by this Court and thus since accused has not been given a chance to confront the said witness(es) or to examine the witness(es) on the said issue so the said part of evidence of the witnesses can not be now taken into consideration. It was also submitted that even after examination of defence witnesses this Court CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 70 of 467 has chosen not to put all such adverse evidence which has come on record against the accused persons to them u/s 313 Cr.PC giving them an opportunity to explain the same and thus the said part of evidence also can not be read against the accused persons. It was also submitted that admittedly the minutes of 36 th Screening Committee were duly circulated to all the members of Screening Committee and since no objection was raised by the members of Screening Committee at that point of time so now after a lapse of 9 years they can not come around and say that the said recommendations of Screening Committee were not arrived at with their agreement or consent. Reference in this regard was also made to the factum of signing of recommendation sheets by the said members at the time of Screening Committee meeting itself and thereby signifying their acceptance/consent to the decision so taken by the Screening Committee. It was also submitted that on account of earlier experience faced by MOC officers qua the proceedings conducted with respect to 30-34 th Screening Committee it was consciously decided by MOC officers that members may be asked to sign the recommendation sheets containing the final decision of the Screening Committee meeting, in the meeting itself so that later on members may not turn around and disown the decision of the Screening Committee. It was also submitted that strangely enough the prosecution witnesses in this case have chosen to not support or reiterate the version or factum stated by them to CBI and prosecution has also not chosen to confront the said witnesses with their said statements u/s 161 Cr.PC. It was thus submitted that from the said CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 71 of 467 course of examination it is clear that prosecution was itself disbelieving the investigating agency or the investigating officer. While referring to the communications made by Ministry of Steel to MOC, it was submitted that at no point of time MOS ever conveyed to MOC that the physical verification of the applications so received by them will not be carried out by them and thus there was no reason for MOC officers to presume or assume that no such physical verification of the applications is being carried out by them. It was also submitted that from the records brought on record by way of prosecution evidence, it was clear that scrutiny of the applications qua their completeness and eligibility was indeed carried out in MOC. It was submitted that in the present matter there was no incomplete applications received by MOC and for this reason only MOS had communicated to MOC about 695 applications having been received by them and the same being complete.
70. As regard the issue of post recommendation verification to be carried out by MOC of the successful allocatee companies, it was submitted that there was no reason for MOC officers to even assume even for the sake of arguments that no such verification has earlier been carried out either by the Administrative Ministry or by the State Government as per the past practice being followed in MOC.
71. It was also submitted that A-6 K.C. Samria was not even posted in CA-I Section when the applications in question were either received in MOC or were processed or copies thereof were dispatched to various stakeholders. It was thus stated that A-6 K.C.
CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 72 of 467 Samria can not be held liable for any such acts of omission, if committed by CA-I Section officials.
72. It was also submitted that prosecution has clearly failed in proving that A-5 K.S. Kropha or A-6 K.C. Samria were in any manner responsible for the checking of applications for their completeness and eligibility. It was also submitted that prosecution has also failed to bring any evidence on record which could show that either A-5 K.S. Kropha or A-6 K.C. Samria were in any manner involved in any criminal conspiracy, if at all hatched by other accused persons. No evidence was at all stated to have been led which could show that there was any meeting of mind amongst the accused persons.
73. The prosecution was thus stated to have miserably failed in proving its case against A-5 K.S. Kropha and A-6 K.C. Samria. They were thus prayed to be acquitted.
