Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 19.12.2014
Judgment delivered on : 24.12.2014.
+ CRL.REV.P. 558/2014 & Crl.M.A.No.14160/2014
V K GUPTA ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwary, Advocates
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP with SI
Suresh Chand, PS EOW
+ CRL.REV.P. 559/2014 & Crl.M.A.No.14163/2014
YOGENDRA PAL SINGH ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwary, Advocates.
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP with SI
Suresh Chand, PS EOW
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 1 of 18
+ CRL.REV.P. 560/2014 & Crl.M.A.No.14166/2014
PANKAJ GOEL ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwary, Advocates.
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP with SI
Suresh Chand, PS EOW
+ CRL.REV.P. 562/2014, Crl.M.A.No.14175/2014 &
Crl.M.A.No.14176/2014
PRAVEEN CHOWDHARY ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwary, Advocates.
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP with SI
Suresh Chand, PS EOW
+ CRL. REV. 563/2014
MOHD.ASIF ……..Petitioner
Through: Mr.Mukesh Anand and
Mr.Sahilesh Tiwari, Advocates.
vs.
STATE …….Respondent
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 2 of 18
Through: Ms.Fizani Hussain, APP.
+ CRL.REV.P. 564/2014 & Crl.M.A.No.14179/2014
R K CHAHAL ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwary, Advocates.
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP with SI
Suresh Chand, PS EOW
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 These are six revision petitions directed against the impugned
order dated 16.7.2014 wherein the Sessions judge had reversed the order
passed by the CMM and had directed that the matter be remanded back
to the CMM with directions to him to decide as to what offence was
made out against the respondent/accused and after framing charge, to
expedite the trial. Vide order dated 22.6.2013, the CMM had discharged
the accused persons.
2 Record shows that the charge sheet under Section 173 Cr.P.C. had
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 3 of 18
been filed against 24 persons under Sections 420/406/409/120B/411 of
the IPC, Section 63 of the Copyright Act, 1957 and Sections 78/69 of
the Trademark and Merchandise Act, 1950. This was on 13.02.2002 on
the complaint of Ajay Srivastava, the authorized signatory of M/s
Ambuja Cement. Per averments in the complaint and thereafter
pursuant to the investigation ordered after the registration of the FIR, the
averments in the charge sheet were that the complainant company which
was carrying on the business of manufacture and sale of cement under
the name of “Ambuja” had changed their trademark in the year 1990.
This trademark having had a long, continuous, extensive and established
use, and having acquired and retained an exclusive right to use this
trademark of “Ambuja” with its artistic work pertaining to the bags for
packaging their cement having a unique get-up, lay out, colour
combination had made them the owner of this copyright.
3 Both the trademark and the copyright were being misused by
unknown persons. Manufacture/mixing and sale of spurious cement by
some unscrupulous manufacturers and traders in Delhi had also formed
a part of the complaint against accused persons. These acts of the
falsification of their trademark and infringement of their copyright were
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 4 of 18
intentional. The inferior quality, adulterated and spurious cement being
on sale in cement bags of their company being a wrong act was
damaging the reputation of the company and thereby causing a huge
financial loss to the company, public at large as also to the Government
exchequer.
4 Oral and documentary evidence was perused by the Magistrate.
At the stage of framing of charges he was of the opinion that a prima
facie case had not been made out by the prosecution against any of the
aforenoted accused persons. The Magistrate vide his order dated
22.6.2013 had discharged all the aforenoted accused persons. The
Sessions Judge, as noted supra, had reversed this order.
5 On behalf of the petitioners (six in number) all of whom are
Junior Engineers working with the Municipal Corporation of Delhi
(MCD) their counsel has explained the details and the procedure of a
contract. It is pointed out that at the time when a contract is awarded by
the MCD to a contractor, it is pursuant to a work order which is issued.
The work order contains the tender amount, the estimated cost and time,
and the number of cement bags which are to be given to the contractor
(in the tender in question the Ambuja cement bags were mentioned).
