CBI GUJARAT versus DILIP MULANI & ANR. on 20 August 2019

O R D E R

1. Leave granted.

2. Heard counsel for the parties.

B

3. This appeal takes exception to the judgment and order dated29.11.2017 passed by the High Court of Gujarat at Ahmedabad in CriminalRevision Application (Against order passed by Subordinate Court) No.846of 2016, whereby the High Court was pleased to set aside the decisiondated 08.07.2016 of the Trial Court rejecting the discharge applicationCfiled by respondent No.1 (Accused No.5), Dilip Mulani.

4. Respondent No.1 has been named as an accused for havingcommitted offence punishable under Section 120-B of the Indian PenalCode and Sections 7, 12, 13(2) read with Section 13(1)(d) of Preventionof Corruption Act, 1988.

D5. The Trial Court while rejecting the discharge application filedby respondent No.1 adverted to relevant facts, as can be discerned fromparagraph Nos. 13 and 14 of the judgment dated 08.07.2016. The sameread as thus:- xxx xxxxxx E

“13. Here in the present case, after registering the FIR, thoughinvestigation has been carried out by the Investigating Officerwherein it reveals that Shri Anand Singh Mall was posted asAssistant Commissioner of Customs, Shri Anand Singh Mall waslooking after all the works related to export, import and refund.FAs Assistant Commissioner on Air Cargo Complex, it was hisduty to sanction the SAD refund claim cheques in favour of theimporters. Now, so far at the involvement of the present applicantaccused is concerned, Rs.3.5 lacs and Rs.1.5 lacs of bribe moneyhas been paid to Shri Anand Singh Mall. In the said transaction asper the investigation paper, the role of the present applicationGaccused is established. As per the investigation, One ShriR.C.Pagaria, Incharge of M/s Khimji Punja Freight ForwardersPrivate Limited, Delhi, had received Rs.5 lacs on 28/08/2010through M/s. Purnima Angadia from the company’s Head Officeat Mumbai, and as per the direction of Shri Mehul Zaveri, ShriHR.C.Pagraria, had paid Rs.3.5 lacs to Shri Kishan Rajwar whose H

H

telephone number was given by Shri Anand Singh Mall duringconversation. In this regard, the diary in which Shri R.C. Pagariahad written about the receipt of Rs.5 lacs from his Mumbai Officeand delivery of Rs.3.5 lacs to Shri Kishan Rajwar, have also beenrecovered during the investigation. Not only that but during thesearch at the office of accused Shri Mehul Zaveri at Ahmedabad,one expenditure note book was also seized in which entry dated29/07/2010 addressed to Shri Dilipbhai Mulani shows “A.Mall adhoc as per the list attached show to D.M.Rs.3,50,000.-” From theabove evidence, it transpires that on 29/07/2010, Shri Mehul Zaverihad sent Rs.3,50,000/- to his Mumbai Office for effecting thepayment to Shri Anand Singh Mall at Mumbai, but, as Shri AnandSingh Mall wanted the delivery of the amount at Delhi whilediscussing with Shri Mehul Zaveri on 18/08/2010. Shri Mehul Zaveriintimated Shri Dushyant Mulani one of the Diretor of M/s KhimjiPunja Freight Forwarders Private Limited, Mumbai unit he hassent “1.5” to Shri Dilipbhai which is to be handed over to ShriAnand Singh Mall. During the said conversation Shri Mehul Zaverialso said that he had already been given “3.5” at Delhi which wassent by Shri Dilip Mulani from Mumbai. He also told that he wantsto clear dues regularly and told about making parking as requiredby Shri Mall. The conversation in entirety show that theconversation were for delivery of Rs.3.5 lacs and Rs.3.5 lakhs toShri Anand Singh Mall which was not his legitimate dues. Fromthe above conversation, the rule of the present applicant accusedShri Dilip Mulani is clearly established which incriminating him inthe said offences. Further during the investigation, the voice ofShri Anand Singh Mall and Shri Mehul Zaveri, in all theconversation, have been identified by the witnesses who are wellacquainted with their voice, and this fact can be proved afterleading the prosecution evidence and for that the full fledged trialis required to prove the guilt of the present applicant accused.

14. Further, the alleged payment of illegal gratification ofRs.1,50,000/- to Shri Mall has been corroborated by the receiptentry of dated 19/10/2010 available in the expenditure note bookmaintained by Shri Mehul Zaveri which was seized during searchat his office. The said entry in the note book is also mentioned as“Anand Mangal- Trans to B.M. @ APO Rs.1,50,000/-. Further,from the telephonic conversation dated 21/10/2010 between Shri ABCD

