217. PW 13 V.S. Rana Under Secretary, MOC stated in his examination-in-chief that when the applicant companies were called upon to attend the screening committee meeting to make presentation in accordance with the schedule uploaded on the website of MOC then they were also required to submit a filled in feedback form after downloading the proforma thereof from the website of MOC. He further stated that the applicant companies were at liberty to make presentations either by way of hard copy or by way of soft copy or both. He thereafter went on to prove the attendance sheet Ex. PW13/K-1 as available in file Ex. PW 13/B (Colly) (D-4A) of the meeting held on 08.12.2007. He also stated that all the representatives of applicant companies who had come to make presentations signed on attendance sheets. However in his cross- examination as conducted by Ld. Counsel for A-1 M/s KSSPL and A- 2 Pawan Kumar Ahluwalia neither any question nor any suggestion was put that no presentation on behalf of A-1 M/s KSSPL was made. On the other hand in his cross examination as conducted by Ld. Counsel for A-3 Amit Goyal it was however highlighted that the witness has made improvement over his statement u/s 161 Cr.PC made to the IO as regard downloading of feedback form from the website of MOC or the requirement of submitting 25 copies thereof to the screening committee by the applicant companies. He was also CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 152 of 350 extensively cross examined as to the sequence in which representatives of various applicant companies signed the attendance sheet. He was also asked to point out documents if any from which it could be ascertained that any presentation was made on behalf of A-1 M/s KSSPL or any feedback form was submitted on behalf of the company. The witness however claimed his inability to point out any such documents even though similar records qua other applicant companies was available in the files of MOC. An inference was thus sought to be drawn from the aforesaid series of questions that no presentation was made on behalf of A-1 M/s KSSPL and also that no feedback form was submitted.
218. PW 16 N.R. Dash, Director, Ministry of Steel attended the meetings of 36th screening committee alongwith Joint Secretary Steel Sh. U.P. Singh. He also stated that in the initial three meetings held on 07/08.12.07 and 07.02.2008 various applicant companies had made their presentations. He also stated that the representatives of the applicant companies also used to supply a copy of the presentation so made by them alongwith copy of feed-back form to the members of screening committee. Again in his cross-examination as conducted on behalf of A-1 M/s KSSPL or A-2 Pawan Kumar Ahluwalia neither any question nor any suggestion was put that no such presentation was made on behalf of A-1 M/s KSSPL or that no feed-back form was submitted. On behalf of A-3 Amit Goyal also no question at all was put to the said witness.
219. Apart from the aforesaid nature of evidence led by the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 153 of 350 prosecution it will be also worthwhile to refer to the deposition of DW- 10 K.C. Samria and DW-11 KS Kropha when they both entered the witness box as defence witnesses u/s 315 Cr.PC.
220. DW-10 K.C. Samria in his examination- in-chief stated that hard copies of the power point presentations made by the applicant companies and the feed-back forms submitted by them were circulated to the members of Screening Committee at the time of presentation itself as were provided by the applicant companies. This witness beside being cross-examined by Ld. Sr. PP Sh. V.K. Sharma was also cross examined by Ld. Counsel for A-1 M/s KSSPL. However in his said cross examination as conducted by Ld. Counsel for A-1 M/s KSSPL neither any question nor any suggestion was put that no presentation was made on behalf of A-1 M/s KSSPL or that no feed-back form was submitted by the company.
221. As regard the deposition of DW 11 K.S. Kropha I deem it appropriate to reproduce the relevant portion of his examination-in- chief as under :
"All the applicant companies were invited to make a presentation before the Committee on the 7 th and 8th December, 2007 and 7th February, 2008. Records show that a representative of M/s KSSPL, namely, Sh. Amit Goyal had recorded his attendance during those days. It is logical to presume that Sh. Amit Goyal must have been heard by the committee. There was no other reason for him to come and mark his attendance."
(Emphasis supplied by me)
222. However for reasons best known to other co-accused CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 154 of 350 persons, DW 11 K.S. Kropha was not at all cross-examined on behalf of any of them much less on behalf of A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia or A-3 Amit Goyal. It will be also worthwhile to mention that while examination-in-chief of both DW-10 K.C. Samria and DW-11 K.S. Kropha was recorded on 19.08.16 itself but they were cross-examined on 03.09.2016 only. Thus while Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia chose to cross examine DW-10 K.C. Samria on 03.09.2016 itself but he did not prefer to cross examine DW-11 K.S. Kropha.
223. At this stage it will be also worthwhile to note the response given by A-3 Amit Goyal A-4 H.C Gupta, A-5 K.S. Kropha and A-6 K.C. Samria to question no. 204 in their statements u/s 313 Cr.PC as regard the issue of making presentation by A-1 M/s KSSPL before the Screening Committee:
"Q. 204 It is further in evidence against you that in reply dated 07.01.2013, part of Ex. PW-3/R (colly) submitted by accused company M/s KSSPL under the signatures of accused Pawan Kumar Ahluwalia as Director/authorised signatory of M/s KSSPL it was stated in para 5 & 6 that ".....A power point presentation from the computer was made to the Screening Committee. However the same is not traceable with the Company due to lapse of time" and "the Chartered Accountant of the Company Sh. Amit Goyal went to attend the Screening Committee meeting on 08.12.2008 as replacement of accused Pawan Kumar Ahluwalia who due to some personal commitment could not go". What have you to say?
A-3 Amit Goyal Ans. While it is correct that Sh. Pawan Kumar Ahluwalia's letter contains that portion of his letter which has been quoted in the question under reply, the contents of the same are not correct. I did appear before the Screening Committee but not as a replacement for Sh. Pawan Kumar Ahluwalia nor did I appear CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 155 of 350 before the Screening Committee as a representative of the company. I had been requested by Sh. Pawan Kumar Ahluwalia to accompany him in the said meeting and to carry with me the copies of the relevant Audit reports prepared by me so that I may answer any queries that the Screening Committee may have with respect to those Audit reports only. Sh. Pawan Kumar Ahluwalia could not attend the meeting owing to certain unforeseen circumstances and I informed the Screening Committee of the same. At that point I was asked to leave. My interaction with the Screening Committee barely lasted two minutes and during that time no queries of whatsoever nature regarding the company were put to me by the members of the Screening Committee. My engagement with M/s KSSPL has always been of a professional nature and I have never been a representative or an authorized representative of the company and there is no evidence to support any such assertion. The letter referred to in the question under reply does not suggest that any presentation was made by me in any event on that day and I affirmatively submit that no presentation, power point or otherwise was made by me on that date.
A-4 H.C. Gupta.
Ans. It is a matter of record, but most applicant companies had made power point presentations before the Screening Committee.
A-5 K.S. Kropha.
Ans. It is a matter of record. but most applicant companies had made power point presentations before the Screening Committee.
A-6 K.C Samria.
Ans. It is matter of record."
224. The purpose of referring to the aforesaid nature of evidence led by prosecution or by the accused persons coupled with the responses given by the accused persons in their statements u/s 313 Cr.PC was to only show the inconsistent and contradictory stands taken by both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia as regard the issue whether any presentation was made before the Screening Committee on behalf of A-1 M/s KSSPL or not. It is not CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 156 of 350 that in a criminal trial an accused is not permitted to take multiple plea of defence but what is important to see is whether the said multiple plea of defence being taken by an accused on any given issue are self contradictory or inconsistent in nature or not.
225. However at this stage I may mention as a mark of caution that I am not trying to extend any benefit to prosecution on account of any such weaknesses of defence but the only point sought to be drawn home is that at-least A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia could have produced the concerned officer of A-1 M/s KSSPL who had conveyed the information to A-2 Pawan Kumar Ahluwalia that a power point presentation was made on behalf of the company before the screening committee. The said officer could have only explained as to in what circumstances he came to convey such an information to A-2 Pawan Kumar Ahluwalia or how he himself acquired such a knowledge.
226. Coming back to the issue under consideration, I may state that the present coal block allocation matters are such which are primarily based on documentary nature of evidence and in a number of cases like the case in hand the private parties and officers of MOC were prima facie found to be hands in glove in allocation of various coal blocks. It is in this light the circumstances relating to missing of number of records from MOC relating to coal block allocation matters needs to be seen and appreciated. It is in these circumstances only the various plea of defence taken by the accused persons needs to be appreciated. However I may again reiterate that I am still not CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 157 of 350 drawing any conclusion based on the said reply Ex.PW3/R (Colly) given by A-1 M/s KSSPL under the signatures of A-2 Pawan Kumar Ahluwalia during the course of investigation.
227. This Court is thus left with no other option but to believe the stand being now taken by A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal that no presentation was made on that day on behalf of company M/s KSSPL before the screening committee and also no feedback form was submitted. However in these circumstances various other questions crops-up for consideration. Admittedly company M/s KSSPL was called upon to make presentation before the Screening Committee on 08.12.2007 and as claimed by the accused persons themselves A-2 Pawan Kumar Ahluwalia was to himself appear before the screening committee alongwith A-3 Amit Goyal but due to certain unavoidable circumstances could not attend the Screening Committee meeting even though A-3 Amit Goyal reached the meeting venue.
228. It is also the consistent and admitted stand of A-3 Amit Goyal that he was asked by A-2 Pawan Kumar Ahluwalia to accompany him to the screening committee meeting in order to answer any questions if raised regarding the audited reports of the company. It is also the case of A-3 Amit Goyal that while he reached the meeting venue on 08.12.2007 but for some unavoidable reasons A-2 Pawan Kumar Ahluwalia could not reach. This fact has not been disputed even by A- 2 Pawan Kumar Ahluwalia.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 158 of 350
229. In the aforesaid circumstances it will be thus quite logical to infer that the presentation which was to be made before the Screening Committee on 08.12.2007 must have been prepared prior to it in the company M/s KSSPL. Similarly the feedback form which was to be submitted in 25 copies must have been prepared in the company prior to 08.12.2007. It was primarily for this reason only that A-2 Pawan Kumar Ahluwalia in his reply to notice u/s 91 Cr.PC stated that the power point presentation was made but the same was not available. As regard feedback form, it was only stated that no feedback form was submitted. Nothing has been stated even now during the course of trial as to whether presentation and feedback form were prepared by A-1 M/s KSSPL or not. At the cost of repetition, I may state that as A-1 M/s KSSPL was scheduled to make presentation before the Screening Committee on 08.12.2007 so keeping in view the natural course of conduct of public and private business, the Court can certainly presume the existence of some of such facts as are likely to have happened i.e. the company M/s KSSPL must have prepared the presentation and the feedback form to be submitted to the Screening Committee before the date of meeting of Screening Committee i.e. 08.12.2007. However neither A- 1 M/s KSSPL nor A-2 Pawan Kumar Ahluwalia have stated anything as to what was mentioned either in the feedback form or in the presentation as were prepared in the company. These are facts of such a nature which can be exclusively to the knowledge of accused persons only and the prosecution could not have led any evidence in this regard. Thus it will be again logical to infer that while preparing CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 159 of 350 the presentation or while filling up the feedback form the earlier discrepancies/misrepresentations made in the application Ex. PW 1/F (colly) (D-10) must have come to the notice of A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. However a second plea of there being again inadvertence in preparing the presentation or the feedback form would be hard to even put forth much less to believe. In the alternative, if those misrepresentations as were there in the initial application form had come to their notice then it was the bounden duty of both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia to point out the said mistakes in the initial application to the Screening Committee or at least to MOC, if not on 08.12.2007, i.e. on the date of presentation but at least on some other later date. It was primarily for this reason that factum of making presentation before the Screening Committee or submission of feedback form is being repeatedly denied and even copies thereof in the records of A-1 M/s KSSPL are also stated to be not traceable.