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 5 of 18
Thereafter a Letter of Indent is issued by the Divisional Officer of the
MCD for procuring the cement bags from the store of the MCD. On the
basis of this Letter of Indent cement bags are issued to the contractor by
the Executive Engineer against a gate pass which is required to be
returned to the MCD after the cement bags are unloaded at the site. The
role of Junior Engineers (petitioners herein) is to verify the cement bags
at the site and to make the entry in the register on day to day
consumption basis. Bills of the contractor are thereafter processed and
the value of the cement bags is adjusted as sold to the contractor while
disbursing the amount of the bills. It is pointed out that this detailed
procedure shows that once the cement bags are sold to the contractor
and payment is received by the MCD qua the cement bags as was in this
case, there is no question of the cement bags still being the property of
the MCD or the MCD having been entrusted with this property. Even
otherwise, there is no complaint made by the department. None of the
charges as leveled in the charge sheet has been leveled against the
petitioners. Learned counsel for the petitioners to support this
submission has placed reliance upon a judgment of the Supreme Court
reported as AIR 1968 (SC) 700 State of Gujarat Vs. Jaswantlal
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 6 of 18
Nathalal . Submission being that in that case also the question arose
about the entrustment of the cement bags by the department to Bharat
Sewak Samaj (BSS); the Court had noted that sale having being effected
of the cement in question the Government did not have any proprietary
right left over the same. The question of entrustment and the subsequent
charge of breach of trust as contained in Section 406 of the IPC was
clearly not made out. Submission of the learned counsel for the
petitioners being reiterated that his case also falls within the same
parameters. There has been no entrustment of property and the
Magistrate had rightly noted these facts in the right perspective. The
impugned order passed by the Sessions Judge interfering with the order
of the Magistrate suffers from an infirmity. Reliance has also been
placed upon a judgment of a Co-ordinate Bench of this Court reported as
129 (2003) DLT 403 R.Natarajan & Ors. Vs. State to support his
submission that at the time of framing of charges unless and until there
is a prima facie evidence collected by the prosecution no case for a
charge is made out.
6 The State has refuted these submissions. It is pointed out that the
impugned order suffers from no infirmity. A status report has also been
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 7 of 18
filed by the State.
7 Arguments have been heard and record has been perused.
8 Record discloses that the present FIR had been registered on a
complaint made by Ajay Srivastva, the authorized signatory of M/s
Ambuja Cement. The FIR was registered under Sections
420/406/409/120B/411 of the IPC, Section 63 of the Copyright Act and
Sections 78/99 of the Trademark and Merchandise Act. In the
complaint it was disclosed that Nawab Khan was engaged in the
manufacture and sale of spurious cement in cement bags of Ambuja
Cement carrying a false trademark and trade description. A list of
traders who were indulging in the manufacture and supply and sale of
spurious cement in these bags were also disclosed. Contention in the
complaint being that ingredients of the offence under Section 420 of the
IPC as also violations of Trademark and Copyright Act were made out.
9 A raid was carried out on 13.02.2002 at Northern Basti, Lal Kuan.
Ashok Sultania acted as a decoy customer. He purchased four bags of
Ambuja Cement of 53 grade from the shop of Nawab Khan. On the
signal given by the shadow witness Sanjeev Vaid, the other persons of
the raiding party also entered the scene. Nawab Khan, Mehboob Ali,
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 8 of 18
Ombir Singh, Muhim Khan and Shamsher Khan were present there.
The decoy customer disclosed that he had purchased these four bags of
cement from Nawab Khan @ Rs.125/- per bag and had paid him
Rs.500/-. The currency note of Rs.500/- was recovered from Nawab
Khan and the four cement bags were also seized. The samples taken out
from these four bags were also seized and sealed. Further search was
conducted in the godown. Besides cement bags of Ambuja Cement,
other bags of cement i.e. Shree Cement, Vikram Cement, Birla Chetak
Cement, Laxmi Cement and bags containing the inscription “MCD
Supply- Not for Sale” were also recovered. Besides these bags of
cement one funnel like device was also recovered. Empty plastic bags
were also recovered. On physical examination it was found that the
empty bags when compared with the filled bags were different in size,
quality and colour which was visible to the naked eye.
10 Subsequent raids were also conducted. In the second raid again
not only bags of other companies i.e. Laxmi Cement and Vikram
Premium Cement but also bags having the print “MCD Supply- Not for
Sale” were recovered. Out of the total of 2692 bags which were
recovered, 2206 cement bags bore the inscription “MCD Supply- Not
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 9 of 18
for Sale”.
11 The samples which were seized from these bags were sent for
chemical examination to Bureau of Indian Standard (BIS). As per the
report of the BIS relating to the measure of the strength of the samples
they were below the required strength. The samples taken from 53
grade cement bags had a grade ranging between 28 and 47 i.e. below the
requirement. Further investigation revealed that 200 bags which bore
the print “MCD Supply- Not for Sale” were issued from the MCD
godowns of Nand Nagri, Janak Puri and Khayala.
