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IN THE COURT OF SH. BHARAT PARASHAR, SPECIAL JUDGE (PC ACT) (CBI)-7, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI Case ID No. 02403R0053472014 C.C. No. 04/14 RC No. 219 2012 E 0016 Branch: CBI/EO-1/EO-II, New Delhi CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors. U/s. 120-B IPC, 409/420 IPC, Sec. 13 (1) (c)/ 13 (1) (d) P.C. Act 1988, 120-B IPC r/w Section 409/420 IPC & Sec. 13 (1) (c)/ 13 (1) (d) P.C. Act, 1988 Date of order on cognizance : 13.10.2014 Date of framing of charge : 14.10.2015 Date of final arguments : 08.03.2017 Date of judgment : 19.05.2017 In re: Central Bureau of Investigation (CBI) Vs. (1) M/s Kamal Sponge Steel & Power Ltd. 17, Bandhavgarh Colony, Satna, Madhya Pradesh - 485001 Through AR Sh. Ankit Gandhi (Convicted) (2) Pawan Kumar Ahluwalia S/o Late Dr. D.S. Ahluwalia R/o Plot No. 1, Bandhav Garh Colony, Satna, Madhya Pradesh (Convicted) CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 1 of 350 (3) Amit Goyal S/o Sh. N.N. Goyal R/o H.No. 141, Vidhyut Nagar-A, Ajmer Road, Jaipur, Rajasthan (Acquitted) (4) Harish Chandra Gupta S/o Late Shri Kishan Lal Gupta, R/o 377, Sector 15-A, NOIDA-201301, Uttar Pradesh (Convicted) (5) K.S. Kropha S/o Late Sh. Sukh Das Kropha R/o Circuit House Complex, Kenche's Trace, Laban, Shillong-793004, Meghalaya (Convicted) (6) K.C. Samria S/o Sh. G.L. Samria, R/o H. No. 81, Rabinder Nagar, New Delhi-03 (Convicted) APPEARANCES Present : Ld. Senior Advocate, Sh. R.S. Cheema, Special P.P., alongwith, Ld. DLA, Sh. V. K. Sharma, Ld. Senior P.P., Sh. A.P. Singh, Ld. Senior P.P., Sh. Sanjay Kumar and Advocate Ms. Tarannum Cheema for CBI. Ld. Counsel Sh. Pavan Narang for A-1, M/s KSSPL and A-2 Pawan Kumar Ahluwalia. Ld. Counsel Sh. Sushil Bajaj for A-3 Amit Goyal, Ld. Senior Advocate Sh. Mohit Mathur with Ld. Counsels Sh. B.S. Mathur and Sh. Rajat Mathur for A-4 H.C. Gupta and A-5 K.S. Kropha and Ld. Counsels Sh. Percivel Billimoria and Sh. Vikram Singh for A-6 K.C. Samria. CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 2 of 350 JUDGEMENT
1. The present case pertains to allocation of Thesgora-B/ Rudrapuri coal block in favour of M/s Kamal Sponge Steel & Power Ltd. (hereinafter referred to as M/s KSSPL) by Ministry of Coal (MOC), Government of India.
2. Briefly stated the necessary facts of the prosecution case are as under:
In November 2006, Ministry of Coal (MOC), Government of India issued an advertisement inviting applications for allocation of 38 Coal Blocks for captive coal mining from companies engaged in generation of power, production of iron and steel and production of cement. The advertisement stated that out of 38 Coal Blocks, 15 Coal Blocks were earmarked for power sector and 23 Coal Blocks were earmarked for non-power sector i.e iron steel and cement. The companies which were registered under Indian Companies Act, 1956 were given liberty to apply for one or more of such Coal Blocks. The application form to be filled up, documents to be enclosed, coal blocks on offer or other guidelines as to how the applications shall be processed or the factors on which inter-se priority may be decided from amongst competing applicant companies were all made available on the website of MOC i.e. www.coal.nic.in. The applications were to be submitted in five copies.
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3. The applications were also to be accompanied with a demand draft of Rs. 10,000/- beside other documents as were asked for in the detailed guidelines. The application form also required the applicant companies to submit various details about their company or the end use project if already established by them or likely to be established by them regarding which Coal Block allocation was sought for. The companies were required to mention their turnover (in crores) of the last three preceding years beside mentioning the profit earned (in crores) in the last three years and the net worth (in crores) as on 31.03.2006. The details of the proposed end use project viz. the existing capacity, if any, alongwith proposed capacity of the project and the ultimate capacity (total) and "ROM Coal" requirement were also required to be mentioned. Various other details regarding the status of the end use project with respect to land, water, equipments, civil construction, finance etc. and also the clearances which were already obtained or were applied for were also required to be mentioned. The details of the investment already made or proposed to be made were also required to be mentioned in the application form.
4. As regard coal blocks reserved for companies engaged in non-power sector, MOC received about 674 applications from 184 companies. As regard Thesgora-B/Rudrapuri coal block 10 applications including that of M/s KSSPL were received. The application of M/s KSSPL (Accused No. 1) dated 04.01.2007 was signed by its authorised signatory/Director namely Pawan Kumar CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 4 of 350 Ahluwalia (Accused No. 2) and was submitted to MOC on 09.01.2007 [About 748 applications were received by MOC for 19 coal blocks reserved for companies engaged in power sector]. While 35th Screening Committee dealt with applications received for allotment of coal blocks reserved for companies engaged in power sector, 36th Screening Committee however considered applications for 23 coal blocks as were reserved for companies engaged in non-power sector.
5. As per the procedure provided in the guidelines for processing of applications, four copies of all the applications were sent to Administrative Ministries (Ministry of Steel in the present case), Central Mine Planning & Design Institute Limited, (CMPDIL) and the State Governments concerned where the various Coal Blocks applied for or the end use projects were situated or were proposed to be established (State of Madhya Pradesh in the present case) for their views and comments. Upon receipt of views and comments from State Governments and the Administrative Ministries etc., the applications were then referred to 36th Screening Committee. The Screening Committee as was constituted by Government of India was given the task of screening the claims of various applicant companies and to thereafter make recommendation for allotment of various Coal Blocks in favour of different eligible companies. The 36th Screening Committee thus conducted five meetings on 07.12.2007, 08.12.2007, 07.02.2008, 08.02.2008 and 03.07.2008 to consider applications qua coal blocks reserved for companies engaged in non-power sector. The Screening Committee CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 5 of 350 also gave all the applicant companies an opportunity to present their case before it beside also requiring them to fill up a feedback form, titled "Latest Status of End Use Project". The format of the feedback form was also uploaded on the website of MOC. The applicant companies were supposed to fill-up the said feedback form and were to submit the same to Screening Committee in 25 companies at the time of making presentation.
6. On 08.12.2007 one Amit Goyal (Accused No.3) who was the Chartered Accountant of A-1 M/s KSSPL appeared for presentation before the Screening Committee (However as per A-3 Amit Goyal no presentation was in fact made and no feedback form was submitted as A-2 Pawan Kumar Ahluwalia failed to turn up before the Screening Committee). Subsequently, the Screening Committee in its meeting held on 03.07.2008 recommended allocation of 23 Coal Blocks earmarked for non-power sector in favour of different applicant companies. Thesgora-B/Rudrapuri Coal Block was however recommended being allotted jointly in favour of two companies i.e. A- 1 M/s KSSPL and M/s Revati Cement Pvt. Ltd.
7. However, after some time a lot of hues and cry came to be raised in the public alleging that Coal Blocks have been allotted by Government of India not only illegally but in furtherance of a criminal conspiracy entered into by different applicant companies and the MOC officers beside the Screening Committee members. Central Vigilance Commission thus chose to look into the entire allocation process as there were large number of allegations of corruption CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 6 of 350 against the public servants involved. After examining various files of allocation of Coal Blocks, the Central Vigilance Commission made a reference to CBI to investigate into the allegations of alleged corruption by the public servants in the matter of allocation of Coal Blocks to private companies during the period 2006-2009.
8. On the basis of said reference a preliminary enquiry was instituted on 01.06.2012 by CBI with respect to allocation of various coal blocks including Thesgora-B/Rudrapuri Coal Block to A-1, M/s KSSPL. During the course of said preliminary enquiry, the CBI prima facie found an element of truth in the allegations of corruption in the allocation of impugned Coal Block to A-1 M/s KSSPL warranting further investigation. Accordingly an FIR was registered on 13.10.2012 against A-1 M/s KSSPL and others including unknown public servants for the offences punishable u/s 120B r/w Section 420 IPC and Section 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption, Act 1988. The investigation of the case was carried out by IO DSP Sanjay Dubey. However upon completion of investigation a closure report was filed in the Court stating that no offence was found to have been committed either by A-1 M/s KSSPL or by its directors or by any public servant.
9. At this stage, it will be worthwhile to mention that during the course of investigation it was however found by CBI that A-1 M/s KSSPL in its application submitted for allocation of Thesgora- B/Rudrapuri Coal Block not only furnished false information with regard to their financial strength i.e. net-worth but also as regard the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 7 of 350 existing capacity of their end use project. It was submitted that in its application A-1 M/s KSSPL had mentioned its net-worth for the year 2004-05 and 2005-06 as Rs. 40.40 crores and Rs. 64.75 crores respectively. However, as per the documents filed by the company with the Registrar of Companies, the actual net-worth of the company for these two financial years was found to be Rs. 16.54 crores (approx.) and Rs. 26.75 crores respectively. It was also found that the company M/s KSSPL had also not filed its Audited Annual Accounts/Reports for the year 2005-06 alongwith its application even though as per the guidelines issued by MOC while inviting applications for allocation of Coal Blocks. Audited Annual Accounts/ Reports for the past three years i.e. 2005-06, 2004-05 and 2003-04 were to be filed alongwith the application. Thus, it was found that while no Annual Account/Report for the year 2005-06 was at all filed by company A-1 M/s KSSPL much less audited but even as regard the year 2004-05 also only provisional balance sheet was filed instead of the audited balance sheet. As regard the year 2003-04 the audited balance sheet of "Ahluwalia Mining Ltd." was however filed. [The name of company "Ahluwalia Mining Ltd." was subsequently changed to "Kamal Sponge Steel & Power Ltd." (KSSPL)]. The company had however also filed audited balance sheet for the year 2002-03 and 2001-2002 of "Ahluwalia Mining Ltd.".
10. It was also found during the course of investigation that the balance sheet of A-1 M/s KSSPL for the financial year 2004-2005 was signed by its Board of Directors on 01.09.2005 and was duly CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 8 of 350 audited by M/s Amit Goyal & Company, Jaipur, the Chartered Accountants. The audited balance sheet was subsequently adopted by the share holders of A-1 M/s KSSPL in their annual general meeting held on 30.09.2005 and was filed with the office of Registrar of Companies, Jaipur on 25.11.2005. As regard the balance sheet for the year 2005-2006, the same was found to have been signed by the Board of Directors on 02.09.2006 and it was also audited by M/s Amit Goyal & Company, Jaipur vide their audit report dated 02.09.2006 itself. It was subsequently adopted by the share holders of A-1 M/s KSSPL in their annual general meeting held on 30.09.2006 and was thereafter filed with the office of Registrar of Companies, Jaipur on 16/17.01.2007. It was also found that as per the audited balance sheet for the year 2005-06 the net-worth of the company as on 31.03.2006 was only Rs. 26.75 crores (approx.) and not Rs. 64.75 crores as was mentioned in their application.
11. A-2 Pawan Kumar Ahluwalia, the Director of A-1 M/s KSSPL who had signed the application of the company was thus found to have falsely stated about the net-worth of the company in the application as was submitted to MOC and he also did not attach the audited balance sheets for the past three years as was required by the guidelines issued by MOC.
12. It was also found during the course of investigation that there was discrepancy even as regard the annual production capacity of the company as mentioned in the application form at point No. 26. However, it was stated by the IO, that as per the practice being CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 9 of 350 followed by the office of "District Trade and Industry", Satna, Madhya Pradesh with whom the company used to submit their annual installed capacity statement, the annual turnover used to be calculated by considering a figure of 300 working days of any company in a given year. It was however stated that during the course of investigation it was found that the company M/s KSSPL remained in operation for 337 and 335 days respectively during the financial year 2005-2006 and 2006-2007 and thus excess production for 37 and 35 days respectively in the two financial years was also accounted for in the figures mentioned in the application. It was also stated that no logical reasoning could be found as to why a period of 300 days used to be only considered for ascertaining the annual production capacity and not the actual number of days for which the company remained under operation.
