(Prayer: This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the proceedings in Spl.C.No.36/2014 pending against the petitioners on the file of the 32nd Additional City Civil and Sessions Judge and Special Judge for CBI cases, at Bengaluru CCH-34 vide Annexure-A and etc.)Through Video Conference:1. Accused Nos.2 and 3 in Special C.C.No.36/2014 are the petitioners in this case. Accused No.2 is the Company (M/s. Shantadurga Transport Company Pvt. Ltd.) and Accused No.3 is the Managing Director of the said Company. The material allegations against the petitioners are that they sold the seized cargo amounting to 8695 MTs which was seized and entrusted to the custody of accused No.1 Sri Mahesh Jayawanth Biliye.2. The grievance of the petitioners is that in the application filed by them seeking their discharge under Section 239 of Cr.P.C., in Paragraph Nos.5, 6, 7 and 8 they had specifically contended that accused No.2 had sold the cargo much earlier to the alleged date of the seizure by the Forest Officials. The documents produced by the Investigating Agency before the Special Judge also indicated that as on the date of seizure, the goods in question were sold to M/s. ILC Industries Limited (Accused No.4), but the learned Special Judge failed to consider any of these contentions and therefore, the impugned order is liable to be set aside. It is the further submission of the learned counsel for the petitioners that insofar as petitioner No.2 (accused No.3) is concerned, there were no allegations whatsoever in the charge sheet attracting the ingredients of the offences under Sections 120B and 420 read with Section 409 of IPC. Under the said circumstances, the order for framing charges against the petitioners is wholly illegal, groundless and is liable to be set aside by this Court.3. In support of the above submissions, the learned counsel for the petitioners has referred to various documents produced along with charge sheet especially the letter dated 05.05.2010 written by the Authorized Signatory of M/s. ILC Industries Limited (Accused No.4) to M/s. Adani Enterprises Limited, the contents of which read as under:"Reference to the above please find enclosed herewith the D.O. letter given by the above companies in favour of ILC Industries Ltd. The above material has been purchased by us before demarcation of the said cargo by Forest Department and as such we are the owner of the cargo.Also, enclosed herewith the order of Hon. High Court of Karnataka dated 04/05/2010 in favour of us for loading the cargo owned by us. Accordingly, necessary clearance obtained by us and indemnity bond furnished to concerned Departments.Please load the said cargoes to MV MOLITOR at Belekeri 06.05.2010 and oblige.4. Further, referring to the shipping bill dated 05.05.2010, the learned counsel pointed out that even the bill reflects that M/s. ILC Industries Limited was the exporter of the alleged cargo. Another letter written by M/s. ILC Industries Limited dated 11.05.2010 also indicates that the request for issuance of port clearance was sought for by M/s. ILC Industries Limited. These documents therefore prima-facie go to show that as on that day accused No.4 was dealing with the goods and the petitioners herein had nothing to do with the alleged cargo.5. Learned counsel has also referred to the service invoice raised by the stevedores in favour of M/s. ILC Industries Limited dated 13.05.2020 and would submit that this invoice also discloses that the alleged cargo was handled by stevedores and not by the petitioners and therefore, there was no material whatsoever before the trial Court to frame charges against the petitioners for the above offences.6. Further, referring to the order passed by this Court in W.P.Nos. 10347/2010 and 10708/2010 (T-TAR), the learned counsel for the petitioners emphasized that in terms of the said order M/s. ILC Industries Limited (Accused No.4) was permitted to lift the iron ore which was already sold by the petitioners. Further, referring to the another order passed by this Court in W.P.No.14551/2010, learned counsel has pointed out that under the said order, the respondents namely Deputy Conservator of Forests, Range Forest Officer and Port Conservator, Bellekeri were directed to release 33.000 M.T. iron ore seized by respondent No.2 and kept in the custody of respondent No.3 therein as per the seizure report Annexure-N. Indemnity bond was also executed by accused No.4. Therefore, it is the submission of learned counsel for the petitioners that all these documents prima-facie pointed out that the petitioners herein were not instrumental in the sale of seized cargo subsequent to the seizure of the said ore. Further, learned counsel would submit that at the first instance, learned Special Judge had framed charges against the petitioners only for the offences under Sections 379 and 420 read with Section 120B of IPC. There was no charge under Section 409 of IPC. However, while ordering for framing charges, without there being any material, learned Special Judge has directed to frame charge under Section 409 of IPC as well. The impugned order insofar as it relates to the charge under Section 409 is also liable to the quashed.7. Countering this argument, learned Special Public Prosecutor would submit that the very documents relied on by the learned counsel for the petitioners would go to show that as on the date of registration of the FOC, the seized iron ore was neither delivered to respondent No.4 nor any payment was received by the petitioners. This is evident from the fact that by the letter dated 05.05.2010, the Authorized signatory of M/s. ILC Industries Limited (accused No.4) had asked the stevedores to load the said cargo to MV MOLITOR, Belikere on 06.05.2020, which clearly indicates that as on 05.05.2010, the cargo was still in the possession of the petitioners. Further, the email exchanged between petitioner No.2 and accused No.4 (M/s. ILC Industries Limited) dated 30.03.2020 says "as discussed please find offer letter in respect of material on belikere please find herein below details of IFSC and amount to be transferred to our account". The learned Special Public Prosecutor pointed out that this email bears the name of petitioner No.2 (Accused No.3) indicating that all the transactions were personally dealt by accused No.2 (accused No.3). Even the export bill dated 05.05.2010 shows that export had taken place only on 05.05.2010 much later than the order of entrustment of the goods to the custody of accused No.1. In this regard learned special counsel referred to the order passed by this Court in W.P.No.10347/2010, which is heavily relied upon by the learned counsel for the petitioners and pointed out that even in the said order, M/s. ILC Industries Limited (accused No.4) was permitted to load iron ore other than what has been seized by the Forest Officials". Therefore, the contentions of the petitioners that by