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Rajendra Kumar Bagaria v/s State of Jharkhand through Central Bureau of Investigation & Another


Company & Directors' Information:- BAGARIA & COMPANY PRIVATE LIMITED [Active] CIN = U67120MH1994PTC079045

Company & Directors' Information:- RAJENDRA LIMITED [Strike Off] CIN = U99999KA1943PLC000306

Company & Directors' Information:- RAJENDRA KUMAR AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74920RJ1996PTC011712

Company & Directors' Information:- RAJENDRA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U17219TZ1948PTC000161

    Cr. Revision No. 1262 of 2016

    Decided On, 11 January 2019

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE APARESH KUMAR SINGH

    For the Petitioner: M/s. R.S.P. Sinha, Sr. Advocate,R.K. Sinha, Punit Kumar, Advocates. For the Opposite Parties: M/s. Rajiv Sinha, ASGI, Rajiv Nandan Prasad, Advocate.



Judgment Text

1. Heard learned Senior Counsel for the petitioner and the C.B.I.

2. Petitioner, who was an accused in R.C. 38(A)/1996 and facing trial before the learned Special Judge, CBI-VII, Ranchi became aggrieved by the order dated 15.07.2016 passed by the learned Trial Court where under his application for summoning opposite party no.2 as an accused in exercise of powers under Section 319 of the Cr.P.C was rejected. This petitioner has subsequently been convicted by the learned CBI Court in the same case vide judgment dated 19.03.2018 and order of sentence dated 24.03.2018. Learned Trial Court upon discussion of the plea raised and on consideration of the materials on record was pleased to hold as under:

'Heard in detail on behalf of both sides and perused the case record, from which it transpires that petitioner/accused Rajendra Bagaria is the proprietor of account no.376, State Bank of India, Pakur Bazar Branch and Anand Kumar Gutgutia is introducing the bank account because Anand Kumar Gutgutia has already holder in that branch as M/s Anand Traders and all draft is prepared in favour of M/s Krishna Road Carrier, SBI Branch, Dumka in favour of drawing bank State Bank of India, Pakur Bazar Branch who produce in the branch of proprietor Rajendra Kumar Bagaria in his signature of deposit the bank account no.376, State Bank of India, Pakur Bazar Branch and withdrawn the amount from that account by 19 cheques M/s Krishna Road Carrier Rajendra Kumar Bagaria and that payment received by the Rajendra Kumar Bagaria and that cheques were marked as Ext. no. 9 to 9/18 and draft is in favour of M/s Alfa marketing Enterprises prepared by this branch on deposit cash. In this way there is no connection with fodder scam and court found that Anand Kumar Gutgutia have no concern with account holder M/s Krishna Road Carrier proprietor of M/s Krishna Road Carrier is sole responsible for withdrawing of cash, hence the petition dt.22.12.14 u/s 319 Cr.P.C. is not maintainable, so here by stands rejected'.

3. Learned Senior Counsel for the petitioner has strenuously tried to show that the evidence on record adduced during trial in the nature of statement of P.W.2 Sukumar Sarkar, an Accountant of SBI, Pakur Branch; Anand Kumar Gutgutia, Opposite Party no.2 as P.W.30; Investigating Officer, Dhirendra Nath Biswas as P.W. 232 and also the petitioner as defence witness no.1 were sufficient to arraign opposite party no.2 as an accused in the trial. Learned Senior Counsel also referred to the order passed by the Special Judge-VII, CBI (AHD Scam), Ranchi dated 05.03.2018 in R.C. No. 38(A)/1996 where under cognizance were taken against certain persons not facing trial, in exercise of powers under Section 319 Cr.P.C . At Para-H thereof it was of the opinion that this witness Anand Kumar Gutgutia was deeply involved in the criminal conspiracy of Fodder Scam. However, since the instant criminal revision was pending before this Court, he refrained from passing an order against him.

