Crl.Rev.P./6/2017 of Central Bureau Of Investigation Vs Uday Nath Majhi on 27 December 2024

1. Shri. Uday Nath Majhi,Son of Late Kuani Majhi,The then Financial Adviser NEC,Shillong, Resident of RP-29 PandavNagar, Tonkpani Road,Bhubaneshwar-18.Son of Late Kuani Majhi,The then Financial Adviser NEC,Shillong, Resident of RP-29 PandavNagar, Tonkpani Road,Bhubaneshwar-18.

2. Shri. Richard Patrick Kharpuri,Son of Late R.M. Hithcock,Resident of Lummawrie,Laitumkhrah, Shillong-793003.Son of Late R.M. Hithcock,Resident of Lummawrie,Laitumkhrah, Shillong-793003.

3. Shri. Albert Donbor Kharshiing,Son of Shri. Alexander Warjri,Extension Officer (S), NEC,Shillong, Resident of Upland Road,Laitumkhrah, Shillong-793003.Son of Shri. Alexander Warjri,Extension Officer (S), NEC,Shillong, Resident of Upland Road,Laitumkhrah, Shillong-793003.

4. Shri. Peter A. Thorose,Son of Late A.A. Thorose,Principal, St. Peter’s College,Shillong, C/o St. Peter’s School,Son of Late A.A. Thorose,Principal, St. Peter’s College,Shillong, C/o St. Peter’s School, Dhankheti, Shillong-793003.

5. Smti. Dancy Dura Syiem,D/o Shri. Shron Singh Nongkhlaw,Vice Principal, St. Peter’s College,Shillong, Resident of Risa Colony,Shillong-793003.

……..Respondents

Coram:

Hon’ble Mr. Justice W. Diengdoh, Judge

Appearance:

For the Petitioner/Appellant(s): Ms. N.A.V. Sogra, Adv. vice Dr. N. Mozika, DSGI. Dr. N. Mozika, DSGI.

For the Respondent(s): Mr. P. Yobin, Adv. (For R 1 & 2) Mr. M.F. Qureshi, Adv. (For R 3) Ms. P.D. Bujarbaruah, Sr. Adv. with Mr. B.A. Wanswett, Adv. (For R 4 & 5) Mr. M.F. Qureshi, Adv. (For R 3) Ms. P.D. Bujarbaruah, Sr. Adv. with Mr. B.A. Wanswett, Adv. (For R 4 & 5)

i) Whether approved for reporting in Yes/No Law journals etc.: Law journals etc.:ii) Whether approved for publication in press:Yes/Noin press:Yes/No JUDGMENT AND ORDER

1. Challenged in this petition is the impugned order dated05.05.2016 passed by the learned Special Judge (CBI), Shillong in SpecialCase No. 5/2009 under Section 120B, 420, 467 and 471 IPC and Section13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988, whereby the respondent Nos. 1-5 as accused persons therein have been discharged from the liability of the case at the stage of considerationof charges.

2. The background facts leading to the filing of this petition isthat the Principal of St. Peters College (Respondent No. 4) had undertakena project named and styled as “Holistic Cluster Approaches at GrassrootsLevel for Sustainable Development in the North Eastern Region” in theState of Assam, Meghalaya and Arunachal Pradesh for which the NorthEastern Council (NEC) was approached for sanction of the required funds.

3. Accordingly, the NEC had sanctioned an amount of ₹4,98,50,000/- on 18.03.2005, the same to be released in installments. Atthe first instance, the NEC had released the fund in three installments, thefirst being ₹ 47,00,000/- on 22.03.2005, the second installment of ₹20,00,000/- released on 20.06.2005 and the third installment of ₹2,00,00,000/- on 25.11.2005, the total being 2,67,00,000/-.₹

4. Records would show that there were allegations ofirregularities in the implementation of the said project which prompted theCentral Bureau of Investigation (CBI) to conduct a fact-finding inquiry.Eventually, an FIR dated 08.05.2009 was filed alleging that therespondents herein, the respondent Nos. 1, 2 and 3 respectively, being

public servants as officials of the NEC, have entered into criminalconspiracy with each other and also with the respondent No. 4, thePrincipal, St. Peter’s College, Shillong and respondent No. 5, the VicePrincipal, St. Peter’s College, Shillong and in abuse of their officialpower and position, had fraudulently and dishonestly processed andrecommended the sanction for the said project submitted by respondentNo. 4 without proper evaluation of the same and also for failing toincorporate the suggestions of the Advisor (Forest & Environment), NECwhile releasing the said fund of 2,67,00,000/-.₹