13. As regard the role of public servants involved i.e. officers of MOC, it was stated that the applications so received in MOC including that of A-1 M/s KSSPL could not be checked for their eligibility and completeness in MOC in terms of the guidelines governing allocation of coal blocks as were issued by MOC due to shortage of manpower. It was further stated in the closure report that this fact of shortage of man power and their consequent inability to check such a large number of applications so received was found to be justified. It has also been stated that even the Screening Committee members did not enquire as to whether the applications have been checked regarding their completeness or eligibility or not CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 10 of 350 as they were not concerned with the said facts. It was also found during the course of investigation that the recommendations of Screening Committee were mainly based upon the recommendations of administrative Ministry, State Governments, financial and technical capabilities of applicant companies, techno-economic feasibility of end use projects, state of preparedness to set up the end use projects etc. However it was further stated in the closure report that no minimum threshold was prescribed for eliminating/qualifying any company on any of the above said factors including net-worth or preparedness etc. It was also mentioned that in the minutes of the Screening Committee also no deliberation could be found on any of these aspects.
14. It was in these circumstances concluded by IO DSP Sanjay Dubey that no cogent evidence could come to light which could prove that any wrongful gain was caused to the accused company in allocation of impugned Coal Block. As regard submitting the aforesaid false data regarding its net-worth or production capacity, it was stated that the Ministry of Steel which was the administrative Ministry also did not consider the net-worth of the company for making their recommendation and the fact as to whether the company having existing capacity of 87,000 MTPA or 1,00,000 MTPA would not have made any difference as Ministry of Steel would have classified them in the same category. The final report also stated that during investigation no evidence could emerge to establish that task of checking of applications as regard their completeness and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 11 of 350 eligibility was not undertaken by the officers of MOC pursuant to any criminal conspiracy with any of the applicant companies including the accused company. No offence was thus found to have been committed either by A-1 M/s KSSPL or its Directors or even by any of the public servants involved in the entire coal block allocation process.
15. However vide a detailed order dated 13.10.14, this Court disagreed with the conclusion so drawn by the CBI and ordered summoning of all the accused persons for the offences u/s 120- B/409/420 IPC. Accused H.C. Gupta (A-4) was however also summoned for the offence u/s 13 (1) (d) P.C. Act. It was further observed therein that cognizance of the offence u/s 13 (1) (d) P.C. Act could not be taken against accused K.S. Kropha and K.C. Samria for want of sanction u/s 19 P.C. Act. However subsequently on the request of prosecution the matter was referred vide order dated 30.10.2014 for further investigation to CBI u/s 173 (8) Cr.PC with the direction that during the course of further investigation CBI shall place before the Competent Sanctioning Authority, the records of the case so as to consider according of sanction u/s 19 P.C. Act to prosecute the two public servants i.e. K.S. Kropha and K.C. Samria for the offences under P.C. Act. Accordingly during the course of further investigation, CBI sent the records of the case to the competent authority. The competent authority thereafter accorded sanction u/s 19 P.C. Act to prosecute both accused K.S. Kropha and K.C. Samria for the offence u/s 13 (1) (d) P.C. Act and also for any other offences CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 12 of 350 punishable under other provisions of law in respect of the acts mentioned in the sanction order. Accordingly vide order dated 28.07.15 cognizance of the offence u/s 13 (1) (d) P.C. Act was taken against accused K.S. Kropha (A-5) and K.C. Samria (A-6) also and cognizance of the offence u/s 120-B IPC r/w S. 13 (1) (d) P.C. Act was also taken against all the accused persons.
16. After all the accused persons put in their appearance copies of the charge sheet were supplied to them. After due compliance of S. 207 Cr.PC. extensive arguments on the point of charge were heard. Subsequently vide a detailed order dated 01.10.2015 charge for various offences as mentioned in the table below were framed against the various accused persons on 14.10.2015.
CHARGES FRAMED (I) (II) S.No Name of accused Charges Common to all Charges separately framed 1 A-1 M/s KSSPL (i) 120-B IPC (ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 2 A-2 Pawan Kumar (i) 120-B IPC Ahluwalia (ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 3 A-3 Amit Goyal (i)120-B IPC (ii) u/s 120-B IPC r/w Sec. 409/420 IPC 420 IPC and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988
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(ii) u/s 120-B IPC r/w Sec. 409/420 IPC (ii) 13 (1) (c) / and Section 13 (1) (c) and 13 (1) (d) 13 (1) (d) P.C. Act, P.C. Act, 1988 1988 5 A-5 K.S. Kropha (i) 120-B IPC 13 (1) (d) P.C. Act,
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 1988 and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 6 A-6 K.C. Samria (i) 120-B IPC 13 (1) (d) P.C. Act,
(ii) u/s 120-B IPC r/w Sec. 409/420 IPC 1988 and Section 13 (1) (c) and 13 (1) (d) P.C. Act, 1988 All the accused persons however pleaded not guilty to the charges so framed against them and claimed trial.
17. Prosecution thereafter in order to prove its case examined 18 witnesses. Statement of accused persons were thereafter recorded u/s 313 Cr.PC. A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia however also submitted their written statements u/s 313 (5) Cr.PC. Accused persons also thereafter examined 13 witnesses in their defence. Detailed final arguments in the matter were thereafter heard as were addressed by Ld. Sr. P.P. Sh. V.K. Sharma on behalf of prosecution and by Ld. Counsel Sh. Pavan Narang for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia. Ld. Counsel Sh. Sushil Bajaj for A-3 Amit Goyal, Ld. senior Advocate Sh. Mohit Mathur for A-4 H.C. Gupta, Ld. Counsel Sh. B.S. Mathur for A-5 K.S. Kropha and Ld. Counsel Sh. Percivel Billimoria for A-6 K.C. Samria.
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18. Written submissions were also filed by all the accused persons.
19. Thus in the aforesaid factual matrix before adverting further it will be worthwhile to give a brief reference of the deposition of various prosecution witnesses and defence witnesses so examined in the present trial.
PROSECUTION WITNESSES (PWs) PW No. Name and designation Deposition/Role of the witness in the of the Witness present case.
PW-1 S P Rana, Dy. SP, CBI, CBI officer who was initially entrusted with EO-II, New Delhi the preliminary enquiry No. 219 2012 E 0002 registered by CBI with respect to coal block allocation matters. He collected various files/documents from MOC during the course of PE and deposited them in Malkhana EO-I, CBI.
PW-2 S. Ramanathan, Public independent witness in whose Divisional Manager, presence various documents/files were Canara Bank, Vigilance seized by PW 1 Dy. SP S.P. Rana from the Wing, Bangluru MOC office, Shastri Bahwan.
PW-3 Prashant Ahluwalia He was one of the Directors of A-1 M/s KSSPL alongwith A-2 Pawan Kumar Ahluwalia. He identified his own signatures and that of A-2 Pawan Kumar Ahluwalia on various balance sheets and other documents of the company. He also identified signatures of A-2 Pawan Kumar Ahluwalia on various pages of application Ex.PW1/F (colly) (D-10) and stated that day to day affairs of A-1 M/s KSSPL were being dealt with by A-2 Pawan Kumar Ahluwalia only.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 15 of 350 PW-4 Ramesh Kumar Meena, During the course of investigation he Registrar of Companies provided certified copies of Memorandum Cum Official Liquidator, of Association, Articles of Association, Rajasthan, Jaipur Certificate of incorporation of A-1 company M/s KSSPL beside also providing audited balance sheets for the year 2003-04, 2004-05 and 2005-06 and other necessary forms as were filed by A-1 M/s KSSPL with their office over a period of time.
PW-5 Ram Naresh, Under He was Under Secretary, MOC during the Secretary, Ministry of period June 2009 till October 2014. He Agriculture, Govt of had handed over various documents/files India, New Delhi relating to coal block allocation matters to PW 1 Dy.SP S.P. Rana during the course of preliminary inquiry registered by CBI.
PW-6 Ved Prakash Sharma, He was also working as Section Officer Retired Section Officer, CA-1 section, Ministry of Coal from CA-1, Section, Ministry October 2007 till 30.06.2013. He was of Coal however dealing with matters relating to allocation of coal blocks to Government companies. In the year 2012 he had handed over various files/ documents of MOC to PW 1 Dy. SP S.P. Rana CBI and who seized them vide various production-
cum-receipt memos during the course of preliminary inquiry registered by CBI.
PW-7 Awadhesh Pratap Singh, He deposed about the procedure of General Manager, issuance of production certificate to any District Trade and industry by their department and that the Industries Centre, Satna, said production certificates also contained M.P. the date of commencement of production and the annual installed capacity of the unit. He also deposed about the standard criteria adopted by the department of calculating the installed capacity of any company on the basis of 300 working days in a year. He also proved certificate of commencement of production dated 16.10.2003 as issued to A-1 company M/s KSSPL for total sponge iron production capacity of the company as 57000 MTPA CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 16 of 350 and certificate dated 15.07.2005 for total sponge iron production capacity as 87000 MTPA.
PW-8 Dr. P.S. Sharma, Chief He proved the sponge iron production Chemist, Madhya capacity of A-1 M/s KSSPL as mentioned Pradesh Pollution in order of consent to establish or consent Control Board, to operate issued by their department Regional Office Rewa. under Water (Prevention & Control of Pollution), Act 1974 period of time i.e. from the year 2000 till 2013.
PW-9 Sewa Ram, Retired He deposed about the manner in which Principal Secretary, govt the applications received by Govt of MP of Madhya Pradesh from MOC seeking allocation of captive coal blocks were processed by Govt of MP. He also stated that qua Thesgora-
B/Rudrapuri Coal block, Govt of MP had recommended the name of M/s BLA Power Ltd. He also stated that during 36th Screening committee meeting held on 07.02.2008 he had handed over the recommendation letter of Govt of MP qua various coal blocks in favour of different applicant companies to Secretary Coal and Chairman Screening Committee i.e. A-4 H.C. Gupta.
PW-10 Rajneesh Mohan Singh, He proved the sanction for prosecution of Dy. Secretary Ministry of A-5 K.S. Kropha and A-6 K.C. Samria as Science and Technology was granted by the competent authority GOI under section 19 PC Act, 1988. PW-11 S. K. Mishra, Principal He attended the 36th Screening Secretary, Public Committee meeting held on 03.07.2008 Relations Department and deposed about the nature of and Principal Secretary discussion which took place during the to Chief Minister, Govt. said meeting wherein final decision of Madhya Pradesh. regarding recommendation of 36th screening committee qua allocation of various coal blocks in favour of different applicant companies was taken.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 17 of 350 PW-12 Amalendu Khaamru, He alongwith three other officials of the Legal Assistant in the Office of Coal Controller, Kolkata were office of Coal Controller, deputed to MOC office, New Delhi on a Kolkatta request made by MOC for assisting in the processing of applications. He further stated that except for segregating various applications coal block wise they were not asked to do any other work much less to check the applications for their completeness and eligibility.
PW-13 V.S. Rana, Deputy He was posted as Under Secretary, Secretary, Ministry of Ministry of Coal from August 2005 till Home Affairs December 2013. He was associated with the processing of applications of various private companies received by Ministry of Coal seeking allocation of coal blocks including that of A-1 M/s KSSPL. He accordingly proved various files/ notings/ documents as were prepared in Ministry of Coal either by him or by other officers/ officials of Ministry of Coal during that period.
PW-14 Pilli Ravi Kumar, Under He was Under Secretary, MOC in the year Secretary, CPD Section, 2014. During the course of investigation of Ministry of Coal, the present case he had handed over Govt. of India various information relating to A-1 M/s KSSPL as was available in the records of MOC and had also supplied copies of various orders pertaining to grant of coal linkage to A-1 M/s KSSPL by MOC.
PW-15 R. Muralidhar, Retired He was posted as Under Secretary, DIPP, Under Secretary, Govt. of India during the period 2006-08. Department of Industrial He deposed about the manner in which Policy & Promotion applications received in DIPP from MOC (DIPP) under Ministry of were processed. He stated that in DIPP Commerce and Industry, applications of only such companies were Govt. of India. processed who were either engaged in production of cement or were proposing to establish their end use project in cement sector.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 18 of 350 PW-16 N R Dash, Executive He was posted as Director Ministry of Director, Ministry of Steel from October 2006 till October 2011 Railways and was Incharge of ID Wing i.e. Industrial Development Wing. He was associated with the processing of applications of various applicant companies including that of A-1 M/s KSSPL as were received in Ministry of Steel from Ministry of Coal for obtaining their views/ comments regarding allotment of captive coal blocks.
PW-17 Ashok Kumar Aggarwal, He had issued two certificates to company Superintendent M/s KSSPL in the year 2013 specifying (Technical) Central the total number of working days for which Excise Department, the sponge iron plant of the company Satna, M.P. worked in the year 2005-06 and in the year 2006-07.
PW-18 IO, DSP Sanjay Dubey, He was the investigating Officer of the EO-III, CBI, ND case. He deposed extensively about the investigation carried out by him and also about the collection of various documents from different authorities by him during the course of investigation.
