THE STATE BY S.P. THROUGH THE SPE CBI versus UTTAMCHAND BOHRA on 9 December 2021

[2021] 9 S.C.R. 821

THE STATE BY S.P. THROUGH THE SPE CBI

v.

UTTAMCHAND BOHRA

(Criminal Appeal No. 1590 of 2021)

DECEMBER 09, 2021

[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]

Prevention of Corruption Act, 1988 – ss.13(1)(e), 13(2) –A-1, a public servant was accused of accumulating assetsdisproportionate to his known sources of income in collusion withother accused – Respondent accused of abetting and/or conspiringwith A-1 – According to the prosecution, A-1 acquired a flat, througha company – Respondent was alleged to be close associate andfinancer of A-1 and his family – Chargesheet against the respondentquashed by High Court – On appeal, held: Role attributed to therespondent is that he helped in the execution of the sale deed of theproperty which was seized from his house and that his employeewitnessed the sale deed – The fact that the sale deed was in therespondent’s residence cannot satisfy the ingredient of any of theoffences alleged against him – An allegation of the existence ofsignatures of respondent’s employee, as a witness to the sale deedcannot amount to his aiding or abetting A-1 to acquiredisproportionate assets – FIR in the present case names only A-1and A-2 (A-1’s wife) as the accused – Respondent’s name wasincluded in the present case, although the sale deed was seizedduring a search conducted in relation to another FIR (in an earliercase wherein respondent was co-accused) and not in relation to thepresent case – The earlier case is irrelevant to the present case –Further, respondent was not a public officer or public servant –Therefore, he cannot be charged with committing an offence u/s.13(1)(e) r/w s.13(2) – There is no allegation against the respondentthat he received any benefit or that he held the property in his namefor the benefit of A-1 – The property which the Company purchasedwas in its name – Money trail for the property bought under thesale deed, does not show respondent’s involvement – There is nomaterial prima facie supporting an inference that the respondentwas either a conspirator or had abetted the commission of the

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Aoffences alleged against A-1 – Alleged offences u/ss.120-B, 109,IPC against the respondent not made out from the chargesheet –Penal Code, 1860 – ss.120B, 109 – Code of Criminal Procedure,1973 – ss.397, 401, 226-228, 239, 161.

Prevention of Corruption Act, 1988 – ss.13(1)(e), 13(2) –BPenal Code, 1860 – s.120B – Criminal misconduct by public servant– Conspiracy – Standard of suspicion – Held: Material to implicatesomeone as a conspirator acting in concert with a public servant,alleged to have committed misconduct under the PCA or amassedassets disproportionate to a public servant’s known sources ofincome, has to be on firm ground.C

Dismissing the appeal, the Court

Conclusion

HELD: 1.1 The respondent is accused of abetting and/orconspiring with the principal accused, a public servant (A-1), soas to permit him to accumulate assets disproportionate to hisknown sources of income. A-1 was a senior official of the CentralDGovernment, working in the income tax department. Accordingto the prosecution, he acquired the flat, through the company(M/s. Raviteja Trading Co. Pvt. Ltd.). Two other accused, whofacilitated the acquisition, turned approver; they also deposedduring the trail. The role attributed to the respondent is that heEhelped in the execution of the sale deed of the property, andkept custody of the title deed to it. The document was in factseized from his house. The seizure took place over a year beforethe present case was initiated; in fact, the CBI had initiatedanother criminal proceeding, in which A- 1 too was implicated. InFthat case, the CBI had seized ` 50 lakhs from him. In the presentcase, the recovery from respondent’s custody of the sale deed ofthe property, owned by the Company led to initiation of separateproceeding; inter alia, respondent was charged with criminalconspiracy, defined under Section 120A, IPC and punishable underSection 120B IPC and abetment, defined by Section 107 IPC andGpunishable under Section 109 IPC. [Para 22][838-D-G; 839-A]

1.2 Section 13 (1) (e) and Section 13 (2) of the PCA, arerelevant because the respondent was sought to be charged underthose provisions. The respondent, was not a public officer or public H

servant. He cannot therefore, be charged with committing anoffence under Section 13(1)(e) read with Section 13(2) of the PCA.There is no allegation against respondent, that he received anymonetary or other benefit, or that he held the property in hisname for the benefit of A-1. This assumes significance, becausethe property which the Company purchased, was in its name.There is no evidence against the respondent linking him to thetransaction relating to the execution of the sale deed, or allegingthat he had an agreement with A-1 and others to commit an illegalact. Further, there is no allegation of a legal act being done in anillegal manner. Therefore, the alleged offence under Section 120-B IPC against the respondent is also not made out from thecharge-sheet. The chargesheet further does not contain anyallegation which can amount to an offence under Section 109 IPC.The prosecution has not suggested that he abetted A-1 to acquiredisproportionate assets in any manner; the only allegation is thatthe title deeds to the flat, which is in the name of the Companywas seized from his custody and that he had instructed hisemployee to witness the document. An allegation of the existenceof signatures of the respondent’s employee, as a witness to thesale deed cannot amount to his aiding or abetting A-1 to acquiredisproportionate assets. Witnessing a sale deed is a formalrequirement. Likewise, the fact that the sale deed was in therespondent’s residence cannot satisfy the ingredient of any ofthe offences alleged against him. The statements of the approvers,A-3 and A-4, who were tendered pardon by the Court, do notreveal any involvement by respondent in commission of thealleged offence. During the pendency of the present proceedingsthe recording of depositions of 74 witnesses was completed. Thosewere part of this Court’s record; they do not show anyincriminating material as far as respondent is concerned.Furthermore, crucially, the money trail for the property boughtunder the sale deed, does not show the respondent’s involvement.It may implicate A-3 and A-4, however, the Court has granted apardon to them, for which they have turned approvers. The moneytrail for the purchase of flat, under the chargesheet - which isalso discussed in the impugned judgment, is that (a) the propertywas purchased by M/s. Raviteja Trading Co. Pvt. Ltd. throughsources alleged arranged by A-1 through his friend A-7; (b) A-1