virtue of the said order, accused No.4 has lawfully exported the seized cargo falls to the ground.8. Further, placing reliance on Section 31 of Sale of Goods Act, learned Special Public Prosecutor would submit that the sale is complete only when the seller delivers the goods and accepts payment towards the sale, but in the instant case, the documents referred to above clearly indicate that as on the date of seizure and entrustment of the properties, the petitioners had neither delivered the possession of the goods to accused No.4 nor had received any payment thereof; and therefore, the petitioners cannot be absolved of their liability for dealing with said material even after knowing that the material was under the order of seizure.9. Coming to the charge under Section 409 of IPC is concerned, learned Special Public Prosecutor would submit that the said charge is primarily framed against accused No.1 to whom the entrustment was made by orders of the learned Magistrate. The petitioners herein are implicated in the alleged offence with the aid of Section 120B and 420 of IPC and abundant material is produced to show that transaction had taken place with the knowledge and connivance of the petitioners. Therefore, the learned Special Judge has not committed any error of law or fact in framing charges against the petitioners.10. With regard to the contentions urged by the learned counsel for the petitioners regarding denial of an opportunity to examine the petitioners under Section 239 of Cr.P.C. is concerned, learned Special Public Prosecutor would submit that specific prayer in this regard having not been made in the application, learned Special Judge was justified in passing the impugned order after hearing the learned counsel for the petitioners/accused in terms of Section 239 of Cr.P.C. and thus he prayed for dismissal of the petition.11. Considered the rival submissions and perused the records.12. The argument of learned counsel for petitioners that the contract between the petitioners and accused No.4 was concluded much before the seizure of the property as per the document dated 05.05.2010 is totally misplaced. I have carefully examined this document. It does not disclose any concluded contract between the petitioners and accused No.4 as contended by learned counsel for petitioners. On the other hand, a reading of this document, contents of which are extracted in para 3 of this order, clearly go to show that this document has come into existence much after the seizure of iron ore by the forest officials. Undisputedly, this seizure was reported to the learned Magistrate on 20.03.2010 and on the same day, learned Magistrate has permitted the Conservator of Ports to retain the custody of the said properties. The document dated 05.05.2010 relied on by learned counsel for petitioners refer to the demarcation of the said cargo by the Forest Department which means that as on 05.05.2020, petitioners were aware of the seizure and demarcation of cargo. This document, therefore, goes against the contention set up by the petitioners challenging the order passed by the learned Magistrate.13. The other communications exchanged between the petitioners and accused No.4 also indicate that the dealing between the petitioners and accused No.4 had taken place only after the petitioners had come to know seizure and demarcation of the alleged cargo. A reading of these documents, the contents of which are also referred to in the preceding para, would undoubtedly point out that the performance of the terms of the alleged contract was due as on 05.05.2010. Until then the subject matter of the alleged contract namely the seized cargo was neither loaded nor exported. But much before this communication, the learned Magistrate had taken the custody of this cargo and the same has been entrusted to the custody of accused No.1 as per its order dated 20.03.2010. Further, order passed by this Court in W.P.No.10347/2010 also restrained accused No.4 from loading the seized cargo. In view of these intervening events, the contract, if any, between the parties having become frustrated and unlawful, in view of section 56 of the Contract Act, none of the parties could have proceeded with the performance of the terms of the said contract even if there was any such concluded contract as contended by learned counsel for petitioners. The material collected by the CBI clearly disclose that in spite of having knowledge of seizure and demarcation of the seized cargo, petitioners acted in collusion with accused No.4 and accused No.1 and proceeded to export the seized cargo thereby rendering them liable for penal action.14. The documents relied on by the prosecution prima facie substantiate the role played by the petitioners and leave no manner of doubt that petitioners were also parties to the larger conspiracy to commit the above offences. Under the said circumstances, learned Special Judge, in my opinion, was justified in framing charges against the petitioners for the offences under sections 120B, 420 read with 409 of IPC.15. Section 20 of the Sale of Goods Act, 1930, no doubt, provides that, where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed". In the instant case, no such unconditional concluded contract has been produced by the petitioners which could dislodge the prima facie case made out by the prosecution. On the other hand, the documents brought on record clearly establish that the sale had taken place only after the seiz
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ure of the iron ore. Under the said circumstances, even if it is assumed that the ownership of the alleged goods had passed to accused No.4, yet, deferred performance of the terms of this contract having been frustrated due to the intervening events discussed above, the legal contention urged by the petitioners does not any way render the impugned order bad in law. On the other hand, in view of the prima facie material produced by the prosecution to show the involvement of the petitioners and the other accused in the transportation, sale or export of the seized cargo render them liable for the prosecution for the above offences, as such, I do not find any substance in the contentions urged by learned counsel for petitioners in this regard. Consequently, I do not find any merit in the petition so as to interfere in the impugned order.16. Insofar as right of the petitioners to examine himself at the stage of Section 239 Cr.P.C. is concerned, this question is answered by me in Criminal Petition No.368/2017 and connected matters holding that the accused have no right to examine themselves or to produce any documents eventhough such right is conferred on the court to examine the documents produced by the prosecution along with the final report filed under section 173 Cr.P.C.For the above reasons, petition being devoid of merits is liable to be dismissed. Accordingly, the petition is dismissed.