12 V.K.Gupta (JE) (petitioner in Cr.R.P.No.558/2014) posted at
Janak Puri was looking after the site of Rajpura Gur Mandi Delhi which
was within the jurisdiction of Janak Puri. 178 bags of cement had been
issued from Janak Puri for the site at Rajpura Gur Mandi. Allegations in
the charge-sheet being that out of these 178 bags only 100 were
unloaded at the site at Rajpura Gur Mandi and the balance 78 bags were
unloaded at the godown of Nawab Khan etc.
13 Yogender Pal Singh (JE) (petitioner in Cr.R.P.No.559/2014)
issued cement from Janak Puri and Khayala godowns. In the case of
200 cement bags which were issued from Janak Puri godown and
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 10 of 18
received in the presence of the contractor, 100 cement bags were
unloaded at the site in the presence of the JE and the contractor and the
remaining 100 bags were unloaded at the godown of Nawab Khan.
Though Yogender Pal Singh and the contractor had shown that all the
aforenoted 200 cement bags had been used, however, 42 bags of the
same lot were part of the recovery during the raid (carried out on
13.2.2002) and identified during inspection (carried out on 17.2.2002).
14 200 bags of Vikram Cement were received from cement godown
Janak Puri and received by Pankaj Goel (JE), petitioner in
Cr.R.P.No.560/2014, at the MCD site at Jahangirpuri Colony. The
cement was shown to be consumed in the work. However, per
inspection carried out on 17.2.2002, 12 cement bags of the same brand,
lot number and date were identified from the cement recovered during
the raid on 13.2.2002.
15 Praveen Chowdhary (JE) (petitioner in Cr.R.P.No.562/2014)
posted at Nand Nagri was looking after the site at A-31 Saral Extension
which was within the jurisdiction of Nand Nagri. 200 bags of cement
had been issued from Nand Nagri for the site at Saral Extension.
Allegations in the charge sheet being that out of these 200 bags only 100
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 11 of 18
bags were unloaded at the Saral Extension site and the balance 100 bags
were unloaded at the godown of co-accused Nawab Khan of which 11
bags were recovered during the raid on 13.02.2002 and identified as per
the inspection carried out on 17.02.2002.
16 Mohd. Asif (JE) (petitioner in Crl.R.P.No.563/2014) posted at
Nand Nagri was looking after the site of Dilshad Garden which was
within the jurisdiction of Nand Nagri. 200 bags of cement had been
issued from Nand Nagri for a site at Dilshad Garden. Allegations in the
charge sheet being that out of these 200 bags only 100 bags were
unloaded at the site of Dilshad Garden in the presence of the JE and the
balance 100 bags were unloaded at the godown of co-accused Nawab
Khan.
17 R.K.Chahal (JE) (petitioner in Crl.R.P.No.564/2014) was posted
at Janak Puri and was looking after the site of Dhaka Village. 200 bags
of Birla Cement had been issued from MCD godown Janak Puri for a
site at Dhaka Village. Allegations in the charge sheet being that out of
these 200 bags only 100 bags were unloaded at the site of Dhaka Village
in the presence of the JE and balance 100 bags were unloaded at the
godown of co-accused Nawab Khan. Though the JE had shown the
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 12 of 18
utilization of the cement bags, 54 bags of this lot were recovered during
the raid carried out on 13.2.2002.
18 Statements of the witnesses recorded under Section 161 Cr.P.C.
have been perused. Ashok Sultania who was the decoy customer in his
statement under Section 161 Cr.P.C. had disclosed that he had
purchased these four bags of cement from Nawab Khan in a sealed
condition in the presence of Sanjeev Vaid (shadow witness). Samples
were taken which were than seized and sealed. The statement of
Sanjeev Vaid was also to the effect that the samples were taken after
mixing the cement and transferring them from one bag to the other with
the help of a funnel. Statements of Narender Dutt, Rajender Kumar and
Teja Singh which have been highlighted by the learned counsel for the
petitioners have also been perused. Both Rajender Kumar and Teja
Singh were working as drivers in the trucks. In their statements
recorded under Section 161 Cr.P.C. they stated that Ravinder Kumar
(co-accused) was a transporter of the MCD Cement Store and he was
doing this business in Nand Nagri along with his brother Satish and his
father Om Prakash. Under instructions of Ravinder Kumar, cement was
being transported from cement store at Nand Nagri. 200 bags were
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 13 of 18
issued from store at Nand Nagri. He had delivered 100 bags of cement
at the site where it was received by the JE and the remaining 100 bags
were delivered by him to the godown of Nawab Khan. This statement of
Rajender Kumar is in support of the stand of the prosecution that out of
200 bags which had been issued from the depot at Nand Nagri only 100
bags were delivered at the site which were received by the JE and
balance 100 bags of cement were taken to the godown of Nawab Khan.