DEFENCE WITNESSES (DWs) DW No. Name and designation Deposition/Role of the witness in the of the Witness present case. DW-1 Sh. Rishan Ryntathiang He was Under Secretary CA-I and CA-III Under Secretary CA-I Section, MOC, Govt. of India. He and CA-III Section, produced copy of file Ex.DW1/A(colly) Ministry of Coal, Govt. wherein the record relating to constitution of India. of Screening Committee for dealing with applications received for captive coal blocks was available.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 19 of 350 DW-2 Sh. Parmanand, Officer He produced office copy of two letters on Special Duty, Office which were written by Sh. Bhaskar Kulbe, of Advisor Industry, the then Advisor, Industry, Govt of West WBIDC, Govt of West Bengal to Dr. Sabyasachi Sen, Principal Bengal, New Delhi Secretary, C&I Department, Govt of West Bengal, Kolkata. He proved the said letters as Ex.DW2/A and Ex.DW2/B.
DW-3 Arunendra Prasad He was an employee of A-1 M/s KSSPL.
Tiwari, Manager, Officer He deposed that in the plant of the in M/s Kamal Sponge company a register RG-1 (Daily Stock Steel and Power Ltd. Register) was maintained every year in the dispatch section wherein a record of daily production/sale of sponge iron or the excise duty payable thereon was maintained. He accordingly placed on record three such registers i.e. Ex. DW 3/A (colly) for the year 2005-06, Ex. DW 3/B (colly) for the year 2006-07 and Ex.
DW 3/C (colly) for the year 2007-08.
DW-4 S.K. Pandey, Retired He was the then Inspector, Central Excise Superintendent, Central Department, Bhopal, MP. He deposed Excise Department about excise audit of the industrial plant of A-1 M/s KSSPL as was conducted by Central Excise Department officials during the year 2007-08.
DW-5 Manzoor Ali Ansari, He was the then Dy. Commissioner, Joint, Commissioner, Central Excise, Satna Division, MP.
Customs (Preventive) During the course of investigation he vide Jaipur his letter dated 09.05.2013 Ex. PW 17/DX-1(D-61) had informed IO, Inspector Sanjay Dubey about the correctness of two certificates dated 12.04.2013 Ex.PW17/B (D-70) and dated 27.04.2013 Ex.PW17/C (D-71) regarding working days of the company in the year 2005-06 and in the year 2006-07 to be genuine and having been issued by the Jurisdictional Superintendent on the request of company M/s KSSPL.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 20 of 350 DW-6 B.K. Tripathi, Asstt. He was an employee of A-1 M/s KSSPL.
Incharge Marketing, He deposed that in the first week of M/s Kamal Sponge January 2007, the accounts department Steel and Power Ltd. of A-1 M/s KSSPL at Satna, M.P. handed over to him certain applications of A-1 M/s KSSPL to be submitted to MOC for allocation of captive coal blocks. He had accordingly taken them to A-2 Pawan Kumar Ahluwalia at the office of M/s Hima Ispat Ltd. at Barbil, Orissa and got them signed from A-2 Pawan Kumar Ahluwalia.
DW-7 P.S.S. Reddy, He was posted as Director, MOC from Commissioner Income December 2012 till 2013. Upon receipt of Tax, Hyderabad a request from IO Inspector Sanjay Dubey he had provided certain documents relating to coal block allocation matters as were asked for by the IO vide his letter dated 21.02.2013 Ex.PW18/N-4 (colly) (D-24).
DW-8 S.K. Shivani, Under He was posted in Mineral Resources Secretary, Mineral Department, Govt of MP from September Resources Department, 2006 till June 2015. During the course of Govt. of MP investigation on the request of IO Inspector Sanjay Dubey he had handed over copy of various documents and one original file of the department alongwith his written reply dated 10.05.2013 Ex.PW18/L-2 (colly).
DW-9 S.K. Shahi, Deputy He was posted as Director MOC from Director General, March 2013 to July 2016. During the Department of Telecom, course of investigation he had furnished GOI certain information from the records of MOC to CBI vide his letter dated 02.05.2013 Ex.PW14/C (D-27).
DW-10 K.C. Samria, A- 6 K.C. Samria examined himself as a (Accused No. 6) defence witness u/s 315 Cr.PC. In his deposition he extensively stated about his role and responsibility while being posted CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 21 of 350 in MOC and the manner in which the applications were processed or the matters which were brought to his knowledge. He also deposed about his involvement in the processing of applications in MOC stating that one set of the applications were already sent by MOC to Administrative Ministries and State Govts. concerned much before he took over the charge of CA-1 Section, MOC.
DW-11 K.S. Kropha, A-5 K.S. Kropha examined himself as a (Accused No. 5) defence witness u/s 315 Cr.PC. In his deposition he extensively deposed about the manner in which the applications received by MOC were dealt with either in MOC or by the Screening Committee. He also deposed about his role and responsibility in MOC both as Joint Secretary Coal and also as Member Convener Screening Committee. He also deposed about his unblemished career throughout his long service of 34 years.
DW-12 Harish Chandra Gupta, A-4 H.C. Gupta also examined himself as (Accused No. 4) a defence witness u/s 315 Cr.PC. In his deposition he also extensively deposed about the manner in which the applications received by MOC were dealt with either in MOC or by the Screening Committee. He also deposed extensively about his role and responsibility both as Secretary Coal and also as Chairman, Screening Committee. He also deposed about his unblemished career throughout his long service of 37 years.
DW-13 Shiv Raj Singh, He was an IAS officer of Chattisgarh Retired IAS officer, Govt Cadre. He deposed that he had attended of Chattisgarh two meetings of 36th Screening committee i.e. on 08.02.2008 and 03.07.2008 as a representative of Govt.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 22 of 350 of Chattisgarh. He extensively deposed about the manner in which the meetings of screening committee were held and also stated that in the meeting all the members present were free to air their views. He further stated that whenever qua any coal block there used to be consensus amongst the members, then A-4 H.C. Gupta, Chairman used to announce the final decision but in other cases where there used to be no such unanimity then after hearing the views of all concerned A-4 H.C. Gupta used to announce the recommendation of Screening Committee for allotment of a given coal block in favour of one or more applicant companies in accordance with the consensus which may have developed during the course of discussion. He also stated that in certain cases, some of the representations used to request that their views be specifically recorded in the proceedings. He further stated that the decision thus used to be taken by way of broad consensus.
After having briefly mentioned the deposition of various prosecution witnesses and defence witnesses as were examined during the course of trial, it will be now appropriate to briefly mention the rival contentions of both prosecution as well as that of Ld. Counsels for the accused persons. The deposition of the aforesaid prosecution and defence witnesses shall be however referred to in detail wherever required in the later part of the present judgment.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 23 of 350 Arguments on behalf of prosecution.
20. It was submitted by Ld. senior P.P. Sh. V.K. Sharma on behalf of prosecution that the facts and circumstances of the present case clearly show as to how the accused MOC officers and the other private parties involved conspired together to cheat MOC, Govt of India of the valuable nationalised natural resources of the country i.e. coal. It was submitted that admittedly the application of A-1 M/s KSSPL was submitted to MOC under the signatures of A-2 Pawan Kumar Ahluwalia and thus both the company and its director A-2 Pawan Kumar Ahluwalia were responsible for the correctness of the facts mentioned in the application. It was thus submitted that in these circumstances it was logical and legally permissible to conclude that A-2 Pawan Kumar Ahluwalia was aware of the contents mentioned in the application and that the same were consciously mentioned in the application as the day to day affairs of A-1 M/s KSSPL were being looked after by A-2 Pawan Kumar Ahluwalia only. It was also submitted that during the course of trial not only it has been conclusively established from the deposition of various prosecution witnesses that the figures of net-worth as mentioned in the application were wrong but even the accused himself has also not disputed the said fact. It was also pointed out that the factum of application of A-1 M/s KSSPL being not complete as it was not accompanied with the audited balance sheets for the past three years has also been clearly proved beside the fact that the audited balance sheets for the past three years were very much available with the company. It was further submitted that the prosecution has also CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 24 of 350 proved on record that even the figures of existing production capacity of the company mentioned in the application were also wrong. As regard the claim of A-1 M/s KSSPL that the company actually functioned for a period of more than 300 days and which claim was sought to be supported by two certificates issued by PW-17 Ashok Kumar Aggarwal, Superintendent, Excise Department, it was submitted that from the deposition of said witness it is clear that the two certificates were procured from him by A-1 M/s KSSPL solely with a view to create some false defence for the purposes of present case so as to justify the false claims made in the application.
21. It was also submitted that during the course of evidence it has been clearly proved on record that the Administrative Ministry i.e. Ministry of Steel and also the State Govt of Madhya Pradesh had relied upon the figures of net-worth as mentioned in the application. Ministry of Steel had in fact also relied upon the existing production capacity and the proposed production capacity of the end use project as was mentioned in the applications. Moreover the Screening Committee and thereby MOC had also admittedly relied upon the financial strength and techno economic feasibility of various applicant companies before allocating any coal block. It was thus submitted that A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia had dishonestly and consciously made the said false claims in order to deceive and thereby induce MOC, Govt of India to allot a coal block in favour of A- 1 M/s KSSPL. As regard A-5 K.S. Kropha it was submitted that he being Joint Secretary MOC was incharge of an independent wing CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 25 of 350 which also comprised of CA-I Section and thus under the over all supervision of Secretary Coal he was responsible for the work of his wing. As regard A-6 K.C. Samria it was submitted that he being director CA-I was acting on behalf of Secretary Coal and was responsible to ensure that no ineligible company or a company whose application was not complete is allotted a coal block.
22. As regard the role of MOC officers it was also submitted that A-4 H.C Gupta being Secretary Coal was the Administrative Head of the Ministry and his responsibility was complete and undivided. It was submitted that admittedly no inter-se priority chart or inter-se merit chart was prepared either by MOC or by the Screening committee which could have only demonstrated as to which of the applicant company was better placed as compared to other. It was however also submitted that even otherwise the application of A-1 M/s KSSPL ought not to have been put up before the screening committee at all by MOC as its application was admittedly incomplete and in terms of the guidelines issued by MOC was liable to be rejected at the initial stage itself. The question of A-1 M/s KSSPL being better placed than other applicant companies or not would not have thus come up for consideration even.
23. It was also submitted that A-4 H.C. Gupta not only as Secretary Coal but as Chairman Screening committee was clearly exercising dominion over the Nationalised natural resources of the country. He was stated to be aware that the competent authority i.e. Minister of Coal shall accord approval for allotment of various coal CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 26 of 350 blocks to different applicant companies on the basis of recommendation of screening committee only. It was thus submitted that the MOC officers were under a duty to ensure that the Nationalised natural resources of the country were distributed/allotted in an objective and transparent manner. It was submitted that the Ministry of Coal officers thus failed to observe those reasonable safeguards as were expected of them in dealing with such important nationalised natural resources and they thus not only abused their position as public servants but also acted with complete disregard to the public interest involved. It was also submitted that from the over all facts and circumstances of the case it was clearly evident that the MOC officers who have been arrayed as accused were clearly hands in glove with the company M/s KSSPL and its director A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal.
24. It was also submitted by Ld. Senior P.P. Sh. V.K. Sharma that from the facts and circumstances of the case coupled with the files of MOC and from the documents referred to by Ld. Counsel for the accused persons it is clear that the accused MOC officers were well aware that checking of applications for their eligibility and completeness has not been carried out and thus they should have undertaken such an exercise of checking the applications at least before sending the allocation letters to various allocatee companies. It was also submitted that the fact that M/s BLA Power Ltd. was called by the 36th Screening committee to make a presentation clearly show that M/s BLA Power Ltd. which subsequently expressed its interest in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 27 of 350 establishing a cement plant also could have been considered by 36 th screening committee for allotment of a captive coal block.
25. Ld. senior P.P. Sh. V.K. Sharma further placed reliance upon the following case law in support of his submissions:
S.No. Case Title Citation 1 K. Satwant Singh V. State of Punjab (1960) 2 SCR 89 2 C.I.T, Andhra Pradesh V. M/s Taj Mahal 1971 (3) SCC 550 Hotel, Secundrabad 3 Delhi Judicial Service Association, Tis (1991) 4 SCC 406 Hazari Court, Delhi V. State of Gujarat 4 Chief Education Officer V. K.S. 2012 (2) MWN (Cr.) Palanichamy 354 5 REG V. Hanmanta (1877) ILR 1 BOM 610 6 Common Cause, a Registered Society V. (1999) 6 SCC 667 Union of India & Ors. 7 Krishnan & Anr. Vs. Krishnaveni & Anr. 1997 (4) SCC 241 8 State through Superintendent of Police, 1999 (5) SCC 235 CBI/SIT Vs. Nalini
26. The prosecution was thus stated to have been successful in proving its case against all the accused persons for the offences for which they have been charged. All the accused persons were thus prayed to be convicted.
Arguments on behalf of A-1 M/s KSSPL.