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Ahad official dealings with two companies M/s. A.S. ShippingAgencies and M/s. Aban Offshore Ltd., Chennai; (c) At A-1’sreference, a company (in which A-7 is a director (M/s. Tidal DataSolutions, Bangalore)) had supplied data storage servers to thesaid two companies (M/s. A.S. Shipping Agencies and M/s. AbanOffshore Ltd.); (d) The latter two companies [M/s. A.S. ShippingBAgencies and M/s. Aban Offshore Ltd.] had made a payment ofabout ` 1 crore in excess (over and above the invoice amount) toA-7; (e) A-7 had collected the payments through cheques anddeposited them in current accounts of A-6’s companies (Utkarshlnfotech Pvt. Ltd., and Utkarsh Staffings Pvt. Ltd.); (f) On A-7’sCdirection, A-6’s companies transferred `94,82,300/- to the accountof M/s. Raviteja Trading Co. Pvt. Ltd, of which `80,00,000/- wasused by the Company (represented by approver A-4 to purchasethe property at the directions of A-1. Two demand drafts of `50lakhs and `30 lakhs were drawn by A-4. [Paras 22-25][839-A;840-C-H; 841-A-E]D

1.3 It is clear that in terms of both the chargesheet and thefinal report, respondent is not involved with the money trail orthe transaction for the purchase of the property which was acquiredby A-1, according to the prosecution. It is a fact that not only isthe investigation complete, depositions of prosecution witnessesEtoo have been recorded. There cannot be any question ofintroducing any further evidence. CBI cannot deny that therespondent’s name was included in the present case, althoughthe sale deed was seized during a search conducted in relation toanother FIR (the earlier case- CC No. 3/2013 wherein respondentFwas a co-accused and according to the prosecution his vehiclewas intercepted when he had attempted to help A-1 in transportinga bribe amount of `50 lakhs received by A-1 to a safe place)- andnot in relation to the present case, which relates to thedisproportionate assets case. The FIR in the present case namesonly A-1 and A-2 as the accused. The sale deed had already beenGseized from respondent’s house by then. The CBI had urged thatthe allegations against respondent in the earlier case can be usedagainst him in the present case although the final report in thepresent case does not make any reference to them. The finalreport in the present case was filed after the registration of FIRin CC No. 3/2013 and after the seizure of the sale deed fromH

respondent’s house. The final report makes a mention of the FIRdated 29.08.2011. There is, however, no allegation againstrespondent in the chargesheet in the present case [CC No. 5/2015] on the basis of or adopting the allegations against him inCC No. 3/2013. Thus, the two cases are separate. The allegationsagainst respondent in CC No. 3/2013 does not relate todisproportionate assets. Therefore, CC No. 3/2013 is irrelevantto the present case. [Paras 9, 26-28][841-E-H; 829-E-F;842-A-C, F]

State of J&K v. Sudershan Chakkar 1995) 4 SCC 181

: [1995] 1 Suppl. SCR 294 – relied on.

1.4 The material to implicate someone as a conspiratoracting in concert with a public servant, alleged to have committedmisconduct, under the PCA, or amassed assets disproportionateto a public servant’s known sources of income, thus, has to be onfirm ground. In the present case, only two circumstances - thecustody of the sale deed (of the property allegedly belonging toA-1) and the fact that it was witnessed by respondent’s employee- are alleged against the respondent. These are wholly insufficientto raise a reasonable suspicion, or make out a prima case againsthim, for conspiracy. As far as the respondent is concerned, theinitial burden of showing that a conspiracy existed, cannot evenbe alleged against him, given the nature of the material presentedalong with the charge sheet. An entire overview of the materialproduced before the trial court, with the charge sheet and finalreport, as well as deposition of the 74 witnesses who wereexamined during the trial, does not support CBI’s allegation ofthe respondent. He did not directly or indirectly finance thetransaction by which property was sold to M/s Raviteja TradingCo. Pvt. Ltd, which, according to that prosecution, was in fact byA-1. The respondent also is not alleged to have facilitated theflow of money to fund acquisition of the flat. The material putagainst him is that the sale deed was seized, prior to the presentcase.The other circumstance put against him is that his employeewitnessed the sale deed. The respondent is concededly neitherthe owner, nor has any links with M/s Raviteja Trading Co. Pvt.Ltd. There is no material which can prima facie support aninference that respondent was either a conspirator or had abettedthe commission of the offences alleged against the accused A-1.[Paras 29, 30, 32][843-D-F; 844-B-H; 845-A-C]

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ADeepak Surana vs. State of M.P Decision of SupremeCourt dtd. 08.02.2016 in Criminal Appeal No. 128 of2016; Central Bureau of Investigation v. K. NarayanaRao (2012) 9 SCC 512 : [2012] 9 SCR 54; P. Nallammalv. State (1999) 6 SCC 559 : [1999] 1 Suppl. SCR 135 –relied on.BNirmaljit Singh Hoon v. State of West Bengal (1973) 3SCC 753: [1973] 2 SCR 66

State of Bihar v. Ramesh Singh (1977) 4 SCC 39 : [1978]1 SCR 257; Union of India vs. Prafulla Kumar SamalC& Ors 1979 (3) SCC 4 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealENo.1590 of 2021.

From the Judgment and Order dated 25.05.2017 of the High Courtof Judicature at Madras in Criminal Revision Case No.73 of 2017.

Vikramjit Banerjee, ASG, Ms. Ranjana Narayan, Sachin Sharma,Ms. Swarupama Chaturvedi, Sugosh Subramanyam, Arvind KumarFSharma, Advs. for the Appellant.

R. Basant, Sr. Adv., Ramesh Allanki, Ms. Aruna Gupta, SiddhantBuxy, D. V. Raghu Vamsy, Syed Ahmad Naqvi, Akshay Sahay, DasariMuraleemohan, Advs. for the Respondent.

The Judgment of the Court was delivered byG

S. RAVINDRA BHAT, J.

1. This special leave petition was filed after a delay of 447 days.The successful respondent (Uttamchand Bohra, hereinafter“Uttamchand/respondent”), who was issued notice as to why delay inHfiling the petition should not be condoned, objected to the Court’s entertaining the petition, urging that the certified copy of the impugnedorder (delivered on 25.05.2017), was applied for on 13.03.2018 andeventually the petition was filed on 13.11.2018. Thus, total delay of 447days occurred in filing of the petition, which is inordinate. It was urgedthat the application for condonation should not be countenanced, as nosufficient cause was shown.