Statements of Nihal Singh and Mahipal Singh (J/Es) were to the effect
that the seized bags were identified by them as having the inspection
“MCD Supply-Not for Sale” and belonged to the Khayala and Janakpuri
godowns. Other witnesses deposing to the same effect have also been
examined by the Investigating Officer. The submission of the learned
counsel for the petitioners that the JEs had no role to play in this is far-
fetched as it is his own submission and an admitted fact that the cement
bags were taken out from the godown of the MCD on a gate pass being
presented by the contractor and thereafter taken to the site of the
contractor where receipt of these cement bags were verified by the JE.
Statement of witness Rajender Kumar clearly shows that out of 200 bags
which were issued from the Nand Nagri site only 100 bags were
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 14 of 18
delivered and verified by the JE at the site and 100 bags were taken by
him at the instructions of his contractor to the godown of Nawab Khan.
19 The legal position on conspiracy and the complicity of one with
the other is settled. A conspiracy is hatched in darkness; it is not open
and visible to the open eye. A conspiracy by and large would be
established by linking all the chains in the circumstances to build up the
whole picture. The submission of the learned counsel for the petitioners
that the JEs are innocent and had no role to play in the unloading of the
cement bags which were admittedly recovered in the godown of Nawab
Khan and others appears to be incorrect. It was the bounden duty and
responsibility of the JE to check and verify that the cement which had
been released from the MCD godowns had reached the site of the
contractor. This was obviously not done and that is why such
innumerable bags containing inscription “MCD Supply- Not for Sale”
were recovered from the godowns of Nawab Khan and others. All the
bags obviously were not reaching their intended site; they were being
diverted to the godown of unauthorized persons and thereafter sold in
the open market. The factum of this unauthorized diversion is evident
from the recovery of 2206 bags of cement from these godowns. The
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 15 of 18
fact that they were sold in the open market is evident from the sale of
four bags to the decoy customer Ashok Srivastva for Rs.500/- by Nawab
Khan. The fact that the cement found in these bags was spurious and
low grade is also prima facie been established by the report of the BIS.
20 The order of the Magistrate was rightly set aside. It appears that
the Magistrate had decided the case on that date itself. He had noted that
the numbers of the bags given by the witnesses Ashok Sultania and
Sanjeev Vaid were varying; he had drawn the conclusion that the
samples did not appear to be fastidiously taken, and could not rule out
tampering, this was a wrong finding as the categorical version of both
the witnesses Ashok Srivastva and Sanjeev Vaid is that samples were
taken after proper mixing and were seized and sealed in their presence.
The Magistrate had also returned a finding that the empty bags as
compared to the filled bags could not be deciphered to be different on
appearance as no expert opinion on this was taken; the Magistrate had
also noted that a case of discharge was made out as the person who had
filed the complaint was not really authorized to do so. These cumulative
factors which had weighed in the mind of the Magistrate to discharge
the accused persons at the nascent stage appears to be wholly illegal.
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 16 of 18
The Sessions Judge had rightly reversed the order.
21 The Sessions Judge had rightly held that there was prima facie
sufficient material to show the complicity of the traders, transporters as
also JEs in this recovery of unauthorized bags of cement from the
godowns of persons who were not authorized to keep them. The cement
recovered from these bags was spurious and of low grade. The fact that
a large chunk of these bags belonged to the “MCD Supply- Not for
Sale” established the complicity of the Junior Engineers who were to
ensure the receipt of the cement bags at the authorized sites; they had to
be accounted for but this was obviously not done.
22 The Sessions Judge had thus rightly held that there was sufficient
material to frame charge against the accused persons and had
accordingly remanded the matter back to the Magistrate to decide which
offence is made out against the accused persons. This order calls for no
interference.
23 Reliance by the learned counsel for the petitioners on the
judgment of Jaswantlal (supra) is of no use as this judgment relates to
the offence of breach of trust and entrustment as contained in Section
405 of the IPC which is not the subject matter in issue. On no count
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 17 of 18
does the impugned order call for any interference.
24 Dismissed.
INDERMEET KAUR, J
DECEMBER 24, 2014
ndn
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 18 of 18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 19.12.2014
Judgment delivered on : 24.12.2014.
