MAUVIN GODINHO versus STATE OF GOA

[2018] 1 S.C.R. 821

MAUVIN GODINHO

STATE OF GOA

(Criminal Appeal No. 315 of 2011)

JANUARY 17, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Prevention of Corruption Act, 1988:

ss. 13(1)(d)(i) and 13(1)(d)(ii) r/w s.120-B IPC – Appellants-accused were charged for offences punishable u/ss.120-B, 409, 420,465 and 471 IPC and ss.13(1)(d)(i) and 13(1)(d)(ii) of Preventionof Corruption Act, 1988 r/w s.120-B IPC – High Court dischargedthe accused u/ss. 120-B, 409, 420, 465 and 471 IPC, whileupholding the charges u/ss. 13(1)(d)(i) and 13(1)(d)(ii) of Preventionof Corruption Act r/w s.120-B IPC – On appeal, held: Consideringthe facts of the case in holistic manner, there was no error inframing charges as suggested by the High Court.

Code of Criminal Procedure, 1973:

s.227 – Framing of charges – Court while framing chargesshould apply the prima facie standard – The standard depends onfacts of each case – prima facie case against the accused is saidto be made out when the probative value of the evidence on all theessential elements in the charge taken as whole is such that it issufficient to induce the court to believe in the existence of the factspertaining to such essential elements or to consider its existence soprobable that prudent man ought to act upon the supposition thatthose facts existed or did happen – However, at this stage, therecannot be roving enquiry into the pros and cons of the matter andthe evidence cannot be weighed.

Disposing of the appeals, the Court

HELD: 1. court while framing charges under Section 227of the Code of Criminal Procedure should apply the prima faciestandard. Although the application of this standard depends onfacts and circumstance in each case, prima facie case againstthe accused is said to be made out when the probative value ofthe evidence on all the essential elements in the charge taken asa whole is such that it is sufficient to induce the court to believe

Ain the existence of the facts pertaining to such essential elementsor to consider its existence so probable that prudent man oughtto act upon the supposition that those facts existed or did happen.However, at this stage, there cannot be roving enquiry into thepros and cons of the matter and weigh the evidence as if he wasconducting trial. [Para 12] [827-A-C]BSajjan Kumar v. CBI (2010) 9 SCC 368 : [2010] 11SCR 669; State v. A. Arun Kumar (2015) 2 SCC 417 :[2014] 11 SCR 319; State by the Inspector of Police,Chennai v. S. Selvi and Ors. (2018) 1 SCALE 5 –referred to.C2. In the present case, it cannot be said that no case can bemade out against the accused-appellants. The allegedNotifications dated 15.5.1996 and 1.8.1996 were issued withoutthe approval of Cabinet and by violation of rules. Looking at thefacts of the case in holistic manner, it is necessary to go into theDaspect of thorough examination of merits of the case, particularlywhen the issue is still at the stage of framing of charges only.There is no error in framing charges, as suggested by the HighCourt, when presumably the material on record obligated theCourt to do so. [Para 13] [827-E-F]

MRF Limited v. Manohar Parrikar & Others (2010) 11ESCC 374 : [2010] 5 SCR1081; Hira Lal Hari LalBhagwati v. CBI, New Delhi (2003) 5 SCC 257 : [2003]3 SCR 1118 – referred to

From the Judgment and Order dated 26.10.2007 of the High Courtof Bombay at Goa in Criminal Revision Application No. 3 of 2007.

WITHHCrl. A. No. 314, 313, 312 and 311 OF 2011

M. L. Varma, Sr. Adv., Umesh Kumar Khaitan, Ms. Asha GopalanNair, Ms. Nivedha Nair, Ms. Dimple Nagpal, Pitamber Dutt Nautiyal,Triveni Potekar, Chander Shekhar Ashri, Ms. Binu Tamta, Advs. for theAppellant.

Ms. A. Subhashini, Mrs. Anil Katiyar, Pratap Venugopal,Ms. Surekha Raman, Anuj Sarma, Ms. Kanika Kalaiyarasan (For M/s.K J John and Co.), Umesh Kumar Khaitan, Advs. for the Respondent.

The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. These Criminal Appeals, by way ofspecial leave, are filed by the appellants against common order dated26[th] October, 2007 passed by the High Court of Bombay at Goa inCriminal Revision Application Nos. 3, 10, 19, 21 and 22 of 2007, wherebythe High Court while setting aside the charges framed by the learnedSpecial Judge, Panaji against the accused—appellants for the offencespunishable under Sections 120-B, 409, 420, 465 and 471, IPCand directedto frame charges against them under Sections 13 (1)(d)(i) and 13(1)(d)(ii)of the Prevention of Corruption Act, 1988 read with Section 120-B, IPC.