5. In course of investigation, the CBI has recorded the statementsof 41 witnesses under Section 161 Cr.P.C and has also collected as manyas 124 documents to form the basis for making out a case against theaccused persons/respondents herein for the said offences aforementioned.A charge sheet dated 30.07.2010 corresponding to FIR No. RC 6 of 2009was submitted before the Court of the learned Special Judge (CBI)following which a regular case was registered as Special Case No. 5 of2009.

6. After the charge sheet was filed, on 04.07.2012, the Trial Courtproceeded to frame relevant charges against the respondents Nos. 1, 2 and 3 respectively. At that point of time, the charges could not be framedagainst the respondent Nos. 4 and 5, since they were not present in courton the day the charges were framed.

7. However, the respondent Nos. 4 & 5 filed an application underSection 91 Cr.P.C with a prayer for production of the complete set of auditstatement pertaining to the period 22.03.2005 to 31.03.2009, but the samewas rejected by the Trial Court vide order dated 21.09.2012.

8. Another application under Section 227 Cr.P.C seekingdischarge from the case was also preferred by the respondent Nos. 4 & 5respectively, this too was rejected vide order dated 31.01.2013.

9. The orders dated 21.09.2012 and 31.01.2013(supra) was thenchallenged by the said respondent Nos. 4 & 5 before this Court in Crl.Ptn.No. (SH) 11 of 2013 and Crl.Ptn No. (SH) 12 of 2013. On consideration ofsuch petitions, and upon hearing the parties, this Court has, vide orderdated 20.03.2013 rejected the prayer made in both the petitions.

10. Yet again, the respondents Nos. 4 & 5 herein have filed anapplication under Section 482 Cr.P.C read with Article 227 of theConstitution of India, with a prayer to quash the FIR dated 08.05.2009, thecharge sheet dated 30.07.2010 and the entire proceedings in Special Case No. 5/2009. Such applications being registered as Criminal Misc.Application Nos. 17 and 18(SH) of 2013 respectively, this Court onconsideration of the same has, vide order dated 31.12.2013 disposed of thetwo applications by directing the Trial Court to look into the materialevidence/documents produced by the accused respondents at the time offraming of charge and also the documents annexed with the revisionpetitions at the time of consideration of charges.

11. In compliance with the said order dated 31.12.2013, the TrialCourt vide order dated 11.12.2014 observed that the charges alreadyframed against the accused respondents Nos. 1, 2 & 3 respectively on04.07.2012 have become defunct, and hence, charges against all theaccused respondents are required to be considered afresh.

12. After allowing all the accused respondents to file documents,the learned Special Judge vide order dated 05.05.2016, has, discharged allthe accused persons therein from the liabilities of the case by holding thatthe charge sheet filed against the accused respondents Nos. 1, 2 & 3respectively was based on invalid and incomplete documents as well assuppression of relevant documents. As far as the accused respondent Nos.4 & 5 are concerned, the Trial Court found that no prima facie case is made out against them.

13. Being highly aggrieved and dissatisfied with the said orderdated 05.05.2016 passed by the Trial Court, the petitioner/CBI have nowapproached this Court with this instant revision petition with a prayer toset aside the said impugned order dated 05.05.2016.

14. Dr. N. Mozika, learned DSGI appearing for the petitioner/CBIin his argument has submitted that in the first instance, the respondentNos. 4 & 5/accused Nos. 4 & 5 realizing that the fact finding enquirywould get them into trouble, they wrote to the NEC withdrawing theirearlier Utilization Certificates dated 15.06.2005 and 26.07.2005 with aprayer for submission of a fresh Utilization Certificate. Such new UCbeing prepared on 29.09.2009 and submitted on 12.11.2010, much afterthe charge sheet was filed.

15. It is the contention of the learned DSGI that after four years ofsubmission of the Utilization Certificates, such certificates beingaccompanied by an audited statement by a Chartered Accountant, the samecannot be withdrawn or altered at any point of time.