74. Ld. Counsel for A-5 K.S. Kropha and A-6 K.C. Samria further placed reliance on the following case law in support of his submissions:
S. Title Citations No. 1 State of U.P. & Ors vs Johri Mal Manu/SC/0396/2004 2 State of U.P. & Ors vs Maharaja Manu/SC/0563/1989 Dharmander Prasad Singh & Ors 3 Main Pal vs State of Haryana Manu/SC/0676/2010 4 Bhagirath vs State of Madhya Pradesh Manu/SC/0091/1975 5 P.B. Desai vs State of Maharashtra & Ors Manu/SC/0937/2013 6 G.J. Fernandez vs State of Mysore & Ors Manu/SC/0050/1967 7 Chief Commercial Manager, South Central Manu/SC/7843/2007 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 73 of 467 Railway, Secundrabad vs G.Ratnam & Ors 8 R. Sai Bharathi vs J. Jayalalitha & Ors Manu/SC/0956/2003 9 Gulf Goans Hotel Company Ltd vs Union of Manu/SC/0848/2014 India & Ors 10 Ram Singh vs Sonia & Ors Manu/SC/7109/2007 11 Harendra Narian Singh & Ors vs State of Manu/SC/0416/1991 Bihar 12 Mukhtiar Ahmed Ansari vs State (N.C.T. of Manu/SC/0309/2005 Delhi) 13 Rammi & Ors vs State of Madhya Pradesh Manu/SC/0596/1999 14 Dahyabhai Chhaganbhai Thakker vs State Manu/SC/0068/1964 of Gujrat 15 C.T. Muniappan vs The State of Madras Manu/SC/0346/1960 16 C.B.I. Hyderabad vs K. Narayana Rao Manu/SC/0774/2012 17 State of Kerala vs P. Sugathan & Ors Manu/SC/0601/2000 18 Brij Lal & Ors vs State of U.P. Manu/UP/0746/1988 19 Thulia Kali vs The State of Tamilnadu Manu/SC/0276/1972 20 Askar S/o Abdul Karim vs State of Kerala Crl.A. No. 992/2006 21 S.K. Alagh vs State of U.P. & Ors Manu/SC/7162/2008 22 Maksud Saiyed vs Stte of Gujreat & Ors Manu/SC/7923/2007 23 Laxmipat Choraria & Ors vs State of Manu/SC/0062/1967 Maharashtra 24 Mohd. Husain Umar Kochra & Ors vs K.S. Manu/SC/0123/1969 Dalipsinghji & Ors 25 Grasim Industries & Ors vs Agarwal Steel Manu/SC/1763/2009 26 The Municipal Corporation of Greater 1978 (5) TMI 125 - Bombay vs P.s. Malvenkar & Ors SUPREME COURT OF INDIA - 1978 AIR 1380 27 Jose Mathew & Ors vs James Avirah & Ors Manu/KE/0112/2016 28 Mathu vs Cherchi Manu/KE/0515/1989 29 Ravi Yashwant Bhoir vs District Collector Manu/SC/0186/2012 Raigad and Ors 30 Jayendra Saraswathi Swamigal vs State of Manu/SC/0017/2005 Tamilnadu 31 Samunder Singh & Ors vs State Manu/WB/0117/1965 CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 74 of 467 32 State through Superintendent of Police, Manu/SC/0945/1999 CBI/SIT vs Nalini & Ors 33 Major S.K. Kale vs State of Maharashtra Manu/SC/0139/1976 34 N. Narayanan Nambiar vs State of Kerala Manu/SC/0164/1962 35 R. Balakrishnan Pillai vs State of Kerala Manu/SC/0237/1996 36 CBI vs Ashok Kumar Aggarwal Manu/SC/1220/2013
(E) PRELUDE TO MY DISCUSSION OF THE PROSECUTION CASE.
75. I have carefully perused the record.
76. Before I advert on to discuss the case of prosecution in the light of evidence led on record vis-a-vis the submissions of Ld. Counsels for the accused persons, it will be worthwhile to mention that the present case like other coal block allocation matters is also primarily based on circumstantial evidence. However, the said circumstances are sought to be proved by prosecution mainly from the documents be that of MOC, Screening Committee, Ministry of Steel, State Government of Bihar, State Government of West Bengal or that of company M/s VMPL itself. Thus in order to appreciate the conduct of accused public servants or that of the private parties who have been now arrayed as accused, various notings as have been recorded in the files of Government of Bihar, Government of West Bengal, files of Ministry of Steel or that of MOC beside the proceedings of the Screening Committee needs to be referred to in extensio. Thereafter only can it be examined and appreciated as to whether various incriminating circumstances stands conclusively proved against the accused persons or not. It will be also required to CBI Vs. M/s Vikash Metal & Power Ltd. & Ors., Judgment dated 30.11.2018 Page No. 75 of 467 be seen as to whether the said incriminating circumstances so proved form such a complete chain of evidence which is consistent only with the hypothesis of guilt of the accused persons or not. In other words whether the said incriminating circumstances are explainable on any other hypothesis consistent with the innocence of accused persons or not.