+ CRL.REV.P. 558/2014 & Crl.M.A.No.14160/2014
V K GUPTA ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwary, Advocates
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP with SI
Suresh Chand, PS EOW
+ CRL.REV.P. 559/2014 & Crl.M.A.No.14163/2014
YOGENDRA PAL SINGH ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwary, Advocates.
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP with SI
Suresh Chand, PS EOW
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 1 of 18
+ CRL.REV.P. 560/2014 & Crl.M.A.No.14166/2014
PANKAJ GOEL ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwary, Advocates.
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP with SI
Suresh Chand, PS EOW
+ CRL.REV.P. 562/2014, Crl.M.A.No.14175/2014 &
Crl.M.A.No.14176/2014
PRAVEEN CHOWDHARY ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwary, Advocates.
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP with SI
Suresh Chand, PS EOW
+ CRL. REV. 563/2014
MOHD.ASIF ……..Petitioner
Through: Mr.Mukesh Anand and
Mr.Sahilesh Tiwari, Advocates.
vs.
STATE …….Respondent
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 2 of 18
Through: Ms.Fizani Hussain, APP.
+ CRL.REV.P. 564/2014 & Crl.M.A.No.14179/2014
R K CHAHAL ..... Petitioner
Through: Mr. Mukesh Anand with Mr.
Shailesh Tiwary, Advocates.
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP with SI
Suresh Chand, PS EOW
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 These are six revision petitions directed against the impugned
order dated 16.7.2014 wherein the Sessions judge had reversed the order
passed by the CMM and had directed that the matter be remanded back
to the CMM with directions to him to decide as to what offence was
made out against the respondent/accused and after framing charge, to
expedite the trial. Vide order dated 22.6.2013, the CMM had discharged
the accused persons.
2 Record shows that the charge sheet under Section 173 Cr.P.C. had
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 3 of 18
been filed against 24 persons under Sections 420/406/409/120B/411 of
the IPC, Section 63 of the Copyright Act, 1957 and Sections 78/69 of
the Trademark and Merchandise Act, 1950. This was on 13.02.2002 on
the complaint of Ajay Srivastava, the authorized signatory of M/s
Ambuja Cement. Per averments in the complaint and thereafter
pursuant to the investigation ordered after the registration of the FIR, the
averments in the charge sheet were that the complainant company which
was carrying on the business of manufacture and sale of cement under
the name of “Ambuja” had changed their trademark in the year 1990.
This trademark having had a long, continuous, extensive and established
use, and having acquired and retained an exclusive right to use this
trademark of “Ambuja” with its artistic work pertaining to the bags for
packaging their cement having a unique get-up, lay out, colour
combination had made them the owner of this copyright.
3 Both the trademark and the copyright were being misused by
unknown persons. Manufacture/mixing and sale of spurious cement by
some unscrupulous manufacturers and traders in Delhi had also formed
a part of the complaint against accused persons. These acts of the
falsification of their trademark and infringement of their copyright were
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 4 of 18
intentional. The inferior quality, adulterated and spurious cement being
on sale in cement bags of their company being a wrong act was
damaging the reputation of the company and thereby causing a huge
financial loss to the company, public at large as also to the Government
exchequer.
4 Oral and documentary evidence was perused by the Magistrate.
At the stage of framing of charges he was of the opinion that a prima
facie case had not been made out by the prosecution against any of the
aforenoted accused persons. The Magistrate vide his order dated
22.6.2013 had discharged all the aforenoted accused persons. The
Sessions Judge, as noted supra, had reversed this order.
5 On behalf of the petitioners (six in number) all of whom are
Junior Engineers working with the Municipal Corporation of Delhi
(MCD) their counsel has explained the details and the procedure of a
contract. It is pointed out that at the time when a contract is awarded by
the MCD to a contractor, it is pursuant to a work order which is issued.
The work order contains the tender amount, the estimated cost and time,
and the number of cement bags which are to be given to the contractor
(in the tender in question the Ambuja cement bags were mentioned).