2. In nutshell, the genesis of the dispute in all theseappealspertains to Notification dated 30[th]September, 1991 issued bythe Government of Goa, duly approved by the Cabinet, according towhich those industrial units who apply for bona fide use of High Tensionor Low Tension power supply to their industrial units would be eligiblefor rebate of 25% in their tariff for period of five years. The appellantin Criminal Appeal No. 315 of 2011 (Accused No. 1) was the Ministerof Power for the State of Goa during the period 22-12-1994 to 29-07-1998 whereas the appellant in Criminal Appeal No. 313 of 2011 (AccusedNo. 2) was also public servant at that time being Chief ElectricalEngineer.Accused Nos. 3 and 4 were Managing Director and ExecutiveDirector, respectively, of the appellant Company in Criminal Appeal 314of 2011 (Accused No. 6), while the appellant in Criminal Appeal No.312 of 2011 (Accused No. 5) was the General Manager of appellantCompany in Criminal Appeal No. 311 of 2011 (Accused No. 7).

3. The Government of Goa, during the tenure of accused No. 1as Minister of Power, with the consent of Cabinet, issued anotherNotification dated 31-03-1995 cancelling the earlier Notification dated30-09-1991 without assigning any reason for its cancellation. Afterwards,it is alleged that another Notification dated 15-5-1996 was issued, without

Aapproval of the Cabinet introducing another category of ‘Extra HighTension’ power supply and after that one more Notification dated 01-08-1996 was issued, again without Cabinet approval, restoring the benefitof 25% rebate, at the instance of accused No. 1, only to benefit accusednos. 6 & 7 Companies.

B4. Acting upon complaint lodged by an M.L.A., the State levelledallegations against the accused individuals that by entering into criminalconspiracy they provided wrongful gains to both the appellant Companies(Accused Nos. 6 & 7) and favored the two Companies for availing 25%rebate on power tariff by illegal means and thereby caused huge loss ofRs.4,52,77,856/- to the exchequer of Government of Goa.C

5. Taking note of the allegations levelled against the accused, theSpecial Judge, Panaji by order dated 8[th]December, 2006 framed chargesagainst the accused—appellants for the offences punishable underSections 120-B, 409, 420, 465, 468 and 471, IPC and also under Section13(1)(d)(i) and 13(1)(d)(ii) read with Section 13(2) of the Prevention ofDCorruption Act, 1988. The aggrieved appellants approached the HighCourt by way of Criminal Revision Applications. The High Court on theanalysis of facts, arrived at the conclusion that the facts of the case donot disclose an offence of cheating and there was no offence of criminalbreach of trust. Accordingly, the appellants were discharged from theEoffences punishable under Sections 120-B, 409, 420, 465, 468 and 471,IPC. However, the High Court observed that there is sufficient primafacie material against the accused for framing charges against themunder Section 13(1)(d)(i) and 13(1)(d)(ii) read with Section 120-B, IPC.Feeling aggrieved thereby, the accused—appellants are before us in theseappeals.F

6. We have heard Mr. M.L. Varma, learned Senior counselappearing for the appellant in Criminal Appeal No.315/2011, Ms. BinuTamta, learned counsel appearing for the appellant in Criminal AppealNo.311 of 2011, Ms. Asha Gopalan Nair, learned counsel appearing forthe appellant in Criminal Appeal No.313 of 2011 and alsothe learnedGcounsel appearing for the State of Goa at length.

7. Learned senior counsel for the appellant in Criminal AppealNo. 315 of 2011 relying upon this Court’s order in Civil Appeal Nos.3206-3217 of 1999, passed on 13[th] February, 2001 while dealing with thesame Notifications, submitted that there is no need to continue furtherH

criminal proceedings against the appellants herein. The said order readsthus:

“The High Court by the impugned judgment has held that thecircular dated 31st March, 1998 issued by the Government ofGoa suspending the release of rebate with immediate effect aswell as suspension of rebate agreed to be governed in sixtymonthly installments has no legal efficacy and is, therefore,invalid. The High Court has further held that the notification dated24th July, 1998 is legal and valid. Consequently the High Courtdirected that the writ petitioners are entitled to 25% rebate inpower tariff till 26th July, 1998. This has been challenged bymeans of the present appeals. Second set of appeals have beenfiled by the writ petitioners against the judgment of the HighCourt whereby and whereunder the High Court has held thatnotification dated 27th July 1998 is valid.

We have heard counsel for the parties and perused the record.The High Court has taken the aforesaid view after taking intoconsideration overall facts and circumstances and inasmuch aspublic interest which, according to us, is very balanced view ofthe matter. We, therefore, are not inclined to interfere with thematters Both the sets of appeals fail and are accordinglydismissed. There shall be no order as to costs”.

