The State by S.P. Through the Spe Cbi v. Uttamchand Bohra
S. RAVINDRA BHAT, J.
1. This special leave petition was filed after a delay of 447 days.
The successful respondent (Uttamchand Bohra, herein after
“Uttamchand/respondent”), who was issued notice as to why dela y in
filing the petition should not be condoned, objected to the Court’s
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entertaining the petition, urging that the certified copy of the impugned
order (delivered on 25.05.2017), was applied for on 13.03.2018 and
eventually the petition was filed on 13.11.2018. Thus, total delay of 447
days occurred in filing of the petition, which is inordinate. It was urged
that the application for condonation should not be countenanced, as no
sufficient cause was shown.
2. On behalf of the Central Bureau of Investigation (hereina fter
“CBI / prosecution”), Mr. Vikramjit Banerjee, learned Additional Solicitor
General (hereinafter “ASG”) pointed to averments in the affidavit and
supported the application seeking condonation of delay on the ground
that the certified copy which had been originally applied for, could not be
collected since the receipt was misplaced and as a res ult, the second
certified copy was applied for. The matter had to be p rocessed and
official approvals obtained, which took some time. The final clearance
for filing the petition was given in mid-June 2018 after which it was
drafted and eventually filed. The ASG contended that having regard to
these facts, this Court should condone the delay for filing the petition.
3. After hearing the rival arguments, this Court is of the opinion
that though the delay of over 447 days is considerable, neverthele ss
explanation given by the petitioner that it lost the original receipt and had
to apply for a fresh certified copy, has to be taken note of. The delay
which occurred after the receipt of the certified copy in the opinion of
the Court is not of such magnitude as to warrant dis missal of the
application i.e., I.A. No. 178754/ 2018. The application is allowed and
the delay in filing the petition, condoned.
4. Special leave granted. With the consent of counsel for the
parties, the appeal was heard finally.
5. The CBI is, in this appeal, aggrieved by a judgment of the
Madras High Court1 by which, exercising jurisdiction under Section 397
and Section 401 of the Code of Criminal Procedure (hereinafter “CrPC”)
it quashed the charge sheet against the respondent (who was arrayed as
fifth accused in C.C. No.5 of 2015, before the Special Judge for C BI
cases (XII Addl. Judge, City Civil Court, Chennai (hereina fter “trial
court”). The trial court had, by its order dated 29.12.2015, reje cted
Crl.M.P.No.6873/2015, which was an application under Section 239
CrPC seeking Uttamchand’s discharge.
1 Dated 25.05.2017 in CRP 73/2017.
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
6. The CBI, through its Investigating Officer (hereinafter “IO”),
after completing investigation, filed a final report on 20.02.2012 under
Section 173 CrPC against five (out of seven) accused. Badhe Rathnam
Mahesh, s/o B. S. Rathnam (A-3) and Badhe Anandh Chaitanya, s/o
B.R. Mahesh (A-4) were pardoned and became approvers; they were
not sent for trial. Those sent up for trial were: (i) Andasu Ravindar, (A-
1); (ii) Kavitha Andasu, wife of A-1 (A-2); (iii) Uttamchand (A-5); (iv)
Uday K. Agarwal, (A-6); and (v) Pothapragada Srinivas, (A-7) . CBI
alleged that the accused committed offences punishable under Section
120B and Section 109 of the Indian Penal Code (hereinafter “IPC”) and
Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption
Act, 1988 (hereinafter “PCA”).
7. It was alleged in the final report that A-1, in collusion with the
other accused, during the period of 01.01.2005 to 29.08.2011 amassed
wealth in his name, as well as in the name of his wife (A-2) to the tune
of ` 2,32,20,296/- which was disproportionate to his known sources of
income for which he was not able to account satisfactorily. It was alleged
that A-2 was a house wife. She had filed her income tax returns for the
assessment years 2005-06, 2006-07, 2007-08, 2009-10 and 2011 through
the approver (A-4), a chartered accountant who had acted on behalf of
A-1 and received money from him. That money was returned to A-2 to
show as if she had earned the income through job contracts and business.
It was further alleged that A-1 also purchased properties on several
occasions and the income tax returns did not reflect those prop erties.
They were purchased in Chennai in the name of M/s Raviteja Trading
Co. Pvt. Ltd., Hyderabad (hereinafter also “Company”). The y were
purchased only through sources arranged by A-1. On the directions of
A-7, ` 94,82,300/- was transferred by cheques by A-6 through hi s
companies’ accounts (i.e., M/s. Utkarsh Infotech Pvt. Ltd., a nd M/s.
Utkarsh Staffing Pvt. Ltd., Secunderabad) to the current account of M/
s. Raviteja Trading Company Pvt. Ltd., Hyderabad with S tandard
Chartered Bank, Secunderabad. After receiving that a mount, M/s.