27. As regard A-1 Ms/ KSSPL it was strongly argued by Ld. Counsel Sh. Pavan Narang that prosecution has miserably failed CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 28 of 350 to prove its case against the company at all. It was submitted that prosecution has tried to build up its case of a criminal conspiracy allegedly hatched between the private parties and the public servants involved on the basis of circumstantial evidence. It was however submitted that not only the entire chain of circumstantial evidence has not been proved by the prosecution but even various circumstances themselves have also not been proved at all much less beyond shadows of reasonable doubts. It was also submitted that the contents of various documents sought to be proved on record by the prosecution have also not been proved as per the provisions of Indian Evidence Act, 1872. It was also submitted that certain material circumstances were also not put to A-1 M/s KSSPL in the statement u/s 313 Cr.PC and thus the said circumstances cannot be read against the accused company.
28. It was also submitted by Ld. Counsel Sh. Pavan Narang that the contents of application form of A-1 M/s KSSPL seeking allotment of "Thesgora-B/Rudrapuri" Coal Block i.e. Ex.PW1/F(colly)(D-10) have not been proved by the CBI by any legally admissible evidence. It was submitted that PW-3 Prashant Ahluwalia proved only the signatures of A-2 Pawan Kumar Ahluwalia on the said application but he was admittedly not aware of the contents of the application or annexures thereof. It was submitted that prosecution has not led any evidence to prove that the wrong figures qua net-worth and production capacity as are stated to have been mentioned in the application form were made with any malafide intention and that too CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 29 of 350 on the instructions of A-2 Pawan Kumar Ahluwalia. It was submitted that no evidence has been led on record by the prosecution to show that A-3 Amit Goyal, chartered Accountant who had gone to attend the Screening committee meeting on 07.12.2007 was aware of the contents of the application form and its annexures and especially as regard the figures qua net-worth and production capacity mentioned over there much less he was part of any alleged criminal conspiracy as stated to have been hatched by the other accused persons. It was submitted that prosecution has not led any evidence on record to prove that the applications of other applicant companies or the documents annexed therewith who had applied for allocation of "Thesgora-B/Rudrapuri" Coal Block were complete or not much less the information furnished therein was true. It was also submitted that prosecution has failed to prove that there was any legal or statutory requirement of furnishing of feedback form and making of presentation by the applicant companies before the screening committee.
29. It was also submitted that no evidence has been led by the prosecution that the allocation letter issued in favour of A-1 M/s KSSPL (the valuable security as claimed by prosecution) resulted in any wrongful gain to accused company or in any wrongful loss to MOC or to any other entity. It was thus submitted by Ld. Counsel that no presumption can be drawn regarding the aforesaid circumstances either in favour of prosecution or against the accused persons.
30. It was also submitted that the complete chain of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 30 of 350 circumstantial evidence has not been proved by the prosecution which may point a guilty finger towards the accused. It was further submitted by Ld. Counsel Sh. Pavan Narang that prosecution has also failed to prove on record that the scrutiny of applications before sending one set thereof to Administrative Ministries and State Governments was not carried out by MOC officers on account of any criminal conspiracy much less hatched with the private parties involved. It was submitted that the said exercise of scrutiny of applications for their completeness or eligibility could not be carried out as the number of applications received were too many and sufficient staff was not available with CA-I Section to carry out such an extensive exercise. It was also submitted that admittedly Sh. Sanjiv Mittal was the Director, CA-I Section, MOC when the impugned advertisement was issued or the applications were sent to State Governments and Administrative Ministry but for reasons best known to prosecution he has not been examined. It was also submitted that nothing has been brought on record to prove that the alleged misrepresentation in the application of A-1 M/s KSSPL was on account of any malafide intention or whether the said misrepresentation in fact led to deceiving the screening committee and thereby MOC in making allocation of the impugned coal block in favour of A-1 M/s KSSPL.
31. It was also submitted that Sh. S.K. Mandal who attended the screening committee meeting on 08.12.2007 as a representative of Govt of Madhya Pradesh when A-3 Amit Goyal appeared before the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 31 of 350 screening committee was also not examined by the prosecution for reasons best known to it.
32. It was also submitted that prosecution has not led any evidence which could show that the alleged acts/deeds of the officers of MOC were not merely negligent or careless acts but were actuated with any malafide intention much less being part of a larger criminal conspiracy. It was submitted by Ld. Counsel that as per the prosecution case the MOC officers conspired with all successful applicant companies who were allotted one or the other coal block by 36th Screening Committee. It was however submitted that such a proposition is theoretically not possible nor the evidence led by the prosecution on record suggests any such inference.
33. It was also submitted by Ld. Counsel Sh. Pavan Narang that during the course of evidence it has come on record that M/s BLA Power Ltd., the company recommended by Govt of Madhya Pradesh was not eligible for allotment of Thesgora-B/Rudrapuri" Coal Block as the said coal block was reserved for non-power sector and the company M/s BLA Power Ltd. intended to establish a power project. It was also pointed out that from the files of Govt. of Madhya Pradesh available on record as Ex. PW 9/A (colly) (D-46), it is clearly evident that the next two most eligible companies were M/s KSSPL and M/s Revati Cement Pvt. Ltd. and the said two companies were unanimously jointly allotted the impugned coal block by the screening committee.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 32 of 350
34. It was submitted by Ld. Counsel that prosecution in order to prove its case is trying to draw presumptions based on conjectures and surmises and the same is not permissible under law. It was further submitted that the prosecution can also not rely upon the observations of Hon'ble Supreme Court as were made in order dated 25.08.2014 passed in the case Manohar Lal Sharma V. Union of India, (2014) 9 SCC 516 whereby Hon'ble Supreme Court declared the allocation of all coal blocks by all the 36 Screening Committees of MOC as illegal being contrary to the provisions of MMDR, Act, 1957. It was submitted that in the said case Hon'ble Supreme Court was not dealing with the issue as to whether there was any malafide intention in the actions of either the MOC officers or that of the private parties involved. It was also submitted that any reply, if submitted by the accused persons during the course of investigation either in response to a notice u/s 91 Cr.PC issued by the IO or otherwise clearly amounts to a statement u/s 161 Cr.PC and is thus hit by section 162 Cr.PC. It was thus submitted that the prosecution in the absence of any other evidence having been not led cannot rely on any such reply or information supplied by the accused persons in the said reply. It was also submitted that the documents which have not been proved by the prosecution as per the provisions of Indian Evidence Act, 1872 also cannot be relied upon. It was pointed out by Ld. Counsel that from the deposition of DW-6 B.K. Tiwari, Asst. Manager, M/s KSSPL it has come on record that he had simply carried five copies of the already filled in application forms to Orissa for obtaining the signatures of A-2 Pawan Kumar Ahluwalia and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 33 of 350 accordingly got it signed from him. It was submitted that A-2 Pawan Kumar Ahluwalia thus had no role in filling up the information in the said application form as the said information was furnished by the concerned departments of the company and he being an authorised signatory simply signed the application form on behalf of A-1 M/s KSSPL.
35. As regard the existing capacity of the end use plant it was submitted that during the period 01.04.2006 till 31.12.2006 the plant worked for 245 days out of 275 days and thus it remained shut for about 29 days only i.e. approx 10% of the working days. It was thus submitted that the said number of working days were used to calculate the existing production capacity of the plant. It was submitted that as in the year 2006 the plant had the existing production capacity of 290 tons per day so the existing production capacity came to around one lakh tons per year. It was however reiterated that the said information of the application cannot be looked into as the contents thereof have not been proved as per law by the prosecution.
36. It was also submitted that as per the prosecution case itself after the issuance of option letter dated 05.08.2008 by MOC both M/s KSSPL and M/s Revati Cement Pvt. Ltd. entered into a joint venture agreement dated 03.09.2008 and submitted the same to MOC. It was thereafter the letter of allocation dated 21.11.2008 was issued by MOC in favour of the two companies. The two companies thereafter formed a joint venture company called "Thesgora Coal Pvt. Ltd." and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 34 of 350 thus all subsequent communication with MOC or other pre-mining activities were undertaken by the said JV company. It was however submitted that while the JV company made substantial progress in terms of the allocation letter but on account of delays caused by the Govt. departments in granting various clearances the mining activity could not be undertaken. It was however submitted that neither the IO has investigated nor the prosecution has led any evidence to prove that any act of cheating or criminal conspiracy was committed either by the said JV company or through it by A-1 M/s KSSPL. The various pre-mining activities undertaken by the joint venture company subsequent to allocation of Thesgora-B/Rudrapuri coal block jointly to A-1 M/s KSSPL and M/s Revati Cement Pvt. Ltd. by MOC were highlighted to assert that the two companies were always ready to establish the end use plant and to undertake mining of coal.
37. It was thus submitted that prosecution has miserably failed in proving any mens-rea on the part of A-1 M/s KSSPL in furnishing any wrong information to MOC. It was also submitted that ingredients of neither the offence of cheating nor that of criminal conspiracy have been proved by the prosecution.
38. The prosecution was thus stated to have miserably failed in proving its case against A-1 M/s KSSPL beyond shadows of all reasonable doubts. A-1 M/s KSSPL was thus prayed to be acquitted.
Arguments on behalf of A-2 Pawan Kumar Ahluwalia.
39. As regard A-2 Pawan Kumar Ahluwalia the arguments CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 35 of 350 addressed by Ld. Counsel Sh. Pavan Narang proceeded almost on identical lines as that of A-1 M/s KSSPL. It was submitted by Ld. Counsel that the contents of the application of M/s KSSPL as submitted to Ministry of Coal have not been proved by the prosecution by any legally admissibly evidence. It was also submitted that prosecution has miserably failed to prove that the alleged false/wrong figures qua net-worth and production capacity as mentioned in the application form were made with any malafide intention. The essential ingredient of mens-rea in the impugned offences of cheating and criminal conspiracy was thus stated to be missing.
40. It was also submitted that as per the advertisement issued by MOC preference only was to be given to companies having minimum production capacity of one million tonne per annum (1 MTPA) and thus the companies having production capacity less than one 1 MTPA could have been also recommended for allocation of one or the other coal block. It was thus submitted that from out of all the 10 applicant companies who had applied for Thesgora B/Rudrapuri Coal block the company M/s KSSPL and M/s Revati Cement Pvt. Ltd. were the two most suitable companies and were accordingly recommended by the screening committee for allocation of the said coal block jointly. It was also submitted that prosecution has failed to bring on record any evidence to show that the claims made in the applications of other eight applicant companies were correct or not or that they were more suitably placed then A-1 M/s KSSPL.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 36 of 350
41. In the light of aforesaid submissions it was submitted that the prosecution has miserably failed to prove various circumstances beyond shadows of reasonable doubts and thus a complete chain of incriminating circumstances pointing towards the guilt of A-2 Pawan Kumar Ahluwalia does not stand proved.
42. It was also submitted that from the deposition of DW-6 B.K. Tripathi, it was clear that A-2 Pawan Kumar Ahluwalia signed the applications merely because he was the authorised signatory of the company and had no personal knowledge of the contents of the application. It was also submitted that admittedly A-2 Pawan Kumar Ahluwalia did not play any other role either in the processing of the application in MOC or subsequent thereto. It was submitted that as per the prosecution case itself A-2 Pawan Kumar Ahluwalia even did not appear before the screening committee for making any presentation or submitting any feedback form.
43. As regard various replies given by A-2 Pawn Kumar Ahluwalia during the course of investigation to the IO in response to notices u/s 91 Cr.PC it was submitted that the same at the most can amount to statement u/s 161 Cr.PC and were thus hit by section 162 Cr.PC.
44. It was also submitted by Ld. Counsel Sh. Pavan Narang that in the statement u/s 313 Cr.PC it was not put to the accused that the application in question was signed or submitted by him to MOC with an intention to deceive or cheat MOC. Various other circumstances CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 37 of 350 were also stated to have been not put to the accused in his statement u/s 313 Cr.PC. Some of such circumstances not put to A-2 Pawan Kumar Ahluwalia in his statement u/s 313 Cr.PC were highlighted such as that A-3 Amit Goyal had knowledge of the false claims made in the application or that he and A-2 Pawan Kumar Ahluwalia hatched a criminal conspiracy to cheat MOC. It was also not put that the Ministry of Coal officers did not scrutinize the applications for their completeness and eligibility on account of a criminal conspiracy hatched by them with the private parties involved. It was also pointed out that the circumstance that A-4 H.C. Gupta was having dominion over the Nationalised natural resources of the country i.e. coal was also not put to A-2 Pawan Kumar Ahluwalia in his statement u/s 313 Cr.PC.
45. As regard the wrong figures of net-worth for the year 2004-05 and 2005-06 mentioned in the application it was submitted that the same was the result of lack of knowledge of the standard accounting practices of calculating net-worth on the part of staff of the company. It was pointed out that a conceptual mistake was committed by the administrative staff of the company M/s KSSPL in deducting the current liabilities of the company for the financial year 2004-05 from the total assets as was clearly evident from the balance sheets annexed with the application. It was also submitted that admittedly MOC had not prescribed any minimum thresh-hold for net-worth and thus there could not have been any malafide intention in furnishing wrong information about the net-worth and more so when the entire CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 38 of 350 balance sheets and other relevant documents reflecting the current value of assets, liabilities and net-worth were attached with the application. It was however again reiterated that net-worth of any company was never a criteria before the screening committee in making recommendation of allocation of any coal block.