16. Another attempt made by the said respondent Nos. 4 & 5 is thaton a finding that land was purchased by them out of the said sanctioned fund, which act of purchase was questioned, they immediately clarifiedthat the component of land was contributed from the college fund and notfrom the NEC fund.

17. The exchange of correspondences between the relevantaccused persons with the officials of the NEC, who happened to be co-accused in the case as regard the re-submission of the UtilizationCertificates as well as the so called clarification as regard the expenditureon the land component where the respondent Nos. 4 & 5 on behalf of theCollege has stated that the fund for the same was procured from thecollege funds is nothing but an eyewash to divert the course ofinvestigation. The reliance of the learned Trial Court on suchcorrespondences to discharge the said accused persons is a case ofmiscarriage of justice, submits the learned DSGI,

18. However, the learned DSGI has submitted that this Court videorder dated 31.12.2013 passed in Criminal Misc. Application Nos. 17 and18(SH) of 2013 had allowed the accused/respondent Nos. 4 & 5 toproduce relevant documents to be considered by the Trial Court at the timeof consideration of charges, therefore, it is incumbent upon the learnedTrial Court to examine such documents to see whether they are suspicious

or not, but relying on misplaced evidence, the impugned order ofdischarge was passed, the same being passed without jurisdiction,therefore, the said impugned order dated 05.05.2016 is liable to be setaside and quashed and all the accused persons named in the charge sheetbe made to face trial on appropriate charges being framed.

19. Mr. P. Yobin, learned counsel for the respondent Nos. 1 and 2replying to the argument of the learned DSGI in response, has submittedthat this Court exercising revisional jurisdiction under Section 397 Cr.P.C.is very limited and cannot be done so in a routine manner. The case ofAmit Kapoor v. Ramesh Chander & Anr, (2012) 9 SCC 460 at para 20was cited in this regard.

20. The learned counsel has also submitted that the petitioner/CBIto support its case has chosen to rely on certain documents and has allegedthat the contents of such documents, would reveal the complicity of therespondents herein, including respondent Nos. 1 & 2, however, suchreliance was made without reference to the other documents andcorrespondences which has clearly shown that the accused persons inquestion are not involved in any wrongdoing.

21. That the learned Trial Judge in the impugned order has specifically referred to certain documents which were produced by theaccused persons and which documents and correspondences were alsoannexed with the petitions filed before this Court, that is, in CriminalMisc. Application Nos. 17 and 18(SH) of 2013, wherein, vide order dated31.12.2013, this Court had directed that the Trial Court should also rely onsuch documents while considering whether charges are to be framedagainst the accused persons or not, was also pointed out by the learnedcounsel, particularly referring to para 80, 81, 82, 83, 84, 85, 86, 87, 88, 89and 90 of the impugned order, and has submitted that it is apparent that thelearned Trial Judge has considered all aspects of the case of the partieswith reference to the relevant documents and correspondences which hasrevealed that the respondent Nos. 4 & 5 have already started the projecteven before the fund was sanctioned by the NEC and certain expenditureshave been incurred in this respect, including the purchase of land for thesaid purpose, the revised Utilization Certificate have been submittedtaking this factor into account, but documents and correspondences in thisregard, have not been noted by the CBI while filing the charge sheet, thus,causing prejudice to the accused persons therein who are the respondentsherein, including respondent Nos. 1 & 2.

22. As to the case against the respondent Nos. 1 & 2, the learned

22. As to the case against the respondent Nos. 1 & 2, the learned counsel has submitted that they are not the final authority as far assanction of the project fund is concerned, inasmuch as, the saidrespondents have simply processed the paper works and on the same beingplaced before the Secretary NEC, who is the sanctioning authority, theirrole is very limited and as such, no charges could have been framedagainst them. Reference is made to the observations of the learned TrialJudge, who at para 93 and 94 of the impugned order, has come to a findingthat there is no evidence that the respondent Nos. 2 & 3 have received anypecuniary benefits for themselves and, therefore, no prima facie case ismade out against them. At para 96, the learned Trial Judge has reiteratedthat since the charge sheet has been filed on the basis of invaliddocuments, the charges against the respondent Nos. 1, 2 & 3 are notsustainable. In support of this contention, the case of State of MadhyaPradesh v. Sheetla Sahai & Ors, (2009) 8 SCC 617, para 44, 45, 49 and55 have been cited.