Raviteja Trading Co., Pvt. Ltd., represented by approver (A-4), acquired
the property at Chennai on the directions of A-1. The sale consideration
of ` 80,00,000/- was paid through two demand drafts each for the value
of ` 50,00,000/- and ` 30,00,000/- respectively and these two demand
drafts were purchased by the approver A-4, director of M/ s. Raviteja
Trading Co., Pvt. Ltd., Hyderabad through its current account and the
amount was handed over to the vendor Mr. Badruzman Khan.
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8. The prosecution alleged further that the sale deed (dated
13.07.2011) of the property, Flat No.4/3 (old No.28/3), measuring 2108
sq. ft. in second floor at AIL-Ahad Apartment No.28 (present No .4)
Nageswara Rao Road (Old No.13, Krishnamcahari Road,
Nungambakkam, Chennai-34) was executed and register ed under
Document No.669/2011, (hereinafter “the sale deed”) in the name of
M/s. Raviteja Trading Co. Pvt. Ltd. Though the said prope rty was
purchased in the name of the company, its original sale deed was seized
from the possession of Uttamchand who was the financier and cl ose
associate of A-1.
9. The prosecution case, as regards Uttamchand, had two aspects:
the first, relating to the seizure of the sale deed in (C.C . No.5/ 2015),
and the second relating to the case in C.C. No.3/ 2013. In the pre sent
case, the allegation against Uttamchand is that he was a close associate
and financer of A-1 and his family. The original sale deed was executed
in the name of the Company. The sale deed was in his custody a s per
the directions of A-1. Uttamchand thereby had render ed his active
assistance to A-1 to acquire assets in his name as well as in the name of
his wife A-2 and in the name of the Company, during the period of
01.01.2005 to 29.08.2011 which, as stated above, was disproportionate
to the known sources of income of A-1 to the tune of ` 2,32,20,296/-.
The percentage of disproportionate assets is calculated at 171.41% for
the total income of A-1 and A-2, which they could not satisfact orily
account for. The second case (hereafter called “the earli er case”) was
that Uttamchand was a co-accused (A-3) in R.C. No. 33(A)/2011 (CC.
No. 3/2013) and was facing trial in that case. According to the prosecution,
his vehicle was intercepted when he had attempted to he lp A-1 in
transporting a bribe amount of ` 50 lakhs received by him A-1 to a safe
place. That case was registered on 20.02.2012 with CBI, ACB, Chennai
under Section 13(1)(e) PCA and Section 109 IPC.
10. Uttamchand’s complaint before the High Court was that the
only evidence relied upon by the prosecution against him was possession
of the sale deed. His argument was that even if the CBI w ere to prove
what it alleged - which is that his employee (V. Sridhar / PW-45) had
witnessed the execution of the document, per se that circumstance could
not make him criminally liable. It was also urged that since Uttamchand’s
relationship with A-1 and A-2 was known to the prosecution and admitted
by it, i.e. as a financer, (which was borne out by the fact that he had
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
advanced monies to A-2 and had disclosed these in the income tax returns),
the sale deed, belonging to a third party, with him in no way implicated
him. It was also urged that the deposition of V. Sridhar, or even those of
the approvers established in any manner that Uttamchand had links with
the company which purchased the flat. That Uttamchand was to face
trial in the earlier case could not have been an incriminating circumstance
for him to be joined in the second case against A-1, A-2 and other accused.
11. On the other hand, the CBI urged that Uttamchand’s role as
the holder of title documents of property clearly pointed to a conspiracy
between him and A-1, the public servant. He was a facilitat or for the
purchase of benami property by A-1 in the name of the company. It
was argued that the Court, while examining whether to frame charges
or otherwise against an accused sent up for trial, is not concerned with
the probability of truth but whether there is a reasonable suspicion of the
accused having committed an offence. Viewed from this perspe ctive,
the role attributed to Uttamchand at the stage of framing of charges,
i.e., of being in possession of the sale deed, the real owner of the property
being A-1, was probable reasonable cause, sufficient for the trial court
to frame charges. In any event, it was sufficient for the trial court to
reject his application for discharge which it correctly did.
12. The High Court accepted the arguments on behalf of
Uttamchand Bohra. After an overall examination of the statements made
by the witnesses relied upon by the prosecution under Section 161 CrPC,
the High Court concluded that the mere possession of the re gistered
sale deed which was witnessed by Uttamchand’s employee, coul d not
incriminate him. It could not amount to satisfying the prescribed standard,
i.e., of reasonable suspicion of commission of the cri me, of being
attributable to him, i.e., of abetment and conspiracy with a public servant
to enable the latter to amass wealth which was disproporti onate to his
known sources of income. The High Court also noticed that the approver’s
evidence, i.e., the statements under Section 161 CrPC, in no manner
tended to implicate Uttamchand. Those statements merely poi nted to
the acquisition of property by the Company i.e., M/s.Raviteja Trading
Co. Pvt. Ltd., Hyderabad.