230. On the other hand if the said discrepancies/ misrepresentations were being still carried in the feedback form and presentation then the fact remains that the impugned misrepresentations or act of withholding of requisite documents containing relevant facts by A-1, M/s KSSPL and A-2 Pawan Kumar Ahluwalia continued till the stage of final allocation of coal block by MOC. In fact in the absence of presentation and feedback form having been not submitted to the Screening Committee, the impugned misrepresentations in the initial application and the act of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 160 of 350 withholding of requisite documents continued till the stage of final allocation of coal block by MOC.
231. Thus from my aforesaid discussion it is clear that the evidence regarding presentation or feedback from which must have been available with the company A-1 M/s KSSPL has not been produced as it would have been unfavourable to the accused company A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. As already mentioned the contents of the presentation and the feedback form which was to be submitted to the Screening Committee on that day, had A-2 Pawan Kumar Ahluwalia reached the meeting venue, could be exclusively to the knowledge of A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia only. They thus did not produce any evidence qua the contents thereof only because the same would have been unfavourable to them.
232. In this regard it would be worthwhile to mention certain observations of Hon'ble Supreme Court as were made in Para 24 in the case Kali Ram Vs. State of Himachal Pradesh (Supra).
"24. Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. The court may, of course, presume, as mentioned in section 114 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business. in their relation to the facts of the particular case. The illustrations mentioned in that section, though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 161 of 350 each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the section itself Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and confine human behaviour within straitjackets. The raw material here is far too complex to be susceptible of precise and exact propositions for exactness here is a fake."
233. At this stage I may also mention that the issue whether by appearing before the screening committee on behalf of A-1 M/s KSSPL, A-3 Amit Goyal became a part of criminal conspiracy, if any hatched by the other accused persons or not shall be discussed by me at a later stage of the present judgment. Moreover while discussing the role of accused MOC officers as regard the nature of minutes recorded by them I shall be again reverting back to the issue of presentation having been not made or feedback form not submitted by A-1 M/s KSSPL.
(G) Whether the data furnished by A-1 M/s KSSPL was considered by the Screening Committee, MOC.
234. As already mentioned the guidelines issued by MOC governing allocation of captive coal blocks clearly stated that for deciding the inter-se priority of various competing applicants for allocation of a captive coal block, the status (stage) level of progress and state of preparedness of the projects beside net-worth of the applicant company and also the track record and financial strength of the company shall be relevant factors.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 162 of 350
235. However apart from the said guidelines a perusal of the minutes of 36th Screening Committee also clearly show that the information as submitted by the applicant companies in their application form was considered. Though I shall be referring to the minutes of 36th Screening Committee at length at a later stage of the judgment while discussing the role of accused MOC officers in the entire coal block allocation process but it would be worthwhile to refer to certain relevant portion of the said minutes over here. The same read as under:
"MINUTES OF THE 36TH MEETING OF THE SCREENING COMMITTEE HELD ON 7TH-8TH December, 2007, 7th-8th February, 2008 and 3rd JULY, 2008 IN NEW DELHI TO CONSIDER ALLOCATION OF 23 COAL BLOCKS EARMAKRD FOR NON-POWER SECTOR.
1.
2.
3.
4.
5.
6. Some of the companies did not appear for presentation despite the notices issued to them through individual letters, as well as through the Ministry's web-site. However, their applications were also considered by the Screening Committee as per the information submitted by them in their application forms.
7.
8. (i) The Chairman then invited the Joint Secretary, Ministry of Steel to brief the members about the rationale followed by the Ministry of Steel for evaluating the applications relating to sponge iron, pig iron and steel project. The Joint Secretary, MOS explained that the present capacity of steel production in the country is around 60 MT and the Ministry of Steel is projecting a capacity expansion of 6% to 7% in the immediate future.
Therefore, the blocks be allocated to those companies which are genuine, technically and financially sound to take up the project CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 163 of 350 and where capacity addition is expected to be accomplished by the year 2010. These companies need to be encouraged with assured supply of coal as raw material and those who are not expected to set up the projected capacities based on their track record etc. should be discouraged. Allocation of coal block to smaller players though desirable, but keeping in view their technical and financial constraints, it would be difficult for them to get the block developed in a time bound manner. He suggested that the requirement of small producers, which are genuine, should be met through linkages granted from CIL subsidiaries.
9 .  10 .  11 .  12 .
13. The Screening Committee, thereafter, deliberated at length over the information furnished by the applicant companies in the application forms, during the presentations and subsequently. The committee also took into consideration the views/comments of the Ministry of Steel, Department of Industrial Policy and Promotion, State Governments concerned, guidelines laid down for allocation of coal blocks, and other factors as mentioned in paragraphs 8 to 12 above. As regards inter-se distribution of shares among the joint allocattees, it was decided by the Committee that capacity of end-use projects shall be determined as follows:
i) The capacity indicated in the application form;
ii) The capacity indicated in the MOU entered into between the applicant company and the State Govt. concerned, wherever applicable;
iii) The realistic capacity addition likely to materialize by the year 2010, as assessed by the nodal Ministry/ Department concerned;
14. Based on the data furnished by the applicants, and the feedback received from the State Governments, the Ministry of Steel and Department of Industrial Policy and Promotion, the Committee assessed the applications having regard to matters such as techno-economic feasibility of end-use project, status of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 164 of 350 preparedness to set up the end-use project, past track record in execution of projects, financial and technical capabilities of applicant companies, recommendations of the State Governments and the Administrative Ministries concerned etc.
(Emphasis supplied by me)
236. Thus from the guidelines issued by MOC and the minutes of 36th Screening Committee meetings, it is crystal clear that the Screening Committee while making its recommendations relied heavily on the information furnished by the applicant companies in their application forms and especially the production capacity of the plant and financial capability of the applicant companies.
(H) Whether the misrepresentations made by the company M/s KSSPL or withholding/concealment of requisite documents from MOC had the effect of deceiving MOC, Government of India.
& (I) Whether issuance of letter of allotment of coal block amounted to delivery of property resulting in wrongful gain to A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia.
237. Before adverting further it will be worthwhile to refer to the definition of the offence of cheating as given in Section 415 IPC.
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 165 of 350 would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
238. In this regard, it will be now first appropriate to consider as to what is the meaning of the phrase "deceiving any person" as has been used in the definition of cheating as provided in Section 415 IPC.
239. In the case Swami Dhirendra Brahamchari Vs. Shailendra Bhushan, 1995 Cr. L.J. 1810 (Delhi), Hon'ble Delhi High Court while dealing with the word deceiving as used in Section 415 IPC, observed that generally speaking "deceiving" is to lead into error by causing a person to believe what is false or to disbelieve what is true and such deception may be by words or by conduct. A fraudulent representation can be made directly or indirectly.
Hon'ble Allahabad High Court in the case P.M. Natrajan Vs. Krishna Chandra Gupta, 1975 Cr. L.J. 899 (All.) explained the word "deceive" as indicating inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine.
Hon'ble Supreme Court in the case Ellerman & Bucknall Steamship Co. Ltd. vs Sha Misrimal Bherajee, AIR 1966 SC 1892, explained "deceit" as a false statement of a fact made by a person knowingly or recklessly with the intent that it shall be acted upon by another who does act upon it and thereby suffers damage.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 166 of 350
240. It was stated that in all such cases of deception, the object of the deceiver is fraudulent. He intends to acquire or retain wrongful possession of that to which some other person has a better claim. Thus where a person parted away with a property while acting on such a representation of an accused believing in the truth thereof, it clearly amounts to deceiving the person. However, it is also important that the person practicing the deceit knows or has reason to believe the said representation to be false. Though in the true nature of things, it is not always possible to prove dishonest intention by direct evidence. It can be however proved by number of circumstances only from which a reasonable inference can be drawn.
Further the explanation to Section 415 IPC i.e. cheating states that a dishonest concealment of facts is a deception within the meaning of this section.
241. Coming to the case in hand it will be suffice to state and as already discussed at length the prosecution has been successful in proving beyond shadows of all reasonable doubts that both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia had knowledge that all the requisite documents as were required to be filed with the application in terms of the guidelines issued by MOC governing allocation of coal blocks were not filed. It also stands well proved that in the application of A-1 M/s KSSPL as was submitted to MOC under the signatures of A-2 Pawan Kumar Ahluwalia highly inflated claims of net-worth and existing or proposed capacity of the end use plant were made.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 167 of 350
242. The sole plea of defence as put forward by A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that the aforesaid acts of not filing the complete requisite documents or mentioning of wrong figures in the application were the result of inadvertent mistake on the part of the staff of the company was also found to be without any substance worth the name even. Even for the purposes of preponderance of probability the accused persons could not substantiate it. It was clearly insufficient to even raise any shadow of doubt over the credible convincing and reliable nature of evidence led by the prosecution. In fact in the overall facts and circumstances of the case the said plea of defence does not even appeal to any legal or logical reasoning in any manner whatsoever. Thus in the overall facts and circumstances of the case as already discussed at length this Court while having regard to common course of events of public and private business believes in the existence of all such facts and considers them as proved.
Moreover the fact that the company despite having opportunities over a period of about one and a half years when the applications were processed in MOC chose not to rectify the said mistakes but rather chose to also not attend the Screening Committee meeting to make a presentation or to submit a feedback form so that the initial misrepresentations may continue to hold ground clearly shows that all such acts of omission and commission of A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia were part of a well planned strategy to deceive MOC by making it to believe all such CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 168 of 350 false claims to be true and rely upon them and thereby to induce it to allot a coal block in favour of A-1, M/s KSSPL.
243. Another important issue raised by Ld. Counsels for accused persons was that mere issuance of allotment letter can not amount to delivery of any property as mentioned in Section 420 IPC. In this regard, the observations of Hon'ble Supreme Court of India as were made in its orders dated 25.08.14, passed in the Manohar Lal case (Supra) in para 61, 69, 70 and 71, will be worth referring to.