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 5 of 18
Thereafter a Letter of Indent is issued by the Divisional Officer of the
MCD for procuring the cement bags from the store of the MCD. On the
basis of this Letter of Indent cement bags are issued to the contractor by
the Executive Engineer against a gate pass which is required to be
returned to the MCD after the cement bags are unloaded at the site. The
role of Junior Engineers (petitioners herein) is to verify the cement bags
at the site and to make the entry in the register on day to day
consumption basis. Bills of the contractor are thereafter processed and
the value of the cement bags is adjusted as sold to the contractor while
disbursing the amount of the bills. It is pointed out that this detailed
procedure shows that once the cement bags are sold to the contractor
and payment is received by the MCD qua the cement bags as was in this
case, there is no question of the cement bags still being the property of
the MCD or the MCD having been entrusted with this property. Even
otherwise, there is no complaint made by the department. None of the
charges as leveled in the charge sheet has been leveled against the
petitioners. Learned counsel for the petitioners to support this
submission has placed reliance upon a judgment of the Supreme Court
reported as AIR 1968 (SC) 700 State of Gujarat Vs. Jaswantlal
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 6 of 18
Nathalal . Submission being that in that case also the question arose
about the entrustment of the cement bags by the department to Bharat
Sewak Samaj (BSS); the Court had noted that sale having being effected
of the cement in question the Government did not have any proprietary
right left over the same. The question of entrustment and the subsequent
charge of breach of trust as contained in Section 406 of the IPC was
clearly not made out. Submission of the learned counsel for the
petitioners being reiterated that his case also falls within the same
parameters. There has been no entrustment of property and the
Magistrate had rightly noted these facts in the right perspective. The
impugned order passed by the Sessions Judge interfering with the order
of the Magistrate suffers from an infirmity. Reliance has also been
placed upon a judgment of a Co-ordinate Bench of this Court reported as
129 (2003) DLT 403 R.Natarajan & Ors. Vs. State to support his
submission that at the time of framing of charges unless and until there
is a prima facie evidence collected by the prosecution no case for a
charge is made out.
6 The State has refuted these submissions. It is pointed out that the
impugned order suffers from no infirmity. A status report has also been
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filed by the State.
7 Arguments have been heard and record has been perused.
8 Record discloses that the present FIR had been registered on a
complaint made by Ajay Srivastva, the authorized signatory of M/s
Ambuja Cement. The FIR was registered under Sections
420/406/409/120B/411 of the IPC, Section 63 of the Copyright Act and
Sections 78/99 of the Trademark and Merchandise Act. In the
complaint it was disclosed that Nawab Khan was engaged in the
manufacture and sale of spurious cement in cement bags of Ambuja
Cement carrying a false trademark and trade description. A list of
traders who were indulging in the manufacture and supply and sale of
spurious cement in these bags were also disclosed. Contention in the
complaint being that ingredients of the offence under Section 420 of the
IPC as also violations of Trademark and Copyright Act were made out.
9 A raid was carried out on 13.02.2002 at Northern Basti, Lal Kuan.
Ashok Sultania acted as a decoy customer. He purchased four bags of
Ambuja Cement of 53 grade from the shop of Nawab Khan. On the
signal given by the shadow witness Sanjeev Vaid, the other persons of
the raiding party also entered the scene. Nawab Khan, Mehboob Ali,
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 8 of 18
Ombir Singh, Muhim Khan and Shamsher Khan were present there.
The decoy customer disclosed that he had purchased these four bags of
cement from Nawab Khan @ Rs.125/- per bag and had paid him
Rs.500/-. The currency note of Rs.500/- was recovered from Nawab
Khan and the four cement bags were also seized. The samples taken out
from these four bags were also seized and sealed. Further search was
conducted in the godown. Besides cement bags of Ambuja Cement,
other bags of cement i.e. Shree Cement, Vikram Cement, Birla Chetak
Cement, Laxmi Cement and bags containing the inscription “MCD
Supply- Not for Sale” were also recovered. Besides these bags of
cement one funnel like device was also recovered. Empty plastic bags
were also recovered. On physical examination it was found that the
empty bags when compared with the filled bags were different in size,
quality and colour which was visible to the naked eye.
10 Subsequent raids were also conducted. In the second raid again
not only bags of other companies i.e. Laxmi Cement and Vikram
Premium Cement but also bags having the print “MCD Supply- Not for
Sale” were recovered. Out of the total of 2692 bags which were
recovered, 2206 cement bags bore the inscription “MCD Supply- Not
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for Sale”.
11 The samples which were seized from these bags were sent for
chemical examination to Bureau of Indian Standard (BIS). As per the
report of the BIS relating to the measure of the strength of the samples
they were below the required strength. The samples taken from 53
grade cement bags had a grade ranging between 28 and 47 i.e. below the
requirement. Further investigation revealed that 200 bags which bore
the print “MCD Supply- Not for Sale” were issued from the MCD
godowns of Nand Nagri, Janak Puri and Khayala.