46. As regard the existing production capacity of the company it was submitted that as during the relevant period the company worked for a period of 245 days from out of 275 days and thus on the basis of the said data the production capacity of the company was calculated and the same came to be approximately 1 lac tonne per annum. It was thus submitted that there was no malafide intention in even mentioning the exiting production capacity of the company as 1 lac tonne per annum (0.1 MTPA).
47. It was also submitted that even subsequent to allocation of the impugned coal block the company M/s KSSPL had made substantial progress towards pre-mining activities through the JV company formed with M/s Revati Cement Pvt. Ltd. and the same thus goes to show that there was no malafide intention on the part of A-2 Pawan Kumar Ahluwalia in seeking allocation of a coal block in the name of A-1 M/s KSSPL.
48. In the aforesaid circumstances it was thus submitted that prosecution has miserably failed in proving the ingredients of either the offence of criminal conspiracy or that of cheating also against A-2 Pawan Kumar Ahluwalia. He was thus prayed to be acquitted.
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49. In support of his submissions for A-1 M/s KSSPL and A-2 Pawan Kumar Ahluwalia Ld. Counsel Sh. Pavan Narang placed reliance upon the following case law:
S. Case Title Citation
No.
1 Kali Ram Vs. State of Himachal Pradesh (1973)2 SCC 808
2 Ashish Batham Vs. State of MP (2002)7 SCC 317
3 Kailash Gour and Ors.Vs. State of Assam (2012)2 SCC 34
4 Sri Rabindra Kumar Dey Vs. State of Orissa (1976)4 SCC 233
5 Prem Kumar Gulati and Anr. Vs. State of (2014)14 SCC 646
Haryana
6 L.K. Advani Vs. CBI 1997 CrLJ 2559
7 Nabi Mohamad Chand Hussain and Ors. Vs. 1980 CrLJ 860
State of Maharashtra
8 State of Kerala Vs. P. Sugathan & Anr. (2000)8 SCC 203
9 Sharad Birdhichand Sarda Vs. State of (1984) 4 SCC 116
Maharashtra
10 Hanumant Vs State of MP 1952 SCR 1091
11 C. Chenga Reddy Vs. State of A.P (1996) 10 SCC
193
12 Sunil Bharti Mittal Vs. Central Bureau of (2015) 4 SCC 609 Investigation 13 Jugeshwar Singh and Others Vs Emperor 1935 SCC Online Pat 209 14 Emperor Vs. Pir Muindin Abdul Rehman & 1944 SCC Online Anr. Sind CC 27 15 Rewati Raman Singh Vs. State 2012 ()127 DRJ 176 16 Darshan Sing Ram Kishan Singh Vs. State (1971) 2 SCC 654 of Maharashtra 17 CBI Vs. V.C.Shukla & Ors. (1998) 3 SCC 410 CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 40 of 350 18 Ramji Dayawala and Sons Vs. Invest Import (1981) 1 SCC 80 19 Sir Mohammad Yusuf & Anr Vs. D. & Anr. 1961 SCC Online Bom 5 20 Mobarik Ali Ahmed Vs. State of Bombay (1958) SCR 328 21 Subramanian Swamy Vs. A Raja (2012) 9 SCC 257 22 Ram Gopal Vs. State of Maharashtra (1972) 4 SCC 625 23 Krishna Janardhan Bhat Vs. Dattatraya G. (2008) 4 SCC 54 Hegde 24 Raj Kumar Singh @ Raju @ Batya Vs. State (2013) 5 SCC 722 of Rajasthan 25 Nar Singh Vs. State of Haryana (2015) 1 SCC 496 26 Leo Roy Frey Vs. Suppdt. Distt. Jail AIR 1958 SC 119 27 Subramanian Swamy Vs.A.Raja (2012) 9 SCC 257 28 Wolfgang Reim & Ors. Vs. State & Anr. 2012 SCC Online Del 3341 29 Mohinder Pratap Vs. The State of NCT of ILR (2013) VI Delhi Delhi 4417 30 State of Kerala Vs P. ugathan & Anr. (2000) 8 SCC 203 31 K.R. Purushothaman Vs. State of Kerala (2005) 12 SCC 631 32 V.C. Shukla Vs. State (Delhi Administrative) (1980) 2 33 CBI Vs. V.C. Shukla (1998) 3 SCC 410 34 M.M.S.T. Chidambaram Chettiar Vs. 1936 SCC Online Shanmugham Pillai Mad 414 35 S. Ram Yadav Vs. CBI & Ors. 2013 (137) DRJ 131 36 Sudheo Jha Uppal Vs. State of Bihar AIR 1957 SC 466 Arguments on behalf of A-3 Amit Goyal.
50. As regard A-3 Amit Goyal it was submitted by Ld. Counsel Sh. Sushil Bajaj that not only the prosecution has miserably failed in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 41 of 350 proving its case against A-3 Amit Goyal beyond shadows of all reasonable doubts but even otherwise the entire allegations of prosecution are primarily based on presumptions without being supported by any legally admissible evidence. It was submitted that as per the prosecution case itself A-3 Amit Goyal was not an employee of A-1 M/s KSSPL and was only the statutory auditor of the company. The deposition of PW-3 Prashant Kumar Ahluwalia was relied upon in this regard. It was also submitted that prosecution has not led any evidence to show that A-3 Amit Goyal was in any manner associated or involved either in the preparation of application of A-1 M/s KSSPL to be submitted to MOC or in its subsequent processing before MOC. It was also submitted that in the absence of any legally admissible evidence no presumption can be drawn that A-3 Amit Goyal was aware of the contents of the application so submitted by company M/s KSSPL to MOC. It was further submitted that the only allegation against A-3 Amit Goyal is that he attended the screening committee meeting on 08.12.2007 on behalf of A-1 M/s KSSPL. In this regard it was submitted that A-3 Amit Goyal has consistently stated during the course of investigation and also during the course of present trial that A-2 Pawan Kumar Ahluwalia had asked him to accompany him to screening committee meeting as his presence might be required to answer any query if raised by the screening committee members qua the audited balance sheets of the company. It was further stated that admittedly A-2 Pawan Kumar Ahluwalia failed to reach the venue of screening committee meeting and in his absence A-3 Amit Goyal was the only person present at the meeting CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 42 of 350 venue on behalf of A-1 M/s KSSPL and thus neither any presentation was made by him nor any feedback form was submitted to the Screening Committee by him on behalf of company A-1 M/s KSSPL. It was further submitted that prosecution has not led any evidence to show that A-3 Amit Goyal made any presentation or submitted any presentation on behalf of company A-1 M/s KSSPL to the screening committee much less submitting any feedback form.
51. It was also pointed out that during the course of investigation no such presentation or feedback form could be collected by CBI either from A-1 M/s KSSPL or A-2 Pawan Kumar Ahluwalia or even from MOC. Even as regard the reply given by A-2 Pawan Kumar Ahluwalia Ex.PW3/R (D-63) to a notice u/s 91 Cr.PC issued by the IO during the course of investigation wherein it is stated that a power- point presentation was made on behalf of the company before the screening committee, it was submitted that the said reply having been not supported by any other oral or documentary evidence was thus clearly hit by section 162 Cr.PC and was accordingly inadmissible in evidence. It was further submitted that even A-2 Pawan Kumar Ahluwalia failed to provide copy of any such power point presentation stated to have been made before the screening committee. Referring to the deposition of PW 16 N.R. Dash, Director, Ministry of Steel who was present in the screening committee meeting on 08.12.2007 it was submitted that he also did not state anything against A-3 Amit Goyal or as regard any presentation having been made by him on behalf of A-1 M/s KSSPL. It was thus CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 43 of 350 submitted that prosecution has clearly failed to prove on record that either any presentation was made on behalf of A-1 M/s KSSPL before the screening committee or any feedback form was submitted to Screening Committee.
52. Further while relying upon the deposition of PW 13 V.S. Rana it was submitted that from his deposition it was clear that neither any record relating to presentation, if any made by A-1 M/s KSSPL or any feedback form if submitted on behalf of the company was available in MOC. It was thus submitted that no documentary evidence was even available in MOC which could show that any presentation was made by A-3 Amit Goyal before the screening committee on 08.12.2007 or any feedback form was submitted by him.
53. It was also submitted that neither prosecution has led any evidence to show that A-3 Amit Goyal had knowledge as to what all documents were required to be submitted by A-1 M/s KSSPL alongwith its application or what documents were actually annexed with its application by the company. No evidence has even been led to show that A-3 Amit Goyal had any knowledge of the contents of the application of A-1 M/s KSSPL as was submitted to MOC. It was further submitted that as per the prosecution case itself no false statement on any account whatsoever was found in the audited balance sheets of the company as were audited by A-3 Amit Goyal.
54. In the aforesaid circumstances it was submitted by Ld.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 44 of 350 Counsel Sh.Sushil Bajaj that in the absence of there being any legally admissible evidence against A-3 Amit Goyal it is crystal clear that prosecution has miserably failed in proving its case against him.
55. In support of his submissions Ld. Counsel Sh. Sushil Bajaj placed reliance upon the following case law:
S. Case Title Citation No. 1 Kali Ram Vs. State of Himachal Pradesh (1973)2 SCC 808 2 Ashish Batham Vs. State of MP (2002)7 SCC 317 3 Kailash Gour and Ors.Vs. State of Assam (2012)2 SCC 34 4 Sri Rabindra Kumar Dey Vs. State of Orissa (1976)4 SCC 233 5 Prem Kumar Gulati and Anr. Vs. State of (2014)14 SCC 646 Haryana 6 L.K. Advani Vs. CBI 1997 CrLJ 2559 7 Nabi Mohamad Chand Hussain and Ors. 1980 CrLJ 860 Vs. State of Maharashtra 8 State of Kerala Vs. P. Sugathan & Anr. (2000)8 SCC 203 A-3 Amit Goyal was thus prayed to be acquitted. Arguments on behalf of A-4 H.C. Gupta
56. As regard A-4 H.C. Gupta Secretary Coal and Chairman Screening Committee, it was vehemently argued by Ld. Sr. Advocate Sh. Mohit Mathur that the prosecution has miserably failed to prove its case against him by any cogent, convincing or legally admissible evidence. It was submitted that prosecution is merely trying to draw certain presumptions based on conjectures and surmises and the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 45 of 350 same being not borne out either from the facts and circumstances of the case or from the evidence led by prosecution so the same can not be relied upon. It was also submitted that even the observations of Hon'ble Supreme Court in the order dated 25.08.2014 passed in the case Manohar Lal Sharma case (Supra), can not be relied upon as in the said matter Hon'ble Supreme Court only dealt with the legality of the process itself and not of the criminality of the person involved. It was also submitted that a purported exercise of power by a public functionary may be unlawful but need not be wrongful or criminal. It was also submitted that prosecution is duty bound to prove malice, knowledge or reckless indifference on the part of A-4 H.C. Gupta so as to bring his acts within the four corners of a criminal offence.
57. It was also submitted that in order to appreciate the role played by A-4 H.C. Gupta as Secretary, Coal or as Chairman, Screening Committee the functioning of a Ministry under Government of India needs to be seen and understood in the light of provisions of the "Central Secretariat Manual of Office Procedure" (hereinafter referred to as "Manual of Office Procedure"). The procedure as to how meeting of an inter-ministerial body or that of an inter-state body is to be conducted or the manner of recording of minutes thereof as provided in Central Secretariat Manual of Office Procedure needs to be seen and appreciated. It was also submitted that as all the acts were done by A-4 H.C. Gupta in the routine course of discharge of official business of the Ministry and that of Screening Committee, so a presumption as to the correctness of the official acts needs to be CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 46 of 350 drawn in favour of the accused under illustration (e) and (f) to Section 114 of Indian Evidence Act, 1872. It was submitted that the applications so received pursuant to advertisement issued by MOC were dealt with and processed in MOC or by the Screening Committee in accordance with the past practice and procedure being followed in MOC or by the Screening Committee. It was also submitted that certain oral statements of some prosecution witnesses sought to be relied upon by prosecution such as that of PW-11, Sh. S.K. Mishra, PW-12 Sh. Amalendu Khamaru, PW-13 Sh. V.S. Rana, PW-16 Sh. N.R. Dash and PW-18 IO DSP Sanjay Dubey can not be believed in so far as they are contrary to the official records of their respective Ministries/Departments. It was thus submitted that the correctness of the official records should be thus presumed to be in favour of accused by the Court.
58. It was also submitted that as admittedly all the acts in question were performed in the discharge of his official duties by A-4 H.C. Gupta so cognizance of none of the offences under IPC could have been taken without prior sanction u/s 197 Cr.PC.