Contentions of the prosecution
13. On behalf of the CBI, it was argued by the learned ASG that
the chargesheet contained clear allegations of collusion which amounted
831
to criminal conspiracy on the part of Uttamchand with A-1. It was pointed
out that the consideration of ` 80,00,000/- paid for the property was
never disclosed. Although A-1 contended that the property belonged to
the Company, nevertheless it was a mere front. The property was
purchased through A-1’s friend P. Srinivas, director of M/s. Tidal Data
Solutions, Bangalore. A-1 had official dealings with two entities (M/s.
A.S. Shipping Agencies and M/s. Aban Offshore Ltd., Chennai) to whom
M/s. Tidal Data Solutions had approved unified storage se rvers. The
said P. Srinivas received payments from those companies in excess of
the invoice value which were deposited in the account of the companies
of A-6, Udhay K. Agarwal. Those amounts were then diverted to the
Company i.e., M/s. Raviteja Trading Pvt. Ltd. which ultimately bought
the flat.
14. It was submitted that the original sale deed purchased by the
said companies was seized from the possession of Uttamchand. He had
no explanation as to how the sale deed was in his possession. Uttamchand
was the financer to lend money to A-2. Uttamchand’s acquiescence to
the close dealings with A-1 and A-2, the manner in which the property
was purchased after routing the money into the account of the Company,
from entities which had official dealings with A-1, and th e further
circumstances that Uttamchand’s employee was witness to the sale deed,
pointed to his complicity and guilt. Therefore, the trial court corr ectly
framed charges against him. It was further argued that during pendency
of the present proceedings, the trial went ahead, and statements of most
witnesses were recorded. In this context, the depositions of PW-70 and
PW-71 were relied on, to say that A-1 amassed wealth illicitly and was
aided by others like Uttamchand.
15. It was urged that Uttamchand aided and assisted in the
execution of the sale deed and abetted the benami purchase made by
A-1 by making his employee (PW-45) sign as a witness to the sale deed.
It was also urged that during the search on 30.08.2011, at the residence
of Uttamchand, the original sale deed was seized, i n addition to
` 48,20,000/-. Counsel also submitted that it was clear from the statement
of the chartered accountant, Siddharth Mehta (PW-73) that the s ale
deed was handed over to A-1 by Siddharth Mehta. The sa le deed
eventually was recovered from Uttamchand’s residence. This clearly
showed the sale deed was given by A-1 himself to Uttamchand only to
protect A-1 from any legal pursuit.
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
16. The ASG also alluded to the facts of the earlier case, in R.C.
No. 33(A)/2011 (CC. No. 3/2013) (registered on 29.08.2011 u/s 120B
IPC r/w 7 of PCA, 1988. He submitted that A-1 organiz ed survey
proceedings in the premises of M/S Everonn Education Ltd., Chenn ai
and concealed taxable income of ` 100 crore. He demanded and accepted
` 50 lakhs from Shri P. Kishore on 29.08.2011 for showing undue favor
and concealing income tax liability. He further urged that the CBI team
intercepted Uttamchand going to A-1’s residence about 9.00 p.m., and
assisting A-1 in transferring the money to a safe place by driving the car
in which A-1 was seated. A-1 had a carton, containing ` 50 lakhs. Thus,
Uttamchand colluded in transporting the bribe amount received by A-1
to a safe place for which he arrived at the latter’s residence, which was
also proved by telephonic surveillance.
17. Learned ASG urged that this Court, in Nirmaljit Singh Hoon
v. State of West Bengal2 held that in a criminal trial, the test was whether
there was sufficient grounds for proceeding prevalent, and not whether
there was sufficient ground for conviction. When there was prima facie
evidence, even though person accused may have a defense, the ca se
had to be relegated to be decided by appropriate forum at the right stage.
He also urged that strong suspicion was sufficient for framing charges
and relied on State of Bihar v. Ramesh Singh 3.
18. Mr. R. Basant, learned Senior Counsel submitted that prima
facie the prosecution failed to produce any material to implicat e the
respondent in the crime of conspiracy. It was submitted that most of the
witnesses had already deposed. The only other evidence available to the
prosecution to connect the respondent with the crime was a confession
of the co-accused which according to the learned co unsel was
inadmissible in evidence. However, the depositions of PW-70 and PW-
71 did not inculpate Uttamchand. Therefore, he contended that the High
Court was justified in allowing his discharge applicati on since the
prosecution failed to establish even a prima facie case against the
respondent.