2. On behalf of the Central Bureau of Investigation (hereinafter“CBI / prosecution”), Mr. Vikramjit Banerjee, learned Additional SolicitorGeneral (hereinafter “ASG”) pointed to averments in the affidavit andsupported the application seeking condonation of delay on the groundthat the certified copy which had been originally applied for, could not becollected since the receipt was misplaced and as a result, the secondcertified copy was applied for. The matter had to be processed andofficial approvals obtained, which took some time. The final clearancefor filing the petition was given in mid-June 2018 after which it wasdrafted and eventually filed. The ASG contended that having regard tothese facts, this Court should condone the delay for filing the petition.

3. After hearing the rival arguments, this Court is of the opinionthat though the delay of over 447 days is considerable, neverthelessexplanation given by the petitioner that it lost the original receipt and hadto apply for a fresh certified copy, has to be taken note of. The delaywhich occurred after the receipt of the certified copy in the opinion ofthe Court is not of such magnitude as to warrant dismissal of theapplication i.e., I.A. No. 178754/ 2018. The application is allowed andthe delay in filing the petition, condoned.

4. Special leave granted. With the consent of counsel for theparties, the appeal was heard finally.

5. The CBI is, in this appeal, aggrieved by a judgment of theMadras High Court[1] by which, exercising jurisdiction under Section 397and Section 401 of the Code of Criminal Procedure (hereinafter “CrPC”)it quashed the charge sheet against the respondent (who was arrayed asfifth accused in C.C. No.5 of 2015, before the Special Judge for CBIcases (XII Addl. Judge, City Civil Court, Chennai (hereinafter “trialcourt”). The trial court had, by its order dated 29.12.2015, rejectedCrl.M.P.No.6873/2015, which was an application under Section 239CrPC seeking Uttamchand’s discharge.

1 Dated 25.05.2017 in CRP 73/2017.

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1 Dated 25.05.2017 in CRP 73/2017.

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A6. The CBI, through its Investigating Officer (hereinafter “IO”),after completing investigation, filed a final report on 20.02.2012 underSection 173 CrPC against five (out of seven) accused. Badhe RathnamMahesh, s/o B. S. Rathnam (A-3) and Badhe Anandh Chaitanya, s/oB.R. Mahesh (A-4) were pardoned and became approvers; they werenot sent for trial. Those sent up for trial were: (i) Andasu Ravindar, (A-B1); (ii) Kavitha Andasu, wife of A-1 (A-2); (iii) Uttamchand (A-5); (iv)Uday K. Agarwal, (A-6); and (v) Pothapragada Srinivas, (A-7). CBIalleged that the accused committed offences punishable under Section120B and Section 109 of the Indian Penal Code (hereinafter “IPC”) andSection 13(2) read with Section 13(1)(e) of the Prevention of CorruptionCAct, 1988 (hereinafter “PCA”).

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7. It was alleged in the final report that A-1, in collusion with theother accused, during the period of 01.01.2005 to 29.08.2011 amassedwealth in his name, as well as in the name of his wife (A-2) to the tuneof ` 2,32,20,296/- which was disproportionate to his known sources ofDincome for which he was not able to account satisfactorily. It was allegedthat A-2 was a house wife. She had filed her income tax returns for theassessment years 2005-06, 2006-07, 2007-08, 2009-10 and 2011 throughthe approver (A-4), a chartered accountant who had acted on behalf ofA-1 and received money from him. That money was returned to A-2 toshow as if she had earned the income through job contracts and business.EIt was further alleged that A-1 also purchased properties on severaloccasions and the income tax returns did not reflect those properties.They were purchased in Chennai in the name of M/s Raviteja TradingCo. Pvt. Ltd., Hyderabad (hereinafter also “Company”). They werepurchased only through sources arranged by A-1. On the directions ofFA-7, ` 94,82,300/- was transferred by cheques by A-6 through hiscompanies’ accounts (i.e., M/s. Utkarsh Infotech Pvt. Ltd., and M/s.Utkarsh Staffing Pvt. Ltd., Secunderabad) to the current account of M/s. Raviteja Trading Company Pvt. Ltd., Hyderabad with StandardChartered Bank, Secunderabad. After receiving that amount, M/s.Raviteja Trading Co., Pvt. Ltd., represented by approver (A-4), acquiredGthe property at Chennai on the directions of A-1. The sale considerationof ` 80,00,000/- was paid through two demand drafts each for the valueof ` 50,00,000/- and ` 30,00,000/- respectively and these two demanddrafts were purchased by the approver A-4, director of M/s. RavitejaTrading Co., Pvt. Ltd., Hyderabad through its current account and theHamount was handed over to the vendor Mr. Badruzman Khan.

8. The prosecution alleged further that the sale deed (dated13.07.2011) of the property, Flat No.4/3 (old No.28/3), measuring 2108sq. ft. in second floor at AIL-Ahad Apartment No.28 (present No.4)Nageswara Rao Road (Old No.13, Krishnamcahari Road,Nungambakkam, Chennai-34) was executed and registered underDocument No.669/2011, (hereinafter “the sale deed”) in the name ofM/s. Raviteja Trading Co. Pvt. Ltd. Though the said property waspurchased in the name of the company, its original sale deed was seizedfrom the possession of Uttamchand who was the financier and closeassociate of A-1.

9. The prosecution case, as regards Uttamchand, had two aspects:the first, relating to the seizure of the sale deed in (C.C. No.5/ 2015),and the second relating to the case in C.C. No.3/ 2013. In the presentcase, the allegation against Uttamchand is that he was a close associateand financer of A-1 and his family. The original sale deed was executedin the name of the Company. The sale deed was in his custody as perthe directions of A-1. Uttamchand thereby had rendered his activeassistance to A-1 to acquire assets in his name as well as in the name ofhis wife A-2 and in the name of the Company, during the period of01.01.2005 to 29.08.2011 which, as stated above, was disproportionateto the known sources of income of A-1 to the tune of ` 2,32,20,296/-.The percentage of disproportionate assets is calculated at 171.41% forthe total income of A-1 and A-2, which they could not satisfactorilyaccount for. The second case (hereafter called “the earlier case”) wasthat Uttamchand was a co-accused (A-3) in R.C. No. 33(A)/2011 (CC.No. 3/2013) and was facing trial in that case. According to the prosecution,his vehicle was intercepted when he had attempted to help A-1 intransporting a bribe amount of ` 50 lakhs received by him A-1 to a safeplace. That case was registered on 20.02.2012 with CBI, ACB, Chennaiunder Section 13(1)(e) PCA and Section 109 IPC.