"61. There seems to be no doubt to us that allocation letter is not merely an identification exercise as is sought to be made out by the learned Attorney General. From the position explained by the concerned State Governments, it is clear that the allocation letter by the Central Government creates and confers a very valuable right upon the allottee. We are unable to accept the submission of the learned Attorney General that allocation letter is not bankable. As a matter of fact, the allocation letter by the Central Government leaves practically or apparently nothing for the State Government to decide save and except to carry out the formality of processing the application and for execution of the lease deed with the beneficiary selected by the Central Government. Though, the legal regime under the 1957 Act imposes responsibility and statutory obligation upon the State Government to recommend or not to recommend to the Central Government grant of prospecting license or mining lease for the coal mines, but once the letter allocating a coal block is issued by the Central Government, the statutory role of the State Government is reduced to completion of processual formalities only. As noticed earlier, the declaration under Section 1A of the CMN Act does not take away the power of the State under Section 10(3) of the 1957 Act. It is so because the declaration under Section 1A of the CMN Act is in addition to the declaration made under Section 2 of the 1957 Act and not in its derogation. 1957 Act continues to apply with the same rigour in the matter of grant of prospecting license or mining lease of coal mines but the eligibility of persons who can carry out coal mining operations is restricted to the persons specified in CBI Vs.
69. Assuming that the Central Government has competence to make allocation of coal blocks, the next question is, whether such allocation confers any valuable right amounting to grant of largesse? Learned Attorney General argues that allocation of coal blocks does not amount to grant of largesse since it is only the first statutory step. According to him, the question whether the allocation amounts to grant of largesse must be appreciated not from the perspective whether allocation confers any rights upon the allocatee but whether allocation amounts to conferment of largesse upon the allocatee. An allocatee, learned Attorney General submits, does not get right to win or mine the coal on allocation and, therefore, an allocation letter does not result in windfall gain for the allocatee. He submits that diverse steps, as provided in Rules 22A, 22B, and 22(5) of the 1960 Rules and the other statutory requirements, have to be followed and ultimately the grant of prospecting license in relation to unexplored coal blocks or grant of mining lease with regard to explored blocks entitles the allocatee/licensee/lessee to win or mine the coal.
70. We are unable to accept the submission of the learned Attorney General that allocation of coal block does not amount to grant of largesse. It is true that allocation letter by itself does not authorize the allottee to win or mine the coal but nevertheless the allocation letter does confer a very important right upon the allottee to apply for grant of prospecting license or mining lease. As a matter of fact, it is admitted by the interveners that allocation letter issued by the Central Government provides rights to the allottees for obtaining the coal mines leases for their end-use plants. The banks, financial institutions, land acquisition authorities, revenue authorities and various other entities and so also the State Governments, who ultimately grant prospecting license or mining lease, as the case may be, act on the basis of the letter of allocation issued by the Central Government. As noticed earlier, the allocation of coal block by the Central Government results in the selection of beneficiary which entitles the beneficiary to get the prospecting license and/or mining lease from the State Government. Obviously, allocation of a coal CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 170 of 350 block amounts to grant of largesse.
71. Learned Attorney General accepted the position that in the absence of allocation letter, even the eligible person under Section 3(3) of the CMN Act cannot apply to the State Government for grant of prospecting license or mining lease. The right to obtain prospecting license or mining lease of the coal mine admittedly is dependant upon the allocation letter. The allocation letter, therefore, confers a valuable right in favour of the allottee. Obviously, therefore, such allocation has to meet the twin constitutional tests, one, the distribution of natural resources that vest in the State is to sub-serve the common good and, two, the allocation is not violative of Article
14."
244. Thus in view of the aforesaid observations of Hon'ble Supreme Court, the allocation letter issued by MOC in favour of accused company M/s KSSPL clearly amounts to delivering of property i.e. rights qua valuable and natural resource of the country. It amounts to grant of largesse. The letter of allocation was thus a valuable security in itself much less a document which was capable of being converted into a valuable security.
245. It was also argued by Ld. Counsels for the accused persons that no wrongful gain was caused to the accused persons by the said allotment of coal block as no coal was at all extracted and thus no wrongful loss was caused to anyone. In this regard it will be suffice to state and as also observed by Hon'ble Supreme Court in Manohar Lal Sharma case (Supra) that allocation of coal blocks amounted to grant of largesse in favour of applicant companies and thus it cannot be stated that no wrongful gain was caused to the applicant companies. The observations of Hon'ble Supreme Court in the said case in para 70 and 71 (as reproduced above) will be worth referring CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 171 of 350 to.
246. In so far as loss which occurred to the nation as a whole it will be suffice to state that had coal been extracted if the coal block was allocated to a genuine and deserving company in an objective manner then it would have certainly added to the infrastructural development of the country. This in itself has resulted in wrongful loss to the country in its economic development and the said loss is difficult to be accounted for in terms of money. Thus it is again a fallacious argument that no wrongful loss or gain has been caused on account of allocation of said coal block to A-1 M/s KSSPL.
(J) Whether the dishonest misrepresentation continued before Prime Minister as Minister Of Coal and thereby cheating MOC, Government of India.
247. In this regard it will be also worthwhile to refer to certain observations of Hon'ble Supreme Court in the case Kanumukkala Krishnamurthy @ Kaza Krishnhamurthy Vs. State of Andhara Pradesh, AIR 1965 SC 333. The issue involved in the said case and the present case in hand are almost similar.
248. In the said case accused Kanumukkala Krishnamurthy had applied for appointment of Assistant Surgeon in Madras Medical Services in pursuant to notification published by Madras Public Service Commission inviting applications. However, later on, it was found that the accused had misrepresented himself by impersonating as some other person and also misrepresented about his parentage CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 172 of 350 and place of birth. It was also found that accused was not even holding minimum educational qualification i.e. degree of MBBS and thus he misled the Public Service Commission Authorities to believe the said misrepresentation to be true. Upon final conviction of the accused for the offence U/S 419 IPC i.e. cheating by impersonation by Hon'ble High Court of Madras, the accused challenged his conviction before Hon'ble Supreme Court by way of Special Leave Petition. The issue as to whether by way of said case of misrepresentation/impersonation, the accused deceived Government of Madras or not came up for consideration. While discussing various aspects of the offence of cheating and thereby that of cheating by impersonation, the observations made by Hon'ble Supreme Court will be worth referring to:
"11. The only other question to determine now is whether the appellant deceived the Government of Madras and dishonestly induced it to deliver something in the form of salary to the appellant. It is urged that the appointment to the post lay with the Government and not with the Service Commission and that 'the Government would not have appointed him to the post in the Medical Service if it had not believed that the appellant possessed the necessary qualifications which, in his case, would be a degree of M.B., B.S., and that such a belief was entertained by the Government on account of the deception practised by the appellant in misrepresenting in his application that he held such a degree. On the other hand, it is contended for the appellant that the delivery of 'property' is to be by the person deceived, in view of the language of Section 415 I.P.C., and that the person deceived, if any, was the Service Commission and not the Government, the application containing the misrepresentation having been made to the Service Commission and not to the Government.
12. We accept the contention for the respondent. The appointments to the Medical Services are made by Government. The Service Commission simply selected the candidates and recommends their names to Government for CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 173 of 350 appointment. This is clear from letter Exhibit P. 47 from the Secretary to the Service Commission to the Surgeon-General with the Government of Madras. The letter refers to the enclosing of a list containing the names and other particulars of the candidates who were successful at the examination, their names being arranged in order of merit. It refers to the relaxing of a certain rule in view of the paucity of candidates and states that they may be appointed, if necessary, pending receipt of the certificate of physical fitness and a further communication from the commission.
13. This is also clear from the provisions of the Government of India Act, 1935. Section 241 provided that appointments in connection with the affairs of a Province will be made by the Governor of the Province. Sub-Section (1) of Section 266 makes it a duty of the Provincial Public Service Commission to conduct examinations for appointments to the Services of a Province. Clause (a) of sub-s. (3) provides that the Provincial Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services and for civil posts and cl. (b) provides that it shall be consulted on the principles to be followed in making appointments to civil services and posts and on the suitability of candidates for such appointments. The Public Service Commission is constituted in pursuance of the provisions of Section 264. It is thus a statutory body and independent of the Government. This aspect of a Public Service Commission was emphasized in State of U.P. v. Manbodhan Lal Srivastava when considering the corresponding provisions of Article 320 of the Constitution. This Court said:
"Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services".
It is in view of these provisions that the Public Service Commission invites applications for appointment to the various posts under the Government and subsequently makes a selection out of the candidates for appointment to those posts. The selection may be after holding a written examination or after interviewing candidates or after doing both. Names of the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 174 of 350 candidates selected are arranged in order of merit and forwarded to the Government. The Government is expected, as a rule, to make appointments to the posts from out of the list, in the same order. It has, however, discretion not to appoint any part of the persons so selected and securing a place in the order of merit which would have ordinarily led to his appointment.
14. Any representation made in an application for appointments is really a representation made to the Government, the appointing authority, and not only to the Public Service Commission to which the application is presented and which has to deal with that application in the first instance. up to the stage ,of selection. The object of the applicant was to secure an appointment and not merely to deceive the Public Service Commission and sit at the examination or to appear at the interview. The deception was practised for that purpose and therefore there seems to be no good reason for holding that the deception came to an end once the Service Commission was deceived and had taken action on it as a result of the deception. A false representation in an application to the Service Commission continues and persists to be so till the application is considered by the final authority responsible for making the appointments and must therefore be deemed to be made to that final authority as well. In the instant case, when the recommendation of the Service Commission was sent to the Government, the qualifications of the recommended candidates, including the fact that the appellant had passed the M.B.,B.S. examination were mentioned. The Government therefore believed that the appellant possessed the degree of M.B.B.S., that as the Service Commission had scrutinized the application in that regard and had satisfied itself that the appellant possessed that degree. The consequence of that is that the Government were led to believe that fact, which thus became a false representation.
We are therefore of opinion that the appellant's mis- representation to the Service Commission continued and persisted till the final stage of the Government passing an order of appointment and that therefore the Government itself was deceived by the misrepresentation he had made in his application presented to the Service Commission."
(Emphasis supplied by me)
249. Thus it is clear that the dishonest misrepresentation as were CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 175 of 350 made by the accused persons before the Screening Committee continued even before Prime Minister as Minister of Coal when he approved the recommendation of Screening Committee. The Screening Committee was admittedly constituted to deal with all applications received for allotment of various coal blocks and to make its recommendation thereafter. The Prime Minister as Minister of Coal was thus to act upon the said recommendation only. Accordingly the dishonest misrepresentation made before the Screening Committee continued even before the Prime Minister as Minister of Coal when he approved the recommendations of the Screening Committee. (However whether the accused MOC officers were acting in pursuance of any conspiracy with the private parties involved and thereby facilitated them in continuing with their misrepresentations even before Minister of Coal or not shall be discussed by me at a later stage of the present judgment.) (K) Whether the ingredients of the offence of cheating stands proved.