19. It was argued, by referring to Union of India vs. Prafulla
Kumar Samal & Ors 4 that the test to determine a prima facie case
depends upon the facts of each case. However, if two views are equally
2 (1973) 3 SCC 753.
3 (1977) 4 SCC 39.
4 1979 (3) SCC 04
833
possible and the judge is satisfied that the evidence produced before him
may give rise to some suspicion but not grave suspicion aga inst the
accused, the judge would be justified in discharging the accused. Counsel
also pointed out that while exercising jurisdiction under Section 227 of
CrPC, the Court could not merely act as a Post Office or a mouth-piece
of the prosecution, but had to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced before
it, if any basic infirmities appear in the case, etc.
20. Mr. Basant urged that the High Court correctly held that mere
presence of the sale deed in the respondent’s reside nce and other
allegations did not constitute any of the offences charged against him.
The allegations against Uttamchand in the charge-sheet / fi nal report
prima facie did not constitute any of the offences for which he was
being prosecuted. It was submitted that Uttamchand was not a public
servant, and could not commit an offence under Section 13(1) (e) read
with Section 13(2) of the PCA. There was no allegation that he received
any monetary benefit, or profited from A-1’s amassi ng assets
disproportionate to his income. Furthermore, there was no evidence linking
the transaction of sale of the flat, with Uttamchand. Further, no allegation
against Uttamchand was made in the chargesheet that may a mount to
an offence under Section 109, IPC.
Analysis and Findings
21. In Central Bureau of Investigation v. K. Narayana Rao 5
this Court, after reviewing the previous decisions that d ealt with the
question of the applicable standard relating to discharge of accused in a
criminal case, summarized the principles in the following terms:
“13. Discharge of the accused under Section 227 of the Code
was extensively considered by this Court in P. Vijayan [(2010)
2 SCC 398 wherein it was held as under: (SCC pp. 401 -02,
paras 10-11)
“10. … If two views are possible and one of them gi ves
rise to suspicion only, as distinguished from grave
suspicion, the trial Judge will be empowered to discharge
the accused and at this stage he is not to see whether the
trial will end in conviction or acquittal. Further, the words
‘not sufficient ground for proceeding against the accused’
5 (2012) 9 SCC 512
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
clearly show that the Judge is not a mere post offic e to
frame the charge at the behest of the prosecution, but has
to exercise his judicial mind to the facts of the c ase in
order to determine whether a case for trial has been made
out by the prosecution. In assessing this fact, it is not
necessary for the court to enter into the pros and cons of
the matter or into a weighing and balancing of eviden ce
and probabilities which is really the function of the court,
after the trial starts.
11. At the stage of Section 227, the Judge has merel y to
sift the evidence in order to find out whether or not there
is sufficient ground for proceeding against the acc used.
In other words, the sufficiency of ground would take within
its fold the nature of the evidence recorded by the poli ce
or the documents produced before the court which ex facie
disclose that there are suspicious circumstances ag ainst
the accused so as to frame a charge against him.”
12. The first decision in Ramesh Singh [(1977) 4 SCC 39]
relates to interpretation of Sections 227 and 228 o f the
Code for the considerations as to discharge the acc used
or to proceed with trial. Para 4 of the said judgmen t is
pressed into service which reads as under: (SCC pp. 41-
42)
“4. Under Section 226 of the Code while opening the case
for the prosecution the Prosecutor has got to descr ibe the
charge against the accused and state by what eviden ce he
proposes to prove the guilt of the accused. Thereaft er comes
at the initial stage the duty of the Court to consider the record
of the case and the documents submitted therewith and to hear
the submissions of the accused and the prosecution in that
behalf. The Judge has to pass thereafter an order either und er
Section 227 or Section 228 of the Code. If ‘the Jud ge
considers that there is no sufficient ground for pr oceeding
against the accused, he shall discharge the accused and rec ord
his reasons for so doing’, as enjoined by Section 227. If, on
the other hand, ‘the Judge is of opinion that there is groun d
for presuming that the accused has committed an off ence
which— … (b) is exclusively triable by the court, h e shall
835
frame in writing a charge against the accused’, as p rovided
in Section 228. Reading the two provisions together in
juxtaposition, as they have got to be, it would be clear that at
the beginning and the initial stage of the trial the truth, veracity
and effect of the evidence which the Prosecutor propos es to
adduce are not to be meticulously judged. Nor is any weight
to be attached to the probable defence of the accused. It is
not obligatory for the Judge at that stage of the t rial to
consider in any detail and weigh in a sensitive bal ance
whether the facts, if proved, would be incompatible wi th the
innocence of the accused or not. The standard of te st and
judgment which is to be finally applied before reco rding a
finding regarding the guilt or otherwise of the accused is not
exactly to be applied at the stage of deciding the matter und er
Section 227 or Section 228 of the Code. At that sta ge the
Court is not to see whether there is sufficient gro und for
conviction of the accused or whether the trial is sure to end
in his conviction. Strong suspicion against the accused, i f the
matter remains in the region of suspicion, cannot t ake the
place of proof of his guilt at the conclusion of the trial. Bu t at
the initial stage if there is a strong suspicion whic h leads the
Court to think that there is ground for presuming t hat the
accused has committed an offence then it is not open to the
Court to say that there is no sufficient ground for proceeding
against the accused. The presumption of the guilt o f the
accused which is to be drawn at the initial stage is not i n the
sense of the law governing the trial of criminal cases in Franc e
where the accused is presumed to be guilty unless the contra ry
is proved. But it is only for the purpose of decidi ng prima
facie whether the Court should proceed with the trial or not .
