The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.126 of 2024 (In the matter of an application under Sections 401 read with Section-397 of the Criminal Procedure Code, 1973) Pravakar Nayak ……. Petitioner -Versus- State of Odisha (Vigilance) ……. Opposite Party For the Petitioner : Mr. Jajati Keshari Khuntia, Advocate For the Opp. Party : Mr. Sangram Das, Standing Counsel (Vigilance) CORAM:
Legal Reasoning
consider the material produced by the prosecution so as to be prima facie satisfied that the offence as alleged is made out and accordingly issued the process to the accused persons. But this Court cannot lose sight of the fact that, if the cognizance order against the co-accused persons has been quashed and no sanction has been accorded against the Government Officers, besides that the same accused in a similar case has succeeded in challenging the cognizance order, then subjecting the petitioner to undergo the rigors of the trial would definitely be a futile exercise. Therefore, the present case is covered by the ratio laid down by the Hon’ble Supreme Court in the case of Gian Singh vs. State of Punjab and another reported in 2012 (10) SCC 303. I am of the considered view that there is a blink chance for the prosecution to prove its case and Page 8 of 9 secure conviction against the petitioner in the factual scenario of the present case. 12. Therefore, the Criminal Revision petition succeeds and the impugned order, dated 17.10.2023 passed by the learned Special Judge (Vigilance), Cuttack in T.R. Case No.2 of 2014 arising out of VGR No.35 of 2010, is set aside.
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 16.07.2024 : Date of Judgment: 30.07.2024 S.S. Mishra, J. The learned Special Judge (Vigilance), Cuttack vide order dated 17.10.2023 in T.R. Case No.2 of 2014 has taken cognizance of the offences punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 read with Sections 468/420/471/120- B of the IPC and issued process against the present petitioner as well as three other accused persons. The petitioner has assailed the aforementioned cognizance order in the present Criminal Revision Petition. 2. Heard Mr. Jajati Keshari Khuntia, learned counsel appearing for the petitioner and Mr. Sangram Das, learned Standing Counsel appearing for the opposite party-State (Vigilance). 3. The allegation against the petitioner, in a nutshell, is that the Government of India formulated new Coal Distribution Policy vide Resolution No.23011/4/2007 dated 18.10.2007 whereunder the State Governments were requested to work out genuine requirements like smokeless fuel, brick kiln, coke wove units etc. of small & tiny consumers on a transparent and scientific basis and to distribute coal to the small scale industries, requirement of whom is less than 4200 MT per year and are otherwise not having any access to purchase coal or to conclude Fuel Supply Agreement (FSA) with companies and they shall draw coal from Coal India through the State Notified Agencies like National Co-operative Consumer Federation (NCCF), National Small Industries Corporation (NSIC) etc. as per the suitability of the State Page 2 of 9 Government. Consequently, the State Government, vide Industries Department Notification dated 13.08.2008 has declared Odisha Co- operative Consumer Federation (OCCF) as the State Nodal Agency for distribution of coal to the MSMEs of the State. The procedure for distribution of coal has been specified in the Odisha Coal Distribution Policy. After appointment of OCCF as the State Nodal Agency, the OCCF engaged a Marketing Agent namely M/s. Vinayak Mineral. As per the laid down procedure, the eligible MSME Units, upon being registered with and verified by the District Industries Centre (DIC), was to be recommended to the State Nodal Agency i.e. OCCF. The OCCF, thereafter, was to place orders to the MCL Authorities for supply of coal by depositing money under the scheme and MCL is to issue road delivery orders in favour of the OCCF for supply to the MSMEs. It is alleged that the DIC, Jagatpur along with its other officials have recommended five fake non-existent MSMEs for allotment of coal to the Nodal Agency, OCCF. It is also alleged that without following the formalities as envisaged in the Coal Policy and without any verification regarding their existence, running, annual installed capacity etc. these five MSMEs have Page 3 of 9 been recommended to the OCCF who had placed booking orders from time to time with the MCL Authority. Further, the OCCF after obtaining the road delivery orders from the MCL supplied required quantity of coal to the said MSMEs through the Marketing Agent. Accordingly, it is alleged that the Government Officials along with the petitioner are conjointly liable for criminal misconduct for showing sale of linkage coal to fake MSMEs and thereby deriving huge pecuniary benefit. 4. The investigation was carried out by the Vigilance Cell of Cuttack and charge sheet was filed. It is pertinent to mention here that the appropriate Government refused to accord sanction for prosecution against the then General Manager, DIC, Jagatpur Mr. Sitikanta Sarangi as well as the Assistant Manager, DIC, Jagatpur Sri Banambar Das. Therefore, the prosecution against them was dropped. 5. Learned Trial Court took cognizance against the present petitioner along with three other accused persons. The accused No.4, namely Debendra Kumar Panda, who is alleged to have played an important role, was the Marketing Agent of M/s. Vinayak Mineral and was appointed by the Managing Committee of the OCCF. Therefore, he was the vital Page 4 of 9 linkage and the allegation of identifying the bogus entity to siphon the subsidized coal for sale in the open market fell flat. 6. Thus, when the matter stood, the petitioner filed the present Criminal Revision Petition seeking quashing of the cognizance order. 