10. Uttamchand’s complaint before the High Court was that theonly evidence relied upon by the prosecution against him was possessionof the sale deed. His argument was that even if the CBI were to provewhat it alleged - which is that his employee (V. Sridhar / PW-45) hadwitnessed the execution of the document, per se that circumstance couldnot make him criminally liable. It was also urged that since Uttamchand’srelationship with A-1 and A-2 was known to the prosecution and admittedby it, i.e. as a financer, (which was borne out by the fact that he had AB

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Aadvanced monies to A-2 and had disclosed these in the income tax returns),the sale deed, belonging to a third party, with him in no way implicatedhim. It was also urged that the deposition of V. Sridhar, or even those ofthe approvers established in any manner that Uttamchand had links withthe company which purchased the flat. That Uttamchand was to facetrial in the earlier case could not have been an incriminating circumstanceBfor him to be joined in the second case against A-1, A-2 and other accused.

11. On the other hand, the CBI urged that Uttamchand’s role asthe holder of title documents of property clearly pointed to a conspiracybetween him and A-1, the public servant. He was a facilitator for thepurchase of benami property by A-1 in the name of the company. ItCwas argued that the Court, while examining whether to frame chargesor otherwise against an accused sent up for trial, is not concerned withthe probability of truth but whether there is a reasonable suspicion of theaccused having committed an offence. Viewed from this perspective,the role attributed to Uttamchand at the stage of framing of charges,Di.e., of being in possession of the sale deed, the real owner of the propertybeing A-1, was probable reasonable cause, sufficient for the trial courtto frame charges. In any event, it was sufficient for the trial court toreject his application for discharge which it correctly did.

12. The High Court accepted the arguments on behalf ofEUttamchand Bohra. After an overall examination of the statements madeby the witnesses relied upon by the prosecution under Section 161 CrPC,the High Court concluded that the mere possession of the registeredsale deed which was witnessed by Uttamchand’s employee, could notincriminate him. It could not amount to satisfying the prescribed standard,i.e., of reasonable suspicion of commission of the crime, of beingFattributable to him, i.e., of abetment and conspiracy with a public servantto enable the latter to amass wealth which was disproportionate to hisknown sources of income. The High Court also noticed that the approver’sevidence, i.e., the statements under Section 161 CrPC, in no mannertended to implicate Uttamchand. Those statements merely pointed toGthe acquisition of property by the Company i.e., M/s.Raviteja TradingCo. Pvt. Ltd., Hyderabad.

Contentions of the prosecution

13. On behalf of the CBI, it was argued by the learned ASG thatthe chargesheet contained clear allegations of collusion which amountedH

to criminal conspiracy on the part of Uttamchand with A-1. It was pointedout that the consideration of ` 80,00,000/- paid for the property wasnever disclosed. Although A-1 contended that the property belonged tothe Company, nevertheless it was a mere front. The property waspurchased through A-1’s friend P. Srinivas, director of M/s. Tidal DataSolutions, Bangalore. A-1 had official dealings with two entities (M/s.A.S. Shipping Agencies and M/s. Aban Offshore Ltd., Chennai) to whomM/s. Tidal Data Solutions had approved unified storage servers. Thesaid P. Srinivas received payments from those companies in excess ofthe invoice value which were deposited in the account of the companiesof A-6, Udhay K. Agarwal. Those amounts were then diverted to theCompany i.e., M/s. Raviteja Trading Pvt. Ltd. which ultimately boughtthe flat.

14. It was submitted that the original sale deed purchased by thesaid companies was seized from the possession of Uttamchand. He hadno explanation as to how the sale deed was in his possession. Uttamchandwas the financer to lend money to A-2. Uttamchand’s acquiescence tothe close dealings with A-1 and A-2, the manner in which the propertywas purchased after routing the money into the account of the Company,from entities which had official dealings with A-1, and the furthercircumstances that Uttamchand’s employee was witness to the sale deed,pointed to his complicity and guilt. Therefore, the trial court correctlyframed charges against him. It was further argued that during pendencyof the present proceedings, the trial went ahead, and statements of mostwitnesses were recorded. In this context, the depositions of PW-70 andPW-71 were relied on, to say that A-1 amassed wealth illicitly and wasaided by others like Uttamchand.

15. It was urged that Uttamchand aided and assisted in theexecution of the sale deed and abetted the benami purchase made byA-1 by making his employee (PW-45) sign as a witness to the sale deed.It was also urged that during the search on 30.08.2011, at the residenceof Uttamchand, the original sale deed was seized, in addition to` 48,20,000/-. Counsel also submitted that it was clear from the statementof the chartered accountant, Siddharth Mehta (PW-73) that the saledeed was handed over to A-1 by Siddharth Mehta. The sale deedeventually was recovered from Uttamchand’s residence. This clearlyshowed the sale deed was given by A-1 himself to Uttamchand only toprotect A-1 from any legal pursuit.

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A16. The ASG also alluded to the facts of the earlier case, in R.C.No. 33(A)/2011 (CC. No. 3/2013) (registered on 29.08.2011 u/s 120BIPC r/w 7 of PCA, 1988. He submitted that A-1 organized surveyproceedings in the premises of M/S Everonn Education Ltd., Chennaiand concealed taxable income of ` 100 crore. He demanded and accepted` 50 lakhs from Shri P. Kishore on 29.08.2011 for showing undue favorBand concealing income tax liability. He further urged that the CBI teamintercepted Uttamchand going to A-1’s residence about 9.00 p.m., andassisting A-1 in transferring the money to a safe place by driving the carin which A-1 was seated. A-1 had a carton, containing ` 50 lakhs. Thus,Uttamchand colluded in transporting the bribe amount received by A-1Cto a safe place for which he arrived at the latter’s residence, which wasalso proved by telephonic surveillance.