If the evidence which the Prosecutor proposes to ad duce to
prove the guilt of the accused even if fully accepted before it
is challenged in cross-examination or rebutted by the d efence
evidence, if any, cannot show that the accused committed the
offence, then there will be no sufficient ground for proceeding
with the trial. An exhaustive list of the circumstances to indicate
as to what will lead to one conclusion or the other is neith er
possible nor advisable. We may just illustrate the dif ference
of the law by one more example. If the scales of pan as to the
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
guilt or innocence of the accused are something like even at
the conclusion of the trial, then, on the theory of b enefit of
doubt the case is to end in his acquittal. But if, on the oth er
hand, it is so at the initial stage of making an order under
Section 227 or Section 228, then in such a situation ordinarily
and generally the order which will have to be made wil l be
one under Section 228 and not under Section 227.
14. While considering the very same provisions i.e. framin g
of charges and discharge of the accused, again in S ajjan
Kumar [(2010) 9 SCC 368] , this Court held thus: (SCC pp.
375-77, paras 19-21)
“19. It is clear that at the initial stage, if there is a str ong
suspicion which leads the court to think that there is ground
for presuming that the accused has committed an offence,
then it is not open to the court to say that there is no
sufficient ground for proceeding against the accused. The
presumption of the guilt of the accused which is to be drawn
at the initial stage is only for the purpose of decidin g prima
facie whether the court should proceed with the tria l or
not. If the evidence which the prosecution proposes to
adduce proves the guilt of the accused even if fully accepte d
before it is challenged in cross-examination or rebutted by
the defence evidence, if any, cannot show that the accused
committed the offence, then there will be no suffic ient
ground for proceeding with the trial.
20. A Magistrate enquiring into a case under Section 209
CrPC is not to act as a mere post office and has to come to
a conclusion whether the case before him is fit for
commitment of the accused to the Court of Session. He is
entitled to sift and weigh the materials on record, but only
for seeing whether there is sufficient evidence for
commitment, and not whether there is sufficient evide nce
for conviction. If there is no prima facie evidence or the
evidence is totally unworthy of credit, it is the duty of the
Magistrate to discharge the accused, on the other hand, if
there is some evidence on which the conviction may
reasonably be based, he must commit the case. It is a lso
clear that in exercising jurisdiction under Section 227
837
CrPC, the Magistrate should not make a roving enquir y
into the pros and cons of the matter and weigh the evide nce
as if he was conducting a trial.
Exercise of jurisdiction under Sections 227 and 228 CrPC
21. On consideration of the authorities about the scop e
of Sections 227 and 228 of the Code, the following
principles emerge:
(i) The Judge while considering the question of fram ing
the charges under Section 227 CrPC has the undoubted
power to sift and weigh the evidence for the limited pur pose
of finding out whether or not a prima facie case ag ainst
the accused has been made out. The test to determine prima
facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disc lose
grave suspicion against the accused which has not b een
properly explained, the court will be fully justifi ed in
framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a
mouthpiece of the prosecution but has to consider the broad
probabilities of the case, the total effect of the e vidence
and the documents produced before the court, any basic
infirmities, etc. However, at this stage, there canno t be a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court
could form an opinion that the accused might have
committed offence, it can frame the charge, though for
conviction the conclusion is required to be proved beyond
reasonable doubt that the accused has committed the
offence.
(v) At the time of framing of the charges, the prob ative
value of the material on record cannot be gone into but
before framing a charge the court must apply its judic ial
mind on the material placed on record and must be satisfied
that the commission of offence by the accused was possibl e.
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
(vi) At the stage of Sections 227 and 228, the cou rt is
required to evaluate the material and documents on record
with a view to find out if the facts emerging therefrom t aken
at their face value disclose the existence of all t he
ingredients constituting the alleged offence. For this limited
purpose, sift the evidence as it cannot be expected even at
that initial stage to accept all that the prosecution states
as gospel truth even if it is opposed to common sens e or
the broad probabilities of the case.
