Vinod Walia vs State (CBI) Chandigarh

R.L. Anand, J.

Shri Vinod Walia, Assistant Revenue Accountant, working in the office of the S.D.O. Electricity Operation, Sub Divn. No. III, Sector 18, Chandigarh, has filed the present petition under Section 482, Cr.P.C. against the respondents with a prayer for quashing the case Crime No. RC47/96CHG registered by the CBI/SPE, Chandigarh, on 23.9.1996 for the offence under Section 120B, IPC read with Section 7 of the Prevention of Corruption Act, 1988, so far as it allegedly pertains to the petitioner.

On a complaint made by one Shri Ram Parkash Rana, House No. 2030, Sector 21C, Chandigarh, on 23.9.1996 to the Superintendent of Police, CBI, Sector 30, Chandigarh, case Crime No. 47/96CHG has been registered against Rajinder Kumar, Junior Engineer, and the petitioner. It has been alleged in the complaint that the complainant is the proprietor of M/s Blue Moon Tourist Bungalow, carrying on business in House No. 2030, Sector 21C, Chandigarh. Shri Balwant Singh is the owner of the said bungalow, who purchased the same from Shri Kartar Singh. The complainant had taken the said bungalow on rent from Shri Balwant Singh. There were two electricity meters installed in the said house and the sanctioned load of each meter was 3 KW. On 10.9.1996 the complainant received bill No. 72301 for Rs. 8,236/ to be paid on or before 23.9.1996 in respect of one of the meters having A/c No. 103/2106/203001. The meter reading mentioned in the bill was not correct. The bill was for much high amount. The normal consumption per month against this meter was approximately 250 units, whereas that time the bill for the consumption of 4982 units was received. On the same day, i.e., 10.9.1996 evening, the complainant happened to meet the meter reader and told him about the wrong meter reading. The meter reader inspected and asked him to give him (the meter reader) an application along with one photocopy of the bill and told him that he would get the bill rectified. Accordingly, the complainant gave him an application addressed to the S.D.O., Electricity Department, SubDivision No. III, Sector 18A, Chandigarh. On 14.9.1996 three persons from Electricity Department came and inspected the meter reading as 7839. Again on 16.9.1996 some other meter reader of the Electricity Department came along with an application and the photocopy of the bill and he inspected the meter and noted the reading as 7897. On 19.9.1996 the complainant again went to the Electricity Office in Sector 18A, Chandigarh, along with Dr. O.P. Verma, and met Shri Vinod Walia, Accounts Officer, present petitioner, who tried to locate the application dated 10.9.1996, but it was not readily available. He asked the complainant to give another application, which was prepared by Mr. O.P. Verma. On this application Shri Vinod Walia asked Shri Rajinder Kumar, Junior Engineer, to verify the load and report. The application remained with the complainant as in the meanwhile his earlier application dated 10.9.1996 was traced and the petitioner recorded a fresh note on that application. On the same day at about 4 p.m. Shri Rajinder Kumar, Junior Engineer, came to the guest house of the complainant along with one person and inspected the meter and the entire load of the building. On that day he demanded Rs. 1,000/ and told the complainant that he would have to pay Rs. 500/ to Shri Vinod Walia also. Shri Rajinder Kumar also told the complainant that there was no other way out for getting the bill rectified and the money would have to be paid for the same. Ultimately, he gave Rs. 1,000/ to Mr. Rajinder Kumar, Junior Engineer, in the guest house on that day because a marriage party from Parwanoo (HP) had also come and he did not want to create any problem for himself. On 20.9.1996 at about 8 p.m. Shri Rajinder Kumar, Junior Engineer, suddenly came in the presence of the marriage party and started creating problem. He questioned the complainanat why the extra lights had been installed and threatened to disconnect the electricity. He then started checking the meters in the presence of all and told that the seals were not original as they did not bear any number. He also told the complainant that he had been scolded by the Accounts Officer Shri Vinod Walia for showing the low load of the guest house and the matter had become very serious. He further told the complainant that they would be imposing a penalty of Rs. 30,000/ to Rs. 32,000/ on account of excess load. It was also repeated by Shri Rajinder Kumar that the matter could be set right only by the higher officers of the Department. The complainant then asked him about the way out. He told the complainant that some heavy amount has to be paid for getting the matter sorted out. On the asking of the complainant, he disclosed that an amount of Rs. 6,500/ had to be paid in addition to the amount of Rs. 1,000/ already paid as bribe. It was also assured to the complainant by Shri Rajinder Kumar that he would get the aforesaid bill rectified and would get the meter changed. The complainant showed his unwillingness to pay the huge amount as bribe and his incapability of paying so much amount to him. Shri Rajinder Kumar then reduced the amount to Rs. 5,500/. The complainant told him that he should first get his work done and he would pay him the money. Rajinder Kumar did not agree and he insisted that the complainant must part with Rs. 4,000/ in advance by Sundary, i.e., 22.9.1995 and the remaining amount should be paid after 10 days. He would come to the Guest House to collect the amount. On 22.9.1996 Rajinder Kumar again came to the guest house and demanded the bribe. The complainant did not give him any money as demanded by him. However, Shri Rajinder Kumar insisted that the complainant must pay Rs. 1,000/ and that the remaining amount would be collected by him on 23.9.1996. Therefore, the complainant paid him Rs. 1,000/ as bribe on 22.9.1996. It was also stated by the complainant that Shri Rajinder Kumar, Junior Engineer, would come to his Guest House on 23.9.1996 to collect the remaining amount of Rs. 3,000/. On this a trap was laid down and the tainted money amount to Rs. 3,000/ was ultimately recovered from Shri Rajinder Kumar, Junior Engineer.