250. As already discussed above the various ingredients of the offence of cheating coupled with delivery of property stands proved beyond shadows of all reasonable doubts as against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. They thus clearly deceived MOC, Government of India on the basis of dishonest misrepresentations made in the application and by dishonestly with-holding documents as were available with them so as to induce MOC, Government of India to allocate Thesgora-B/Rudrapuri coal block in favour of A-1 M/s CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 176 of 350 KSSPL. Ministry of Coal, Government of India thus clearly stood cheated on account of the aforesaid dishonest acts of accused persons namely A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia resulting in allotment of "Thesgora-B/Rudrapuri Coal Block" in favour of company A-1 M/s KSSPL. The offence of cheating i.e. u/s 420 IPC thus clearly stands proved beyond shadows of all reasonable doubts as against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia.
251. Before proceeding further, I would also like to deal with one other submission of Ld. Counsel Sh. Pavan Narang for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that as all the necessary facts and different heads of charges such as that of cheating or of criminal conspiracy were not put to the accused persons in their statements u/s 313 Cr.PC so the said heads of charges can not be invoked against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. It was submitted by Ld. Counsel that the two accused persons were never put any question in their statements recorded u/s 313 Cr. PC that they had entered into any criminal conspiracy with other accused persons or that they had conspired to cheat Ministry of Coal, Government of India. It was thus submitted that as no such questions were put to accused persons in their statements recorded u/s 313 Cr. PC so the charges for the offence u/s 420 IPC or that of criminal conspiracy u/s 120 IPC cannot be invoked against them.
252. At the outset, I may state that aforesaid submission of Ld.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 177 of 350 Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia is completely not tenable. In this regard, it will be appropriate to first have a glance over Section 313 Cr. PC.
313. Power to examine the accused - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub- section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
1[(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.]"
253. Thus from a bare perusal of section 313 Cr.PC, it is clear that objective of examining an accused u/s 313 Cr.PC is to enable him to explain any circumstance appearing in the evidence against him. Section 313 (1) (b) Cr.PC further states that after the witnesses for the prosecution have been examined and before he is called on for his defence, the Court shall question the accused generally on the case. Thus it is crystal clear that u/s 313 Cr.PC, the Court is only CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 178 of 350 required to question the accused generally on the case and it is only the circumstances appearing in the evidence against him which are to be put to him to furnish any explanation. The law does not require that the specific heads of charges framed against the accused persons ought to be put to the accused persons in their statements u/s 313 Cr.PC. Apart from the aforesaid circumstances the two accused persons i.e. A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia also chose to file their written statements u/s 313 (5) Cr.PC after their statements u/s 313 Cr.PC were recorded.
254. A bare perusal of Section 313 (5) Cr.PC shows that filing of written statement by the accused shall amount to compliance of the said section i.e. Section 313 Cr.PC. Thus the contention of Ld. Counsel for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia that the charge of criminal conspiracy i.e. u/s 120-B IPC or that of cheating i.e. u/s 420 IPC cannot be invoked against the accused persons does not hold ground at all.
(L) Whether the accused persons i.e. A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia acted in pursuance to a criminal conspiracy.
255. Having come to the conclusion that both A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia cheated MOC, Government of India in order to procure allocation of Thesgora-B/Rudrapuri Coal Block in favour of A-1 M/s KSSPL, the next issue to be considered is whether such acts of cheating were committed by the two accused persons in pursuance to a criminal conspiracy hatched by them or not.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 179 of 350
256. It has been vehemently argued by Ld. Counsels for the accused persons that in order to establish the charge of criminal conspiracy, the prosecution is required to prove that an agreement was entered into by the accused persons either for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. It was submitted that a few bits here and a few bits there cannot be relied upon by the prosecution in order to prove the charge of criminal conspiracy. It was submitted that even if no direct evidence may be available and the charge of criminal conspiracy is sought to be proved by way of circumstantial evidence then also each of the circumstance leading to such a conclusion must be independently explained and proved and the said circumstances should not be explainable on any other hypothesis or in other words should not lead to any other conclusion much less consistent with the innocence of accused persons. It was thus submitted that prosecution has miserably failed in proving existence of any agreement between the two accused persons i.e. A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia much less with A-3 Amit Goyal or with the other accused MOC officers.
257. In order to appreciate the aforesaid submissions of Ld. Counsels for the accused persons vis-a-vis the case of prosecution, it will be appropriate to refer to the often quoted observations of Hon'ble Supreme Court as regard the offence of criminal conspiracy as were made in the case "State through Superintendent of Police, CBI/SIT Vs. Nalini", 1999 (5) SCC 235. The said CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 180 of 350 observations have been consistently followed in all the cases till date.
258. In the said case, Hon'ble Supreme Court summarized the broad principles governing the law of conspiracy as under:
"591. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles. Under Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.
Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
Conspirators may, for example, be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella- spoke enrollment, where a single person at the center doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 181 of 350 These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 182 of 350 As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is in contemplation of law, the act of each of them and they are jointly responsible therefore. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
259. Thus, undoubtedly direct evidence qua offence of criminal conspiracy is hard to come up but the same is to be ascertained from CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 183 of 350 the overall facts and circumstances of a given case.
260. Coming now to the facts of the present case, it will be pertinent to mention that factum of submission of application Ex. PW 1/F (colly) (D-10) of A-1 M/s KSSPL under the signatures of its authorized signatory/director i.e. A-2 Pawan Kumar Ahluwalia stands well proved. As also already discussed at length, A-2 Pawan Kumar Ahluwalia cannot disown his responsibility of furnishing correct facts in the application and in also filing of all necessary requisite documents along with the application. It has also been discussed at length that the act of withholding of requisite documents was a conscious and dishonest act. Similarly, it has also been established that wrong claims about the financial strength of A-1 M/s KSSPL i.e. about its net-worth and also about its existing installed production capacity or highly inflated claims regarding the projected capacity of the company were also made dishonestly by A-2 Pawan Kumar Ahluwalia. Thus, it does not require any further discussion that A-2 Pawan Kumar Ahluwalia, who admittedly was looking after the day to day affairs of the company had cheated Ministry of Coal, Government of India on the basis of various dishonest claims made in the application and also by dishonestly withholding requisite documents from Ministry of Coal despite the same being available with the company in order to obtain wrongful gain in favour of A-1 M/s KSSPL. From the deposition of PW-3 Prashant Ahluwalia, it is also clearly evident that A-1 M/s KSSPL was a closely held family company. Thus in view of my aforesaid discussion, company A-1 M/s KSSPL CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 184 of 350 cannot disassociate itself from the acts of A-2 Pawan Kumar Ahluwalia for he was acting on behalf of the company being its director and authorised signatory towards the coal block allocation matters of the company. The existence of common agreement between the two is thus writ large on the face of record. The offence of criminal conspiracy i.e. u/s 120-B IPC, thus, clearly stands proved beyond shadows of all reasonable doubts as against A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. [The role of A-3 Amit Goyal shall be however discussed at a slightly later stage.]
261. At this stage, I would also like to mention that Ld. Counsel Sh. Pavan Narang for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia also argued that cognizance of the offence of criminal conspiracy as taken by this court against the accused persons was bad in law as no consent in writing of the State Government or District Magistrate for the initiation of proceedings in accordance with Section 196 (2) Cr. PC was obtained.
262. However, from a bare perusal of Section 196 (2) Cr. PC, it is clear that aforesaid submission is completely devoid of any merits. Clearly in view of the aforesaid discussion of the facts and circumstances of the case it stands conclusively proved that a criminal conspiracy was hatched between A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia for the offence of cheating MOC, Government of India and thereby inducing it to allot a captive coal block in favour of A-1 M/s KSSPL. Thus clearly it is not a criminal CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 185 of 350 conspiracy for the simplicitor offence of cheating but is a criminal conspiracy for the offence of cheating coupled with delivery of property i.e. u/s 420 IPC. Moreover the offence of cheating i.e. u/s 420 IPC is punishable with imprisonment for a period which may extend upto 7 years and fine. Thus, a bare perusal of Section 196(2) Cr. PC shows that where the offence of criminal conspiracy is for an offence punishable with rigorous imprisonment for a term of two years or upwards, then no sanction of State Government or that of the District Magistrate is required for the initiation of the proceedings.
A-3 Amit Goyal
263. In order to appreciate the role played by A-3 Amit Goyal in the entire matter, it would be appropriate to first delineate the various circumstances from which prosecution intends to bring home the charge of cheating and criminal conspiracy against him.
It has been proved that A-3 Amit Goyal was the statutory auditor of company A-1 M/s KSSPL. It has also been proved that he appeared before the Screening Committee on 08.12.2007 on behalf of A-1 M/s KSSPL and accordingly signed the attendance sheet at the meeting venue as a representative of A-1 M/s KSSPL.
264. However apart from the aforesaid circumstances, no other circumstance could be conclusively proved against him. As already discussed at length, it could not be proved by the prosecution by any legally admissible evidence that on 08.12.2007, A-3 Amit Goyal made any presentation before the Screening Committee on behalf of A-1 CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 186 of 350 M/s KSSPL. It also could not be proved conclusively that A-3 Amit Goyal had any knowledge of the contents of the application Ex. PW 1/F (colly) (D-10) much less that he was aware that A-1 M/s KSSPL has made misrepresentation about its financial strength in the application.
265. On the contrary, it stands proved on record that A-3 Amit Goyal was though the statutory auditor of A-1 M/s KSSPL but was not an employee of the company. It is also not the case of prosecution that there was any falsity in the audited balance sheets of A-1 M/s KSSPL as were audited by A-3 Amit Goyal, though it is certainly a different matter that A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia did not file the said audited reports alongwith their application in order to support the false claims as were made in their application submitted to MOC seeking allocation of a captive coal block. However no other evidence be it direct or circumstantial has been led on record by the prosecution which could even remotely show that A- 3 Amit Goyal was in any manner a party to the conspiracy hatched by A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia to cheat MOC, Government of India so as to induce it to allocate a captive coal block in favour of A-1 M/s KSSPL.
266. Thus in view of the aforesaid facts and circumstances coupled with the nature of evidence led by prosecution as regard the role played by A-3 Amit Goyal, I am of the considered opinion that prosecution has miserably failed in proving its case against A-3 Amit Goyal beyond shadows of all reasonable doubts. The charge of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 187 of 350 cheating i.e. u/s 420 IPC or that of criminal conspiracy i.e. u/s 120-B IPC as framed against him thus does not stands proved.
I accordingly giving benefit of doubt to A-3 Amit Goyal hereby acquit him of all the charges as framed against him in the present matter.
(II) Role of Ministry of Coal officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria
267. After having discussed the role played by the private parties involved i.e. A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal in the entire coal block allocation process which led to allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL, I shall be now discussing the role played by Ministry of Coal officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria in the said coal block allocation process.
