Dismissed

Shri Vijay Kumar Sharma and Anr. v. the Central Bureau of Investigation CBI Acb and Ors.

Jharkhand HC2 Dec 2019Cr.M.P./126/2014

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed a petition seeking quashing of criminal proceedings under Sections 120B, 420, 468, 471 IPC and 13(1)(d), 13(2) PC Act. Finding prima facie material in the charge sheet regarding alleged fraud and conspiracy to sell Fuel Supply Agreement coal in the black market, the court held that the mere existence of a civil agreement does not exclude criminal liability and

What did the court decide?

Petition for quashing of criminal proceedings dismissed; dismissal not to prejudice rights of petitioner in lower court.

Shri Vijay Kumar Sharma and Anr. Vs the Central Bureau of… — Corruption | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. M.P. No. 126 of 2014

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1.Shri Vijay Kumar Sharma, son of late Suraj Prakash Sharma, Resident of 401, Shanti Bhawan, Main Building, P.O. and P.S. Bank More, Dist. Dhanbad, Jharkhand

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Shri Ajay Kumar Sharma, son of Late Suraj Prakash Sharma, resident of Rani Bazar, Katrash, P.O. and P.S. katrash, Dist. Dhanbad, Jharkhand … … … Petitioners

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… … … Petitioners Versus

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The Central Bureau of Investigation, CBI, ACB, Karmik Nagar, P.O. and P.S. Saraidhella, Dist. Dhanbad through Superintendent of Police.

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Superintendent of Police, Central Bureau of Investigation, A.C.B., Karmik Nagar, P.O. and P.S. Saraidhella, Dist. Dhanbad

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Bharat Coking Coal Ltd. through its Chariman-cum-Managing Director, Koyla Bhawan, P.O. Koyla Nagar, P.S. Saraidhella, Dist. Dhanbad … … Opp. Parties

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… … Opp. Parties

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioners : Mr. Rajendra Krishna, Advocate Mr. Pankaj Kumar, Advocate Mr. Vivek Kumar, Advocate For the Opp. Party : Mr. Rajiv Nandan Prasad, Advocate ---

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8/02.12.2019

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Heard Mr. Rajendra Krishna, learned counsel appearing on behalf of the petitioner along with Mr. Pankaj Kumar and Mr. Vivek Kumar, Advocates.

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Heard Mr. Rajiv Nandan Prasad, learned counsel appearing on behalf of the opposite party.

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Counsel for the petitioner submits that in I.A. No. 4085 of 2019 it has been mentioned that petitioner no. 1 has expired and he does not want to press this petition so far as petitioner no. 1 is concerned.

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Be that as it may, so far as petitioner no. 1 is concerned, this petition is dismissed as not pressed. However, the learned court below shall take steps to verify the correctness of the submission regarding death of petitioner No. 1 and proceed accordingly.

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Cr. M.P. No. 126 of 2014

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This petition has been filed for the following reliefs:- “For quashing of the entire criminal proceeding including the First Information report registered by the Central Bureau of Investigation, Dhanbad, being F.I.R. R.C. 16(A)/2013-D dated 23.12.2013 under Section 120B read with Section 420/468/471 of the Indian Penal Code and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 now pending in the court of learned Special Judge, C.B.I., Dhanbad.” The order taking cognizance dated 15.01.2019 under Sections 120B/420/468/471/409 of IPC as well as the charge sheet No. 5/2015 dated 31.07.2015 are also under challenge by virtue of order dated 25.11.2019 passed in I.A. No. 4085/2019.

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Counsel for the petitioner submits that during pendency of this case, charge sheet was submitted and cognizance was taken against three persons namely Vijay Kumar Sharma, Ajay Kumar Sharma and Punit Sharma and the present petition which survives only for Ajay Kumar Sharma.

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Learned counsel for the petitioner submits that upon perusal of the entire allegation made against the petitioner no criminal case under the aforesaid Sections are made out. He further submits that entire allegation arises out of violation of terms and conditions of the agreement i.e. Fuel Supply Agreement and therefore launching of criminal prosecution against the petitioner is an abuse of the process of law and accordingly the entire criminal proceeding including the order taking cognizance be quashed and set aside.

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Learned counsel appearing for the CBI on the other hand by referring to the charge sheet submits that there is an allegation in the charge sheet itself that at the stage of entering into the agreement there was fraudulent intention on the part of the petitioner. The present case is at the stage of order taking cognizance and these aspects of the matter may be taken by the petitioner at the appropriate stage before the learned court

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below. He also submits that prima facie case against the petitioner is made out.