Against Shri Vinod Walia petitioner, the case of the prosecution is that he was in conspiracy with his coaccused Shri Rajinder Kumar, and, therefore, he is liable to be prosecuted under Section 7 of the Prevention of Corruption Act read with Section 120B of the Indian Penal Code. This aspect of the allegation is being challenged by the petitioner by stating in the petition that he is being roped in for false, frivolous and baseless allegations. He is not even remotely connected with the involvement in any agreement and in no circumstance it can be said that the petitioner had any link with the alleged demand of bribe made by Shri Rajinder Kumar, Junior Engineer. He is not directly or indirectly concerned with the allegations made by the complainant. The petitioner had marked the application to Shri Rajinder Kumar, Junior Engineer, for rechecking of the meter reading as per the request of the complainant. Thereafter on the written orders of the SDO Electricity to the effect "please rectify the bill as per the report of JE and issue M.C.O. to watch the future consumption", the petitioner instructed the ledger keeper to comply with the orders and accordingly the ledger keeper recorded refund entry in the Sundry Register. In such a situation the revised bill had to be prepared which is audited by the internal auditor and only then it is signed by the Assistant Revenue Accountant, who was the petitioner. Such a bill was never put up to the petitioner for his signature and the alleged revised bill which the CBI took into possession from the complainant did not bear the signature of the petitioner and the same was nothing but a piece of paper without any authenticity.

With the above main allegations, the petitioner has prayed for the quashment of the FIR visavis him.

Notice of the petition was given to the respondents who have filed a short reply under the signature of Shri R.K. Handa, Retainer Counsel for the CBI. It has been submitted in the reply that investigation of the case is complete and the prosecution has sent its report for seeking sanction to prosecute the petitioner from the competent authority. Therefore, the quashment of the FIR at this stage is not maintainable. The petitioner had conspired with his co accused Shri Rajinder Kumar for taking illegal gratification. Said Rajinder Kumar earlier demanded and accepted Rs. 1,000/ as bribe from the complainant and had stated to the complainant that out of this he would pay Rs. 500/ to the petitioner. The conspiracy of the petitioner with his coaccused came to light during investigation. According to the respondents the procedure for rectification of the inflated bill is as follows :

"On receipt of the bill the consumer is supposed to intimate the Department as soon as possible in writing (for him) to the department with the request to rectify the bill. Application should be addressed to the SDO who will mark the same to any of the JE Incharge of concerned area for the verification of the complaint. The JE is supposed to verify the complaint thoroughly in respect of meter reading, seal of the meter, present load in the building etc. as desired by the concerned SDO. On being specifically asked about the role of the ARA in the matter of rectification of bill, that ARA is to process the application of the consumer as rectification of a wrong meter reading recorded by the Meter Reader is very simple as after the verification or from ascertaining the past consumption by the consumer the bill is rectified."