7. Mr. Khuntia, learned counsel for the petitioner, submits that the same petitioner on the self-same allegation was made accused in T.R. Case No.2 of 2014 arising out of VGR Case No.35 of 2010. In that case as well, learned Trial Court had taken cognizance of the offence of similar nature. The allegation in that case and in the present case are same without any variation of facts and circumstances. The Coordinate Bench of this Court, vide judgment dated 25.11.2022 passed in the case of Pravakar Nayak vs. State of Odisha (Vigilance) in CRLREV No.273 of 2019, has been pleased to set-aside the cognizance order in that case. The petitioner is squarely covered by the said judgment. 8. Mr. Das, learned Standing Counsel for the Vigilance, although vehemently opposed the prayer of the petitioner by arguing the case on merits to justify the impugned order, could not controvert the fact that the case cited by Mr. Khuntia, learned counsel for the petitioner, are similar Page 5 of 9 to that of the present case. For appreciation of similarity of the facts and circumstances of the case cited by Mr. Khuntia, learned counsel, to be verbatim, I would prefer to reproduce paragraph- 12 of the judgment dated 25.11.2022 passed in CRLREV No.273 of 2019 which reads as follows: “12. It is the prosecution case that during a joint physical verification it was found that the five MSME units in question were not in existence which proved that the DIC officials falsely and dishonestly recommended the names of such units for supply of coal by OCCF. In so far as the Petitioner is concerned, save and except the finding that he had placed booking orders from time to time with MCL authority by submission of application form of different MSMEs, list of MSMEs, the requirement of coal and issuing the purchase price through DD/cheque to MCL authority, there is no allegation as such against him of having any role to play in selection of the so called fictitious firms. OCCF supplied the coal to the fictitious firms through the marketing agent, M/s.Vinayak Minerals, while the Petitioner issued the sale invoices containing his signatures. The authorized persons of the marketing agent received the coal from the MCL and distributed accordingly to the listed MSMEs as made by OCCF. Thus, the the entire identification of MSMEs and recommendation of their names by the DIC particularly, the General Manager of DIC, Sitikanta Sarangi to the OCCF. It is alleged that the said firms recommended by DIC are fictitious. But it is not the case of the prosecution that the Petitioner was in knowledge of such fact or had any reason to believe that the firms recommended by the competent authority namely, DICs were fictitious. Except for placing the orders with MCL and making the payment for the required coal (as paid by the MSMEs) and signing the said invoices, the Petitioner does not appear to have any involvement in the process. The coal was physically received by its marketing agent M/s. Vinayak Minerals and also distributed to the so called to have commenced with transaction appears Page 6 of 9 MSMEs. It is also not the case of the prosecution that the Petitioner had entered into any conspiracy with M/s. Vinayak Minerals to engage in any fraudulent prosecution. On the other hand, this Court in CRLREV No.596/2018 held that there being no evidence to show that the Petitioner (Debendra Kumar Panda) had any association with the MSMEs cannot be entangled in the case on the charge of conspiracy. This Court also held that since the persons who prepared the list of MSMEs mainly, officials of DIC are not within the arena of the criminal trial in view of quashment of the proceedings, against them by this Court, there is no reason to treat the Petitioner as having conspired with them. After going through the order passed by the co-ordinate bench in the aforesaid case, this Court is in respectful agreement with the reasoning adopted therein to hold that the same principle would also apply in full force to the present case. To reiterate, the basic allegation being supply of coal to fictitious firms on the recommendation of officials of DIC, there is no way by which the Petitioner can be brought within the purview of the case when the officials of the DIC themselves are no longer available to be prosecuted. Moreover, there is not an iota of material to show any linkage between the Petitioner and the so-called fictitious firms independent of the officials of DIC.” 9. Perusal of the aforementioned judgment would indicate that there is no variation of facts and circumstances and the allegation made against the petitioner in the present case vis-à-vis the case cited by Mr. Khuntia, learned counsel for the petitioner. Therefore, I am of the considered view that the case of the petitioner deserves merit. 10. Moreover, the Government has refused to accord sanction in favour of the prosecution against the two Senior Officers, for which the Page 7 of 9 prosecution has been dropped against them. The supply of the coal to the alleged fictitious firms through the Marketing Agent, M/s. Vinayak Minerals, also falls flat, as the Proprietor of the said firm also succeeded in his petition challenging the cognizance order. 11. No doubt, at the cognizance stage, the Court is required only to
Decision
13. The Criminal Revision is accordingly allowed and disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 30th July, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 01-Aug-2024 19:31:35 Page 9 of 9