268. In order to appreciate the role of officers of MOC either in their capacity as Secretary Coal, Joint Secretary Coal or Director CA-I Section, MOC or as Chairman and Member Convener of the Screening Committee, it will be important to first delineate the role which was played by them in the entire coal block allocation process. Thereafter the effect of all such acts of omission or commission which have been attributed to them by the prosecution in the entire coal block allocation process leading to allocation of Thesgora- B/Rudrapuri coal block to A-1 M/s KSSPL shall be seen.
269. Admittedly an advertisement inviting applications for allotment CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 188 of 350 of captive coal blocks reserved for power sector or other end users was issued by MOC after approval in this regard was given by Secretary, Ministry of Coal i.e. A-4 H.C. Gupta. The guidelines governing allocation of all such captive coal blocks were also approved and uploaded on the website of MOC with the approval of A-4 H.C. Gupta. The period during which the applications were to be received by MOC was also decided with the approval of Secretary Coal. The guidelines under the title "Where to apply" clearly provided all the details regarding the person to whom the applications in five copies were to be addressed or the place where the applications were to be submitted. The guidelines under the title "How to apply" further provided for all the details and necessary information regarding the documents which were required to be enclosed with the application. It was also provided therein that without the said enclosures the applications would be treated as incomplete and shall be rejected. Further the guidelines under the title "Guidelines for allocation of captive blocks and conditions of allotment through the screening committee" inter-alia mentioned various factors on the basis of which inter-se priority for allocation of a coal block among competing applicants for a captive block may be decided. It again provided the details of the documents which were to be annexed with the application beside stating that an applicant may file any other document, it may choose to submit. The guidelines under the title "Processing of application" specified the manner in which the applications received in MOC were to be dealt with by it.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 189 of 350 In fact the file on all the aforesaid occasions also passed through the desk of Joint Secretary, Coal, i.e. A-5 K.S. Kropha before A-4, H.C. Gupta as Secretary Coal accorded his approval to various matters mentioned above.
270. Though I shall be discussing the purpose of framing all such guidelines by MOC governing allocation of captive coal blocks at a slightly later stage of my judgment but at this stage it will be worthwhile to mention the various questions which this Court needs to answer while examining the role played by the accused MOC officers. The first and foremost question which needs to be answered is whether the aforesaid guidelines were binding upon both MOC and screening committee. If yes, whether the same were followed and if not then qua what aspects the same were not followed. The role and responsibility of A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria towards ensuring compliance with the said guidelines also needs to be thereafter examined. It also needs to be seen as to whether applications which were found to be incomplete in terms of the said guidelines were actually rejected or not or in other words whether incomplete applications were also to be considered by the screening committee instead of getting rejected at the initial stage itself in the MOC. The effect of non-compliance with the guidelines on the coal block allocation process will also be required to be seen.
271. Apart from the aforesaid questions other important issues which needs to be examined by this Court are, whether non- compliance with the guidelines to any extent by the accused MOC CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 190 of 350 officers were their conscious and intentional acts and also whether the same were in pursuance of any criminal conspiracy hatched by them with other co-accused persons or not.
272. In order to appreciate the aforesaid issues comprehensively, it will be appropriate to reproduce relevant portions of the guidelines once again over here. (The entire set of guidelines have though already been reproduced in the earlier part of the present judgment).
"How to apply?
I. Application in the prescribed format (five copies) should be filled up. Please note that separate application is to be submitted for each block in case application is made for more than one block. Similarly, separate application is to be submitted in case application is made for more than one end use plant. The details in the format should be filled up in respect of the specific end use plant for which application is made. The details of experience in respect of other plants may be provided in separate sheets.
(i) If the applicant is an end user, the details of the company alongwith the relevant details of the end use plant (for which block is being applied) are to be filled up at relevant places.
(ii) In case the applicant is a JV Mining company (consortium of end user companies) or an Independent Mining company (with firm back-to-back tie up with permitted end users) list of promoter companies or the list of companies with whom tie up for supply of coal has been finalized, quantities to be shared/supplied, and certified copies of agreement/contract etc. are to be provided. The details in respect of finances, end use plant and previous allocation of blocks i.e. SI. No. 8 to 25 and 28, 29 of the application for are to be provided in respect of all the companies with whom the supply agreement is executed. Such details may be provided on separate sheets, in the proforma as given in Form A, with suitable explanation. (Refer Form A) II The following documents should be enclosed along with the application form:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 191 of 350 • Certificate of registration showing that the applicant is a company registered under Section-3 of the Indian Companies Act. This document should be duly signed and stamped by the Company Secretary of the Company. (1 copy) • Certified copy of the Memorandum and Articles of Association of the applicant Company. (5 copies.) • Audited Annual Accounts/reports of last 3 years.
(5 copies) • Project report in respect of the end use plant. If the project report is appraised by a lender, the appraisal report shall also be submitted. (5 copies) • Detailed Schedule of implementation for the proposed end use project and the proposed coal mining development project including Exploration programme (in respect of regionally explored blocks) in the form of Bar Charts. (5 copies) • Scheme of disposal of unuseables containing carbon obtained during mining of coal or at any stage thereafter including washing. This scheme must include the disposal/use to which the middlings, tailings, rejects etc from the washery are proposed to be put. (5 copies) • The above details are required to be submitted in respect of all the concerned companies in case of SPV/JV or Mining company.
• Demand draft of Rs. 10,000/- in favour of PAO, Ministry of Coal payable at New Delhi III Applications without the above accompaniments would be treated as incomplete and shall be rejected."
(Emphasis supplied by me)
273. As regard the procedure for processing the applications, the following guidelines were also put up on the website:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 192 of 350 "PROCESSING OF APPLICATION The applications received in the Ministry of Coal in five copies, after being checked for eligibility and completeness, would be sent to the administrative Ministry/State Government concerned for their evaluation and recommendations. After receipt of recommendations of the administrative Ministry/State Government concerned, the Screening Committee would consider the applications and make its recommendations. Based on the recommendations of the Screening Committee, Ministry of Coal will determine the allotment."
(Emphasis supplied by me)
274. Further for ascertaining interse priority of various applicants for allocation of Coal Blocks for captive use, the following guidelines were uploaded on the website:
"9. Inter-se priority for allocation of a coal block among competing applicants for a captive block may be decided as per the following guidelines:
• Status (stage) level of progress and state of preparedness of the projects;
• net-worth of the applicant company (or in the case of a new SP/JV, the net-worth of their principles); • Production capacity as proposed in the application; • Maximum recoverable reserve as proposed in the application; • Date of commissioning of captive mine as proposed in the application;
• Date of completion of detailed exploration (in respect of unexplored blocks only) as proposed in the application; • Technical experience (in terms of existing capacities in coal/lignite mining and specified end use); • Recommendation of the Administrative Ministry concerned;
• Recommendation of the State Government concerned (i.e. where the captive block is located); • Track record and financial strength of the company .
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 193 of 350 Preference will be accorded to the power and the steel sectors. Within the power sector also, priority shall be accorded to projects with more than 500MW capacity. Similarly, in steel sector, priority shall be given to steel plants with more than 1 million tonne per annum capacity."
(Emphasis supplied by me)
275. It has been strenuously argued by Ld. Sr. Advocate Sh. Mohit Mathur for A-4 H.C. Gupta and Ld. Counsel Sh. B.S. Mathur for A-5 K.S. Kropha that as per "Central Secretariat Manual of Office Procedure", it was the sole responsibility of CA-I Section, MOC to ensure compliance with the said guidelines. It was submitted that admittedly no written note was ever put up by CA-I Section to any of the senior officers stating that the guidelines so issued by MOC could not be complied with. It was thus submitted that as no such note was put up by CA-I Section so there was no way in which Joint Secretary Coal, K.S. Kropha or Secretary Coal, H.C. Gupta could have known that the guidelines so issued regarding processing of applications received in MOC have not been complied with. It was further submitted that though PW-13 V.S. Rana stated in his deposition in Court that he had verbally informed the senior officers including A-4 H.C. Gupta and A-5 K.S. Kropha that the applications have not been checked for their completeness and eligibility due to shortage of manpower and lack of expertise on the part of officials of CA-I Section but he admittedly did not reproduce the said verbal information given by him in the files of MOC much less getting the same confirmed from the senior officers in accordance with the provisions of Manual of Office Procedure. His claim of having given CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 194 of 350 verbal information to senior officers was thus stated to be highly unbelievable and rather simply an attempt to cover up his acts of omission and commission. It was also submitted that Secretary Coal was though administrative head of the Ministry but in such a vast Ministry he was having 15 Sections working under him and thus he could not have been expected to look into the detailed working of each and every section. Similarly as regard Joint Secretary, Coal it was stated that he too was having work of various wings/sections under him and thus unless specific information is submitted to him by any given section about difficulties being faced by them in complying with the directions issued such as in complying with guidelines issued in the present case, there was no way in which the senior officers of MOC could have known that CA-I Section officials have not complied with the guidelines or that it was difficult for them to comply with the guidelines. It was also submitted that in the routine functioning of Govt. of India the senior officers such as Secretary, or Joint Secretary, in a Ministry works on the basis of trust and belief that the officers of every section under them must have performed their duties properly.
276. It was also submitted that whenever a request was put up by CA-I Section officials seeking services of additional staff from the office of Coal Controller or Coal India Ltd. (hereinafter referred to as "CIL"), the said request was immediately acceded to by the senior officers. It was thus submitted that had CA-1 Section officers/officials brought to their knowledge any such difficulty being faced by them in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 195 of 350 complying with the guidelines then certainly additional staff would have been arranged for or other necessary steps would have been taken.
277. As regard applicability and requirement of complying with the provisions of Manual of Office Procedure, it was submitted that even the minutes of meetings of 36 th screening committee were recorded in accordance with Para 54 (4) (c) of the Manual of Office Procedure. As regard the allegation of prosecution that the minutes were silent as to the reasons for which A-1 M/s KSSPL was recommended for allocation of a coal block and as to why the name of M/s BLA Power Ltd. a company recommended by State Government of Madhya Pradesh was not recommended, it was submitted that as the decision of the screening committee was unanimous so only essence and outcome of the deliberations was recorded. It was thus submitted that the MOC officers/officials were bound to strictly follow the provisions of Manual of Office Procedure and in case of any deviance the concerned officer/official was required to record reasons for the same in accordance with para 30 of the Manual of Office Procedure titled "Deviation from Normal Procedures or Rules".
278. Similarly Ld. Counsel Sh. Percivel Billimoria for A-6 K.C. Samria also stated that A-6 K.C. Samria was never informed by anyone that the applications have not been checked for their eligibility and completeness. It was also submitted that in fact A-6 K.C. Samria was given additional charge of CA-I Section on 16.03.2007 only and by which date various copies of applications were already sent to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 196 of 350 Administrative Ministries/State Governments concerned and to CMPDIL. It was further submitted that even from 16.03.2007 till May 2007 A-6 K.C. Samria was having charge of other sections also and he was finally posted to CA-I Section in the month of May 2007 only.