The investigation conducted by the CBI has further revealed that under no circumstances can the ARA ask the JE to verify the load etc. particularly when the JE has already verified the complaint as desired by the SDO. If the meter reading is wrongly recorded, the JE will put up the report accordingly to the SDO only who will order for issue of rectified bill. After the orders of the SDO, the ARA is to prepare the revised/rectified bill as per the record of the JE. The application of Shri Ram Parkash Rana dated 10.9.1996 was wrongly marked by Shri Vinod Kumar Walia for verification of load etc. which was not required from his part and shows the mala fide on his part to harass the consumer. The investigation has further revealed that Shri Rana submitted an application for the rectification of the bill on 10.9.1996 which was marked to Shri Rajinder Kumar, Junior Engineer, on 11.9.1996. Shri Rajinder Kumar had given the report on 16.9.1996 : "Meter checked. Found O.K. M&T seals found intact." On 17.9.1996 Shri Vinod Kumar Walia, present petitioner, again marked the said application to Shri Rajinder Kumar, Junior Engineer, for verifying the load at site. However, there was no complaint of excess load against the consumer. Shri Rajinder Kumar, Junior Engineer, again checked the load and gave his report on 19.9.1996, giving the same remarks : "Meter checked. Found O.K. M&T seals found intact". On this report of Shri Rajinder Kumar, Junior Engineer, rectification of the bill was ordered by the SDO on 23.9.1996. On the basis of orders the bill was rectified and entered in the sundry register at page 47 and a revised bill was issued on 23.9.1996 itself. The said revised bill was recovered from Shri Rajinder Kumar, Junior Engineer, who went to the Guest House for handing over the same and to collect the bribe money from Ram Parkash Rana complainant. During the course of investigation, the application which was dictated by Shri Rajinder Kumar, JE, to the complainant in the morning for rectification of the bill, was also recovered from his office record on 25.9.1996. The receipt in respect of challenging the bill for Rs. 2/ was also recovered along with the application, which proves the mala fides on the part of the Junior Engineer. During the course of interrogation Shri Rajinder Kumar, Junior Engineer, admitted his connivance with Shri Vinod Kumar Walia for demanding the bribe. During investigation, the checking was conducted in respect of loads etc. of the meters installed at House No. 2030, Sector 21C, Chandigarh. It has been observed in the reply that the petitioner was not competent to entertain the application and make the remark for checking of load on the application of the complainant. It was only in the purview of the SDO. It has been further stated in the reply that during the course of interrogation of Shri Rajinder Kumar he disclosed that bribe money had been accepted by him for himself and for Shri Vinod Kumar Walia. Shri Rajinder Kumar also disclosed that it was only Shri Vinod Kumar Walia who got issued the revised bill after rectification. During the course of investigation, the statement of Shri Kishori Lal was also recorded, who stated that he was asked to issue the revised bill by Shri Vinod Kumar Walia, ARA. The investigation further established that there was active connivance of Shri Vinod Kumar Walia and Shri Rajinder Kumar, Junior Engineer.

With the above defence, the respondents have prayed for dismissal of the petition.

I have heard Shri R.N. Moudgil, Advocate, appearing on behalf of the petitioner, and Shri R.K. Handa, Advocate, appearing on behalf of the respondents, and with their assistance have gone through the record of this case.

Present is a petition under Section 482, Cr.P.C., and in these circumstances, the point for determination would be about the powers and duties of the High Court while invoking the provisions of Section 482, Cr.P.C. In State of Haryana and others v. Ch. Bhajan Lal and others, 1991(1) RCR (Crl.) 383 : AIR 1992 SC 604, the Hon''ble Supreme Court was pleased to hold that in order to secure the ends of justice, the said powers can be invoked but a note of caution was also given to the Courts that this power should be used sparingly and in the rarest of rare cases. There was a specific object when the Supreme Court was pleased to lay down the above law and that the High Court should not be embarked upon any inquiry into the genuineness of allegations of the prosecution as by doing so, it would usurp the powers of the trial Court, which alone is competent to decide the controversy on disputed facts. However, seven guidelines have been given by the Hon''ble Supreme Court in which the powers under Section 482, Cr.P.C., could be invoked, and those guidelines can be reproduced as follows :

"(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Where the allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified."

The above 7 categories of cases, in fact, are not exhaustive but illustrative. According to guideline No. 3, where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, it will be a fit case where the FIR should be quashed. According to guideline No. 5, where the allegations of the FIR or the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there was sufficient ground for proceeding against the accused; in this eventuality also the FIR/complaint can be quashed. In State of U.P. through CBI Lucknow v. R.K. Srivastava and another, 1989(2) RCR 479, it was held by the Hon''ble Supreme Court that if the allegations made in the FIR are taken at their face value and accepted in their entirety and do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed.