(vii) If two views are possible and one of them gives ri se
to suspicion only, as distinguished from grave suspi cion,
the trial Judge will be empowered to discharge the accused
and at this stage, he is not to see whether the trial will end
in conviction or acquittal.”
22. As is evident from the discussion of the facts, Uttamchand is
accused of abetting and/or conspiring with the principal accused, a public
servant (A-1), so as to permit him to accumulate assets disproportionate
to his known sources of income. A-1 was a senior official of the Central
Government, working in the income tax department. According to the
prosecution, he acquired the flat, through the company. Tw o other
accused, who facilitated the acquisition, turned approver; they also deposed
during the trail. The role attributed to the respondent is that he helped in
the execution of the sale deed of the property, and kept cust ody of the
title deed to it. The document was in fact seized from his h ouse. The
seizure took place over a year before the present case was initiated; in
fact, the CBI had initiated another criminal proceeding, in which A-1 too
was implicated. In that case, the CBI had seized ` 50 lakhs from him. In
the present case, the recovery from Uttamchand’s custod y of the sale
deed of the property, owned by the Company led to initiation of separate
proceeding; inter alia, Uttamchand was charged with criminal
conspiracy, defined under Section 120A, IPC 6 and punishable under
6 “120A. Definition of criminal conspiracy.— When two or more persons agree to do,
or cause to be done,—
(1) an illegal act, or
2) an act which is not illegal by illegal means, su ch an agreement is designated a
criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to
a criminal conspiracy unless some act besides the a greement is done by one or more
parties to such agreement in pursuance thereof.
839
Section 120B IPC and abetment, defined by Section 107 I PC7 and
punishable under Section 109 IPC 8. Section 13 (1) (e) and Section 13
(2), which are relevant, because the respondent Uttamchand was sought
to be charged under those provisions, read as follows:
“13. Criminal misconduct by a public servant .—
(1) A public servant is said to commit the offence of crimi nal
misconduct,—
********* **********
(e) if he or any person on his behalf, is in possession or has ,
at any time during the period of his office, been in poss ession
for which the public servant cannot satisfactorily account,
of pecuniary resources or property disproportionate to his
known sources of income.
Explanation. —For the purposes of this section, “kn own
sources of income” means income received from any l awful
Explanation—It is immaterial whether the illegal ac t is the ultimate object of such
agreement, or is merely incidental to that object.”
7“107. Abetment of a thing.—A person abets the doing of a thing, who—
First.—Instigates any person to do that thing; or
Secondly.—Engages with one or more other person or persons in any conspiracy for
the doing of that thing, if an act or illegal omiss ion takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of
a material fact which he is bound to disclose, voluntarily causes or procures, or attempts
to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration A, a public officer, is authorised by a warrant from a Court of Justice to
apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that
C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation
the apprehension of C.
Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does
anything in order to facilitate the commission of t hat act, and thereby facilitates the
commission thereof, is said to aid the doing of that act.”
8 “ 109. Punishment of abetment if the act abetted is committed in consequence and
where no express provision is made for its punishme nt—Whoever abets any offence
shall, if the act abetted is committed in consequen ce of the abetment, and no express
provision is made by this Code for the punishment of such abetment, be punished with
the punishment provided for the offence.
Explanation.—An act or offence is said to be commit ted in consequence of abetment,
when it is committed in consequence of the instigation, or in pursuance of the conspiracy,
or with the aid which constitutes the abetment.”
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
source and such receipt has been intimated in accor dance
with the provisions of any law, rules or orders for t he time
being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall
be punishable with imprisonment for a term which sha ll be
not less than 3 [four years] but which may extend to 4 [t en
years] and shall also be liable to fine.”
23. The factual narration in this case would reveal that Uttamchand,
the respondent, was not a public officer or public serv ant. He cannot
therefore, be charged with committing an offence under Section 13(1)(e)
read with Section 13(2) of the PCA. There is no allegation against
Uttamchand, that he received any monetary or other benefit, or that he
held the property in his name for the benefit of A-1. This assumes
significance, because the property which the Company purchased, was
in its name. There is no evidence against the respondent linking him to
the transaction relating to the execution of the sale deed, or alleging that
he had an agreement with A-1 and others to commit an illegal act. Further,
there is no allegation of a legal act being done in an ill egal manner.
Therefore, the alleged offence under Section 120-B IPC against t he
respondent is also not made out from the charge-sheet.
24. The chargesheet further does not contain any allegation which
can amount to an offence under Section 109 IPC. The prosecution has
not suggested that he abetted A-1 to acquire disproportionate assets in
any manner; the only allegation is that the title deeds to the flat, which is
in the name of M/s. Raviteja Trading Co. Pvt. Ltd. was seized from his
custody and that he had instructed his employee to witness the document.
