CBI GUJARATversusDILIP MULANI & ANR.

                      [2019] 12 S.C.R. 1005                            1005


                         CBI, GUJARAT                                  A
                                 v.
                     DILIP MULANI & ANR.
                 (Criminal Appeal No.1252 of 2019)
                        AUGUST 20, 2019                                B
 [A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
       Code of Criminal Procedure, 1973: Discharge application –
Respondent No.1 was named as an accused for committing offence
punishable under s.120-B IPC and ss.7, 12, 13(2) r/w s.13(1)(d) of
                                                                       C
Prevention of Corruption Act, 1988 – Discharge application filed
by respondent No.1 – Trial court rejected the discharge application
– Respondent No.1 filed revision application before the High Court
– High Court allowed the revision application – On appeal, held:
Trial Court had adverted to relevant evidence which in its opinion
pointed towards the involvement or the complicity of respondent        D
No.1 in the commission of the alleged crime – High Court without
analyzing any factual aspects of the matter proceeded to record
that it is a case of no evidence against respondent No.1 and allowed
the discharge application – The approach of the High Court is
unacceptable – Impugned judgment is set aside and the parties are
                                                                       E
relegated to the High Court for reconsideration of the revision
application on its own merits.
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1252 of 2019
     From the Judgment and Order dated 29.11.2017 of the High Court    F
of Gujarat at Ahmedabad in Criminal Revision Application No. 846 of
2016
       K. M. Nataraj, ASG, Mukul Singh, Ms. Snidha Mehra, Debasis
Rout, Hemant Arya, Chakitan V.S. Papta, Arvind Kumar Sharma, Advs.
for the Appellant.                                                     G
      S. V. Raju, Sr. Adv., Mohan Jayakar, Abhay Dhadiwal, Devashish
Jagirdar, Mehul M. Gupta, R. P. Gupta, Ms. Deepanwita Priyanka (for
Aniruddha P. Mayee), Advs. for the Respondents.

                                                                       H
                                 1005
1006            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


 A           The following Order of the Court was passed :
                                        ORDER
             1. Leave granted.
             2. Heard counsel for the parties.
 B            3. This appeal takes exception to the judgment and order dated
       29.11.2017 passed by the High Court of Gujarat at Ahmedabad in Criminal
       Revision Application (Against order passed by Subordinate Court) No.846
       of 2016, whereby the High Court was pleased to set aside the decision
       dated 08.07.2016 of the Trial Court rejecting the discharge application
 C     filed by respondent No.1 (Accused No.5), Dilip Mulani.
             4. Respondent No.1 has been named as an accused for having
       committed offence punishable under Section 120-B of the Indian Penal
       Code and Sections 7, 12, 13(2) read with Section 13(1)(d) of Prevention
       of Corruption Act, 1988.
 D           5. The Trial Court while rejecting the discharge application filed
       by respondent No.1 adverted to relevant facts, as can be discerned from
       paragraph Nos. 13 and 14 of the judgment dated 08.07.2016. The same
       read as thus:-
                       xxx              xxx             xxx
 E           “13. Here in the present case, after registering the FIR, though
             investigation has been carried out by the Investigating Officer
             wherein it reveals that Shri Anand Singh Mall was posted as
             Assistant Commissioner of Customs, Shri Anand Singh Mall was
             looking after all the works related to export, import and refund.
 F           As Assistant Commissioner on Air Cargo Complex, it was his
             duty to sanction the SAD refund claim cheques in favour of the
             importers. Now, so far at the involvement of the present applicant
             accused is concerned, Rs.3.5 lacs and Rs.1.5 lacs of bribe money
             has been paid to Shri Anand Singh Mall. In the said transaction as
             per the investigation paper, the role of the present application
 G           accused is established. As per the investigation, One Shri
             R.C.Pagaria, Incharge of M/s Khimji Punja Freight Forwarders
             Private Limited, Delhi, had received Rs.5 lacs on 28/08/2010
             through M/s. Purnima Angadia from the company’s Head Office
             at Mumbai, and as per the direction of Shri Mehul Zaveri, Shri
 H           R.C.Pagraria, had paid Rs.3.5 lacs to Shri Kishan Rajwar whose
     CBI, GUJARAT v. DILIP MULANI & ANR.                               1007