8. It is further argued before us that the High Court erred in nottaking into account the factum that the complaint against the accused—appellants was filed by political opponent of the appellant whohad foistedthe charges which are mala fide, misconceived and concocted with aview to score political vendetta.Whereas power rebate policy was existingin the State since 1991 and in 1993, out of the High Tension category anExtra High Tension category was carved out by the Government for thepurpose of providing additional benefit to industrial consumers. Drawingour attention to judgment of this Court in MRF Limited vs. ManoharParrikar & Others, (2010) 11 SCC 374, learned senior counsel submittedthat this Court has already considered the Notifications in question, in anearlier round of litigation and expressed the view that the decision takenby the appellant herein—accused No. 1 as Minister was balanced.

9. Ms. Binu Tamta, learned counsel appearing for the appellantsinCriminal Appeal Nos. 311 & 312 of 2011 submitted that as matter offact, the complaint in question was already closed on 2.2.1999, but to

Ameet the political will of the complainant when he came to power in theState, the complaint was reopened at his instance. The view taken bythe Courts below in framing charges against the accused is entirely wronginasmuch as the trial Court made an observation that the circumstancesgive rise to suspicion that accused Nos. 1 to 5 conspired to extend benefitto the accused Nos. 6 & 7 Companies. Mere suspicion does not warrantBframing of charges against the appellants. learned counsel wrongly placedreliance on decision of this Court in Hira Lal Hari Lal Bhagwati Vs.CBI, New Delhi, (2003) 5 SCC 257 and submitted that by virtue of theNotifications in question, no benefit was got by the appellant and whateveramount had to be paid, has already been paid, and accordingly the chargesCagainst the appellant should be dropped.

10. Learned counsel appearing for the appellant in Criminal AppealNo.313 of 2011, Ms. Asha G. Nair, submitted that the appellant in hisofficial capacity had only made submissions in accordance with theinstructions received by superiors in the normal course of dischargingDhis official duties. By any stretch of imagination, the appellant cannot beequated as conspirator when the deciding authorities were the Secretaryand the Minister. She has further submitted that the appellant has alreadyretired from his service and virtually he has no role to play in the allegedconspiracy and the allegation that he is close to Minister does not form aground for levelling charges against him.E11.Learned counsel for the State while supporting the impugnedjudgment, submitted that there was enough material on record to establishthat accused Nos. 1 & 2, being public servants at the relevant time, hadentered into criminal conspiracy to facilitate wrongful gains to accusedNos. 6 & 7 Companies in collusion with their officials (accused Nos. 3F& 4). In pursuit of their criminal conspiracy, they abused their positionsand caused huge loss to the public exchequer and benefited accusedCompanies by illegal means. It is also vehemently argued that accusedNo. 1 while abusing his official capacity prepared false documentgiving an appearance of genuine one and deceived the Government inGtaking policy decision and enabled the accused Companies to avail 25%rebate on power supply. He ultimately made submission that takingnote of misdeeds of all the accused, the High court has in clear termsexpressed the opinion that there is sufficient prima facie material toframe charges against all the accused, hence there is no occasion forthis Court to interfere and revisit the matter.H

12. At the outset it would be pertinent to note the law concerningthe framing of charges and the standard which courts must apply whileframing charges. It is well settled that court while framing chargesunder Section 227 of the Code of Criminal Procedure should apply theprima facie standard. Although the application of this standard dependson facts and circumstance in each case, prima facie case against theaccused is said to be made out when the probative value of the evidenceon all the essential elements in the charge taken as whole is such thatit is sufficient to induce the court to believe in the existence of the factspertaining to such essential elements or to consider its existence soprobable that prudent man ought to act upon the supposition that thosefacts existed or did happen. However, at this stage, there cannot be aroving enquiry into the pros and cons of the matter and weigh the evidenceas if he was conducting trial. [Refer Sajjan Kumar v. CBI, (2010) 9SCC 368; State v. A. Arun Kumar, (2015) 2 SCC 417; State by theInspector of Police, Chennai vs. S. Selvi and Ors., (2018) 1 SCALE 5.]

13. Having thoughtfully considered the arguments advanced byrespective learned counsel and upon going through the record, particularlythe impugned judgment, in the light of sequence of events, prima facie,it cannot be said that no case can be made out against the accused—appellants. Allegedly, the Notifications dated 15-5-1996 and 1-8-1996were issued without the approval of Cabinet and by violation of rules.Looking at the facts of the case in holistic manner, we do not think itnecessary to go into the aspect of thorough examination of merits of thecase, particularly when the issue is still at the stage of framing of chargesonly. There is no error in framing charges, as suggested by the HighCourt, when presumably the material on record obligated the Court todo so.

14. In light of the above discussion, we do not see any illegality inthe impugned order. Therefore, we find no reason to interfere with theorder passed by the High Court. However, learned counsel appearingfor the appellants, at this stage wants to place before the trial Court, thematerial, judgments and the earlier passed order of this Court which arereferred before us. We grant liberty to the learned counsel to do so.

15. With the above observations, the appeals are disposed of.

Kalpana K. Tripathy Appeals disposed of.