23. Mr. M.F. Qureshi, learned counsel for the respondent Nos. 3 inhis defence, has submitted that as far as this respondent/accused isconcerned, his role in the process is only to issue monitoring letters andreminders to A4/respondent No. 4 for timely submission of physical andfinancial progress reports, books of accounts and expenditure vouchers.

This role was duly recognized by the learned Trial Court and observationsin this respect was made in the impugned order when it was remarked thatthe A3/respondent No. 3 is not the sanctioning authority and thus, he hasnot obtained any pecuniary benefits whatsoever, therefore, no prima faciecase is made out against him.

24. The learned counsel has also referred to para 93 and 94 of theimpugned order, wherein is found the findings of the learned Trial Courtjustifying the discharge of A3/respondent No. 3 from all liabilities in thecase.

25. Mrs. P.D. Bujarbaruah, learned Sr. counsel appearing for therespondent Nos. 4 & 5 respectively has, at the outset stated the facts of thecase before the Trial Court referring to the FIR filed by the CBI on08.05.2009, wherein the respondent Nos. 4 & 5 herein have beenimplicated as accused persons being A4 and A5 on the allegation of mis-utilization of the sanctioned money under the said Project, namely‘Holistic Cluster Approaches at Grassroots Level for SustainableDevelopment in the North Eastern Region’ including the dispute arisingout of purchase of land, the relevant sections of law involved beingSection 120B, 420, 467, 471, IPC read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

26. It is the submission of the learned Sr. counsel that in course ofinvestigation, the CBI have seized a number of documents, however, oninspection of the documents by the respondent Nos. 4 & 5 herein, it wasfound that most of the vital documents such as the audited statement ofaccounts, bills and vouchers marked as M5 and M6 were not forwarded bythe CBI to the court along with the charge sheet which was submitted on30.07.2010. Also notable amongst these documents is the consolidatedUtilization Certificate dated 29.09.2009 submitted by the College to theNEC on 12.11.2010 and received by NEC on 18.11.2010, but the samewas forwarded to CBI by the NEC only on 13.02.2013, much after thecharge sheet was filed, hence, there has occurred a non-consideration ofthe relevant documents at that point of time, which has prejudiced the caseof the accused Nos. 4 & 5, who are the respondent Nos. 4 & 5 herein.

27. In the light of the facts and circumstances of the case, thelearned Trial Court have come to a correct finding as far as the impugnedorder is concerned, and as such, the same having been passed withinjurisdiction, it may not be upset by this Court, further submits the learnedSr. counsel.

28. This Court has considered the submission and contentionraised by the respective parties herein and in the context of the issuesraised, the propriety or impropriety as well as the scope of jurisdictionexercised by the learned Special Judge(CBI) in the impugned order dated05.05.2016 will be tested on the anvil of law and facts.

29. To briefly summarized, the contents of the impugned order, atthe first instance referred to the order dated 31.12.2013 passed by thisCourt in Criminal Misc. Application (SH) No. 17 and Criminal Misc.Application (SH) No. 18 of 2013 preferred by the respondent Nos. 4 & 5herein. This Court, in the operative portion of the said order, has at para 24of the same directed that “For the foregoing discussions, in the givencase, the trial court can look into the material evidence produced by thepetitioners accused at the time of framing of charge and the core questionno. 1 formulated above is answered accordingly. The core question no. 2formulated above is also answered that this Court can exercise itsjurisdiction under Section 482 Cr.P.C in the present revision petition andpresent revision petition is maintainable. Corollary of the answers are thatthe trial court shall look into the documents mentioned above and also thedocuments annexed to the revision petition, if not suspicious, at the time ofconsideration of the charge or at the time of consideration as to whether or not prima facie case against the present petitioners has been made out.The accused petitioners are to place the documents mentioned above andthe documents annexed to the present revision petition before the trialcourt at the time of consideration of the charge.”

30. Records would also show that vide order dated 11.12.2014, thelearned Special Judge(CBI) had allowed the petition filed by therespondent Nos. 2 & 3 herein to the effect that they were allowed to alsoproduce relevant documents before the Trial Court and the same to beconsidered. The charges already framed against them have been directedto be considered afresh.