279. In fact the whole emphasis of all the three accused persons namely A-4 H.C. Gupta , A-5 K.S. Kropha and A-6 K.C. Samria, was that it was PW -13 V.S. Rana, Under Secretary, MOC and the officials of CA-I Section working under him who were primarily responsible for ensuring compliance with the guidelines issued by MOC. It was also pointed out that while sending copies of the applications to Administrative Ministries/State Governments or to CMPDIL the relevant file was never put up before the senior officers by PW-13 V.S. Rana even though for other innocuous matters such as procuring locks and trunks or for making transportation arrangements the file was put up to the level of Joint Secretary, Coal. It was thus asserted that unless the issue of non-compliance with the guidelines was brought to the notice of senior officers of MOC by PW-13 V.S. Rana or by the other officials of CA-I, Section there was no way that the accused MOC officers could have known that the guidelines governing allocation of coal blocks have not been complied with.
280. In the light of aforesaid nature of detailed submissions made by Ld. Counsels for the accused persons laying great emphasis on the applicability of the provisions of Manual of Office Procedure to the entire coal block allocation process adopted by MOC it becomes important for this Court to first see as to whether applications so CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 197 of 350 invited by MOC for allocation of captive coal blocks were even contemplated to be dealt with as per the provisions of Manual of Office Procedure or not. It also needs to be examined thereafter as to whether the subsequent processing of applications after they were received in MOC or other related issues thereof were dealt with as per the provisions of Manual of Office Procedure or not. It is only thereafter can it be seen and examined as to what extent the provisions thereof were not complied with or in what manner or under what circumstances.
(A) Whether the receiving of applications or their subsequent processing in MOC was contemplated to be dealt with under the Central Secretariat Manual of Office Procedure.
281. As regard the applicability of Central Secretariat Manual of Office Procedure to the routine working of a Ministry in Central Government it would be suffice to state that the Manual of Office Procedure certainly forms the back-bone of process management in the Central Secretariat. As mentioned in the introduction part of the manual in Chapter-I itself the very purpose of introducing such a manual by the Central Government is to attempt to balance the conflicting consideration of speed and priority.
282. In this regard it would be appropriate to first have a brief glance of the scheme of various chapters in which the Manual of Office Procedure has been divided and also the nature of issues which it intends to address.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 198 of 350 "Central Secretariat Manual of Office Procedure, Twelfth Edition, May 2003 The Manual has been divided into 18 chapters titled as follows:
CHAPTER I - Introduction CHAPTER II - Definitions CHAPTER III - Machinery of Government CHAPTER IV - Dal-Receipt, Registration and Distribution CHAPTER V - Receipts-Submission and Diarisation CHAPTER VI - Action on Receipts CHAPTER VII - Handling of Receipts under Desk Officer System CHAPTER VIII - Forms and Procedure of Communication CHAPTER IX - Drafting of Communications CHAPTER X - Issue of Drafts CHAPTER XI - File Numbering System CHAPTER XII - Records Management CHAPTER XIII - Security of Official Information and Documents CHAPTER XIV - Checks on Delays CHAPTER XV - Inspections CHAPTER XVI - Office Automation CHAPTER XVII - Electronically Supported Office Procedure System CHAPTER XVIII - Miscellaneous"
283. Thus from a bare perusal of the titles of various chapters, it is clear that Chapter-I provides for introduction and Chapter II provides definition of various terms used in the Manual. Chapter III mentions the machinery of government vide which the functions of government are discharged. Chapter IV to VII, primarily deals with Dak, its Receipt and the Processing thereof. Chapter VIII deals with Forms and Procedure of Communication and Chapter IX and X deals with Drafting of Communications and Issue of Drafts. Chapter XI to XVII primarily deals with maintenance of files and other records in the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 199 of 350 office. Chapter XVIII provides for miscellaneous provisions.
284. From the aforesaid scheme of different chapters, it is thus clear that the Manual of Office Procedure besides dealing with issues relating to drafting of communications and issue of drafts, maintenance of files and other records primarily deals with Dak its Receipt and its processing thereof. In these circumstances, it will be thus important to briefly note the definition of the word "Dak" and "Receipt" as provided in Para 1 in Chapter II titled "DEFINITIONS"
1 (14) "Dak" includes every type of written communication such as letter, telegram, interdepartmental note, file, fax, e- mail, wireless message which is received, whether by post or otherwise, in any department for its consideration.
1 (47) "Receipt" means Dak after it has been received by the concerned section/officer.
285. Thus keeping in view the aforesaid definition of "Dak" it will be important to first analyze as to whether the applications so received by MOC seeking allotment of captive coal blocks in response to advertisement issued by it can be termed as "Dak" as defined under the "Manual of Office Procedure". In this regard it will be thus required to be seen as to whether the applications so received can be termed as "Written Communication" as contemplated under the "Manual of Office Procedure".
286. Chapter VIII of the "Manual of Office Procedure" provides for Forms and Procedures of Communication. Para 50 of the said Chapter provides for "Forms of Written Communications and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 200 of 350 Methods of Delivery". The said list of written communications and their method of delivery as is generally used by a department talks of letter, Demi-official letter, office memorandum, inter-departmental note as forms of written communication and telegram, fax/telex, registered post/registered AD, speed post, office order, order, notification, resolution, press-communique/ note, endorsement, circular, advertisement and e-mail as methods of delivery of written communications. Para 51 further talks of telephonic communications. The remaining para(s) of Chapter VIII deals with communications between inter-department or intra-department etc. Apparently the applications so received in response to advertisement issued by MOC inviting applications for allotment of captive coal blocks can neither be termed as letter, Demi official letter, office memorandum, inter-departmental note etc. so as to term the said applications as written communication as contemplated either in Para 50 titled "Forms of Written Communications and Methods of Delivery" or as mentioned in the definition of "Dak" in para 1 (14) of the Manual of Office Procedure.
287. It is thus clear that applications so invited by MOC can not be termed as "Dak" as contemplated under the Manual of Office Procedure. In fact from various other circumstances also it is clear that even MOC itself never intended or even contemplated to consider or deal with such applications as "Dak" as per the provisions of Manual of Office Procedure and were never actually dealt with by it as such. Certainly it would have been an ideal situation if at least CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 201 of 350 the other subsequent proceedings carried out in MOC after receipt of applications would have been as per the provisions of Manual of Office Procedure. My subsequent discussion would however show that even senior officers of MOC also never dealt with all such matters strictly as per the provisions of Manual of Office Procedure. The provisions of the Manual of Office Procedure prescribing Procedure and Rules were observed more in breach.
288. Para 12 in Chapter IV titled "Dak, Receipt, Registration and Distribution" provides that during office hours the entire Dak of the department including those addressed to Ministers/officers by name, will be received in the central registry/Information and Facilitation Counters (IFC). Where however immediate/important dak addressed to Ministers/officers by name is sent through Special Messenger directly to the addressees themselves, it will be received by them or their personal staff. The chapter further provides for dak if received after office hours or through other mode of communications such as fax or e-mails etc.
289. Thus in these circumstances, it will be pertinent to mention that the guidelines governing allocation of coal blocks specifically provided the name of the officer to whom the applications were to be addressed and the place where the same were to be submitted. The said guidelines titled "Where to apply" read as under:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 202 of 350 "Where to Apply?
The application, in five (5) copies, is to be addressed to Sh. Sanjiv Mittal, Director (CA-I) Ministry of Coal and to be submitted in:
Coal India Limited Office Scope Minar, 5th Floor, Laxmi Nagar District Centre Delhi 110092 between 10.30 AM and 4.00 PM on any working day.
The application should reach the Ministry of Coal latest by 12th of January, 2007."
(Emphasis supplied by me)
290. The files of MOC are however completely silent as to why the applications which were to be received only during office hours were not directed to be received in the Central Registry/IFC of MOC in accordance with para 12 of Manual of Office Procedure. Moreover it also can not be stated that the applications being so received over a period of about two (2) months were of such a nature as can be termed as immediate/important dak addressed to Ministers/officers as contemplated in Para 12 Chapter IV of the Manual of Office Procedure. Even otherwise the applications even if addressed to Sh. Sanjiv Mittal, Director (CA-I) were never received either by him personally or by his personal staff. Thus if the applications were to be dealt with under the Manual of Office Procedure much less considering them to be dak then either they ought to have been received in the Central Registry/IFC or if any deviance from the provisions of Manual of Office Procedure was intended then reasons for deviance ought to have been recorded as per para 30 of Manual CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 203 of 350 of Office Procedure.
291. Ld. Counsel for A-4 H.C. Gupta and A-5 K.S. Kropha all through the trial and especially while cross-examining PW-13 V.S. Rana, Under Secretary, MOC placed strong reliance on the provisions of para 30 titled "Deviation from normal procedures or rules" to emphasise that in case of any deviance from the provisions of Manual of Office Procedure the authority concern was supposed to record reasons for the same in writing.
Para 30 of Manual of Office Procedure read as under:
"Deviation from normal procedures or rules - In every case where a major or minor infraction, other than trivial, of the existing procedures or rules, is sought to be made, it shall be the responsibility of the decision making authority to ensure that reasons are recorded in writing, justifying such a deviation from the rules or procedures."
292. Clearly as per para 12 of the Manual of Office Procedure the entire dak was to be received during office hours in the Central registry/IFC. Thus even if it is presumed for the sake of arguments that the applications so invited by MOC were considered as dak to be dealt with as per the provisions of Manual of Office Procedure then as already mentioned if A-4 H.C. Gupta being Secretary Coal approved the guidelines titled "Where to apply" specifying the place where applications being so invited were to be received and the said place was undisputedly not the Central Registry/IFC of MOC so the same clearly amounted to a major deviation from the provisions of Manual of Office Procedure. In these circumstances as per the provisions of Para 30 as reproduced above, A-4 H.C. Gupta while approving the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 204 of 350 guidelines titled "Where to apply" ought to have either recorded the reasons himself or ought to have ensured that reasons are recorded in writing justifying deviation from the provisions of Manual of Office Procedure. In fact file for getting the guidelines approved was also routed through the desk of A-5 K.S. Kropha, Joint Secretary, Coal. He was also thus duty bound to follow the mandate of para 30 of the Manual of Office Procedure.