4. Learned counsel for the C.B.I has strongly opposed the prayer. He submits that the test for summoning a person under Section 319 Cr.P.C, as held by the Apex Court in the Constitution Bench judgment in the case of Hardeep Singh Vrs. State of Punjab reported in (2014) 3 SCC 92, is to the effect that the evidence adduced during inquiry or trial should be such, which if remained unrebutted, lead to the conviction of the accused so summoned. The test is more than the prima facie case as required at the time of framing of charge. The entire evidence relied upon by the petitioner as enclosed to supplementary affidavit of these witnesses have been duly considered by the learned Trial Court to come to a definite finding that there is no connection with Fodder Scam of the opposite party no.2 for summoning him as an accused vide impugned order dated 15.07.2016. The observations made by the learned Court in the order dated 05.03.2018 were unnecessary when the learned Court was dealing with the issue of summoning of other persons as an accused under Section 319 Cr.P.C, more so when the impugned order was sub-judice before this Court in the instant criminal revision. Learned counsel has further submitted that the best case that has been put up on behalf of the petitioner is to the effect that opposite party no.2 was an introducer of the account of the petitioner in the name of M/s Krishna Road Carrier and certain payments made to this firm were deposited through pay-in- slips signed by opposite party no2. and certain drafts were prepared from this account in the name of Alpha Marketing Enterprises, a firm situated in Gujarat, which used to supply Nirma products to the firm M/s Anand Traders in the name of Anand Kumar Gutgutia at Pakur. Learned Court in the impugned order, therefore, did not find any connection with the Fodder Scam. The CBI during course of investigation also did not find such incriminating material to charge-sheet the opposite party no.2 for the offence under the Indian Penal Code and the Prevention of Corruption Act. He was examined as P.W.30 on behalf of the CBI and has supported the prosecution case.

5. Learned Senior Counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Y.Saraba Reddy Vrs. Puthur Rami Reddy and another reported in (2007) 4 SCC 773, para 8 in support of the submission that trial court can take steps to add a persons as an accused only on the basis of evidence adduced before it. The power under Section 319 Cr.P.C can be exercised by the court suo motu or on an application by someone including the accused already before it. It is submitted that the learned Trial court in the wake of such evidence, failed to exercise jurisdiction while refusing to summon the opposite party no.2 to face trial under Section 319 Cr.P.C. Learned Senior Counsel has further referred to the judgment rendered by the Apex Court in the case of Babubhai Bhimabhai Bokhiria and another Vrs. State of Gujarat and others reported in (2013) 9 SCC 500, para 10 to 13 thereof, in support of the submission that mere fact that trial has concluded, cannot prevent the prosecution of a person for the offence for which he has already been summoned by the trial court.

6. Learned counsel for the CBI has referred to a decision rendered by the Apex Court in the case Mehsana Nagrik Sahkari Bank Ltd. v. Shreeji Cab Company & others reported in (2014) 13 SCC 619 to counter the submission of learned counsel for the petitioner that application for summoning under Section 319 of the Cr.P.C cannot be made on behalf of the complainant or an accused facing trial.

7. I have considered the submission of learned counsel for the petitioner and the CBI; gone through relevant materials on record relied upon by them and also perused the impugned order. It is pertinent to advert to the ratio rendered by the Constitution Bench of the Apex Court in the case of Hardeep Singh (supra). The Apex Court had framed 5 questions to be answered while examining the scope of the power under Section 319 of the Cr.P.C. In answer to question no. 6.3(iii), the Apex court had at para 84 and 85 of the report held that the word 'evidence' should be understood in its wider sense both at the stage of trial and even at the stage of inquiry, as used under Section 319 Cr.P.C. At para 106 of the report the Apex court while dealing with question no. 6.4(iv) was pleased to observe as under:

'106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. ………………………………………….'

8. In this light, the plea raised by the petitioner is to be examined in the context of the evidence on record produced during trial as relied upon by the petitioner. Petitioner has in particular placed reliance on the evidence of P.W.2 Sukumar Sarkar, an Accountant at SBI, Pakur Branch, who has deposed that 27 bank drafts application forms prepared in the name of M/s Alpha Marketing Enterprises were filled up by Anand Kumar Gutgutia. He has further stated that the introducer of the account of M/s Krishna Road Carrier was Anand Kumar Gutgutia, opposite party no.2. Such bank draft prepared at the instance of opposite party no.2 were seized and exhibited as Ext.-10/24 to 10/26. They were prepared on the same day on which money was withdrawn from the account of M/s Krishna Road Carrier. He further stated that CBI had not interrogated him for preparation of draft in the name of Alpha Marketing Enterprises by withdrawing the money from the account of M/s Krishna Road Carrier.