12 V.K.Gupta (JE) (petitioner in Cr.R.P.No.558/2014) posted at
Janak Puri was looking after the site of Rajpura Gur Mandi Delhi which
was within the jurisdiction of Janak Puri. 178 bags of cement had been
issued from Janak Puri for the site at Rajpura Gur Mandi. Allegations in
the charge-sheet being that out of these 178 bags only 100 were
unloaded at the site at Rajpura Gur Mandi and the balance 78 bags were
unloaded at the godown of Nawab Khan etc.
13 Yogender Pal Singh (JE) (petitioner in Cr.R.P.No.559/2014)
issued cement from Janak Puri and Khayala godowns. In the case of
200 cement bags which were issued from Janak Puri godown and
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received in the presence of the contractor, 100 cement bags were
unloaded at the site in the presence of the JE and the contractor and the
remaining 100 bags were unloaded at the godown of Nawab Khan.
Though Yogender Pal Singh and the contractor had shown that all the
aforenoted 200 cement bags had been used, however, 42 bags of the
same lot were part of the recovery during the raid (carried out on
13.2.2002) and identified during inspection (carried out on 17.2.2002).
14 200 bags of Vikram Cement were received from cement godown
Janak Puri and received by Pankaj Goel (JE), petitioner in
Cr.R.P.No.560/2014, at the MCD site at Jahangirpuri Colony. The
cement was shown to be consumed in the work. However, per
inspection carried out on 17.2.2002, 12 cement bags of the same brand,
lot number and date were identified from the cement recovered during
the raid on 13.2.2002.
15 Praveen Chowdhary (JE) (petitioner in Cr.R.P.No.562/2014)
posted at Nand Nagri was looking after the site at A-31 Saral Extension
which was within the jurisdiction of Nand Nagri. 200 bags of cement
had been issued from Nand Nagri for the site at Saral Extension.
Allegations in the charge sheet being that out of these 200 bags only 100
Crl. Rev.P. Nos.558/2014, 559/2014, 560/2014, 562/2014, 563/2014, 564/2014 Page 11 of 18
bags were unloaded at the Saral Extension site and the balance 100 bags
were unloaded at the godown of co-accused Nawab Khan of which 11
bags were recovered during the raid on 13.02.2002 and identified as per
the inspection carried out on 17.02.2002.
16 Mohd. Asif (JE) (petitioner in Crl.R.P.No.563/2014) posted at
Nand Nagri was looking after the site of Dilshad Garden which was
within the jurisdiction of Nand Nagri. 200 bags of cement had been
issued from Nand Nagri for a site at Dilshad Garden. Allegations in the
charge sheet being that out of these 200 bags only 100 bags were
unloaded at the site of Dilshad Garden in the presence of the JE and the
balance 100 bags were unloaded at the godown of co-accused Nawab
Khan.
17 R.K.Chahal (JE) (petitioner in Crl.R.P.No.564/2014) was posted
at Janak Puri and was looking after the site of Dhaka Village. 200 bags
of Birla Cement had been issued from MCD godown Janak Puri for a
site at Dhaka Village. Allegations in the charge sheet being that out of
these 200 bags only 100 bags were unloaded at the site of Dhaka Village
in the presence of the JE and balance 100 bags were unloaded at the
godown of co-accused Nawab Khan. Though the JE had shown the
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utilization of the cement bags, 54 bags of this lot were recovered during
the raid carried out on 13.2.2002.
18 Statements of the witnesses recorded under Section 161 Cr.P.C.
have been perused. Ashok Sultania who was the decoy customer in his
statement under Section 161 Cr.P.C. had disclosed that he had
purchased these four bags of cement from Nawab Khan in a sealed
condition in the presence of Sanjeev Vaid (shadow witness). Samples
were taken which were than seized and sealed. The statement of
Sanjeev Vaid was also to the effect that the samples were taken after
mixing the cement and transferring them from one bag to the other with
the help of a funnel. Statements of Narender Dutt, Rajender Kumar and
Teja Singh which have been highlighted by the learned counsel for the
petitioners have also been perused. Both Rajender Kumar and Teja
Singh were working as drivers in the trucks. In their statements
recorded under Section 161 Cr.P.C. they stated that Ravinder Kumar
(co-accused) was a transporter of the MCD Cement Store and he was
doing this business in Nand Nagri along with his brother Satish and his
father Om Prakash. Under instructions of Ravinder Kumar, cement was
being transported from cement store at Nand Nagri. 200 bags were
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issued from store at Nand Nagri. He had delivered 100 bags of cement
at the site where it was received by the JE and the remaining 100 bags
were delivered by him to the godown of Nawab Khan. This statement of
Rajender Kumar is in support of the stand of the prosecution that out of
200 bags which had been issued from the depot at Nand Nagri only 100
bags were delivered at the site which were received by the JE and
balance 100 bags of cement were taken to the godown of Nawab Khan.