Reverting to the facts in hand, it is the case of the prosecution itself that the trap was laid and the tainted money was recovered from the coaccused Shri Rajinder Kumar, Junior Engineer. The petitioner is being roped in the criminal case from the conspiracy angle. It is true that conspiracy can never be proved by direct evidence and it can only be proved by circumstances. If I have appreciated the reply properly, the gravamen of the allegations against the petitioner is that it was none of his business to mark the application to the Junior Engineer for rechecking of the load and it was within the domain of the SDO to do so. The complainant for the first time met the petitioner as per allegations of the complaint on 19.9.1996 along with Shri O.P. Verma. The petitioner tried to locate the application dated 10.9.1996, but since it was not readily available, he asked the complainant and his companion to give another application, which was written by Dr. O.P. Verma. On this application Shri Vinod Walia petitioner asked Shri Rajinder Kumar, Junior Engineer, to verify the load and report. According to the complainant, the said application was kept by him as in the meantime the earlier application dated 10.9.1996 was traced out and the petitioner recorded a fresh note on that application. On the same day at about 4 p.m. Shri Rajinder Kumar came to the guest house of the complainant along with one person and inspected the meter and the entire load of the building. On that day Shri Rajinder Kumar demanded Rs. 1,000/ from the complainant and also told him that he would have to pay Rs. 500/ to Shri Vinod Walia, petitioner. Now the point which survives for determination is whether these types of allegations, if taken as a gospel truth without any commission or omission, would be sufficient to charge the petitioner with an offence under Section 7 of the Prevention of Corruption Act read with Section 120B of the Indian Penal Code. If the yardstick supplied by the Hon''ble Supreme Court is applied in this case, the answer of this Court would be in the negative. There was no demand at any point of time from the side of the petitioner that he would charge illegal gratification for making a report or making the application to the Junior Engineer nor there was any representation at any point of time to the complainant by the petitioner that in the evening he would be deputing the Junior Engineer for inspection or that the tainted money or any part of the same may be handed over to him on his behalf. After Rajinder Kumar makes a sweeping assertion or representation before the complainant that he had to take Rs. 500/ for a particular person, how that part of the statement of Shri Rajinder Kumar could be used by the prosecution against the petitioner. With regard to the marking of the application of the complainant, Shri Rajinder Kumar, Junior Engineer, himself admits that there was a departmental irregularity, but by no stretch of imagination, it would be stated that the commission of conspiracy prima facie emerges out in order to challan the petitioner.

Faced with this difficulty, the learned Standing Counsel for the CBI, Shri R.K. Handa, Advocate, made two contentions before this Court in order to convince me that the present petition should be dismissed. His first contention was that though there was not enough evidence to connect the petitioner with the crime for the purpose of his conviction, yet there was enough evidence with the prosecution on the basis of which the charge against the petitioner can be framed. He was of the view that on suspicion the petitioner can be chargesheeted with Shri Rajinder Kumar and in these circumstances no valid premise had been carved out by the petitioner for the quashing of the proceedings visavis him. The argument of the learned counsel for the respondent is not acceptable to the Court as this Court is dealing with a case under Section 482, Cr.P.C., and not with a case where the charge has been framed against the accused and the propriety of the charge is being considered. No doubt on strong and reasonable suspicions the charge can be framed because at this stage of the trial, the trial Court is only to see a prima facie case. While dealing with the proceedings under Section 482, Cr.P.C., if this Court comes to the conclusion that the petitioner is being roped in on such a weak type of evidence or on evidence which is inadmissible or on certain facts with which the petitioner is not connected remotely or directly, then for the interest of the justice and for the advancement of the cause of justice, the powers under Section 482, Cr.P.C. can be invoked. In Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others, 1988(1) RCR 565, in para No. 7 of the judgment the Hon''ble Supreme Court was pleased to lay down the following proposition of law :

"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."

