M R HARSHE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners who are the original accused Nos.3 and 4 have approached this Court for challenging the legality and validity of order dated 30.7.2009 passed by the learned Special Judge, CBI Court No.5, Mirzapur, Ahmedabad below Exh.77 whereby, request for discharge from the prosecution in the form of Special Case No.41 of 1999 came to be rejected.

(2.) The factual background upon which the present petition is brought before this Court is that the present petitioners were the employees of Deepak Nitrite Ltd. at the relevant point of time and were arraigned as an accused in Special Case No.41 of 1999 arising out of RC 9(A)/97-ABD by the CBI, Gandhinagar against present petitioners - accused for offence punishable under Section 120-B of the IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act. In response to this, the petitioners appear to have submitted an application under section 227 of the Cr.P.C., 1973 for seeking discharge from the prosecution, inter-alia, contending that the entire charge-sheet and the documents contained therewith do not constitute any offence against the petitioners nor reflecting any complicity with the case nor any material on record to justify any connectivity with respect to bribe being offered or given to the officers of KRIBHCO. The petitioners have not even acted in their individual capacity and there was purely a commercial dealing between two companies in which petitioners have no nexus except the fact that the petitioners were the employees of the company at the relevant point of time. A specific role has not been described as to how a guilt prima facie of petitioners is established even from the submission of the charge-sheet and therefore, said application was submitted before the court concerned which came to be rejected vide order dated 30.7.2009. It appears from the record that initially there wee 3 petitions were tagged together, out of which Special Criminal Application No.1660 of 2009 came to be withdrawn and another came to be allowed and this being the left out petition, is now taken up to its logical end on merit in accordance with law.

(3.) The gist of the entire case is that one Shri H.C. Malhotra while working as Director (Marketing) KRIBHCO and other officials of KRIBHCO entered into a criminal conspiracy as alleged with one Mr.M.R.Harshe, General Manager (Materials) and others of M/s. Deepak Nitrite Ltd., Baroda somewhere around 1994-95 in respect of supply of ammonia quantity at the discounted price and caused a wrongful pecuniary loss to the KRIBHCO. It was further the case of prosecution that on 13.02.1995, the rate of ammonia was raised from Rs. 6,400/- to Rs. 7,000/- per metric tone in the year 1995-96, even then the firm was allowed to lift ammonia quantity by giving discount of Rs. 1,000/- per metric tone on the old rate i.e. Rs. 6,400/- and this way pecuniary advantage has been passed on by abusing the position of being a public servant without intimating the enhanced rate of ammonia to the plant at Surat. It was also asserted in the complaint that KRIBHCO plant at Surat had a capacity of stocking maximum quantity of 4,000 metric tone and though on 31.03.1995 the stock of ammonia had come down within the permissible limit, the special discount as referred to above was given to the firm, namely, M/s. Deepak Nitrite Ltd., Baroda and this is how a huge pecuniary advantage is passed on to the firm resulting into filing of the aforesaid complaint.