Statements of Nihal Singh and Mahipal Singh (J/Es) were to the effect
that the seized bags were identified by them as having the inspection
“MCD Supply-Not for Sale” and belonged to the Khayala and Janakpuri
godowns. Other witnesses deposing to the same effect have also been
examined by the Investigating Officer. The submission of the learned
counsel for the petitioners that the JEs had no role to play in this is far-
fetched as it is his own submission and an admitted fact that the cement
bags were taken out from the godown of the MCD on a gate pass being
presented by the contractor and thereafter taken to the site of the
contractor where receipt of these cement bags were verified by the JE.
Statement of witness Rajender Kumar clearly shows that out of 200 bags
which were issued from the Nand Nagri site only 100 bags were
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delivered and verified by the JE at the site and 100 bags were taken by
him at the instructions of his contractor to the godown of Nawab Khan.
19 The legal position on conspiracy and the complicity of one with
the other is settled. A conspiracy is hatched in darkness; it is not open
and visible to the open eye. A conspiracy by and large would be
established by linking all the chains in the circumstances to build up the
whole picture. The submission of the learned counsel for the petitioners
that the JEs are innocent and had no role to play in the unloading of the
cement bags which were admittedly recovered in the godown of Nawab
Khan and others appears to be incorrect. It was the bounden duty and
responsibility of the JE to check and verify that the cement which had
been released from the MCD godowns had reached the site of the
contractor. This was obviously not done and that is why such
innumerable bags containing inscription “MCD Supply- Not for Sale”
were recovered from the godowns of Nawab Khan and others. All the
bags obviously were not reaching their intended site; they were being
diverted to the godown of unauthorized persons and thereafter sold in
the open market. The factum of this unauthorized diversion is evident
from the recovery of 2206 bags of cement from these godowns. The
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fact that they were sold in the open market is evident from the sale of
four bags to the decoy customer Ashok Srivastva for Rs.500/- by Nawab
Khan. The fact that the cement found in these bags was spurious and
low grade is also prima facie been established by the report of the BIS.
20 The order of the Magistrate was rightly set aside. It appears that
the Magistrate had decided the case on that date itself. He had noted that
the numbers of the bags given by the witnesses Ashok Sultania and
Sanjeev Vaid were varying; he had drawn the conclusion that the
samples did not appear to be fastidiously taken, and could not rule out
tampering, this was a wrong finding as the categorical version of both
the witnesses Ashok Srivastva and Sanjeev Vaid is that samples were
taken after proper mixing and were seized and sealed in their presence.
The Magistrate had also returned a finding that the empty bags as
compared to the filled bags could not be deciphered to be different on
appearance as no expert opinion on this was taken; the Magistrate had
also noted that a case of discharge was made out as the person who had
filed the complaint was not really authorized to do so. These cumulative
factors which had weighed in the mind of the Magistrate to discharge
the accused persons at the nascent stage appears to be wholly illegal.
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The Sessions Judge had rightly reversed the order.
21 The Sessions Judge had rightly held that there was prima facie
sufficient material to show the complicity of the traders, transporters as
also JEs in this recovery of unauthorized bags of cement from the
godowns of persons who were not authorized to keep them. The cement
recovered from these bags was spurious and of low grade. The fact that
a large chunk of these bags belonged to the “MCD Supply- Not for
Sale” established the complicity of the Junior Engineers who were to
ensure the receipt of the cement bags at the authorized sites; they had to
be accounted for but this was obviously not done.
22 The Sessions Judge had thus rightly held that there was sufficient
material to frame charge against the accused persons and had
accordingly remanded the matter back to the Magistrate to decide which
offence is made out against the accused persons. This order calls for no
interference.
23 Reliance by the learned counsel for the petitioners on the
judgment of Jaswantlal (supra) is of no use as this judgment relates to
the offence of breach of trust and entrustment as contained in Section
405 of the IPC which is not the subject matter in issue. On no count
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does the impugned order call for any interference.
24 Dismissed.
INDERMEET KAUR, J
DECEMBER 24, 2014
ndn
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