59. As regard charge of criminal conspiracy, it was submitted that the very basic essential ingredient of meeting of minds between accused persons has not been proved by the prosecution. It has not been proved that accused had any knowledge of the acts committed by the other accused persons much less that of the private parties involved. It was also submitted that though prosecution has sought to prove the charge of criminal conspiracy i.e. u/s 120-B IPC by way of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 47 of 350 circumstantial evidence but not only the said circumstances have not been individually proved by the prosecution beyond shadows of all reasonable doubts but the said circumstances also do not form a complete chain pointing to the guilt of accused only. It was submitted by Ld. Sr. Advocate that in order to arrive at a decision as to whether the said circumstances have been individually proved by the prosecution or not much less whether the complete chain of circumstances has been proved or not, only such evidence led by prosecution can be considered which has been legally proved as per the provisions of Indian Evidence Act, 1872.
60. As regard the testimony of PW-11 Sh. S.K. Mishra the then Secretary, Mining, Government of Madhya Pradesh who attended the final Screening Committee meeting on 03.07.08, it was submitted that the witness apparently did not state the correct facts. It was submitted that though PW-11 Sh. S.K. Mishra stated that he carried only the recommendation of Government of Madhya Pradesh as was made in favour of M/s BLA Power Ltd. with him and no other document, but, from the over all facts and circumstances of the case it was clear that PW-11 Sh. S.K. Mishra had duly gone through the file of Government of Madhya Pradesh wherein the issue of making recommendation in favour of various applicant companies was dealt with. It was also submitted that PW-11 Sh. S.K. Mishra before being transferred as Secretary, Mines was posted in the office of Chief Minister, Government of Madhya Pradesh and he had dealt with the said file when the evaluation of various applications was being done by CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 48 of 350 Government of Madhya Pradesh. It was submitted that PW-11 Sh. S.K. Mishra thus can not now claim that he had not gone through the said file before coming to attend the meeting of Screening Committee. It was also submitted that as M/s BLA Power Ltd. was admittedly not an eligible company qua "Thesgora-B/Rudrapuri" Coal Block since the said coal block was reserved for non power sector companies, so after broad discussion and deliberation in the Screening Committee, it was unanimously decided that the said coal block be jointly allocated in favour of A-1 M/s KSSPL and M/s Revati Cement Pvt. Ltd. It was pointed out that the said two companies were admittedly ranked at No. 2 and 3 after M/s BLA Power Ltd. by Government of Madhya Pradesh in their file while evaluating various applications. It was also submitted that even otherwise PW-11 Sh. S.K. Mishra did not make any objection or dissenting note either at the time of signing the recommendation sheets of 36th Screening Committee or subsequently after reaching Madhya Pradesh or even after receiving the final minutes of 36th Screening Committee. It was thus submitted that the said facts clearly goes to show that the decision to jointly allocate "Thesgora-B/Rudrapuri" Coal Block in favour of M/s KSSPL and M/s Revati Cement Pvt. Ltd. was unanimous and PW-11 Sh. S.K. Mishra was a party to the said decision. It was thus submitted that no reliance can be placed upon the oral deposition of PW-11 Sh. S.K. Mishra in so far as the same is contrary to the records of the case.
61. It was also submitted by Ld. senior Advocate Sh. Mohit CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 49 of 350 Mathur that the guidelines issued by MOC alongwith the advertisement, in fact referred to checking of applications for their eligibility and completeness and no scrutiny of the applications was to be carried out. It was thus submitted that the charge against A-4 H.C. Gupta that scrutiny of the applications was to be carried out in MOC before sending one set of the applications to the State Government and Administrative Ministries is thus not based on the guidelines issued by MOC governing allocation of coal blocks. While referring to the deposition of PW-13 Sh. V.S. Rana and PW-16 Sh. N.R. Dash, it was submitted that the completeness of the application primarily meant that it was accompanied with all the annexures as were required to be enclosed with the application in terms of the guidelines issued by MOC. Accordingly the bank draft of Rs. 10,000/- was also one such document required to be annexed with the application.
62. As regard eligibility of the applicant companies, it was submitted that as per the guidelines issued, the applicant was to be a company registered under the Indian Companies Act, 1956, and that it should be engaged in one of the end uses i.e. steel, iron, power, cement etc. It was also a requirement that the application should have been received in MOC on or before 12.01.2007. It was thus submitted that the use of the word "scrutiny" was clearly a misnomer as the said word as contrasted to "checking of applications" enormously increased the scope of work which was required to be carried out by MOC as per the guidelines. While placing strong reliance upon "Central Secretariat Manual of Office Procedure", it CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 50 of 350 was submitted by Ld. Sr. Advocate that the provisions of the said Manual of Office Procedure were required to be mandatorily followed by the public servants. It was also submitted that no work in a Ministry can be carried out merely on the basis of oral instructions and if at all oral instructions are given by any senior officer then as per the provisions of Central Secretariat Manual of Office Procedure, it is the duty of junior officer to reproduce the said oral instructions on the file and to get the said note approved from the senior officer giving such oral instructions. It was thus pointed out that the deposition of PW-13 Sh. V.S. Rana who stated that he had informed orally both to A-4 H.C. Gupta, Secretary Coal and A-5 K.S. Kropha, Joint Secretary Coal that no checking of the applications for their eligibility and completeness was carried out or that the processing of the applications in MOC by CA-I Section was carried out as per the oral instructions given by the senior officers thus can not be relied upon being contrary to the records of the case. While placing reliance upon the case T.S.R. Subramanyam and Ors. Vs. Union of India and Ors. (2013) 15 SCC 732, it was submitted that if any civil servant has acted on oral instructions or directions of anybody and has not reproduced the same on the official files for getting it approved from the said senior officer who has given oral directions/instructions then the said civil servant will be taking a risk and his oral deposition at a later stage can not be relied upon.
63. It was also submitted by Ld. senior Advocate that as provided in the Central Secretariat Manual of Office Procedure a Section in CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 51 of 350 any Ministry or Department is a basic work unit responsible for attending to items of work allotted to it and is usually headed by a Section Officer. It was also pointed out that a department is primarily responsible for formulation of policies of the Government in relation to business allocated to it and also for the execution and review of those policies. However for efficient disposal of business allotted, a department is divided into wings, divisions, branches and sections/units/cells.
64. It was thus submitted that PW-13 Sh. V.S. Rana in his deposition stated that the work relating to allocation of captive coal blocks was allotted to CA-I Section in MOC and thus after the guidelines were formulated by MOC governing allocation of coal blocks it was primarily the job of CA-I Section only to ensure that the said guidelines are duly complied with. It was submitted that a Secretary of the Ministry who primarily acts as an advisor to the Minister-in-charge and is though administrative head of the Ministry cannot be expected to personally look into the work of each and every section of the Ministry. It was submitted that A-4 H.C. Gupta as Secretary, coal was having 15 sections in his Ministry and there were various Additional Secretaries, Joint Secretaries and Directors working in MOC who were looking after the work of different sections. It was thus submitted that A-4 H.C. Gupta as Secretary can not be expected to look into the work of each officer or section in the Ministry. It was also submitted that whenever any file used to be put- up to A-4 H.C. Gupta as Secretary Coal then also he acted on the file CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 52 of 350 on the belief and presumption that the work undertaken by various officers and sections of the Ministry has been properly carried out and thus on every occasion he as Secretary, Coal could not have perused the entire file.
65. It was also submitted by Ld. senior Advocate Sh. Mohit Mathur that admittedly there is no noting in the files of MOC that senior officers were ever informed by CA-I Section that the checking of applications for their completeness and eligibility has not been carried out. It was pointed out that PW-13 Sh. V.S. Rana, Under Secretary, MOC himself has admitted that four copies of the applications were sent to concerned State Governments and Administrative Ministries after obtaining approval from him only. Admittedly the file in this regard did not travel to the desk of senior officers. It was however pointed out that on several other occasions PW-13 Sh. V.S. Rana had put up the file before senior officers but at the time of sending applications the matter was never brought to the notice of senior officers as the applications were dealt with and processed in the Ministry as per past practice and procedure being followed. It was also submitted that whenever on an earlier occasion a note was put up before A-4 H.C. Gupta as Secretary, Coal for seeking additional staff then the same was duly approved by him and thus there was no reason as to why accused would not have permitted additional staff to CA-I Section if it was brought to his knowledge that checking of applications for eligibility and completeness was not carried out due to shortage of staff. The CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 53 of 350 deposition of PW-13 Sh. V.S. Rana was thus stated to be full of contradictions and as being untrustworthy and unreliable. It was thus submitted by Ld. senior Advocate that prosecution has miserably failed to bring on record anything which could show that there was any meeting of mind between A-4 H.C. Gupta and the private parties involved or the other officers of MOC.
66. As regard consideration of application of A-1 M/s KSSPL by the Screening Committee despite it being not complete, it was submitted that only during the course of investigation of the present case it came to the notice of A-4 H.C. Gupta that the application of A-1 M/s KSSPL was not complete. Moreover as per the guidelines all the applications were to be put up before Screening Committee and MOC on its own could not have with-held any application from the Screening Committee.
67. As regard the issue of certain applicant companies having not made presentation or having not submitted the feedback form it was submitted that it was unanimously decided that irrespective of any applicant company making a presentation before the Screening Committee or not, the applications of all applicant companies were to be considered. It was also submitted that the making of presentation before the Screening Committee or the submission of the feedback form was not a requirement of the guidelines issued by MOC governing allocation of coal blocks but the only purpose was to know the latest status of development made by a company towards establishing its end use project since from the time of submission of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 54 of 350 initial application forms considerable time had elapsed.
68. As regard the issue of post recommendation scrutiny of the applications, it was submitted by Ld. senior Advocate that the guidelines issued by MOC were completely silent about carrying out post recommendation scrutiny of the applications. Moreover after the recommendation of the Screening Committee came to be approved by the competent authority i.e. Prime Minister as Minister of Coal then the question of carrying out any scrutiny of the applications for their eligibility and completeness did not arise.
69. As regard the role of A-4 H.C. Gupta as Chairman, Screening Committee, it was submitted that except the role of holding the meeting of the Screening Committee he alongwith all other members of the Screening Committee stood on the same footing. It was pointed out that the office memorandum vide which the Screening Committee came to be constituted did not stipulate any stand-alone role of Chairman Screening Committee as different from that of other members of the Committee. While referring to the deposition of PW- 16 Sh. N.R. Dash, it was pointed out that all the decisions were arrived at by the Screening Committee after due discussion and deliberations and the same were unanimous in nature.
70. Ld. senior Advocate Sh. Mohit Mathur also referred to the applications of all the 10 applicant companies who had applied for "Thesgora-B/Rudrapuri" coal block and stated that the two companies M/s KSSPL and M/s Revati Cement Pvt. Ltd. were best placed CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 55 of 350 companies amongst all the applicant companies who could have been allotted the said coal block by the Screening Committee.
71. As regard M/s Birla Corporation Ltd. it was submitted that in the 36th Screening Committee itself the said company was recommended for allocation of another coal block i.e. "Bikram coal block". As regard M/s Prism Cement Ltd., Satna, it was submitted that the company was allocated a coal block in the 34th meeting of the Screening Committee and thus it was not considered for allocation of any coal block by the 36th Screening Committee.
72. As regard preparation of minutes of 36th Screening Committee meetings, it was submitted that the same were prepared in accordance with the provisions of manual of office procedure. It was submitted that had there been any dissent or contrary view/opinion in arriving at its final decision by the Screening Committee then the minutes would have mentioned the same. It was thus pointed out that since the final recommendations of the Screening Committee were unanimous so in the minutes no contrary views or opinion find mention.
73. It was further submitted that if the entire discussion which took place in the meeting was to be reproduced then the minutes of the meeting would have run into hundreds of pages. It was also submitted that there was no requirement under the guidelines issued by MOC to prepare any inter-se merit or comparative chart and in fact from the final recommendation arrived at by the Screening Committee CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 56 of 350 it is clear that inter-se merit was arrived at after duly taking into consideration all the relevant factors. It was also submitted that prosecution has failed to examine PW Sanjiv Mittal, Director, CA-I MOC who could have actually thrown light as to the circumstances under which applications were processed in MOC before they were sent to Administrative Ministry/State Governments/CMPDIL. It was also submitted that even no officer from PMO was examined by the prosecution and thus adverse inference ought to be drawn against prosecution that the said witnesses of MOC and PMO, if examined would not have supported the case of prosecution.
74. It was thus submitted by Ld. senior Advocate that ingredients of none of the offences be that of criminal conspiracy, or that of criminal breach of trust or of criminal misconduct under P.C. Act were made out against A-4 H.C. Gupta. He was thus prayed to be acquitted.
Arguments on behalf of A-5 K.S. Kropha.