293. Moreover, in the overall facts and circumstances of the case, it can not be even remotely presumed that A-4 H.C. Gupta or A-5 K.S. Kropha who were senior Government servants were ignorant of the provisions of Manual of Office Procedure. It is also not the case of accused persons that they forgot to record reasons or to ensure that reasons are recorded for any such major deviance from the provisions of Manual of Office Procedure. In fact in the cross- examination of PW-13 V.S. Rana it was put to him that qua 34th Screening Committee applications were first received in the room of Joint Secretary, Coal and not in CA-I, Section. He stated the said fact to be correct. This fact again goes to suggest that even when applications were to be received in Shastri Bhawan office of MOC then also they were not received in the Central Registry/IFC suggesting thereby that procedure as prescribed in the Manual of Office Procedure was never intended to be followed. As already mentioned there is no noting or office order in the files of MOC providing reasons as to why the procedure given in the Manual of Office Procedure be it qua major or minor infraction is not being CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 205 of 350 followed.
294. The only irresistible conclusion which thus arises from the overall facts and circumstances of the case is that the applications being so invited by MOC were never contemplated as "Dak" to be dealt with under the provisions of Manual of Office Procedure. In fact my later discussion would show that even the subsequent proceedings thereof were also never carried out strictly as per the provisions of Manual of Office Procedure. At this stage I may also mention that a perusal of the files of MOC rather shows that the provisions of Manual of Office Procedure were never strictly adhered to even qua such issues which could and ought to have been dealt with as per the provisions of Manual of Office Procedure.
295. PW-13 V.S. Rana, Under Secretary, MOC when in his cross- examination was confronted with various provisions of Manual of Office Procedure, also stated that in the routine course of functioning all provisions of the Manual of Office Procedure are not followed at all times. It was however emphatically put on behalf of A-4 H.C. Gupta and A-5 K.S. Kropha that the provisions of Manual of Office Procedure were mandatorily to be followed. In fact A-4 H.C. Gupta also examined himself as a defence witness u/s 315 Cr.PC as DW-12 and in his examination-in-chief even stated that if the provisions of Manual of Office Procedure are not followed then the officer concerned becomes liable for action. I shall be however highlighting various other instances also where apparently the provisions of Manual of Office Procedure were not followed even by the accused CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 206 of 350 MOC officers even subsequent to receiving the applications as above and the files of MOC are completely silent as to the reasons for not complying with the provisions thereof.
296. In fact as will be evident from my subsequent discussion, it would not be a wrong statement if it is said that the entire working of MOC with relation to allocation of captive coal blocks was completely adhoc and casual in nature. There are various acts of omission and commission on the part of A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria which clearly supports the said conclusion. Though at a later stage of the present judgment, I shall be also demonstrating that not only all such acts of omission and commission committed by the accused MOC officers were conscious and deliberate but can be clearly attributed to their attitude of "WHO CARES". In fact they acted as if they were completely oblivious to the likely and probable consequences of their acts despite knowing that the matter being handled by them was of utmost importance for the industrial development of the country.
297. Admittedly guidelines were issued by MOC as regard the manner in which the applications were to be dealt with or the place where they shall be received or how they shall be processed. The said guidelines were issued and uploaded on the website of MOC not only to inform the public at large as to in what manner the applications are to be submitted or what documents were required to be annexed with the application and how the applications will be dealt with in MOC but it also regulated the exercise of discretion regarding CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 207 of 350 the procedure to be followed in allocation of captive coal blocks by MOC and the Screening Committee. I may however mention that even the procedure mandated by the said guidelines was also not followed in processing of the applications much less the provisions of Manual of Office Procedure. The intention of MOC officers in not dealing with the applications as per the provisions of Manual of Office Procedure is however also writ large on the face of record from the manner in which the minutes of various meetings of 36 th screening committee have been recorded. Though I shall be dealing with the larger issue of contents of the minutes of 36th Screening Committee meetings at a later stage but it will be worthwhile to mention over here that admittedly no minutes of the first four (4) Screening Committee meetings held on 07.12.2007, 08.12.2007, 07.02.2008 and 08/02.2008 were separately recorded much less immediately after the said meetings were concluded. Admittedly common minutes of all the five meetings of 36 th screening committee i.e. meetings held on 07/08.12.2007 and 07/08.02.2008 and 03.07.2008 were recorded after the final meeting was concluded on 03.07.2008. However as per Para 54 (4) (c) of Manual of Office Procedure, a record of discussion of inter-departmental meetings ought to have been prepared immediately after the meeting and circulated to the other departments concerned setting out the conclusions reached and indicating the department or departments responsible for taking further action on each conclusion.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 208 of 350
298. At this stage it will be worthwhile to reproduce para 54 (4) of Manual of Office Procedure. The same read as under:
54. Inter-departmental consultation -
(1) Inter-departmental consultation may take the form of inter-departmental notes, inter-departmental meetings or oral discussions.
(2) In making written inter-departmental references, the following points should be observed:
(a) . . . . (b) . . . . (c) . . . . (d) . . . . (i) . . . . (ii) . . . . (3) (a) . . . . (i) . . . . (ii) . . . . (b) . . . . (c) . . . .
(4) Inter-departmental meetings may be held where it is necessary to elicit the opinion of other departments on important cases and arrive at a decision within a limited time. No such meeting will normally be convened except under the orders of an officer not below the level of Joint Secretary. In respect of such meetings, it will be ensured that:
(a) the representatives attending the meeting are officers who can take decisions on behalf of their departments;
(b) an agenda setting up clearly the points for discussion is prepared and sent alongwith the proposal for holding the meeting, allowing adequate time for the representatives of other departments to prepare themselves for the meeting; and
(c) a record of discussions is prepared immediately after the meeting and circulated to the other departments concerned, setting out the conclusions reached and indicating the department or departments responsible for CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 209 of 350 taking further action on each conclusion.
(5) . . . . (a) . . . . (b) . . . . (c) . . . .  (6) . . . . (7) . . . . (8) . . . ." (Emphasis supplied by me)
299. In fact Ld. Counsels for accused persons have argued that the minutes have been recorded as per Para 54 (4) (c) of the Manual of Office Procedure. Both DW-11 K.S. Kropha and DW-12 H.C. Gupta stated in their examination-in-chief that the minutes of 36 th Screening Committee meetings were prepared in accordance with Para 54 (4)
(c) of Central Secretariat Manual of Office Procedure. However no explanation worth the name has been put forward by them as to why the provisions of Para 54 (4) (c) were not followed by recording the minutes of meetings held on 07.12.2007, 08.12.2007, 07.02.2008 and 08.02.2008 immediately after the respective meetings were over. This fact again goes to suggest that Ministry of Coal never dealt with the applications so received for allotment of captive coal blocks strictly as per the provisions of Manual of Office Procedure. If it is presumed otherwise, then as mentioned above there is no explanation or reasons recorded in the files of MOC as to why the provisions of Manual of Office Procedure regarding immediate preparation of record of discussion of each inter-departmental CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 210 of 350 meeting was not adhered to. In fact in the meeting held on 08.02.2008 a decision was admittedly taken to seek information from CMPDIL whose representative was also a member of screening committee to furnish information about the available geological reserves or the extractable reserves in the various coal blocks kept for allocation. Thus as per Para 54 (4) (c), the record of discussions to be prepared immediately after the meeting was to also mention about the conclusions reached and indicating the department or departments responsible for taking further action on each conclusion.
300. In view of my aforesaid discussion, I am thus of the considered opinion that though one may say that the applications so invited by MOC for allotment of captive coal blocks ought to have been dealt as per the provisions of Manual of Office Procedure but neither the applications were actually contemplated to be dealt with under the provisions of Manual of Office Procedure nor their subsequent processing was ever undertaken strictly as per the Manual of Office Procedure. In fact my subsequent discussion will further substantiate the aforesaid conclusion that neither the receipt nor processing of applications was dealt with by MOC as per the provisions of Manual of Office Procedure.
(B) Whether the guidelines issued by MOC were binding and were mandatorily to be followed by MOC officers and by the Screening Committee.
301. In 1993 when the Coal Mines (Nationalisation) Act, 1973 was amended so as to provide for allocation of captive coal blocks to CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 211 of 350 companies in private sector also who were engaged in specified end uses, an inter-departmental body called the "Screening Committee" was constituted in MOC to screen all such proposals as may be received in MOC seeking allocation of captive coal blocks. Beside MOC which was the Nodal Ministry, various other Administrative Ministries such as Ministry of Steel, Power or Department of Industrial Promotion and Policy beside various State Governments where coal blocks which were proposed to be allocated were situated or the states where the proposed end use project was to be situated were members of Screening Committee. Central Mine Planning & Design Institute Limited, (CMPDIL), Coal India Ltd. (CIL) and its other subsidiary companies were also part of the Screening Committee. The purpose was to have views of all concern at one single platform so as to not only expedite the coal block allocation process but to also have a body which may screen the proposals in an objective and transparent manner. Thus the various Screening Committees started laying down its own procedures to screen the proposals and to make its recommendations in an objective and transparent manner.
302. Though initially no advertisement used to be issued by MOC for inviting applications for allocation of captive coal blocks but the 34th Screening Committee issued on advertisement in the year 2005 inviting applications for allocation of captive coal blocks. The past practice and procedure as used to be followed by the earlier Screening Committees were also compiled at one place and with suitable additions/modifications, guidelines were issued to govern the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 212 of 350 coal block allocation process. Similarly at the time of 35 th and 36th Screening Committee also applications were invited by way of an advertisement. After making suitable modifications in the earlier guidelines issued and beside incorporating the recommendations of 7th Energy Co-ordination Committee headed by Prime Minister and as were communicated to MOC vide office Memorandum Ex. PW 13/H (colly) (D-2) fresh guidelines governing allocation of captive coal blocks were issued by MOC.
303. Thus in the aforesaid facts and circumstances it is clear that these guidelines were issued by MOC not only to control and regulate the discretion to be exercised by MOC officers in the coal block allocation process but also that of the Screening Committee. The guidelines purportedly provided the mechanism to implement the provisions of Mine and Minerals Act, 1957 and that of Coal Mines (Nationalisation) Act, 1973 as it stood amended in 1993. (However Hon'ble Supreme Court has observed in its order dated 25.08.2014 passed in Manohar Lal Sharma case (Supra) that the procedure adopted by MOC or the Screening Committee was in contravention of the provisions of Mine and Minerals Act, 1957 that it does not find support even from CMN Act, 1973. Hon'ble Supreme Court however proceeded to consider and examine the actions of MOC and that of Screening Committee assuming that Central Government had powers to allot coal blocks under Mine and Minerals Act, 1957 and CMN Act, 1973). Similarly in the case in hand also the task before this Court is to examine the various acts of omission and commission CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 213 of 350 of accused MOC officers as were undertaken by them in the coal block allocation process which led to allocation of Thesgora- B/Rudrapuri coal block in favour of A-1 M/s KSSPL. The said exercise is thus being undertaken assuming that Central Government had powers to allocate the various coal blocks. In other words what is required to be seen is whether the rules/regulations or procedure as were devised by Ministry of Coal for allocating captive coal blocks were adhered to by the accused MOC officers or not. If not, than reasons thereof and their intention in not doing so.