An allegation of the existence of signatures of Uttamchand’s employee,
as a witness to the sale deed cannot amount to his aiding or abetting A-
1 to acquire disproportionate assets. Witnessing a sale deed is a formal
requirement. Likewise, the fact that the sale deed was in Uttamchand’s
residence cannot satisfy the ingredient of any of the offences al leged
against him.
25. The statements of the approvers, A-3 and A-4, who were
tendered pardon by the Court, do not reveal any inv olvement by
Uttamchand in commission of the alleged offence. During the pendency
of the present proceedings the recording of depositions of 74 witnesses
was completed. Those were part of this Court’s record; the y do not
841
show any incriminating material as far as Uttamchand is c oncerned.
Furthermore, crucially, the money trail for the property bought under the
sale deed, does not show Uttamchand’s involvement. It may implicate
A-3 and A-4, however as stated before, the Court has granted a pardon
to them, for which they have turned approvers. The money trail for the
purchase of flat, under the chargesheet - which is also discussed in the
impugned judgment, is that (a) the property was purchased by M /s.
Raviteja Trading Co. Pvt. Ltd. through sources alleged arranged by A-1
through his friend A-7; (b) A-1 had official dealings with two companies
M/s. A.S. Shipping Agencies and M/s. Aban Offshore Ltd., Chennai ;
(c) At A-1’s reference, a company (in which A-7 is a dir ector (M/s.
Tidal Data Solutions, Bangalore)) had supplied data storage servers to
the said two companies (M/s. A.S. Shipping Agencies and M/s. Ab an
Offshore Ltd.); (d) Th latter two companies [M/s. A.S. Shipping Agencies
and M/s. Aban Offshore Ltd.] had made a payment of about ` 1 crore
in excess (over and above the invoice amount) to A-7; (e) A- 7 had
collected the payments through cheques and deposited them in current
accounts of A-6’s companies (Utkarsh lnfotech Pvt. Ltd., and Utkarsh
Staffings Pvt. Ltd.); (f) On A-7’s direction, A-6’s companies transferred
` 94,82,300/- to the account of M/s. Raviteja Trading Co. Pvt. Ltd, of
which ` 80,00,000/- was used by the Company (represented by approver
A-4 to purchase the property at the directions of A-1. Tw o demand
drafts of ` 50 lakhs and ` 30 lakhs were drawn by A-4.
26. It is clear from the above details that in terms o f both the
chargesheet and the final report, Uttamchand is not involved with the
money trail or the transaction for the purchase of the prop erty which
was acquired by A-1, according to the prosecution. It is a fact that not
only is the investigation complete, depositions of prosecution witnesses
too have been recorded. There cannot be any question of introducing
any further evidence.
27. CBI cannot deny that Uttamchand’s name was included in
the present case, although the sale deed was seized during a search
conducted in relation to another FIR (the earlier case)- and not in relation
to the present case, which relates to the disproportionat e assets case.
The FIR in the present case names only A-1 and A-2 as the accused.
The sale deed had already been seized from Uttamchand’s house by
then.
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
28. The CBI had urged that the allegations against Uttamchand in
the earlier case [CC No. 3/2013] can be used against him in the present
case although the final report in the present case does not make any
reference to them. The final report in the present case w as filed after
the registration of FIR in CC No. 3/2013 and after the seizure of the sale
deed from Uttamchand’s house. The final report makes a mention of
the FIR dated 29.08.2011. There is, however, no allegation against
Uttamchand in the chargesheet in the present case [CC No. 5/2015] on
the basis of or adopting the allegations against him in CC No. 3/ 2013.
Thus, the two cases are separate. The allegations agains t Uttamchand
in CC No. 3/2013 does not relate to disproportionate assets. This Court,
in State of J&K v. Sudershan Chakkar 9, stated that the law required
the Court to consider only the chargesheet and materials adduced with
it. It was observed that:
“In our considered view, the learned Courts below er red in
basing their respective orders on the above finding s. The
question whether the respondents omitted to do thei r
mandatory duties for months together designedly or
negligently can be inferred only on an over all view of all the
materials collected during investigation and not in iso lation
as has been done by the learned Courts below. That apart in
a case instituted upon a Police Report the Court is requi red,
at the time of framing of the charges, to confine its att ention
to documents referred to under Section 173 of the Code of
Criminal Procedure only. In that context the Court wa s not
justified in referring to, much less, relying upon the letters
purportedly written by the accused when, their authe nticity
and veracity are yet to be gone into.”
Therefore, CC No. 3/2013 is irrelevant to the present case.
29. This Court explained the essence of conspiracy in the context
of acts or omissions, and allegations relating to conspiracy alo ng with
offences under the PCA, in K. Narayana Rao (supra), and observed
that:
“24. The ingredients of the offence of criminal con spiracy
are that there should be an agreement between the per sons
who are alleged to conspire and the said agreement should
9 (1995) 4 SCC 181.