75. As regard A-5 K.S. Kropha Ld. Counsel Sh. B.S. Mathur adopted the arguments as were addressed by Ld. senior Advocate Sh. Mohit Mathur qua A-4 H.C. Gupta. However in addition thereto it was also submitted by Ld. Counsel Sh. B.S. Mathur that though admittedly A-5 K.S. Kropha beside being Joint Secretary MOC was also Member Convener Screening Committee but there were no rules and regulations which defined the role of member convener of any such meeting. It was thus submitted that the role of A-5 K.S.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 57 of 350 Kropha in the Screening Committee was similar to that of other Screening Committee members except that he used to convene meeting of the screening committee as and when directed by A-4, H.C. Gupta who was chairman screening Committee. It was also submitted that as Joint Secretary, MOC, A-5 K.S. Kropha was having multifarious duties and thus it could not be expected of him that he should have personally supervised the working of CA-I Section even in the circumstances when no difficulty in their working was brought to his knowledge by any of his subordinate officers in MOC. It was also submitted that from the deposition of PW-13 V.S. Rana it was clear that he had made substantial improvements over his statements made u/s 161 Cr.PC both in the present case and as made by him during investigation of other coal block allocation matters and the same were clearly in order to save his own skin and were made at the behest of CBI. It was submitted that the four officials of the office of coal controller who were deputed to MOC to assist in the receiving of the applications never met A-5 K.S. Kropha and thus PW-13 V.S. Rana falsely stated that A-5 K.S. Kropha met them during the course of their stay in Delhi or told them to carry out the work of sorting of applications only.
76. Strong reliance was placed on the provisions of Central Secretariat Manual of Office Procedure to assert that it was the job of CA-I Section only to carry out the checking of applications qua their eligibility and completeness. It was submitted that in the absence of their being any positive evidence led by prosecution that A-5 K.S.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 58 of 350 Kropha was ever informed by any of his subordinate officer/official that checking of applications qua their eligibility and completeness has not been carried out so no presumption in this regard can be drawn against the accused that checking of the applications qua their eligibility and completeness was not carried out in pursuant to a criminal conspiracy much less hatched by MOC officers with the private applicant companies.
77. It was also submitted that from the deposition of various prosecution witnesses it has clearly come on record that the decision of the screening committee was unanimous in nature and thus the chairman or member convener of the screening committee can not be singularly held liable for the decision of the entire screening committee. It was also submitted that during the course of trial it has come on record that A-1 M/s KSSPL and M/s Revati Cement Pvt. Ltd. were the most suitable companies amongst all the ten applicant companies which could have been allotted Thesgora B/Rudrapuri coal block by MOC.
78. It was also submitted that even otherwise the charge of criminal conspiracy can not hold ground against A-5 K.S. Kropha in the absence of any sanction u/s 197 Cr.PC as all the acts were admittedly done by him in the discharge of his official duties.
79. However at a later stage additional written submissions were also filed jointly for A-4 H.C. Gupta and A-5 K.S. Kropha by Ld. Counsel Sh. B.S. Mathur.
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 59 of 350
80. In the said additional written submissions, it was submitted that while it was the responsibility of PW-13 V.S. Rana being Branch In-charge CA-I Section and Under Secretary, MOC to deal with receipt and processing of applications but it was also submitted that CA-I Section followed the same procedure and practice in receipt of applications, checking and further processing as was followed qua the applications dealt with by 34th Screening Committee. It was submitted that whatever exercise of checking of applications was to be done at MOC as per the guidelines, the same was presumably done by CA-I Section, MOC as per the past practice and in compliance of orders of Secretary MOC dated 04.11.2006 as well as the rules and provisions of Manual of Office Procedure and the guidelines. It was also submitted that no incomplete applications used to be received at MOC and the case of A-1 M/s KSSPL appears to be a solitary exception where part of one document namely the audited balance sheets for two years were found not enclosed by the applicant company. It was further submitted that the said lacuna however came to the notice of the accused MOC officers only during the course of investigation of coal block allocation matters by the CBI. As regard eligibility of various applicant companies, it was submitted that all the applicant companies including A-1 M/s KSSPL were found to be eligible as per the eligibility criteria laid down in the guidelines. It was reiterated that CA-I Section at no point of time put up any note expressing difficulty in scrutinizing the applications for their eligibility and completeness even though for various issues CA-I Section used to put notes before the senior officers in the relevant files. It was also CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 60 of 350 submitted that in any case checking of applications was not the job of senior officers of the rank of Joint Secretary or Secretary but was that of CA-I Section of which PW-13 V.S. Rana was Branch In-charge and Sh. Sanjiv Mittal was Director. It was also submitted that PW-13 V.S. Rana, Under Secretary, MOC did not put up any note informing the higher officers regarding number of applications received or manner of processing the same including forwarding of the applications to the concerned stake holders for their views/recommendations.
81. It was thus submitted that as the applications were admittedly dispatched to Administrative Ministries/State Governments concerned and to CMPDIL under the signatures of PW-13 V.S. Rana only so both A-4 H.C. Gupta and A-5 K.S. Kropha remained under the impression that guidelines issued by MOC regarding checking of applications have been duly complied with. A number of contradictions/improvements were pointed out in the deposition of PW-13 V.S. Rana to show that his deposition was not reliable.
82. In support of their submissions Ld. senior Advocate Sh. Mohit Mathur for A-4, H.C. Gupta and Ld. Counsel Sh. B.S. Mathur for A-5, K.S. Kropha placed reliance upon the following case law:
S. Case Title Citation No. 1. UOI Vs. Major J.S. Khanna 1972 (3) SCC 873 2. S.P. Bhatnagar Vs. State of Maharashtra 1979 (10 SCC 535) 3. S.K. Kale Vs. State of Maharashtra 1977(2) SCC 394 CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 61 of 350 4. State of Maharashtra Vs. S.N. Thapa 1996 (4) SCC 659 5. C. Chenga Reddy and Ors. Vs. State of AP 1996 (10) SCC 193 6. R. Sai Bharathi Vs. J. Jayaalalitha & Ors. 2004 (2) SCC 9 7. Indira Dalal Vs State of Haryana (2015) 11 SCC 31 8. John Pandian Vs. State 2010 (14) SCC 129 9. State Vs. Nalini & Ors. (1999) 5 SCC 253 10 State of Kerala Vs. P. Sugathan (2000) 8 SCC 203 11 L.K. Gupta 2014 SCC Online Del 4036 Delhi High Court 12 Vinay Jain Vs. State 2015 (2) JCC 1427 13 Anil Maheshwari (2013) 136 DRJ 249 Delhi High court 14 K.R. Purshottaman Vs State of Kerela (2005) 12 SCC 631 15 Velji Raghavi Patel Vs. State of AIR 1965 SC 1433 Maharashtra 16 S.W. Palaniktar Vs. State of Bihar 2002 (1) SCC 241 17 Alagiri and Anr. Vs. State 1996 CrLJ 2978 18 Jiwan Dass Vs. State of Haryana 1999(2) SCC 530 19 L. Chandraiah Vs. State of A.P 2003 (12) SCC 670 20 R. Balakrishna Pillai Vs. State of Kerala 2003 (9) SCC 700
21 Radha Pisharassiar Amma Vs. State of 2007 (13) SCC 410 Kerala 22 Shreekantia Ramayya Munipalli Vs. State of AIR 1955 SC 287 Bombay 23 Amrik Singh Vs. State of Pepsu AIR 1955 SC 309 24 Matajog Dobey Vs. H.C. Bhari 1955(2) SCR 925 25 State of Madhya Pradesh Vs. Sheetla Sahai 2009 (8) SCC 617 & Ors.
26 Prof. N.K. Ganguly Vs. CBI 2016 (2) SCC 143 27 Runu Ghosh Vs. CBI 2011 SCC Online (Delhi) 5501
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 62 of 350 28 J. Jayalalitha Vs. State MANU/TN/1423/2 001: 2002-1-LW (Crl.) 37 29 Common Cause Vs. UOI AIR 1999 SC 2979 30 A. Subair Vs. State of Kerala 2009 (6) SCC 587 31 B. Jayaraj Vs. State of Andhra Pradesh 2014 (13) SCC 55 32 P. Satyanarayana Murthy V. District 2015 (10) SCC 152 Inspector of Police, State of Andhra Pradesh 33 N. Sunkanna Vs. State of Andhra Pradesh 2016 (1) SCC 713 34 C.K. Jaffer Sharief Vs. State through CBI (2013) 1 SCC 205 35 UOI Vs. J. Ahmed (1979) 2 SCC 286 36 Abdulla Mohd. Pagarkar Vs. State (1980) 3 SCC 110 37 Surinder Kaur Vs. State of Haryana (2014) 15 SCC 109 38 C.K. Damodaran Nair Vs. Govt of India 1997 (9) SCC 477 39 A. Sivaprakash Vs State of Kerala 2016 SCC online SC 482 40 Subhash Prabat Sonvane Vs State of Gujrat (2002) 5 SCC 86 41 Narender Singh Vs. State of MP 2004 (10) SCC 699 42 Kanhai Mishra Vs. State of Bihar 2001 (3) SCC 451 43 Bipin Shanilal Panchal Vs. State of Gujrat & (2001) 3 SCC 1 Anr.
44 Rakesh Mohindra Vs. Anita Beri 2015 SCALE (12) 412 45 Ramji Dayawala & Sons (P) Ltd. VS. Invest 1981 AIR 2085 SC :
Import (1981) 1 SCC 80 46 Jamal Uddin Ahmed Vs. Abu Saleh 2003 (4) SCC 257 Najmuddin and Anr., 47 Sarwan Singh Vs. State of Punjab AIR 1957 SC 637 48 Narender Singh and Anr. Vs. State of MP 2004 (10) SCC 699 49 Bhagirath Vs.State of Madhya Pradesh 1976 (1) SCC 233 50 Ravindra Kumar Dey Vs. State of Orissa (1976) 4 SCC 233 51 TSR Subramanian & Ors. Vs. UOI & Ors. (2013) 15 SCC 732
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 63 of 350 52 Commissioner of Police Vs. Gorhandas AIR 1952 SC 16 Bhanji 53 Mohinder Singh Gill Vs. The Chief Election AIR 1978 SC 851, Commissioner New Delhi and Ors. (1978) 1 SCC 405 54 Villianur Iyarkkai Padukappu Maiyam Vs. (2009) 7 SCC 561 Union of India 55 Jugraj Singh and Anrs. Vs. Jaswant Singh AIR 1971 SC 761, and Ors. (1970) 2 SCC 386 56 Twarku Vs. Surti AIR 1997 H.P 76 57 Kartar Singh Vs. DDA and Anr. AIR 2000 Delhi 184 58 Ashok Kumar Aggarwal Vs. CBI (2016) 227 DLT (CN B) 12
83. Prosecution was thus stated to have miserably failed in proving its case against both A-4 H.C. Gupta and A-5 K.S. Kropha. They were accordingly prayed to be acquitted.
Arguments on behalf of A-6 K.C. Samria
84. As regard A-6 K.C. Samria, the then Director, CA-I, MOC, it was submitted by Ld. Counsel Sh. Percivel Billimoria that as per the prosecution case itself accused was not posted in CA-I Section, MOC either at the time when the advertisement vide which applications were invited by MOC for allocation of captive coal blocks was issued or the applications so received were processed in CA-I Section, MOC. It was submitted that accused who was posted in CA-II Section and Vigilance Section of MOC was given additional charge of CA-I Section on 16.03.2007. It was also submitted that accused was relieved from his duties in CA-II Section and Vigilance Section on 16.07.2007 and was finally posted as Director, CA-I Section on CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 64 of 350 08.08.2007. It was further submitted that as per the prosecution case itself copies of the applications were sent to State Governments and Administrative Ministries or to CMPDIL even before 16.03.2007 i.e. the date when A-6 K.C. Samria was entrusted with the additional work of CA-I Section, MOC. It was further submitted that as per the guidelines issued by MOC itself the applications so received were to be processed by CA-I Section in as much as they were to be checked for their eligibility and completeness before being sent to various State Governments and Administrative Ministries. It was thus submitted that prosecution has not led any evidence to show that at any point of time the CA-I Section, officials/officers brought to the knowledge of A-6 K.C. Samria that the work relating to checking of applications qua eligibility and completeness has not been undertaken by them. It was in these circumstances submitted that A-6 K.C. Samria had no reason to presume that CA-I Section, MOC has not undertaken its work as was required to be done in terms of the guidelines issued by MOC. It was further submitted that in fact the job of evaluating the applications and the collating of information, its analysis much less evaluation thereof was primarily the job of Administrative Ministries and the State Governments. It was also submitted that the letters vide which applications were sent to the State Governments and Administrative Ministries and as were issued under the signatures of PW-13 Sh. V.S. Rana clearly mentioned the documents which were required to be annexed with the applications. It was thus submitted that at no point of time either before the Screening Committee meeting took place or during the course of CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 65 of 350 meeting or even subsequent thereto the Administrative Ministries or the State Governments pointed out that the documents annexed with the applications of A-1 M/s KSSPL were not complete in terms of the guidelines issued by MOC.