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17. Learned ASG urged that this Court, in Nirmaljit Singh Hoonv. State of West Bengal[2 ] held that in a criminal trial, the test was whetherthere was sufficient grounds for proceeding prevalent, and not whetherDthere was sufficient ground for conviction. When there was prima facieevidence, even though person accused may have a defense, the casehad to be relegated to be decided by appropriate forum at the right stage.He also urged that strong suspicion was sufficient for framing chargesand relied on State of Bihar v. Ramesh Singh[3].

E18. Mr. R. Basant, learned Senior Counsel submitted that primafacie the prosecution failed to produce any material to implicate therespondent in the crime of conspiracy. It was submitted that most of thewitnesses had already deposed. The only other evidence available to theprosecution to connect the respondent with the crime was a confessionof the co-accused which according to the learned counsel wasFinadmissible in evidence. However, the depositions of PW-70 and PW-71 did not inculpate Uttamchand. Therefore, he contended that the HighCourt was justified in allowing his discharge application since theprosecution failed to establish even a prima facie case against therespondent.G

19. It was argued, by referring to Union of India vs. PrafullaKumar Samal & Ors[4] that the test to determine a prima facie casedepends upon the facts of each case. However, if two views are equally 2 (1973) 3 SCC 753.3 (1977) 4 SCC 39.H4 1979 (3) SCC 04

possible and the judge is satisfied that the evidence produced before himmay give rise to some suspicion but not grave suspicion against theaccused, the judge would be justified in discharging the accused. Counselalso pointed out that while exercising jurisdiction under Section 227 ofCrPC, the Court could not merely act as a Post Office or a mouth-pieceof the prosecution, but had to consider the broad probabilities of thecase, the total effect of the evidence and the documents produced beforeit, if any basic infirmities appear in the case, etc.

20. Mr. Basant urged that the High Court correctly held that merepresence of the sale deed in the respondent’s residence and otherallegations did not constitute any of the offences charged against him.The allegations against Uttamchand in the charge-sheet / final reportprima facie did not constitute any of the offences for which he wasbeing prosecuted. It was submitted that Uttamchand was not a publicservant, and could not commit an offence under Section 13(1)(e) readwith Section 13(2) of the PCA. There was no allegation that he receivedany monetary benefit, or profited from A-1’s amassing assetsdisproportionate to his income. Furthermore, there was no evidence linkingthe transaction of sale of the flat, with Uttamchand. Further, no allegationagainst Uttamchand was made in the chargesheet that may amount toan offence under Section 109, IPC.

Analysis and Findings

21. In Central Bureau of Investigation v. K. Narayana Rao[5]this Court, after reviewing the previous decisions that dealt with thequestion of the applicable standard relating to discharge of accused in acriminal case, summarized the principles in the following terms:

“13. Discharge of the accused under Section 227 of the Codewas extensively considered by this Court in P. Vijayan [(2010)2 SCC 398 wherein it was held as under: (SCC pp. 401-02,paras 10-11)

“10. … If two views are possible and one of them givesrise to suspicion only, as distinguished from gravesuspicion, the trial Judge will be empowered to dischargethe accused and at this stage he is not to see whether thetrial will end in conviction or acquittal. Further, the words‘not sufficient ground for proceeding against the accused’

5 (2012) 9 SCC 512

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clearly show that the Judge is not a mere post office toframe the charge at the behest of the prosecution, but hasto exercise his judicial mind to the facts of the case inorder to determine whether a case for trial has been madeout by the prosecution. In assessing this fact, it is notnecessary for the court to enter into the pros and cons ofthe matter or into a weighing and balancing of evidenceand probabilities which is really the function of the court,after the trial starts.

11. At the stage of Section 227, the Judge has merely tosift the evidence in order to find out whether or not thereis sufficient ground for proceeding against the accused.In other words, the sufficiency of ground would take withinits fold the nature of the evidence recorded by the policeor the documents produced before the court which ex faciedisclose that there are suspicious circumstances againstthe accused so as to frame a charge against him.”

12. The first decision in Ramesh Singh [(1977) 4 SCC 39]relates to interpretation of Sections 227 and 228 of theCode for the considerations as to discharge the accusedor to proceed with trial. Para 4 of the said judgment ispressed into service which reads as under: (SCC pp. 41-42)

“4. Under Section 226 of the Code while opening the casefor the prosecution the Prosecutor has got to describe thecharge against the accused and state by what evidence heproposes to prove the guilt of the accused. Thereafter comesat the initial stage the duty of the Court to consider the recordof the case and the documents submitted therewith and to hearthe submissions of the accused and the prosecution in thatbehalf. The Judge has to pass thereafter an order either underSection 227 or Section 228 of the Code. If ‘the Judgeconsiders that there is no sufficient ground for proceedingagainst the accused, he shall discharge the accused and recordhis reasons for so doing’, as enjoined by Section 227. If, onthe other hand, ‘the Judge is of opinion that there is groundfor presuming that the accused has committed an offencewhich— … (b) is exclusively triable by the court, he shall

frame in writing a charge against the accused’, as providedin Section 228. Reading the two provisions together injuxtaposition, as they have got to be, it would be clear that atthe beginning and the initial stage of the trial the truth, veracityand effect of the evidence which the Prosecutor proposes toadduce are not to be meticulously judged. Nor is any weightto be attached to the probable defence of the accused. It isnot obligatory for the Judge at that stage of the trial toconsider in any detail and weigh in a sensitive balancewhether the facts, if proved, would be incompatible with theinnocence of the accused or not. The standard of test andjudgment which is to be finally applied before recording afinding regarding the guilt or otherwise of the accused is notexactly to be applied at the stage of deciding the matter underSection 227 or Section 228 of the Code. At that stage theCourt is not to see whether there is sufficient ground forconviction of the accused or whether the trial is sure to endin his conviction. Strong suspicion against the accused, if thematter remains in the region of suspicion, cannot take theplace of proof of his guilt at the conclusion of the trial. But atthe initial stage if there is a strong suspicion which leads theCourt to think that there is ground for presuming that theaccused has committed an offence then it is not open to theCourt to say that there is no sufficient ground for proceedingagainst the accused. The presumption of the guilt of theaccused which is to be drawn at the initial stage is not in thesense of the law governing the trial of criminal cases in Francewhere the accused is presumed to be guilty unless the contraryis proved. But it is only for the purpose of deciding primafacie whether the Court should proceed with the trial or not.If the evidence which the Prosecutor proposes to adduce toprove the guilt of the accused even if fully accepted before itis challenged in cross-examination or rebutted by the defenceevidence, if any, cannot show that the accused committed theoffence, then there will be no sufficient ground for proceedingwith the trial. An exhaustive list of the circumstances to indicateas to what will lead to one conclusion or the other is neitherpossible nor advisable. We may just illustrate the differenceof the law by one more example. If the scales of pan as to the ABC