31. The learned Special Judge(CBI) then went on to hear theargument of the parties on consideration of charges, that is, whethercharges are to be framed or not and whether there are sufficient materialevidence for doing so. After hearing the parties, and on consideration ofthe materials on records including the documents as indicated in thisCourt’s order dated 31.12.2013 (supra), the impugned order was passed bythe learned Special Judge (CBI) finding that on the basis of the availablematerials and evidence, no charges could be framed against all the accusedpersons, who are the respondents herein.

32. It may be pointed out that the order dated 31.12.2013 have notbeen challenged by the CBI/petitioner and the same has attained finality,as such, the learned Trial Court, on being directed has taken up the case ofthe parties for fresh consideration of charges, the same which cannot befaulted. No infirmity in this regard can be found as far as the impugnedorder is concerned.

33. The first contention of the CBI/petitioner is that the A4 andA5/respondent Nos. 4 & 5 sensing trouble, just two days before the FIR,that is, on 06.05.2009, the FIR being filed on 08.05.2009, had written tothe NEC to withdraw the Utilization Certificate filed earlier with arequest to file a fresh one. This could not have been done as once theUtilization Certificate have been submitted, the same cannot bewithdrawn.

34. On the question as regard the controversy over the submissionof the Utilization Certificates and the subsequent withdrawal of the samewith request to furnish fresh UC, in the impugned order, the learnedSpecial Judge(CBI) have recorded the arguments of the parties and haveobserved that on the basis of the available documents on record that onreceipt of the said letter dated 06.05.2009 from respondent No. 4 seeking to withdraw the said UCs, the NEC vide letters dated 25.05.2009,16.06.2009 and 05.02.2010 have asked the College to furnish the detaileditem wise expenditure with supporting vouchers. On 17.12.2009, the NECconfirmed their acceptance of the expenditure of 2.67 crores following₹which, on 12.11.2010, the College, represented by the respondent Nos. 4& 5 have then submitted the consolidated Utilization Certificates dated29.09.2009 for the period 22.03.2005 upto 31.03.2009. There is nothingon record to show that the NEC has declined or refused to accept the saidconsolidated Utilization Certificates filed by the College.

35. It is in respect of this sum of 2.67 crores which was utilized₹by the College, the concerned Official of the NEC, that is, theDirector(S&T), NEC, Dr. U.K. Mishra, who is not an accused person inthe case, in his communication to the Head of Branch, CBI-ACB,Shillong, dated 17.12.2009, has clearly indicated the acceptance of theNEC as regard the expenditure of the said 2.67 crores.₹

36. As observed by the learned Special Judge (CBI), the aboveaspect of the matter was not considered by the CBI in course ofinvestigation, nor was the same reflected in the charge sheet. As such, theinference made by the Trial Court that relevant documents and material evidence was not taken note of by the CBI during investigation, resultingin a finding that a prima facie case is made out against the accusedpersons, such finding is incorrect and not based on evidence. This findingis found acceptable by this Court.

37. Needless to say, even the controversy about the purchase ofland which was objected to by the NEC initially, when the same wasclarified that the cost of such land was borne by the College itself out ofits own fund, the NEC has accepted this explanation and as such, therecould not have been any controversy as far as this issue is concerned.

38. As has been observed by the learned Trial Court, the CBI hasnot been able to clarify as to whether the documents and evidence reliedupon at the time the charge sheet was filed are valid or not, or rather as towhether they are invalid and further, even in this instant case, nothing issaid as to whether the material evidence relied upon by the Trial Court todischarge the accused persons are suspicious and as such, it can beassumed that the learned Trial Court have found such documents/evidencefurnished by the accused persons at the time of consideration of charge notsuspicious at all.

39. The manner in which the learned Trial Court has elaborately addressed the issues involved in the impugned order, has convinced thisCourt that the same has been passed within jurisdiction and no improprietycan be imputed therein.

40. It may not be necessary to discuss the case laws cited or anyother legal authority as this Court is convinced that no infirmity hasoccurred in the passing of the impugned order, factually or legally.

41. Consequently, this Court is of the view that the impugned orderdated 05.05.2016 suffers from no jurisdictional error, the same is hereby upheld.

42. Petition disposed of. No costs.

43. The Trial Court records are to be returned back.

Judge