843
be for doing of an illegal act or for doing, by illegal mean s,
an act which by itself may not be illegal. In other words, the
essence of criminal conspiracy is an agreement to do an illeg al
act and such an agreement can be proved either by d irect
evidence or by circumstantial evidence or by both and in a
matter of common experience that direct evidence to prove
conspiracy is rarely available. Accordingly, the circums tances
proved before and after the occurrence have to be considered
to decide about the complicity of the accused. Even if some
acts are proved to have been committed, it must be clear that
they were so committed in pursuance of an agreement mad e
between the accused persons who were parties to the alleg ed
conspiracy. Inferences from such proved circumstanc es
regarding the guilt may be drawn only when such
circumstances are incapable of any other reasonable
explanation. In other words, an offence of conspiracy cann ot
be deemed to have been established on mere suspicion and
surmises or inference which are not supported by cogent and
acceptable evidence.”
The material to implicate someone as a conspirator acting in concert
with a public servant, alleged to have committed misconduct, under the
PCA, or amassed assets disproportionate to a public serv ant’s known
sources of income, thus, has to be on firm ground. In the present case,
only two circumstances - the custody of the sale deed (of the property
allegedly belonging to A-1) and the fact that it was witnessed by
Uttamchand’s employee - are alleged against the respondent. These are
wholly insufficient to raise a reasonable suspicion, or make out a prima
case against him, for conspiracy.
30. It would be useful, in the context of the present case, to recollect
the decision of this Court, in P. Nallammal v. State10 which observed, as
follows:
“Thus, the two postulates must combine together for
crystallization into the offence, namely, possession of prop erty
or resources disproportionate to the known sources of income
of public servant and the inability of the public s ervant to
account for it. Burden of proof regarding the first limb is on
the prosecution whereas the onus is on the public servant to
10 (1999) 6 SCC 559
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
prove the second limb. So it is contended that a non -public
servant has no role in the trial of the said offence and hence
he cannot conceivably be tagged with the public servant fo r
the offence under Section 13(1)(e) of the PC Act.”
As far as the respondent Uttamchand is concerned, the initi al
burden of showing that a conspiracy existed, cannot even be allege d
against him, given the nature of the material presented along with the
charge sheet.
31. In a recent decision, Deepak Surana v. State of M.P. – where
the facts were somewhat, if not entirely, similar to the facts of this case
– the Court emphasized again that suspicion is not sufficient to enable
framing of a charge. It was observed, inter alia, that:
“10. In the present case, the agreements relied upon by the
prosecution do not bear the signatures of the appellants. It is
undoubtedly true that in Aloka Bose v. Parmatma Devi [Aloka
Bose v. Parmatma Devi, (2009) 2 SCC 582 : AIR 2009 SC
1527] it has been observed that an agreement of sale sign ed
by the vendor alone is enforceable by the purchaser n amed
in the agreement. But the question here is whether the
appellants could be said to be involved in the cons piracy.
The agreements in question were not even recovered from the
custody of the appellants and were recovered from the vendo rs
themselves. The agreements being unilateral and not bearing
the signatures of the appellants, mere execution of such
agreements cannot be considered as a relevant circumsta nce
against the appellants. There is nothing on record to indicat e
that the consideration mentioned in the agreement could be
traced to the appellants, nor is there any statement by any of
the witnesses suggesting even proximity or meeting of m inds
between the appellants and any of the other accused. In the
circumstances, the view that weighed with the Special Judge
was quite correct. The High Court was not justified in settin g
aside the order passed by the Special Judge. In our
considered view, the material on record completely falls short
of and cannot justify framing of charges against th e
appellants.”
32. An entire overview of the material produced before the trial
court, with the charge sheet and final report, as well as deposition of the
845
74 witnesses who were examined during the trial, does not support CBI’s
allegation of Uttamchand. He did not directly or indirectly finance the
transaction by which property was sold to M/s Raviteja T rading Co.
Pvt. Ltd, which, according to that prosecution, was in fact by A-1. The
respondent also is not alleged to have facilitated the flow of mone y to
fund acquisition of the flat. The material put against him is that the sale
deed was seized, prior to the present case. The other circumstance put
against him is that his employee witnessed the sale deed. The respondent
is concededly neither the owner, nor has any links with M/s Ra viteja
Trading Co. Pvt. Ltd. In these circumstances, this Court is of the opinion
that no material which can prima facie support an inference that
Uttamchand was either a conspirator or had abetted the commission of
the offences alleged against the accused A-1 is made out.
33. For the foregoing reasons, this Court is of the opinion that the
present appeal lacks merit. It is therefore dismissed with no costs.
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
Divya Pandey Appeal dismissed.