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guilt or innocence of the accused are something like even atthe conclusion of the trial, then, on the theory of benefit ofdoubt the case is to end in his acquittal. But if, on the otherhand, it is so at the initial stage of making an order underSection 227 or Section 228, then in such a situation ordinarilyand generally the order which will have to be made will beone under Section 228 and not under Section 227.

14. While considering the very same provisions i.e. framingof charges and discharge of the accused, again in SajjanKumar [(2010) 9 SCC 368] , this Court held thus: (SCC pp.375-77, paras 19-21)

“19. It is clear that at the initial stage, if there is a strongsuspicion which leads the court to think that there is groundfor presuming that the accused has committed an offence,then it is not open to the court to say that there is nosufficient ground for proceeding against the accused. Thepresumption of the guilt of the accused which is to be drawnat the initial stage is only for the purpose of deciding primafacie whether the court should proceed with the trial ornot. If the evidence which the prosecution proposes toadduce proves the guilt of the accused even if fully acceptedbefore it is challenged in cross-examination or rebutted bythe defence evidence, if any, cannot show that the accusedcommitted the offence, then there will be no sufficientground for proceeding with the trial.

20. A Magistrate enquiring into a case under Section 209CrPC is not to act as a mere post office and has to come toa conclusion whether the case before him is fit forcommitment of the accused to the Court of Session. He isentitled to sift and weigh the materials on record, but onlyfor seeing whether there is sufficient evidence forcommitment, and not whether there is sufficient evidencefor conviction. If there is no prima facie evidence or theevidence is totally unworthy of credit, it is the duty of theMagistrate to discharge the accused, on the other hand, ifthere is some evidence on which the conviction mayreasonably be based, he must commit the case. It is alsoclear that in exercising jurisdiction under Section 227

CrPC, the Magistrate should not make a roving enquiryinto the pros and cons of the matter and weigh the evidenceas if he was conducting a trial.

Exercise of jurisdiction under Sections 227 and 228 CrPC

21. On consideration of the authorities about the scopeof Sections 227 and 228 of the Code, the followingprinciples emerge:

(i) The Judge while considering the question of framingthe charges under Section 227 CrPC has the undoubtedpower to sift and weigh the evidence for the limited purposeof finding out whether or not a prima facie case againstthe accused has been made out. The test to determine primafacie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclosegrave suspicion against the accused which has not beenproperly explained, the court will be fully justified inframing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or amouthpiece of the prosecution but has to consider the broadprobabilities of the case, the total effect of the evidenceand the documents produced before the court, any basicinfirmities, etc. However, at this stage, there cannot be aroving enquiry into the pros and cons of the matter andweigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the courtcould form an opinion that the accused might havecommitted offence, it can frame the charge, though forconviction the conclusion is required to be proved beyondreasonable doubt that the accused has committed theoffence.

(v) At the time of framing of the charges, the probativevalue of the material on record cannot be gone into butbefore framing a charge the court must apply its judicialmind on the material placed on record and must be satisfiedthat the commission of offence by the accused was possible.

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A(vi) At the stage of Sections 227 and 228, the court isrequired to evaluate the material and documents on recordwith a view to find out if the facts emerging therefrom takenat their face value disclose the existence of all theingredients constituting the alleged offence. For this limitedpurpose, sift the evidence as it cannot be expected even atBthat initial stage to accept all that the prosecution statesas gospel truth even if it is opposed to common sense orthe broad probabilities of the case.

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(vii) If two views are possible and one of them gives riseto suspicion only, as distinguished from grave suspicion,Cthe trial Judge will be empowered to discharge the accusedand at this stage, he is not to see whether the trial will endin conviction or acquittal.”

22. As is evident from the discussion of the facts, Uttamchand isaccused of abetting and/or conspiring with the principal accused, a publicDservant (A-1), so as to permit him to accumulate assets disproportionateto his known sources of income. A-1 was a senior official of the CentralGovernment, working in the income tax department. According to theprosecution, he acquired the flat, through the company. Two otheraccused, who facilitated the acquisition, turned approver; they also deposedEduring the trail. The role attributed to the respondent is that he helped inthe execution of the sale deed of the property, and kept custody of thetitle deed to it. The document was in fact seized from his house. Theseizure took place over a year before the present case was initiated; infact, the CBI had initiated another criminal proceeding, in which A-1 toowas implicated. In that case, the CBI had seized ` 50 lakhs from him. InFthe present case, the recovery from Uttamchand’s custody of the saledeed of the property, owned by the Company led to initiation of separateproceeding; inter alia, Uttamchand was charged with criminalconspiracy, defined under Section 120A, IPC[6] and punishable under 6 “120A. Definition of criminal conspiracy.— When two or more persons agree to do,Gor cause to be done,—(1) an illegal act, or2) an act which is not illegal by illegal means, such an agreement is designated acriminal conspiracy:Provided that no agreement except an agreement to commit an offence shall amount toa criminal conspiracy unless some act besides the agreement is done by one or moreparties to such agreement in pursuance thereof.H

Section 120B IPC and abetment, defined by Section 107 IPC[7] andpunishable under Section 109 IPC[8]. Section 13 (1) (e) and Section 13(2), which are relevant, because the respondent Uttamchand was soughtto be charged under those provisions, read as follows:

“13. Criminal misconduct by a public servant.—

(1) A public servant is said to commit the offence of criminalmisconduct,—

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(e) if he or any person on his behalf, is in possession or has,at any time during the period of his office, been in possessionfor which the public servant cannot satisfactorily account,of pecuniary resources or property disproportionate to hisknown sources of income.