If the above ratio of the Hon''ble Supreme Court is applied to the facts in hand, this Court would be well within its jurisdiction to command that the petitioner is not directly or remotely connected with conspiracy and he never made demand of bribe either directly or through Shri Rajinder Kumar. If Shri Rajinder Kumar has made a wrong representation to the complainant that he had to part with Rs. 500/ to the petitioner ultimately, on such bald statement of the coaccused, the petitioner cannot be tried or prosecuted. By marking the application to the Junior Engineer, no inference can be drawn that the present petitioner was hand in glove with Shri Rajinder Kumar. Apart from that, the prosecution has not been able to collect any evidence from which it can be said that there was a conspiracy between the petitioner and his coaccused Shri Rajinder Kumar, Junior Engineer.

It was then submitted by the learned counsel for the respondents that in this case investigation had already been completed and the Investigating Agency had already formulated an opinion for the prosecution of the petitioner and the papers were before the sanctioning authority for obtaining the sanction against the petitioner and it should be left to the trial Court only whether to charge the petitioner under Section 120B, Indian Penal Code, or not. I have already stated above that it is not the function of the High Court to embark upon an inquiry. This type of exercise has already been permitted by the Hon''ble Supreme Court. But at the same time if this Court feels that any attempt on the part of the respondents was nothing but an abuse of the process of law or that to promote the ends of justice, the powers under Section 482, Cr.P.C., should be invoked, there should not be any restraint upon this Court from discharging its duty. We all know with the submission of a chargesheet against a person, and if the charge has been wrongly framed against the person, how much botheration and mental agony would be suffered by such a public servant. Such a trial can take years together. The public servant can be put under suspension. He would lose his pay and reputation. Keeping in view this aspect of a public servant, perhaps the Legislature has introduced the provision of Section 482, Cr.P.C., which does not limit the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.

Learned counsel for the respondents cites State of Bihar v. K.J.D. Singh, 1994(2) RCR 37 , and submits that when the trial has not commenced and no evidence has been led by the prosecution, the invoking of the inherent powers under Section 482, Cr.P.C., prior to commencement of trial and leading of evidence is not desirable. This authority, if read between the lines, goes against the respondents. While laying down the above proposition, the Hon''ble Supreme Court has further held that this power should be exercised only in exceptional cases. I have already stated above while agreeing with the observations of the Hon''ble Supreme Court that it is none of the business of the High Court to hold or embark upon an inquiry, if nothing is subtracted or added in the allegations of the prosecution, and still no offence is made out much less under Section 120B, IPC. In that situation the High Court would certainly come forward for the rescue of an innocent public servant. Reliance was also placed on State of Tamil Nadu v. Thirukhural Perumal, 1995(2) RCR 124 , in which the Hon''ble Supreme Court has supplemented the view taken in State of Bihar v. K.J.D. Singh (supra). I have not evaluated the genuineness and reliability of the allegations made in the FIR, nor I have commented upon the evidence which has been collected during the course of investigation, while quashing down the action on the part of the respondents. I have only commented that if entire allowance is given to the respondents, still there is no commission of conspiracy visavis the petitioner. The ratio of the judgment reported as Harmeet Singh v. State of Punjab and another, 1990(2) RCR 610 , again will not come to the rescue of the respondents, which they have relied upon, as there was specific allegation with regard to the misappropriation of Stridhan of the complainant at the level of the petitioners. Whether those allegations were baseless or not was supposed to be decided by the trial Court. I have already remarked above that it was none of the business of the High Court to usurp the jurisdiction of the trial Court, which alone has the jurisdiction to the appreciation of the evidence. I am on different premises. If there is no shadow of conspiracy from the evidence collected during the course of investigation and there is no direct or indirect evidence with regard to involvement of the petitioner with regard to the recovery of the tainted money, which admittedly was recovered from Shri Rajinder Kumar, in that situation the law does not limit or curtail the powers of the High Court from invoking the same under Section 482, Cr.P.C.

In the light of the above, I allow this petition and quash the criminal investigation covered by case Crime No. RC47/96CHG registered by the CBI/SPE, Chandigarh, on 23.9.1996, for the offence under Section 120B, IPC, read with Section 7 of the Prevention of Corruption Act, 1988, visavis the petitioner alone, holding that the petitioner is not remotely connected with the substantive crime and he could not be held guilty for the commission of the said offence.

Nothing stated above, shall affect the rights of the respondents so far as the right of the prosecution visavis Shri Rajinder Kumar, Junior Engineer, is concerned. Now the CBI should move to the Sanctioning Authority that sanction qua the petitioner should not be accorded.