GOUR KRISHNA CHATTERJEE Vs. UNION OF INDIA

JUDGEMENT

(1.) A first information report came to be registered against large number of public servants including one Shri D.C. Kapoor, who is now sought to be put on trial on accusation of cheating National Textiles Corporation (NIC) of Rs. 1.98 crores by authorising delivery of non-controlled clothes on strength of forged/fabricated documents in violation of laid down procedure without payment of value of the textiles to NTC. Accusations are that National Consumers' Co-operative Federation of India (NCCF) was a commission agent of NTC for sales of NTC products to different cooperatives societies throughout the country. As a commission agent, NCCF had been issuing despatch instruction to a number of cooperative societies on its demand after due payment from concerned cooperative society. The NCCF entered into an agreement with M/s. Adarsh Bazar, Patna, under which NCCF was to despatch instruction to NTC in favour of M/s. Adarsh Bazar, Patna, or its authorised representative against payments. M/s. Kapex Textiles and M/s. Adarsh Bazar, Patna, entered into an agreement authorising M/s. Kapex Textiles to purchase non-controlled NTC textiles for supply to M/s. Adarsh Bazar by NTC directly or through NCCF and M/s. Kapex Textiles was to make payment for lifting of clothes on behalf of M/s. Adarsh Bazar, Patna. However, in violation of the instructions, public servants abusing their official status allowed delivery of non-controlled NTC clothes of value of Rs. 1,05,08,736.70 to M/s. Adarsh Bazar, Patna, against despatch instruction without receiving payment from Adarsh Bazar, Patna. They also allowed delivery of non-controlled NTC clothes worth Rs. 93,87,082.57 to M/s. Adarsh Bazar, Patna even without despatch of instruction from NCCF without payment.

(2.) It seems that though one D.C. Kapoor had figured as accused in the first information report, after conclusion of investigation, his name was dropped and charge-sheet was filed before the Court against others including K.K. Mukherjee, Tapen Chatterjee, Sanjay Sen Gupta. Now, after there has been major breakthrough in the proceeding in the trial arid no less than 68 number of witnesses have been examined by the trial court, that a petition came to be filed by one Gour Krishna Chatterjee on 18.8.2003 purported to be under Section 319 of the Code of Criminal Procedure (Cr PC) for summoning the said D.C. Kapoor (Opposite Party No. 2) who being head of the Textile Corporation during the period 1980-84 was accountable for lapse or loss suffered by the cooperative, particularly regard being had to the fact that it was in the meeting held by the petitioner on 4.2.1981 with members of the Sales Committee of NTC that a decision was taken for sale of non-controlled clothes through NCCF. Reference has been made to the evidence of witnesses examined by the trial court by the learned counsel for the petitioner and it is stated with all stress that against D.C. Kapoor, who was Chief Marketing Adviser, NCCF, New Delhi. There was sufficient material on the record to suggest involvement in the criminal conspiracy that was hatched. In pursuance thereof a large sum of money had been misappropriated. Other argument is that said D.C. Kapoor and his son Rajiv Kapoor and Sanjay Kumar were working with M/s. Kopex Textiles, Calcutta, and as such the said D.C. Kapoor was instrumental in the said transaction.

(3.) Having considered the submissions and also the evidence of witnesses vide Annexure 3 series, I find that though name of D.C. Kapoor has surfaced there but that too without there being any explicit accusation in the transaction and simply because a decision was taken for sale of non-controlled clothes through NCCF pursuant to a meeting held by opposite party No. 2 on 4.2.1981 with members of the Sales Committee of NIC, that would not ipso facto mean involvement of the petitioner in the scam. I am not oblivious that in cases of conspiracy, direct evidences may not be available and much has to be inferred from the circumstances and also the conduct of the person making deliberations. However, this fact cannot be lost sight that even if there be some complicity, though the witnesses were examined by the trial court in the year 1998-99 before PW 55 was examined, petitioner had not taken pains to invoke jurisdiction of the Court enjoined under Section 319 of the Code for summoning the potential accused D.C. Kapoor and I may profitably refer to a decision of the Apex Court reported in 2000 (3) SCC 262 (Michael Machado and Anr. v. Central Bureau of Investigation and Anr.) in which the Apex Court in identical circumstances had negatived the contentions raised before it for summoning a person as accused under Section 319 of the Code. In the case under consideration before me, no less than 68 number of witnesses have been examined by the trial court and the case is not less old than ten years and I am of the view that in case court exercises its discretion under Section 319 of the Code, other constraints too imposed by the provision would merit consideration, as pursuant to addition of newly added accused, trial shall commence afresh and witnesses would be re-examined. The whole proceeding may recommence from the beginning of the trial and the entire exercise about summoning the witnesses has to begin again. Faced with such situation, observation made by the Apex Court are of much relevance which are in the following terms :