Explanation. —For the purposes of this section, “knownsources of income” means income received from any lawful Explanation—It is immaterial whether the illegal act is the ultimate object of suchagreement, or is merely incidental to that object.”

7“107. Abetment of a thing.—A person abets the doing of a thing, who—First.—Instigates any person to do that thing; or Secondly.—Engages with one or more other person or persons in any conspiracy forthe doing of that thing, if an act or illegal omission takes place in pursuance of thatconspiracy, and in order to the doing of that thing; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment ofa material fact which he is bound to disclose, voluntarily causes or procures, or attemptsto cause or procure, a thing to be done, is said to instigate the doing of that thing.Illustration A, a public officer, is authorised by a warrant from a Court of Justice toapprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A thatC is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigationthe apprehension of C.

Explanation 2.—Whoever, either prior to or at the time of the commission of an act, doesanything in order to facilitate the commission of that act, and thereby facilitates thecommission thereof, is said to aid the doing of that act.”

8 “ 109. Punishment of abetment if the act abetted is committed in consequence andwhere no express provision is made for its punishment—Whoever abets any offenceshall, if the act abetted is committed in consequence of the abetment, and no expressprovision is made by this Code for the punishment of such abetment, be punished withthe punishment provided for the offence.

Explanation.—An act or offence is said to be committed in consequence of abetment,when it is committed in consequence of the instigation, or in pursuance of the conspiracy,or with the aid which constitutes the abetment.”

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Asource and such receipt has been intimated in accordancewith the provisions of any law, rules or orders for the timebeing applicable to a public servant.

(2) Any public servant who commits criminal misconduct shallbe punishable with imprisonment for a term which shall beBnot less than 3 [four years] but which may extend to 4 [tenyears] and shall also be liable to fine.”

23. The factual narration in this case would reveal that Uttamchand,the respondent, was not a public officer or public servant. He cannottherefore, be charged with committing an offence under Section 13(1)(e)Cread with Section 13(2) of the PCA. There is no allegation againstUttamchand, that he received any monetary or other benefit, or that heheld the property in his name for the benefit of A-1. This assumessignificance, because the property which the Company purchased, wasin its name. There is no evidence against the respondent linking him tothe transaction relating to the execution of the sale deed, or alleging thatDhe had an agreement with A-1 and others to commit an illegal act. Further,there is no allegation of a legal act being done in an illegal manner.Therefore, the alleged offence under Section 120-B IPC against therespondent is also not made out from the charge-sheet.

24. The chargesheet further does not contain any allegation whichEcan amount to an offence under Section 109 IPC. The prosecution hasnot suggested that he abetted A-1 to acquire disproportionate assets inany manner; the only allegation is that the title deeds to the flat, which isin the name of M/s. Raviteja Trading Co. Pvt. Ltd. was seized from hiscustody and that he had instructed his employee to witness the document.FAn allegation of the existence of signatures of Uttamchand’s employee,as a witness to the sale deed cannot amount to his aiding or abetting A-1 to acquire disproportionate assets. Witnessing a sale deed is a formalrequirement. Likewise, the fact that the sale deed was in Uttamchand’sresidence cannot satisfy the ingredient of any of the offences allegedagainst him.G

25. The statements of the approvers, A-3 and A-4, who weretendered pardon by the Court, do not reveal any involvement byUttamchand in commission of the alleged offence. During the pendencyof the present proceedings the recording of depositions of 74 witnesseswas completed. Those were part of this Court’s record; they do notH

show any incriminating material as far as Uttamchand is concerned.Furthermore, crucially, the money trail for the property bought under thesale deed, does not show Uttamchand’s involvement. It may implicateA-3 and A-4, however as stated before, the Court has granted a pardonto them, for which they have turned approvers. The money trail for thepurchase of flat, under the chargesheet - which is also discussed in theimpugned judgment, is that (a) the property was purchased by M/s.Raviteja Trading Co. Pvt. Ltd. through sources alleged arranged by A-1through his friend A-7; (b) A-1 had official dealings with two companiesM/s. A.S. Shipping Agencies and M/s. Aban Offshore Ltd., Chennai;(c) At A-1’s reference, a company (in which A-7 is a director (M/s.Tidal Data Solutions, Bangalore)) had supplied data storage servers tothe said two companies (M/s. A.S. Shipping Agencies and M/s. AbanOffshore Ltd.); (d) Th latter two companies [M/s. A.S. Shipping Agenciesand M/s. Aban Offshore Ltd.] had made a payment of about ` 1 crorein excess (over and above the invoice amount) to A-7; (e) A-7 hadcollected the payments through cheques and deposited them in currentaccounts of A-6’s companies (Utkarsh lnfotech Pvt. Ltd., and UtkarshStaffings Pvt. Ltd.); (f) On A-7’s direction, A-6’s companies transferred` 94,82,300/- to the account of M/s. Raviteja Trading Co. Pvt. Ltd, ofwhich ` 80,00,000/- was used by the Company (represented by approverA-4 to purchase the property at the directions of A-1. Two demanddrafts of ` 50 lakhs and ` 30 lakhs were drawn by A-4.

26. It is clear from the above details that in terms of both thechargesheet and the final report, Uttamchand is not involved with themoney trail or the transaction for the purchase of the property whichwas acquired by A-1, according to the prosecution. It is a fact that notonly is the investigation complete, depositions of prosecution witnessestoo have been recorded. There cannot be any question of introducingany further evidence.

27. CBI cannot deny that Uttamchand’s name was included inthe present case, although the sale deed was seized during a searchconducted in relation to another FIR (the earlier case)- and not in relationto the present case, which relates to the disproportionate assets case.The FIR in the present case names only A-1 and A-2 as the accused.The sale deed had already been seized from Uttamchand’s house bythen.