telephone number was given by Shri Anand Singh Mall during             A
conversation. In this regard, the diary in which Shri R.C. Pagaria
had written about the receipt of Rs.5 lacs from his Mumbai Office
and delivery of Rs.3.5 lacs to Shri Kishan Rajwar, have also been
recovered during the investigation. Not only that but during the
search at the office of accused Shri Mehul Zaveri at Ahmedabad,
                                                                       B
one expenditure note book was also seized in which entry dated
29/07/2010 addressed to Shri Dilipbhai Mulani shows “A.Mall ad
hoc as per the list attached show to D.M.Rs.3,50,000.-” From the
above evidence, it transpires that on 29/07/2010, Shri Mehul Zaveri
had sent Rs.3,50,000/- to his Mumbai Office for effecting the
payment to Shri Anand Singh Mall at Mumbai, but, as Shri Anand         C
Singh Mall wanted the delivery of the amount at Delhi while
discussing with Shri Mehul Zaveri on 18/08/2010. Shri Mehul Zaveri
intimated Shri Dushyant Mulani one of the Diretor of M/s Khimji
Punja Freight Forwarders Private Limited, Mumbai unit he has
sent “1.5” to Shri Dilipbhai which is to be handed over to Shri
                                                                       D
Anand Singh Mall. During the said conversation Shri Mehul Zaveri
also said that he had already been given “3.5” at Delhi which was
sent by Shri Dilip Mulani from Mumbai. He also told that he wants
to clear dues regularly and told about making parking as required
by Shri Mall. The conversation in entirety show that the
conversation were for delivery of Rs.3.5 lacs and Rs.3.5 lakhs to      E
Shri Anand Singh Mall which was not his legitimate dues. From
the above conversation, the rule of the present applicant accused
Shri Dilip Mulani is clearly established which incriminating him in
the said offences. Further during the investigation, the voice of
Shri Anand Singh Mall and Shri Mehul Zaveri, in all the
                                                                       F
conversation, have been identified by the witnesses who are well
acquainted with their voice, and this fact can be proved after
leading the prosecution evidence and for that the full fledged trial
is required to prove the guilt of the present applicant accused.
14.Further, the alleged payment of illegal gratification of
Rs.1,50,000/- to Shri Mall has been corroborated by the receipt        G
entry of dated 19/10/2010 available in the expenditure note book
maintained by Shri Mehul Zaveri which was seized during search
at his office. The said entry in the note book is also mentioned as
“Anand Mangal- Trans to B.M. @ APO Rs.1,50,000/-. Further,
from the telephonic conversation dated 21/10/2010 between Shri         H
1008            SUPREME COURT REPORTS                            [2019] 12 S.C.R.


 A           Mehul Zaveri has stated to have sent Rs.1.5 lakhs to the present
             applicant Shri Dilip Mulani for payment to Shri A. Mall From the
             above entry in expenditure note book, and telephonic conversation
             in transcription that the present applicant accused Shri Dilip Mulani
             in conspiracy with Shri Mehul Zaveri had abated the offence of
             bribery and had arranged for the payment of illegal gratification
 B
             of Rs.3.5 lacs to Shri Anand Singh Mall at Delhi through his
             nephew Shri Krishna Rajwar and also Shri Mehul Zaveri in
             conspiracy with Shri Dilip Mulani and Dushyant Mulani had
             arraigned for delivery of illegal gratification of Rs.1.5 lacs to Shri
             Anand Singh Mall at Mumbai. From the above acts on the part of
 C           the present applicant accused has not been charge-sheeted only
             on the basis of Managing Director of M/s. Khimji Punja Freight
             Forwarders Private Limited, Ahmedabad, but he has played an
             active role in the present offences. So, here in the case on hand
             looking to the charge-sheet and documentary evidence along with
             the statement of witnesses, there is a prima facie case against the
 D
             present applicant accused to frame the charges as alleged against
             him.”
                       xxx               xxx               xxx
             Again in paragraph No.16, it concluded as follows :
 E                     xxx               xxx               xxx
             16. Further, it is submitted by the LA for the applicant accused
             that so far the charge against the applicant accused under the
             offence of criminal conspiracy is concerned, there must be meeting
             of minds to commit some illegal act, and here in the present case,
 F           the basic ingredient of the offence of criminal conspiracy is hatched
             in secrecy. Further more, the acts, omissions and conduct of the
             accused are required to be considered and to arrive at the
             conclusion as to whether the accused was involved in the
             conspiracy or not? The same can be decided only at full-fledged
 G           trial.”
                       xxx               xxx               xxx
              6. Respondent No.1 carried the matter before the High Court by
       way of revision application. The High Court vide impugned judgment
       has set aside the order passed by the Trial Court and instead allowed the
 H
            CBI, GUJARAT v. DILIP MULANI & ANR.                                  1009


