JATIN DUTTA Vs. CENTRAL BUREAU OF INVESTIGA

JUDGEMENT

(1.) This two criminal appeals are directed against the judgment and order dated 11.5.2009 passed by the learned Special Judge, CBI, Shillong in Special Case No. 3 of 2002 convicting both the appellants under Section 120-B IPC and Section 13(2) of the Prevention of Corruption Act, 1988 ("the Act" for short) and sentencing them to undergo imprisonment for six months each for commission of the offence punishable under Section 120-B IPC and two years of imprisonment for a period of two years with a fine of Rs. 30,000/- and in default thereof to suffer another six months of imprisonment. The materials fact leading to the filing of these appeals may be noted at the outset. The case of the prosecution is that Shri Takap Ringu, who was serving as Secretary to NEC at the relevant time ("A-1" for short), the appellant in Criminal Appeal No. 6(SH) of 2009 and Mr. Jatin Dutta, who was the Under Secretary to NEC at the sometime ("A-2" for short), the appellant in Criminal Appeal No. 2(SH) of 2009, Mr. N.D. Varma, the then Director of Indian Council of Agricultural Research (who died before framing of the charge and shall hereafter be referred to as "the deceased Director" for short) and Mr. Tanka Sangkhum, the then Chairman of the Barak Valley Hills Tribe Development Council, the non-appellant ("NA" for short) had entered into a criminal conspiracy to defraud the Government of India, which resulted in causing huge loss to the Government and wrongful gain to themselves by sanctioning and disbursing a huge amount of financial assistance for plantation of Agar. In the course of investigation carried out by the CBI, it was revealed that NA in furtherance of the said conspiracy had forwarded several proposals from individuals for NEC grants-in-aid including applications seeking financial assistance for Rs. 54,000/- for plantation of Rs. 5,000 Agar plants in ten bighas of land without entering such applications or without giving receipt numbers in the NEC. According to the CBI, Mr. J.S. Syiem, the then Planning Advisor to NEC, the deceased Director, Mr. Promode Kant, Advisor (Forest) to NEC, Mr. K.N. Hazarika, Advisor (Industries) to NEC and Mr. Gautam Sen, Financial Advisor to NEC had decided in a meeting that due to problem of theft and requirement of protection, plantation in one-half hectare would be sufficient for each farmer. Though the aforesaid decision was seen by A-1 on 13.10.1997, he did not approve it due to criminal conspiracy and decided for plantation of Agar in a land measuring a minimum of 2 hectares per family and two hectare per member in the case of registered societies or NGOs. It was also found by CBI during investigation that the Advisor (Forest) had calculated the cost of plantation for Agar @ Rs. 7,250/- per hectare and intimated the same to the Planning Advisor vide his letter dated 31.10.1997, but the deceased Director against this calculation fixed the cost @ Rs. 1,02,375/- per hectare with a minimum of 2.52 hectares, which could be viable for economic return for Agar plantation which was done in conspiracy with A-1, A-2 with NA by selecting very few applicants among many applicants. The fact that there was mala fide intention on the part of the appellants and the deceased Director in sanctioning the grants at a much higher rate than the one recommended by the Advisor (Forest) came to light from the subsequent act of A-2 in refusing to make over the concerned and the applications available to the said Advisor who had called for the same vide his note dated 13.9.1998.