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A28. The CBI had urged that the allegations against Uttamchand inthe earlier case [CC No. 3/2013] can be used against him in the presentcase although the final report in the present case does not make anyreference to them. The final report in the present case was filed afterthe registration of FIR in CC No. 3/2013 and after the seizure of the saledeed from Uttamchand’s house. The final report makes a mention ofBthe FIR dated 29.08.2011. There is, however, no allegation againstUttamchand in the chargesheet in the present case [CC No. 5/2015] onthe basis of or adopting the allegations against him in CC No. 3/2013.Thus, the two cases are separate. The allegations against Uttamchandin CC No. 3/2013 does not relate to disproportionate assets. This Court,Cin State of J&K v. Sudershan Chakkar[9], stated that the law requiredthe Court to consider only the chargesheet and materials adduced withit. It was observed that:

“In our considered view, the learned Courts below erred inbasing their respective orders on the above findings. TheDquestion whether the respondents omitted to do theirmandatory duties for months together designedly ornegligently can be inferred only on an over all view of all thematerials collected during investigation and not in isolationas has been done by the learned Courts below. That apart ina case instituted upon a Police Report the Court is required,Eat the time of framing of the charges, to confine its attentionto documents referred to under Section 173 of the Code ofCriminal Procedure only. In that context the Court was notjustified in referring to, much less, relying upon the letterspurportedly written by the accused when, their authenticityFand veracity are yet to be gone into.”

Therefore, CC No. 3/2013 is irrelevant to the present case.

29. This Court explained the essence of conspiracy in the contextof acts or omissions, and allegations relating to conspiracy along withoffences under the PCA, in K. Narayana Rao (supra), and observedGthat:

“24. The ingredients of the offence of criminal conspiracyare that there should be an agreement between the personswho are alleged to conspire and the said agreement should H9 (1995) 4 SCC 181.

be for doing of an illegal act or for doing, by illegal means,an act which by itself may not be illegal. In other words, theessence of criminal conspiracy is an agreement to do an illegalact and such an agreement can be proved either by directevidence or by circumstantial evidence or by both and in amatter of common experience that direct evidence to proveconspiracy is rarely available. Accordingly, the circumstancesproved before and after the occurrence have to be consideredto decide about the complicity of the accused. Even if someacts are proved to have been committed, it must be clear thatthey were so committed in pursuance of an agreement madebetween the accused persons who were parties to the allegedconspiracy. Inferences from such proved circumstancesregarding the guilt may be drawn only when suchcircumstances are incapable of any other reasonableexplanation. In other words, an offence of conspiracy cannotbe deemed to have been established on mere suspicion andsurmises or inference which are not supported by cogent andacceptable evidence.”

The material to implicate someone as a conspirator acting in concertwith a public servant, alleged to have committed misconduct, under thePCA, or amassed assets disproportionate to a public servant’s knownsources of income, thus, has to be on firm ground. In the present case,only two circumstances - the custody of the sale deed (of the propertyallegedly belonging to A-1) and the fact that it was witnessed byUttamchand’s employee - are alleged against the respondent. These arewholly insufficient to raise a reasonable suspicion, or make out a primacase against him, for conspiracy.

30. It would be useful, in the context of the present case, to recollectthe decision of this Court, in P. Nallammal v. State[10 ]which observed, asfollows:

“Thus, the two postulates must combine together forcrystallization into the offence, namely, possession of propertyor resources disproportionate to the known sources of incomeof public servant and the inability of the public servant toaccount for it. Burden of proof regarding the first limb is onthe prosecution whereas the onus is on the public servant to10 (1999) 6 SCC 559

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Aprove the second limb. So it is contended that a non-publicservant has no role in the trial of the said offence and hencehe cannot conceivably be tagged with the public servant forthe offence under Section 13(1)(e) of the PC Act.”

As far as the respondent Uttamchand is concerned, the initialBburden of showing that a conspiracy existed, cannot even be allegedagainst him, given the nature of the material presented along with thecharge sheet.

31. In a recent decision, Deepak Surana v. State of M.P. – wherethe facts were somewhat, if not entirely, similar to the facts of this caseC– the Court emphasized again that suspicion is not sufficient to enableframing of a charge. It was observed, inter alia, that:

“10. In the present case, the agreements relied upon by theprosecution do not bear the signatures of the appellants. It isundoubtedly true that in Aloka Bose v. Parmatma Devi [AlokaDBose v. Parmatma Devi, (2009) 2 SCC 582 : AIR 2009 SC1527] it has been observed that an agreement of sale signedby the vendor alone is enforceable by the purchaser namedin the agreement. But the question here is whether theappellants could be said to be involved in the conspiracy.The agreements in question were not even recovered from theEcustody of the appellants and were recovered from the vendorsthemselves. The agreements being unilateral and not bearingthe signatures of the appellants, mere execution of suchagreements cannot be considered as a relevant circumstanceagainst the appellants. There is nothing on record to indicateFthat the consideration mentioned in the agreement could betraced to the appellants, nor is there any statement by any ofthe witnesses suggesting even proximity or meeting of mindsbetween the appellants and any of the other accused. In thecircumstances, the view that weighed with the Special Judgewas quite correct. The High Court was not justified in settingGaside the order passed by the Special Judge. In ourconsidered view, the material on record completely falls shortof and cannot justify framing of charges against theappellants.”

32. An entire overview of the material produced before the trialHcourt, with the charge sheet and final report, as well as deposition of the 74 witnesses who were examined during the trial, does not support CBI’sallegation of Uttamchand. He did not directly or indirectly finance thetransaction by which property was sold to M/s Raviteja Trading Co.Pvt. Ltd, which, according to that prosecution, was in fact by A-1. Therespondent also is not alleged to have facilitated the flow of money tofund acquisition of the flat. The material put against him is that the saledeed was seized, prior to the present case. The other circumstance putagainst him is that his employee witnessed the sale deed. The respondentis concededly neither the owner, nor has any links with M/s RavitejaTrading Co. Pvt. Ltd. In these circumstances, this Court is of the opinionthat no material which can prima facie support an inference thatUttamchand was either a conspirator or had abetted the commission ofthe offences alleged against the accused A-1 is made out.

33. For the foregoing reasons, this Court is of the opinion that thepresent appeal lacks merit. It is therefore dismissed with no costs.

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DAppeal dismissed.

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