304. Thus from my aforesaid discussion, it is clear that the guidelines so framed and issued by MOC itself were having binding force. In fact it is not even the case of any of the accused persons that the guidelines were not having any binding force. It was rather argued by Ld. Counsels for the accused persons that the guidelines were duly followed by the Screening Committee even for ascertaining the inter-se priority of the applicant companies. As earlier mentioned guidelines governing allocation of captive coal blocks were issued not only to inform the public about the process which shall be adopted by MOC in allocating various captive coal blocks to different applicant companies but the guidelines also regulated the exercise of discretion by MOC officers and by the Screening Committee in the coal block allocation process.
305. Thus it is clear that the guidelines as were issued by MOC as part of advertisement Ex. PW 13/F (colly) (D-2) were having binding force and were mandatorily to be followed both by MOC and the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 214 of 350 Screening Committee.
(C) Whether the applications received in MOC were checked for eligibility and completeness in accordance with the guidelines issued by MOC governing allocation of captive coal blocks.
306. After having discussed that the applications so received in MOC were never dealt with strictly as per the provisions of Manual of Office Procedure, it needs to be seen now as to in what manner the applications were actually dealt with by MOC.
307. PW-13 V.S. Rana, Under Secretary, MOC specifically stated that the applications so received were never checked in MOC for their completeness and eligibility at any point of time much less before sending copies thereof to Administrative Ministries/State Governments or to CMPDIL. This fact has even been not disputed by the accused persons. It is also an undisputed fact that as per the guidelines titled "Processing of Application", the applications received in the Ministry of Coal in five copies after being checked for eligibility and completeness were to be sent to the Administrative Ministries/State Government concerned for their evaluation and recommendations.
308. The three accused MOC officers i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria, however stated that during the course of investigation of present coal block allocation matters and more specifically during the trial of present case only they came to know that the applications so received in MOC were not checked by CA-I, CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 215 of 350 Section, MOC before copies thereof were sent to Administrative Ministries/State Governments concerned or to CMPDIL. They however took a consistent stand during the entire trial that it was the responsibility of officials of CA-I Section only to comply with the said guidelines. It was also stated by them that at no point of time CA-I Section officials brought to their notice that the guidelines qua checking of applications for completeness or eligibility have not been complied with. It was submitted that in none of the files of MOC any written note was ever made by CA-I Section officials which could show that the senior officers were informed about non-compliance of guidelines as above. It was thus submitted that there was no other way in which the accused persons i.e. the senior officers of MOC could have known that the guidelines have not been complied with in MOC.
309. Though I shall be dealing with the aforesaid issues at length at a slightly later stage of the present judgment but the fact remains that the applications so received in MOC were never checked for their completeness and eligibility at any point of time much less before sending copies of the applications to Administrative Ministries/State Governments concerned or to CMPDIL.
310. As regard the role of Screening Committee in complying with the guidelines so issued, it would be suffice to state at this stage that the minutes of 36th Screening Committee does not show that the Screening Committee followed the guidelines qua ascertaining the interse priority of the competing applicants. However I shall be CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 216 of 350 discussing the said issue at length at a slightly later stage of the present judgment.
311. Thus from my aforesaid discussion, it stands well proved on record that the guidelines issued by MOC qua checking of applications for their completeness and eligibility were not complied with at any point of time during the entire coal block allocation process much less before sending them to Administrative Ministries/State Governments concerned.
(D) Whether A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were aware that applications have not been checked for completeness and eligibility in terms of the guidelines.
312. As already mentioned A-4 H.C. Gupta, Secretary Coal, A-5 K.S. Kropha, Joint Secretary Coal and A-6 K.C. Samria, Director, CA- I Section, MOC all through the entire trial and also at the stage of final arguments claimed that at no point of time they were informed by PW-13 V.S. Rana or by other officials of CA-I Section that the applications have not been checked for their eligibility and completeness. It was submitted that no note was put in any of the MOC files by CA-I Section officials which could show that the factum of applications having been not checked for their completeness and eligibility was brought to the notice of senior officers at any point of time. It was also submitted that though PW-13 V.S. Rana, Under Secretary, CA-I Section, MOC stated that he had informed verbally to both A-4 H.C. Gupta and A-5 K.S. Kropha that checking of applications has not been carried out but the same was clearly found CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 217 of 350 to be an improvement made by him over his earlier statement u/s 161 Cr.PC made to IO and that too in order to escape away from his own liability. While relying upon the provisions of Manual of Office Procedure, it was asserted that in case any such verbal information was given by PW-13 V.S. Rana, then he ought to have recorded the same in the files at least at some later point of time and got the same confirmed from the senior officers. It was thus submitted that as no such note regarding verbal information having been given to senior officers was ever recorded in the files of MOC so not only PW-13 V.S. Rana is now introducing a new case but is in fact making an effort to save his own skin since being Under Secretary, CA-I Section, it was his responsibility to ensure that the guidelines issued by MOC are duly complied with. It was also submitted that admittedly copies of the applications were sent to concerned State Governments and to Administrative Ministries under the signatures of PW-13 V.S. Rana himself and at that time the file was not put up before the senior officers seeking their approval even though for other innocuous matters such as procuring locks or trunks or for making transportation arrangements for sending the applications to different entities as above, the file was put up to the senior officers. A-6 K.C. Samria even stated that he was given the additional charge of CA-I, Section only on 16.03.2007 and by that time copies of applications were already sent to Administrative Ministries/State Governments or to CMPDIL.
313. In this regard, I may mention at the thresh-hold itself that from the manner in which the applications have been dealt with in MOC, it CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 218 of 350 is clearly apparent that the work of Ministry of Coal as regard allocation of captive coal blocks has been completely arbitrary and adhoc in nature. Rules, regulations or procedures seems to have been given a complete go by. As shall be evident from my subsequent discussion, the accused MOC officers seems to have worked in the most casual and arbitrary manner despite the fact that they were senior officers of the rank of Secretary, Government of India, Joint Secretary and Deputy Secretary and were dealing with the allocation of important Nationalised natural resources of the country i.e. coal. The fact that the then Prime Minister of the country Dr. Manmohan Singh thought it appropriate to retain the charge of Ministry of Coal with himself only, clearly shows as to how important the work of said Ministry was. The fact that 7 th Energy Co-ordination Committee headed by Prime Minister with a view to give energy and infrastructure matters in the country a push, directed MOC to expedite allocation of captive coal blocks again shows the important and crucial nature of work which was to be discharged by MOC for the overall infrastructural development of the country.
314. In this regard even the observations of Hon'ble Supreme Court as made in its order dated 25.08.2014 in the case Manohar Lal Sharma case (Supra) in Para 1 would be worth referring to.
Para 1 of the said order dated 25.08.2014 read as under:
"1. Coal is king and paramount Lord of industry is an old saying in the industrial world. Industrial greatness has been built up on coal by many countries. In India, coal is the most important indigenous energy resource and remains the dominant fuel for power generation and many industrial applications. A number of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 219 of 350 major industrial sectors including iron and steel production depend on coal as a source of energy. The cement industry is also a major coal user. Coal's potential as a feedstock for producing liquid transport fuels is huge in India. Coal can help significant economic growth. India's energy future and prosperity are integrally dependant upon mining and using its most abundant, affordable and dependant energy supply - which is coal. Coal is extremely important element in the industrial life of developing India. In power, iron and steel, coal is used as an input and in cement, coal is used both as fuel and an input. It is no exaggeration that coal is regarded by many as the black diamond."
315. The manner in which the applications have been either processed in MOC or have been subsequently dealt with by the Screening Committee which was headed again by Secretary, Coal, A- 4 H.C. Gupta as Chairman with A-5, K.S. Kropha, Joint Secretary, Coal as its member Convener in fact speaks volume about the arbitrary exercise of powers/discretion by the Government officers involved without even caring slightly for the rules/regulations or procedure to be followed. All through the entire trial while placing reliance upon various provisions of Manual of Office Procedure, it was the constant and consistent effort of all three officers of MOC arrayed as accused that the junior officers/officials in MOC did not work as per the provisions of Manual of Office Procedure. It was also submitted that it was the sole responsibility of officers/officials of CA-I Section, MOC only to ensure due compliance with the guidelines issued by MOC. The effort was also made to show that till the time matters were not brought to the notice of senior officers they could not have known about the nitty-gritty of the procedure undertaken by CA-I Section in dealing with the applications so received.
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316. Though I have already demonstrated that MOC neither contemplated to deal with the applications so received in accordance with the provisions of Manual Of Office Procedure nor it so dealt with them but even otherwise if the said Manual of Office Procedure is presumed to be held applicable then also the senior officers themselves did not care to adhere to the said provisions. Non- compliance with provisions of para 54 (4) (c) of Manual of Office Procedure regarding recording of minutes of inter-departmental meetings immediately after the meeting is over has already been discussed at length. The contention that as per Manual of Office Procedure reasons for non-compliance with the provisions thereof were to be recorded by the officers concerned as per para 30 titled "Deviation from Normal Procedure or Rules" has also been dealt with. It was also argued by the accused MOC officers that the decision making authority who deviates from the existing procedure or rules is responsible to record reasons justifying for any such deviation from the rules or procedures. However neither A-4 H.C. Gupta nor A-5 K.S. Kropha or even A-6 K.C. Samria cared to record any reasons in the files as to why para 54 (4) (c) of Manual of Office Procedure was not complied with qua recording the minutes of the Screening Committee meetings held on 07.12.2007, 08.12.2007, 07.02.2008 and 08.02.2008 immediately after the meetings were over. Similarly no reasons were recorded as to why the applications were not directed to be received in Central Registry/IFC, MOC.
317. However I shall be further discussing now from the records of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 221 of 350 the present case itself i.e. from the files of MOC only that the three accused senior officers of MOC i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria did not follow the provisions of Manual of Office Procedure on other aspects also. The files of MOC not only show that all the three officers were well aware of the manner in which the applications were dealt with in MOC but also that they were conscious of the need to carry out scrutiny of the applications in accordance with the guidelines so issued but they chose to ignore the same for reasons best known to them. Various notings in the files of MOC were referred to extensively by Ld. Counsels for A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria to show that only such facts came to their knowledge as were put in writing by the officers of CA-I, Section. It was asserted by both A-4 H.C. Gupta and A-5 K.S. Kropha that as they were looking after the work of a number of wings and sections in the Ministry so they could not be expected to look into the detailed working of each section or wing of the Ministry.
318. However in order to show that all the three accused persons i.e. A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria were well aware of the fact that before sending copies of applications to Administrative Ministries/State Governments concerned, the applications have not been checked for their eligibility and completeness in MOC, it would be apt to refer to the minutes of a meeting held on 11.05.2007 in MOC under the chairmanship of Secretary Coal, i.e. A-4 H.C. Gupta. Both A-5 K.S. Kropha and A-6 K.C. Samria were also present in the said meeting.
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