EF

GH

A

B

C

D

E

F

G

H

Mehul Zaveri has stated to have sent Rs.1.5 lakhs to the presentapplicant Shri Dilip Mulani for payment to Shri A. Mall From theabove entry in expenditure note book, and telephonic conversationin transcription that the present applicant accused Shri Dilip Mulaniin conspiracy with Shri Mehul Zaveri had abated the offence ofbribery and had arranged for the payment of illegal gratificationof Rs.3.5 lacs to Shri Anand Singh Mall at Delhi through hisnephew Shri Krishna Rajwar and also Shri Mehul Zaveri inconspiracy with Shri Dilip Mulani and Dushyant Mulani hadarraigned for delivery of illegal gratification of Rs.1.5 lacs to ShriAnand Singh Mall at Mumbai. From the above acts on the part ofthe present applicant accused has not been charge-sheeted onlyon the basis of Managing Director of M/s. Khimji Punja FreightForwarders Private Limited, Ahmedabad, but he has played anactive role in the present offences. So, here in the case on handlooking to the charge-sheet and documentary evidence along withthe statement of witnesses, there is a prima facie case against thepresent applicant accused to frame the charges as alleged againsthim.”

xxx

xxxxxx

Again in paragraph No.16, it concluded as follows :

xxx

xxxxxx

xxx

xxxxxx

Again in paragraph No.16, it concluded as follows :

xxx

xxxxxx

16. Further, it is submitted by the LA for the applicant accusedthat so far the charge against the applicant accused under theoffence of criminal conspiracy is concerned, there must be meetingof minds to commit some illegal act, and here in the present case,the basic ingredient of the offence of criminal conspiracy is hatchedin secrecy. Further more, the acts, omissions and conduct of theaccused are required to be considered and to arrive at theconclusion as to whether the accused was involved in theconspiracy or not? The same can be decided only at full-fledgedtrial.”

xxx

6. Respondent No.1 carried the matter before the High Court byway of revision application. The High Court vide impugned judgmenthas set aside the order passed by the Trial Court and instead allowed the discharge application by observing as follows, as noted in paragraph 19of the impugned judgment. The same reads thus :

xxx

xxxxxx

19. I have minutely gone through the entire charge-sheet papersas well as the reply filed by the C.B.I. and the contents of theimpugned order. As per the arguments made by the learnedadvocates for both the parties, the question as to whether thesufficient evidence with regards criminal conspiracy by the presentapplicant is produced on record by prosecution or not to showthat there was meeting of minds and agreement between theaccused to commit the said offence in so called conspiracy. Sofar as the main ingredient of the criminal conspiracy is concerned,it is a base of the law to have an agreement and meeting of minds.I have minutely perused the telephonic conversation as well asthe reply and documents, statements of the witnesses and at whichplace that agreement was made by the present applicant which isnot prima facie disclosed in charge-sheet papers. So far asabetment regarding illegal gratification and bribery are concerned,I have also perused the ingredients of Sections 107 and 108 of theIndian Penal Code. So far as the main ingredients of both theprovisions of law are concerned, it is the duty of the prosecutionto establish real evidence to show that under which circumstancesthe present applicant has abetted. It is true that originally in theFIR, name of the accused is not mentioned as alleged by theapplicant but it is established law that when the name of theaccused is not mentioned in the FIR, even though the case of theprosecution cannot be resulted in fatal. But, it is required to beconsidered that it is the duty of the prosecution to produce sufficientand cogent evidence regarding involvement of the accused. Inthe present case, the prosecution has relied upon the statementsof the witnesses and so called name which is disclosed whosestatement is not recorded to show that the investigation is defectiveand even from the documents produced on record i.e. receipt,conversation etc. could not connect the present applicant-accusedin the alleged offence cited by the prosecution in the charge-sheet.

xxxxxx

xxx”

If we may say so, this is the only relevant analysis of thecorrectness of the decision of the trial Court.

A

BC

D

EFG

H

A

7. After having considered the arguments canvassed by both thesides, we refrain from examining the agrument in support of the dischargeapplication on merits. We deem it just and proper to set aside the impugnedjudgment passed by the High Court which, in our opinion, to say least isperverse. To observe sobriety, we say no more.

B8. The High Court noted that it is a case of no evidence againstrespondent No.1, whereas the Trial Court had adverted to relevantevidence which in its opinion pointed towards the involvement or thecomplicity of respondent No.1 herein in the commission of the allegedcrime. It would have been a different matter if the High Court was toanalyze the factual aspects taken note of by the Trial Court and thenCrecord its finding that the facts so stated by the Trial Court are not borneout from the record. If such a finding was to be recorded by the HighCourt, we would have had the advantage of considering the correctnessof the view so taken by the High Court. However, as aforesaid, the HighCourt, in the present case, without analyzing any factual aspects of theDmatter proceeded to record that it is a case of no evidence againstrespondent No.1 and allowed the discharge application of respondentNo.1.

9. The approach of the High Court, in our opinion, is unacceptableand does not stand the test of judicial scrutiny.

E

10. We accordingly, set aside the impugned judgment and orderand remand the revision application by restoring it to the file of the HighCourt to its original number. The parties are relegated before the HighCourt for reconsideration of the Criminal Revision Application on itsown merits in accordance with law.

F

11. We make it clear that we have not expressed any opinioneither way, on the merits of the discharge application. The High Courtmay deal with all aspects in that regard as per law and shall decide theRevision Application expeditiously. We must remind the High Court thatas per the provisions of Section 19 of Prevention of Corruption Act, inGparticular, the progress of trial cannot be interdicted in any manner andis required to be completed expeditiously.

12. The appeal and pending applications are accordingly disposedof in the above terms.

HDevika Gujral

Appeal disposed of.