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It appears from the charge sheet submitted that the investigation further revealed that Shri Vijay Kumar Sharma and Shri Ajay Kumar Sharma both partners of M/s Durga Fuel Co. and Sri Punit Sharma, Proprietor of M/s Jai Ambey Traders, Purana Punjab, Dharam Kanta, Chandashi, Chandauli conspired among themselves and in pursuance of the said conspiracy said Sri Punit Sharma, Proprietor of M/s Jai Ambey Traders falsely shown that he has purchased and used the said hard coke from M/s Durga Fuel Co. and used the same. However, during investigation it has come that the factory of M/s Durga fuel Co. never manufactured the said hard coke. Sri Punit Sharma dishonestly and fraudulently shown that he has purchased the said hard coke. Subsequently in pursuance of the conspiracy among themselves the said partners of M/s Durga Fuel Co. fraudulently and dishonestly deposited the following amount in the bank account of M/s Jai Ambey Traders and the same was returned back/re-transferred in the bank account of M/s Durga Fuel Co. with ulterior motive to show that M/s Jai Ambey Traders purchased the said hard coke and the payment was made thereof, which is mentioned in the charge sheet.

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It has been alleged that Shri Vijay Kumar Sharma and said Sri Ajay Kumar Sharma, both partners of M/s Durga Fuel Co. and said Sri Punit Sharma, Proprietor of M/s Jai Ambey Traders entered into criminal conspiracy amongst themselves during the relevant period (i.e November, 2008 to December, 2013) and thereby dishonestly and fraudulently induced BCCL to enter into the said FSA and subsequently in furtherance thereof they cheated the BCCL by diverting/selling FSA coal (received at notified price from the BCCL, Dhanbad) in the open market/black market which were to be utilized specifically at their factory/plant situated at vill-Khalispur.

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Post Trilochan Mahadev, Distt. Jaunpur (U.P.) only and they in order to have continued supply of FSA Coal from BCCL at notified price (which was been lower than e-Auction of Market Prince) prepared false/bogus documents and used the same as genuine and thereby they caused wrongful loss to the tune of Rs. 7,69,32,205.069 (approx.) BCCL, Dhanbad and corresponding wrongful gain to themselves.

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10.After hearing the counsel for the parties and considering the facts and circumstances of this case, particularly the charge sheet, this court finds that it has been clearly alleged in the charge sheet at paragraph no. 3 that the firm namely M/s Durga Fuel Company got prepared bogus records showing production of hard coke and sales thereof to get the Fuel Supply Agreement quota continued from Bharat Coking Coal Limited and avoid detection of fraud and without using the coal in production process of manufacture of hard coke sold the same in open market. The petitioner being a partner of the said firm was a signatory to the fuel supply agreement. It is alleged that coal under Fuel Supply Agreement was to be supplied at notified price and e-auction price was much higher and by selling the coal obtained under fuel supply agreement in open market, the petitioner along with co-accused caused wrongful loss to Bharat Coking Coal Limited. This court finds that there is sufficient material against the petitioner to constitute prima facie criminal case as alleged.

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11.Considering the nature of allegations made against the petitioner this court is of the considered view that there is enough material to constitute prima facie case for the alleged offence against the petitioner. This Court further finds that merely because there is an agreement between the parties, it cannot be said that the criminal liability arising out of transactions between the parties is completely excluded if the basic ingredients of offence is available. There can be no dispute that there are situations where the civil consequences

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as well as criminal consequences arise out of the same transactions between the parties . Upon perusal of the chargesheet, this Court is not inclined to quash the entire criminal proceedings against the petitioner in exercise of powers conferred under section 482 of Cr. P.C.

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12.In such circumstances, this petition is hereby dismissed.

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13.However, it will be open to the petitioner to raise all the points raised in this application and the points that may be available under law at appropriate stage before the learned court below and dismissal of this petition will not prejudice the case of the petitioner in any manner whatsoever.

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14.Interim order, if any, stands vacated.

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Pending I.A, if any, stands dismissed as not pressed.

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16.Let this order be communicated to the court concerned through FAX.

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(Anubha Rawat Choudhary, J.)

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Binit/

Shri Vijay Kumar Sharma and Anr. v. the Central Bureau of Investigation CBI Acb and Ors.

Case brief

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Shri Vijay Kumar Sharma and Anr. v. the Central Bureau of Investigation CBI Acb and Ors.

Case brief

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