85. It was further submitted that admittedly A-6 K.C. Samria was not a member of the Screening Committee and his role as Director CA-I Section, MOC was only to ensure proper administrative arrangements for the Screening Committee meeting and availability of all requisite documents to the members of Screening Committee. While referring to the deposition of PW-16 N.R. Dash it was submitted that admittedly A-6 K.C. Samria was not present throughout the entire duration of meeting of Screening Committee. In these circumstances, it was submitted that even subsequent to the meeting of Screening Committee when the minutes were prepared by CA-I Section, MOC, he gave directions or information only as regard the matters which were discussed in his presence in the Screening Committee meeting. It was submitted that qua all other aspects the information and directions were given by Joint Secretary, Sh. K.S. Kropha towards preparation of minutes.
86. As regard supply of documents to members of Screening Committee, it was submitted that a chart containing the information furnished by various applicant companies was duly supplied to all the Screening Committee members. Reference in this regard was made to the deposition of PW-16 Sh. N.R. Dash who stated that in the first meeting of Screening Committee, documents were supplied to all the CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 66 of 350 members of Screening Committee. It was also pointed out that admittedly on behalf of Government of Madhya Pradesh different representatives were present in the successive Screening Committee meetings. Referring to the deposition of PW-9 Sh. Sewa Ram and PW -11 Sh. S.K. Mishra, it was pointed out that admittedly Sh. S.K. Mandal who attended the first meeting of the 36th Screening Committee meeting did not make any note in the files and also did not interact with the other representatives of the State Government of Madhya Pradesh who went to attend the successive Screening Committee meetings. It was thus submitted that on this account PW- 11 Sh. S.K. Mishra stated that in the final Screening Committee meeting no document was supplied to the members even though as per PW-16 Sh. N.R. Dash a folder containing documents was supplied to all the members of Screening Committee in the first meeting itself.
87. As regard the issue of sending copy of applications to Ministry of Power by MOC after A-6 K.C. Samria had joined CA-I Section, it was submitted that the present case pertains to coal blocks reserved for non-power sector and thus the applications relevant to the present case were sent to Administrative Ministry i.e. Ministry of Steel and to State Government of Madhya Pradesh and the same were admittedly sent prior to joining of CA-I Section by A-6 K.C. Samria.
88. As regard the application of M/s BLA Power Ltd. it was submitted that admittedly M/s BLA Power Ltd. had proposed to establish a power project and thus the said company could not have CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 67 of 350 been considered for allocation of Thesgora-B/Rudrapuri coal block which was reserved for non-power sector companies only. It was submitted that the entire issue of M/s BLA Power Ltd. was not at all relevant to the matter in issue and even prosecution has not been clear in its submissions qua the claim of said company. It was also submitted that the decision to invite all companies which had made applications for various coal blocks was made by Secretary, Coal in the meeting held on 11.05.2007 with all stake holders. As regard the request dated 10.10.2007 of M/s BLA Power Ltd., it was submitted that the same was merely forwarded to CA-I Section by A-6 K.C. Samria and no directions as such was issued to PW-13 V.S. Rana to send applications of M/s BLA Power Ltd. to Ministry of Power for their comments.
89. It was thus submitted that prosecution has miserably failed to establish the ingredients of either the offence of criminal conspiracy or that of criminal misconduct under Prevention of Corruption Act, 1988 against A-6 K.C. Samria. It was also pointed out that from the role played by A-6 K.C. Samria no inference can even be remotely drawn that he conspired either with the private parties involved or other MOC officers in order to procure allocation of Thesgora- B/Rudrapuri coal block in favour of A-1 M/s KSSPL.
A-6 K.C. Samria was thus prayed to be acquitted.
90. In support of his submissions reliance was placed on the following case law by Ld. Counsel Sh. Percivel Billimoria for A-6 K.C. Samria:
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 68 of 350 S. Case Title Citation No 1 Smt. Runu Ghosh Vs. Central Bureau of [CRL.A. 482/2002] Investigation 2 A. Subair Vs. State of Kerala [(2009) 6 SCC 587] 3 C.K. Damodaran Nair Vs. Government of India [(1997) 9 SCC 477] 4 Union of India Vs. K.K. Dawan [AIR 1993 SC 1478] 5 Union of India and Anr. Vs. Major J.S. Khanna [1972 Cr.L.J. 849] and Major I.C. Lala 6 Major S.K. Kale Vs. State of Maharashtra [1977 Cr.LJ 604;
AIR 1977 SC 822] 7 S.P. Bhatnagar and Anr. Vs. State of [1979 Crl. LJ 566] Maharashtra 8 Abdulla Mohammed Pagarkar etc. Vs. State [1980 Cr.LJ 220] (Union Territory of Goa, Daman, Diu) 9 C. Chenga Reddy & Ors. Vs. State of A.P., [1996 Cr.L.J. 3461 (SC)] 10 Bhagwan Swarup Vs. State of Maharashtra [AIR 1965 SC 682] 11 Badri Rai Vs. State [AIR 1958 SC 953] 12 Major E.G. Barsay Vs. The State of Bombay [1962 (2) SCR 195 at 228] 13 Sardar Sardul Singh Caveeshar Vs. State of [1964 (2) SCR 378] Maharashtra 14 Noor Mohammad Mohd. Yusuf Momin Vs. State [(1970) 1 SCC 696] of Maharashtra 15 Yash Pal Mittal Vs. State of Punjab [(1977) 4 SCC 540] 16 Kehar Singh and others Vs. State (Delhi [1988 (3) SCC 609] Administration) 17 State of Maharashtra and others Vs. Som Nath [1996 (4) SCC 659 Thapa and others at 668] 18 Ajay Aggarwal Vs. UOI & Ors. (1993) 3 SCC 609 19 State Represented by Inspector of Police Vs. [AIR 2009 SC 152] Saravanan and Anr., CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 69 of 350 20 State of Rajasthan Vs. Rajendra Singh [(2009) 11 SCC 106] 21 Mahendra Pratap Singh Vs. State of Uttar [(2009) 11 SCC Pradesh 334] 22 State of Rajasthan Vs. Smt. Kalki and Anr. [AIR 1981 SC 1390] 23 Syed Ibrahim Vs. State of A.P. [AIR 2006 SC 2908] 24 Arumugam Vs. State [AIR 2009 SC 331] 25 Bihari Nath Goswami Vs. Shiv Kumar Singh [(2004) 9 SCC 186] and Ors.
26 Narayan Chetanram Chaudhary and Anr. Vs. [AIR 2000 SC State of Maharashtra 3352] 27 State of Himachal Pradesh Vs. Lekh Raj and [AIR 1999 SC Anr., 3916] 28 State of Haryana Vs. Gurdial Singh [AIR 1974 SC 1871] 29 Vadivelu Thevar Vs. The State of Madras [AIR 1957 SC 614] 91. I have carefully perused the record.
92. Before I proceed to discuss the evidence led by the prosecution or by the accused persons, it will be worthwhile to note the often repeated observations of Hon'ble Supreme Court in a number of cases as regard circumstantial evidence or qua cases based on circumstantial evidence.
93. In the case Sharad Birdhichand Sarda (Supra) as has been referred to by Ld. Senior Advocate Sh. Mohit Mathur and Ld. Counsel Sh. B.S. Mathur for A-4 H.C. Gupta and A-5 K.S. Kropha, Hon'ble Supreme Court in Para 152, 153 and 154 as regard cases based on CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 70 of 350 circumstantial evidence observed as under:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant V. State of Madhya Pradesh1. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to- date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh17 and Ramgopal v. State of Maharashtra 18. It may be useful to extract what Mahajan, J. has laid down in Hanumant case :
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra19 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 71 of 350 is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendancy, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
94. Thus in the light of aforesaid well settled principles relating to appreciation of evidence in cases based on circumstantial evidence the facts and circumstances of the present case are required to be examined. It will be seen as to what all incriminating circumstances the prosecution has been successful in proving against the accused persons. Thereafter it will be seen whether all such incriminating circumstances which stands conclusively proved on record form such a chain of incriminating evidence which unerringly points towards the guilt of accused persons only or not. In other words whether the said chain of incriminating circumstances rule out any conclusion which may be consistent with the innocence of the accused persons or not.
(I) Role of Private Parties i.e. A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and A-3 Amit Goyal.
95. I thus now intend to first discuss the role of private parties involved i.e. role of A-1 M/s KSSPL, A-2 Pawan Kumar Ahluwalia and CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 72 of 350 A-3 Amit Goyal in the alleged conspiracy which led to allocation of Thesgora-B/Rudrapuri coal block in favour of A-1 M/s KSSPL.
(A) Whether the application of A-1 M/s KSSPL as submitted under the signatures of A-2 Pawan Kumar Ahluwalia was incomplete in terms of the guidelines issued by MOC governing allocation of coal blocks and was thus liable to be rejected at the initial stage of processing of applications itself by MOC.
96. In order to appreciate the aforesaid issue it will be appropriate to first refer to the guidelines issued by MOC alongwith its advertisement dated 06.11.06 and as were uploaded on the website of MOC. The said guidelines were to govern allocation of captive coal blocks. The guidelines under various heads provided information inter-alia about "How to apply", "Where to apply", "Processing of application", and various other factors on which inter-se priority was to be decided.
The said guidelines as are available at page No. 73-94 in file Ex. PW 1/H (colly) (D-2) read as under:
"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 CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 73 of 350 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:
• 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) • Document showing the person/s who has/have been authorized to sign on behalf of the applicant company while dealing with any or all matters connected with allocation of the sought coal block/s for captive mining with the Government/its agencies. This document should be duly signed and stamped by the Company Secretary of the Company. (5 copies) • 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 unusable containing carbon obtained during mining of coal or at any stage thereafter CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 74 of 350 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 • A soft copy of details, as filled in the Application Form, is also to be furnished in the specified Database Form (in MS-Excel format) in a CD along with the Application. III Applications without the above accompaniments would be treated as incomplete and shall be rejected."
(Emphasis supplied by me) "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."
"GUIDELINES FOR ALLOCATION OF CAPTIVE BLOCKS & CONDITIONS OF ALLOTMENT THROUGH THE SCREENING COMMITTEE A. GUIDELINES
1. Applications for allocation of coal blocks for captive mining for the specified end uses shall be made to the Director (CA-I) in the Ministry of Coal in five copies. The application shall be accompanied by the following in addition to any other relevant documentation that the applicant may submit:
• 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).
CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 75 of 350 • Document showing the person/s who has/have been authorised to sign on behalf of the applicant company while dealing with any or all matters connected with allocation of the sought coal block/s for captive mining with the Government/its agencies. This document should be duly signed and stamped by the Company Secretary of the Company. (5 copies) • 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 report is appraised by a lender, the appraised report shall also be submitted. (5 Copies) • Detailed Schedule of implementation (milestones and time-line for each milestone) for the proposed end use project and the proposed coal mining development project in the form of bar charts (5 copies). However, the overall time- frame proposed should not exceed the normative time ceiling prescribed.
• Detailed schedule of exploration (milestones and time- line for each milestone) in respect of unexplored blocks. However, the overall time-frame proposed should not exceed the normative time ceiling prescribed.
• Scheme for disposal of unusable 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, fines, rejects, etc. from the washery are proposed to be put. (5 copies) • Demand draft for Rs. 10,000/- in favour of PAO, Ministry of Coal payable at New Delhi.
• A Soft Copy of details, as filled in the Application Form, is also to be furnished in the specified Database Form (in MS- Excel format) in a CD along with the Application. Applications without the above accompaniments would be treated as incomplete and shall be rejected.
2. In respect of fully explored blocks, geological data may be obtained from CMPDIL, NLC or the State agency concerned, as the case may be, on nominal charges. However, full cost of exploration and geological reports would be reimbursed to the agency concerned within six (6) weeks of date of issue of allotment letter.
3. Where only regionally explored blocks are offered for CBI Vs. M/s Kamal Sponge Steel & Power Ltd. & Ors., Judgement dated 19.05.2017 Page No. 76 of 350 allocation, the detailed exploration/prospecting in the said blocks shall be done by the allocatee company under the supervision of CMPDIL.
4. Replacement of linkage with coal to be produced from the allocated captive coal block can be permitted by the Screening Committee subject to safeguarding the interest of CIL and its subsidiaries.
5. Disposal of production during the development phase of the captive mine to the local CIL Subsidiaries has been allowed at a price to be determined by the Government.
6. In order to promote scientific and proper mining the larger blocks shall not be sub-blocked into smaller ones. Only natural sub-blocks will be formed.
7. Allotment of Captive blocks to consortium of group of companies.
(i) If requirement of coal by an applicant does not match with the reserves in a natural block then clubbing of requirements may be resorted to and in case a number of applicant companies form a consortium for utilisation of a block for their captive use, the same may be considered for allocation under a legally tenable arrangement.
(ii) More than one eligible and deserving companies will be allowed to do captive mining of coal by forming a joint venture coal mining company. The constituent applicant companies would hold equity in the joint venture company in proportion to their assessed requirement of coal and the coal produced would be exclusively consumed in their respective end use projects. Distribution of coal would be in proportion to their respective assessed requirements.