P.W.32 Anand Kumar Gutgutia, opposite party no.2 herein has during course of trial deposed about the relationship with the petitioner and that he was the proprietor of M/s Anand Traders. He has admitted being the introducer in the account opening form of this petitioner. He further stated that in the year 1995 he was doing the business of Nirma products from Alpha Marketing Enterprises. He admitted having filled up pay-in-slips for depositing in the account of the petitioner and admitted that the drafts application forms which were marked as Ext.10/24-10/26 were filled up by him. A total amount of Rs.9,20,000/- were sent to Alpha Marketing Enterprises, Ahmedabad. He has further stated that he was the only distributor of Nirma products in the district of Pakur and goods were sent by Alpha Marketing Enterprises and received by him.

Other statements made and relied by the petitioner are in furtherance of these statements made. P.W.232 Dhirendra Nath Biswas, the Investigating Officer in his statement during trial stated that opposite party no.2 was the owner of Anand Traders, who was doing business of Nirma Washing Powder.

This petitioner who examined himself as defence witness no.1 deposed that he was relative of Opposite Party no.2 and was employee who had opened a current account no. 376 in the name of M/s Krisna Road Carrier. He was made proprietor of the said firm which started business of transportation and supply of fodder to the Animal Husbandry Department and was receiving the amount from the department by submitting forged bills. Those amounts were deposited in the bank account of the petitioner, which was opened by the opposite party no.2. He had withdrawn the said amount after preparation of bank drafts and sent it to Alpha Marketing Enterprise for supply of Nirma Products for his firm Anand Traders.

9. On these material evidences, learned Senior Counsel for the petitioner has questioned the findings recorded by learned Trial Court whereby the prayer for summoning of opposite party no.2 under Section 319 Cr.P.C has been rejected.

10. The learned Trial Court, as observed herein above, did not find any connection with Fodder Scam of opposite party no.2 with the account holder M/s Krishna Road Carrier i.e., petitioner. This question was repeatedly confronted to the learned Senior Counsel for the petitioner during course of hearing as well as to whether there were any material evidences on record to show that the supplies or transportation made by M/s Krishna Road Carrier of whom petitioner was the proprietor, were initiated or authored by the firm M/s Anand Traders or opposite party no.2 himself. It was further asked whether there was any material evidence on record to show that M/s Alpha Marketing Enterprises was supplier of fodder material through the petitioner’s firm to the Animal Husbandry Department at Pakur against which such fraudulent payment were received and deposited in his account. No such material has been shown on the part of the petitioner to connect the involvement of opposite party no.2 with the supplies of fodder material to the Animal Husbandry Department at Pakur through the firm of the petitioner M/s Krishna Road Carrier.

11. In the wake of such insufficient evidence, the test which is to be applied and should be more than a prima facie case at the time of framing of charge but short of satisfaction to the extent that the evidence, if goes unrebutted would lead to conviction, does not g

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et satisfied. In that light this Court does not find any error in the impugned order or failure on the part of the learned Trial Court to exercise jurisdiction under Section 319 of the Cr.P.C to summon the opposite party no.2 as an accused to face the trial. 12. Before parting it needs to be mentioned herein that the order dated 05.03.2018 passed by the learned Special Judge-VII, CBI(AHD Scam), Ranchi in the same R.C. No. 38(A)/1996 where under certain persons have been summoned as an accused in purported exercise of powers under Section 319 Cr.P.C is the subject matter of challenge before this Court in a number of criminal miscellaneous petitions. One such matter being Cr.M.P No. 901 of 2018 has been allowed by this Court vide order dated 14.12.2018 setting aside the order of cognizance taken under Section 319 of the Cr.P.C. Any passing observations made by the learned Court at Para-H of the said order therefore cannot be relied upon in support by the petitioner. More over such observations were wholly uncalled for when the order dated 15.07.2016 passed by the CBI Court in the same R.C. case against the petitioner was subjudice before this Court in the instant case. 13. On consideration of these facts and circumstances, this court does not find any error in the impugned order calling for interference in the matter. The instant criminal revision is accordingly dismissed.
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