discharge application by observing as follows, as noted in paragraph 19          A
of the impugned judgment. The same reads thus :
                   xxx               xxx               xxx
       19. I have minutely gone through the entire charge-sheet papers
       as well as the reply filed by the C.B.I. and the contents of the
       impugned order. As per the arguments made by the learned                  B
       advocates for both the parties, the question as to whether the
       sufficient evidence with regards criminal conspiracy by the present
       applicant is produced on record by prosecution or not to show
       that there was meeting of minds and agreement between the
       accused to commit the said offence in so called conspiracy. So
       far as the main ingredient of the criminal conspiracy is concerned,       C
       it is a base of the law to have an agreement and meeting of minds.
       I have minutely perused the telephonic conversation as well as
       the reply and documents, statements of the witnesses and at which
       place that agreement was made by the present applicant which is
       not prima facie disclosed in charge-sheet papers. So far as               D
       abetment regarding illegal gratification and bribery are concerned,
       I have also perused the ingredients of Sections 107 and 108 of the
       Indian Penal Code. So far as the main ingredients of both the
       provisions of law are concerned, it is the duty of the prosecution
       to establish real evidence to show that under which circumstances
       the present applicant has abetted. It is true that originally in the      E
       FIR, name of the accused is not mentioned as alleged by the
       applicant but it is established law that when the name of the
       accused is not mentioned in the FIR, even though the case of the
       prosecution cannot be resulted in fatal. But, it is required to be
       considered that it is the duty of the prosecution to produce sufficient   F
       and cogent evidence regarding involvement of the accused. In
       the present case, the prosecution has relied upon the statements
       of the witnesses and so called name which is disclosed whose
       statement is not recorded to show that the investigation is defective
       and even from the documents produced on record i.e. receipt,
       conversation etc. could not connect the present applicant-accused         G
       in the alleged offence cited by the prosecution in the charge-sheet.
                  xxx               xxx               xxx”
      If we may say so, this is the only relevant analysis of the
correctness of the decision of the trial Court.
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1010              SUPREME COURT REPORTS                         [2019] 12 S.C.R.


 A            7. After having considered the arguments canvassed by both the
       sides, we refrain from examining the agrument in support of the discharge
       application on merits. We deem it just and proper to set aside the impugned
       judgment passed by the High Court which, in our opinion, to say least is
       perverse. To observe sobriety, we say no more.
 B            8. The High Court noted that it is a case of no evidence against
       respondent No.1, whereas the Trial Court had adverted to relevant
       evidence which in its opinion pointed towards the involvement or the
       complicity of respondent No.1 herein in the commission of the alleged
       crime. It would have been a different matter if the High Court was to
       analyze the factual aspects taken note of by the Trial Court and then
 C     record its finding that the facts so stated by the Trial Court are not borne
       out from the record. If such a finding was to be recorded by the High
       Court, we would have had the advantage of considering the correctness
       of the view so taken by the High Court. However, as aforesaid, the High
       Court, in the present case, without analyzing any factual aspects of the
 D     matter proceeded to record that it is a case of no evidence against
       respondent No.1 and allowed the discharge application of respondent
       No.1.
             9. The approach of the High Court, in our opinion, is unacceptable
       and does not stand the test of judicial scrutiny.
 E           10. We accordingly, set aside the impugned judgment and order
       and remand the revision application by restoring it to the file of the High
       Court to its original number. The parties are relegated before the High
       Court for reconsideration of the Criminal Revision Application on its
       own merits in accordance with law.
 F            11. We make it clear that we have not expressed any opinion
       either way, on the merits of the discharge application. The High Court
       may deal with all aspects in that regard as per law and shall decide the
       Revision Application expeditiously. We must remind the High Court that
       as per the provisions of Section 19 of Prevention of Corruption Act, in
 G     particular, the progress of trial cannot be interdicted in any manner and
       is required to be completed expeditiously.
              12. The appeal and pending applications are accordingly disposed
       of in the above terms.

 H     Devika Gujral                                              Appeal disposed of.