(2.) It is the further case of the CBI that when the file was placed before the said Planning Advisor, he raised objection vide his noting dated 27.10.1997 by remarking that all the proposals for intensive cultivations were to be examined at the same time not piecemeal after the scheme was framed; that the scheme concerning medicinal and aromatic plants had to be considered separately; and that the Advisor (Forest) should also examine the proposals. Ignoring those advice, A-2 processed the file on 1.12.97 and reiterated his earlier recommendations for sanctioning Agar plantation in 4.5 hectares of land for societies and 2.5 acres for five members of the Barak Valley Hills Tribe Development Council ("the Society" for short) for cultivation of Agar at an estimated cost of Rs. 35,83,250/- and submitted the file directly to A-1. Further investigation revealed that A-2 had noted in the file that A-1 agreed to for NEC support for five members of the Society, among others, and put up the draft A/A order for sanctioning Rs. 11,51,719/- for the five members of the Society vide the sanction order dated 26.12.97 and released a sum of Rs. 5,75,859/- by way of first instalment, which facilitated the passing of bill No. 431/EEMAP, dated 30.12.1997 for the said amount in favour of the Society by Bank Draft No. MTL/E 185526 dated 7.1.1999, which was deposited with SBI/Silchar Bazar on 24.1.1998, which was opened only on 23.1.1998 in the Account No. CA/8/852, (New Account No. 01000/050026). NA thereafter withdrew the said amount and misappropriated the same without executing the project for which it had been sanctioned. It was further revealed that one of the members of the Society, namely, Mr. Ngurlunthang was not even aware of this financial grant. It is the case of the CBI that as per the sanction order, the Chairman of the Society was required to submit the quarterly report on the progress of the scheme, but neither the appellants enquired about the progress of the scheme nor did the Society submitted its report, which resulted in the loss of Rs. 5,75,859/- to the Government and in causing wrongful gain to the appellants and the Society. They were accordingly charge-sheeted under Section 120-B /420 /409 IPC read with Section 13(2) of the Act. After hearing the appellants and the non-appellant, the learned Special Judge framed the charges against them U/s 120-B /420 IPC and Section 13(3) of the Act, to which they pleaded not guilty to the charges and claimed to be tried. In the course of trial, the prosecution examined as many as 22 witnesses and exhibited some 21 documents and two paper marks, while the defence exhibited 2 exhibits in the course of examination of the prosecution witnesses. After examination of the witnesses, the appellants and the non-appellant were examined under Section 313 CrPC whereafter the impugned judgment was passed by the trial court. The legality of the impugned judgment is now called into question in this batch of appeals.

(3.) The trial court recorded the findings that as many as 31 applications were received for Agar plantation as reflected in the file relating to NEC/PLANTATION/1-40/97 at page 153 vide Ext. 12; that as per Ext. 11, A-2 had proposed for consideration of only five applications and the applications of five members of the Society; that the Planning Advisor (J.S. Syiem), who was examined as PW 4 had advised in his note Ext. 10 that all proposals for intensive cultivation were to be examined at the same time after framing of the scheme, while the scheme for medicinal and aromatic plants should be examined separately and such applications should not be considered piecemeal. It is further observed by the trial court that there was no note made by A-2 justifying him for selecting the five members of the Society and that instead of following the advice of PW 4, A-2 proceeded to process the file of the Society on 1.12.1997 and put it up directly to A-1 by recommending the financial support sought for by the Society. According to the trial court, the manner in which the application of the Society was selected and the file processed by A-2 and promptly acted upon the recommendation by A-1 led one to the inevitable conclusion that they were interested to abuse their official positions to help the members of the Society obtained pecuniary benefits. The learned Special Judge also found that PW 16, Advisor (Forest), vide his note dated 19.3.1998 had called for the file relating to Texus Bacatta and Agar, but the same was never put up before him on the pretext that the file was dealt with the deceased Director and that A-1 wanted the present system to continue. This is corroborated by the evidence of PW 16. The trial court also found that as per Paper Mark 2, a meeting was convened by PW 4 wherein the all Sectoral Heads, such as Advisor (Forest), Advisor (Industries) and Financial Advisor had agreed that the problem with Agar plantation was that it was highly liable to be theft, that the question of protection was very important and unless the tree was protected effectively, the farmer would not be able to harvest the crop and therefore recommended one-half hectare of land would be sufficient for each farmer. It was further recommended therein that it was only after the approval of the scheme and approval of the project that the applications would be scrutinized and selection for candidate would be done. The trial court held that in spite of the decisions taken at Paper Mark 2, A-1 and A-2 proceeded to sanction the financial assistance to members of the Society which clearly demonstrates that they not only abused their official positions but also committed criminal conspiracy to support the applications of five members of the Society. The trial court concluded as follows: