1. By these petitions, the petitioners are seeking the relief of quashing the proceedings pending before the Special Court in Special Case No.19 of 2011, wherein the petitioners are being prosecuted for the offence punishable under Sections 406, 420 read with Section 120B of Indian Penal Code pursuant to Crime No.13/E/2009/CBI/EOW/MUMBAI.
2. The petitioners are public servants. They are the officers of Small Industries Development Bank of India (hereinafter referred to as `SIDBI'), which is a Corporation established by the Central Government of India by an Act of 1989 of Parliament. SIDBI is the financial institution established by the Government for promotion and development of micro, small and medium enterprises. It is an Authority empowered to frame different rules for achieving the objects of the institution.
3. The petitioner in Writ Petition No.3024 of 2012 is working as the Deputy General Manager in SIDBI, whereas the petitioner in Writ Petition No. 3173 of 2012 was, at the relevant time, working as Manager at Pune Branch office and was assigned direct business and accounts. The petitioner in W.P. No.3173 of 2012 was assigned the work related to MSME Receivable Finance/Bills Scheme sanctioned to Tata Motors Ltd. (TML) after Shri Muthukumar (original accused No.5) submitted his resignation to the Bank.
4. The work in respect of Tata Motors Ltd. was voluminous and therefore one special officer was assigned the work to handle the transactions relating to Tata Motors Ltd. and the other officer was entrusted with the work in relation to other corporates other than TML.
5. The work regarding payments related to TML was handled by Shri S.
Muthukumar and the work in respect of other corporates was handled by Maganbhai Jadhav, who was officiating as Assistant Manager.
6. The facts are that one MOU was signed between SIDBI and Tata Motors Ltd. mutually agreeing with the details of transactions and the amount due would be furnished by TML and the payment would be sent directly by SIDBI as per the MOU. The payment was to be sent by cheque to the vendors. No other mode of remittance was agreed between TML and SIDBI. One of the vendors introduced by TML was Ranflex India Pvt.Ltd. situated at Banglore. Tata Motors Ltd. had not furnished the bank account details of Ranflex India with Federal Bank to SIDBI. TML had never advised SIDBI for remittance of the amount to RIPL through RTGS. However, the money was transferred through RTGS.
7. On 11.8.2009, a complaint was received by the Superintendent of Police, Central Bureau of Investigation, Economic Offences Wing, Mumbai from the General Manager, R.M.Yadav, who was in charge of SIDBI Branch at Pune, and was authorised to file the report. It was informed to the police that SIDBI operates a Scheme know as âMSME Receivable Finance Schemeâ. Large corporates furnish a list of such MSME vendors who make supplies to it to whom the payment is due from them along with the name and address of such vendor, code numbers and invoice details etc. are furnished. Payment is made by SICBI to such vendor directly and such corporate pays the amount due to SIDBI. By the said scheme, MSME vendors get advantage of timely payment. Tata Motors Ltd. has been sanctioned a limit under the above Scheme covering its purchasers from MSME. Tata Motors Ltd. had introduced Ranflex India as one of the MSME vendor under the arrangement. SIDBI based on intimation received from TML had made payment to RIPL of Rs.1,51,97,111/- only through various cheques from 31.3.2009 to 29.4.2009. On 25.5.2009, SIDBI received an e-mail message purportedly from Ranflex India giving RTGS details and requesting SIDBI for making future payments through RTGS instead of cheque payments. Pursuant to the said e-mail, 12 payments to the tune of Rs.1,64,17,551/- were made through RTGS by SIDBI in the account mentioned in e-mail with Federal Bank. The payments were made during the period 27.5.2009 to 4.8.2009.
8. On 5.8.2009, RIPL telephonically informed SIDBI about non-receipt of its payments. RIPL was informed that payment had been made to the account of RIPL with Federal Bank Ltd. Thiruppurur. The details were received through an e-mail dated 25.5.2009. SIDBI had contacted Federal Bank telephonically and by e-mail and informed them about the non-receipt of payments by RIPL. The Federal Bank informed SIDBI that out of the total amount of Rs.1,64,17,000/-, an amount of Rs.34,73,193/- was the balance, whereas amounts of Rs.70 lakhs and Rs.22 lakhs have been transferred to Axis Bank, Chennai and ICICI Bank Ltd. Selaiyur, Chennai through RTGS and an amount of Rs. 37,50,000/- has been withdrawn in cash between 29.5.2009 and 16.7.2009 from Federal Bank. Federal Bank therefore requested to freeze the account and not allow further withdrawals. The officials of SIDBI visited the Regional and Branch office of Federal Bank Ltd. at Chennai and Thirupporur. The officials of Federal Bank informed that the said Current Account No. 16110200000734 in the name of Ranflex India Pvt.Ltd. was opened on 24.5.2009 by one S.Babu who was purportedly authorized by the Board Resolution. A copy of the Board Resolution was signed by M. Anand. The last operation in the said Account took place on 17.7.2009 and the credit balance available in the said account was Rs. 10,64,000/-. As on 5.8.2009, the balance in the said account was Rs.34,73,193/-. An enquiry was also made with Axis Bank, Chennai and ICICI Bank, Chennai and it was realized that huge amounts were being transferred from the account of RIPL with Federal Bank to the accounts maintained in the name of Sneha Services and J. Raja respectively. The officials of Axis Bank informed SIDBI that a current account was opened on 11.5.2009 by S. Babu, a proprietary concern. The last date of operation in the account was on 29.7.2009. The police was informed that some unknown persons had opened fictitious account with Federal Bank in the name of Ranflex India Pvt.Ltd. causing a loss of equal amount to SIDBI. The investigation was set in motion.
9. That Disciplinary proceedings were initiated against the applicant in W.P.No.3024 of 2012 on 25.1.2010. A statement of Imputation of Lapses was issued to him as he was working as Deputy General Manager at the Bank, Pune Branch Office.
10. The Executive Director and the Competent Authority by an order dated 21.5.2010, had exonerated the petitioner of the charges and advised him that he must be more pro-active and vigilant in discharging his official duty as a senior officer so that the Bank's interest are safeguarded at all times irrespective of the portfolio assigned to him.
11. The learned Counsel appearing for the petitioner submits that the Executive Director had upon detailed enquiry, exonerated the petitioner. It is pertinent to note that the transaction in respect of TML and Ranflex India doe not find place in the said order. There is a reference to the account of Vaishnair Engineers dated 16.4.2008. It is in respect of the visits to the units under implementation as regard the post disbursement visits. It further pertains to no pre-disbursement visits carried out. Hence, it cannot be said that the transaction in respect of which the crime was registered was enquired into.
12. In the course of investigation, the CBI has recorded the statements of several witnesses, including the statement of the Chief General Manager, S.V.G. Nandagopal. He had stated before the police that the payment made through RTGS to M/s. Ranflex is totally wrong. The reason being SIDBI had to approach Tata Motors Ltd. for verifying the details of the customs i.e. Ranflex India Pvt.Ltd. There is clause No.5 in the proposed mechanism for MSME facility in the agreement. He had further disclosed that the General Manager or any senior officer had not authorized the petitoner to look after the business affairs of the branch as the then General manager was transferred to Chennai. He had further disclosed that upon receiving the name from Ranflex on 26.5.2009, without obtaining the Bank mandate form, Ashoo Tiwari had gone ahead for making payment to Ranflex through RTGS. He had further stated that Ashoo Tiwari, Muthukumar had violated all the norms. The reason is best known to them. The other responsible officers had also reiterated the statement of the General Manager.
13. The petitioners are the public servants and hence the CBI had requested the Competent Authority to accord sanction for prosecution of the petitioners. By an order dated 27th/28th December 2011, the Executive Director and the Competent Authority had refused sanction to prosecute. It was opined that there was no adequate evidence in the CBI report to suggest any malafide intention, involvement, connivance/conspiracy, meeting of the minds or any criminal misconduct having been committed by the two officials of SIDBI and hence sanction was refused. The CBI then challenged the said order refusing sanction before the Central Vigilance Commission. The Central Vigilance Commission had taken into consideration the conduct of the petitioner in freezing the accounts of RIPL with Federal Bank and thus prevented and saved withdrawal of Rs.34 lakhs lying in their account and hence CVC had concluded that it supports the case of its non-involvement. The CVC had thus passed an order that prima facie charges do not seem to be established against Ashoo Tiwari and Shasheel Karade and, therefore, no interference was warranted in the order refusing sanction to prosecute Ashoo Tiwari and Shasheel Karade. Hence, charge sheet was filed before the Sessions Judge by CBI against the petitioner for the offence punishable under Section 120B of IPC read with Sections 420, 406, 467, 468 and 471 of IPC and under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.
14. The petitioners then filed an application for discharge under Section 227 of Cr.P.C. The main contention of the petitioners was that the Competent Authority had refused to sanction prosecution after a full-fledged enquiry and, therefore, there was no question of prosecuting them for the offence punishable under the Indian Penal Code. According to the petitioners, there was no iota of evidence to warrant framing of charge against them as they had acted in the bonafide manner. It was further contended that it was not the duty of the petitioners to verify the credentials of the e-mails raised from RIPL and, therefore, they prayed for discharge.
15. It was demonstrated before the Special Court that after completion of investigation, a proposal was sent to accord sanction to prosecute the petitioner. However, before receipt of the reply, charge-sheet was filed in the Court on 27.9.2011. In any case, the sanction was refused. The learned Special Court had considered the papers of investigation and the submissions advanced by the counsel representing the petitioners and has discharged the petitioners under the provisions of Section 13(2) read with Section 13(1)(d) of P.C. Act and had proceeded to frame charge against the petitioners for the offence punishable under Section 120B read with Sections 420 and 406 of IPC. Hence, by these Writ Petitions seeking discharge.
16. The learned Special Judge has observed that the statements of the officers of TML clearly indicated that no intimation was given to the officers of SIDBI, Pune Branch to remit the amount to the vendor by RTGS on the Federal Bank, Thiruppurur. The Special Judge has further observed that in the course of investigation it had transpired that the account was opened by accused No.2 S.Babu. That the prosecution deserves to be given a fair opportunity to adduce evidence at the time of trial as there cannot be direct evidence in respect of the offence punishable under Section 120B of Indian Penal Code. The petitioners had claimed benefit of the provisions of Section 45 of SIDBI Act, 1949. However, the learned Special Judge had rightly observed that regarding criminal conspiracy to cheat the Bank and to defraud it cannot be treated as an act done in good faith and, therefore, it refused to grant protection under Sec.45 of the said Act.
17. The learned Counsel appearing for the petitioner submits that the petitioner was not directly handing the portfolio related to the scheme/bill section and that he had forwarded the e-mail to Shri S. Muthukuamr, the then Manager handling Bill Section for verifying the correctness of the supplier and correctness of RTGS details. He had marked the printed copy of the said e-mail to A-5 with the remark âPlease check and verify the updateâ. The learned Counsel further submits that all the e-mails received from the vendors were marked to S. Muthukumar. He has narrated the instances to demonstrate the diligence of the petitioners in discharging their official duty. It is further submitted that the learned Special Judge has not considered the order refusing sanction in its proper perspective and that the petitioners although innocent would have to go through the ordeal of trial. In the alternative, it is submitted that in the eventuality this Court comes to a conclusion that the charges restrict the culpability of the petitioners though they should be tried by the Court of Magistrate as Sections 406 and 420 of IPC are triable by the Magistrate and hence, according to the learned Counsel for the petitioners, the Special Court cannot try the case in absence of the inability to frame charge under the provisions of Prevention of Corruption Act. It is specifically submitted that the petitioner has not denied approving transactions but on the other hand, he had done so in good faith and without there being any malice. It is urged that the petitioner has not received any wrongful gain from the entire alleged fraudulent transactions.
18. The learned Counsel for the petitioner further submits that at the time when the said payments were made in the RTGS, the concept of RTGS was at an evolutionary stage and there was no formal guideline issued by the Bank on the provisions of accepting intimation for RTGS transactions and therefore, the petitioner had worked in good faith by following the precedents and prevailing practices in the Bank. According to the learned counsel, the compilation of charge sheet does not establish any nexus between the petitioners and any other accused person and therefore, there is no cause to frame charge under Sec. 120B of the Indian Evidence Act.
19. As against this, the learned Counsel appearing for the respondents has drawn attention of this Court to the statements of the witnesses/officials of the Bank recorded under Section 161 of the Cr.P.C. She has pointed out Mathew Harris who was working with Mathew Ibrahim. It was his duty to perform the daily routine work in TML such as keeping of track for the material, shortage of related items, collection room, hundies collection, cheque collection and keeping a track of payment of Ranflex India. Mathew Ibrahim runs the office from his residence. The wife of Mathew Abraham is handling the work of Ranflex India Pvt. Ltd. He had been relegated to Ashoo Tiwari i.e. the present petitioner by Senior manager (Accounts) TML and he had contacted the petitioner in regard to payment of Rs.22 lakhs. According to him, in his presence, the petitioner had enquired with Muthukumar regarding payment of Rs.22 lakhs to Ranflex and the payment was confirmed by Muthukumar. According to him, in the month of June, 2009, Mathew Abraham had informed him that Ranflex had received the payment. The disputed e-mail was received on 25.5.2009 and the payments were made during 27.5.2009 to 4.8.2009. On 5.8.2009, Ranflex had informed SIDBI about on-receipt of these payments and hence there is a link evidence between the activities of the present petitioners, Mathew Abraham and others. The chargesheet indicates that there was a conspiracy/connivance between Muthukumar, Ashoo Tiwari, Susheel Karade. Muthukumar is still absconding. He had resigned from the job soon after the fraud had come to light. The statement of Mathew Abraham would go to show that he had evaded to answer several questions. He had feigned ignorance about having met any person i.e. Muthukumar or any other person of SIDBI. The learned Counsel for the respondents further submits that during the same period, SIDBI had followed the established procedure in respect of M/s. Paracoat vendors of TML. According to her, there is sufficient material for proving that the petitioners were members of conspiracy along with co-accused. That they had committed offences such as cheating, criminal breach of trust and that they had not acted in good faith. That they do not deserve to be discharged and the mens rea has to be proved by substantial evidence. According to the learned Counsel, a prima facie case is made out against the petitioners for proceeding with the trial.
20. The learned counsel for petitioner has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Vasanti Dubey vs. State of Madhya Pradesh (2012) SCC 731. The learned counsel has drawn the attention of this Court to the observations of the Hon'ble Apex Court wherein the Hon'ble Apex Court had held that the Special Judge could not have directed that sanction be obtained or order re-investigation and thereafter refused to accept closure report. Therefore, the Hon'ble Apex Court had held that the said procedure adopted by the Special Court was an abuse of process of law. In the present case, the Special Judge has neither directed re-investigation nor has caused any doubt on the act of the competent authority not according sanction to prosecute.
21. Reliance is placed upon the Judgment of the Hon'ble Apex Court in the case of Hardeep Singh vs. State of Madhya Pradesh (2012) 1 SCC 748, wherein the Apex Court had upheld the judgment of the Division Bench of Madhya Pradesh High Court thereby upholding the refusal of sanction or to enforce that the decision of the said refusal to accord sanction and awarded a compensation of Rs. 2 lakhs to the accused persons.
22. The learned Counsel has also relied upon the following Judgments of the Apex Court:-
(1) Mansukhlal V.Chauhan vs. State of Gujarat (1997) 7 SCC 622.
(2) Jaysingh vs. K.K.Velayutham and Anr. (2006) 9 SCC 414
(3) Uttam Chand and Ors. vs. Income Tax Officer, Central Circle, Amritsar, (1982) 2 SCC 543.
(4) Goondla Venkateswarlu vs. State of A.P. and Anr. (2008) 9 SCC 613.
(5) State of Punjab and Anr. vs. Mohammed Iqbal Bhatti (2009) 17 SCC 92.
(6) Hardeep Singh vs. State of M.P. (2012) 1 SCC 748
(7) Chittaranjan Das vs. State of Orissa (2011 7 SCC 167.
(8) G.L.Didwania and Anr. vs. Income Tax Officer and Anr. (1995) Supp.(2) SCC 724.
(9) K.C.Builders vs. Asst. Commissioner of Income Tax (2004) 2 SCC 731.
(10) Asiya vs. State of Maharashtra AIR 12 Bom. 785.
(11) Jeewan Kumar Raut vs. CBI (2009) 7 SCC 526.
(12) Matajog Dobey vs. HC Bhari AIR 1956 SC 44
(13) TSK Reddy vs. State of Mah. and Ors. CDJ 2013 BHC 1254.
(14) Ttchut Mucund Alornekar vs. CBI 2012 BCR (Cri.) 477
(15) Abdul Wahab Ansari vs. State of Bihar (2008) 8 SCC 500.
(16) Lokesh Kr. Jain vs. State of Rajasthan CDJ 2013 SC 583.
Upon perusal of the citations relied upon by the learned Counsel for the petitioners, this Court has observed that on facts, the material before the Court in the said cases was different from the material brought about by the prosecuting agency in the present case. The decisions in the said cases have no relevance to the case in hand and therefore are not being considered.
23. The learned counsel for the respondent has placed reliance upon the Judgment of the Hon'ble Apex Court in the case of Prakash Singh Badal and another vs. State of Punjab and Ors. (2007) 1 SCC. However, in the said case, the Hon'ble Apex Court had held that since the accused had ceased to be a public servant and had ceased to hold the office where the alleged offence was committed, question as to non-application of mind in granting sanction had become academic. The Hon'ble Apex Court had held that the offence of cheating under Section 420 or for that matter offence under Section 467, 468, 471 and 120B of Indian Penal Code by no stretch of imagination by the very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty.
22. The same proposition is reiterated by the Hon'ble Apex Court in the case of In Bholu Ram vs. State of Punjab and Another reported in (2008) 9 SCC 140.
23. Hence, it is clear that refusal to accord sanction for prosecution under the provisions of the Prevention of Corruption Act cannot be held to be relevant to try an accused for the offence punishable under the Indian Penal Code. In the present case, upon perusal of the documents and hearing the submissions of the learned Counsel, this Court is of the opinion that the act of the petitioners in transferring the amount by RTGS without there being proper verification would indicate culpability on the part of the petitioner' contention that they had so acted in good faith cannot be made a touchstone for discharging them from the alleged offence punishable under Sections 406 and 420 of IPC. The amount that is involved is Rs.1,64,17,551/-. The prosecution need to be given an opportunity to lead evidence to establish the guilt of the accused. In the eventuality that the prosecution fails to meet the charges, the accused would be acquitted. However, the prosecution of the petitioners cannot be said to be an abuse of process of law. The reason assigned by the learned Special Judge for proceeding to frame charge under Sections 406, 420 and 120B do not call for any interference. The Investigating agency had arrived at a conclusion that the accused had committed offence punishable under Sections 406 and 420 of IPC. The details of the payment transactions approved in the bills finance system software owned by RIPL indicate that it was Ashoo Tiwari who forwarded the email to IDBI Bank Ltd. and the name of the maker of payment is shown as Sasheel Karade in the transactors dated 7.7.2009, 21.7.2009, 29.7.2009 and 4.8.2009 based on e-mails forwarded by Ashoo Tiwari. Hence connivance between the officers/accused who made the said payments is writ large on the face of the record.
24. The learned Counsel for the petitioners submits that since the Central Vigilance Commission had exonerated the petitioners of all the charges, there is no reason why they should be proceeded for the offence punishable under the Indian Penal Code. The CVC Report has observed as follows:-
âit is transpired that the fraud has been perpetrated by Shri Muthukumar who was the officer of SIDBI at that time and entered into conspiracy with various other people including his relatives. Shri Tiwari and Shri Karade seem to have fallen for this machinations by their acts of relying upon the verification report submitted by Shri Muthukumar. They seem to be victims of his fraud. Moreover, having friendly relations between employees of the same Branch and having minor financial relationship like lending and borrowing money in case of urgent needs, which in this case is cited by the CBI, is normal practice amongst colleagues in any work environment and it does not prove criminal conspiracy. It is true that the money has come out of the amount cheated by Shri Muthukumar but there is nothing to indicate that Shri Karade would be aware of his account from where money was deposited by Shri Muthukumar in his account. (sic)â
25. The Central Vigilance Commission could not have come to the aforementioned conclusion unless there was evidence to do so. This submission of the learned counsel is unfounded. The CVC had specifically observed that Shri Karade has benefited from Shri Muthukumar. The CVC ought not to have observed that they are the victims of conspiracy specially when the CVC has observed that Muthukumar had entered into conspiracy with âvarious other peopleâ. The petitioners would fall into the category of various other people and therefore they ought to be tried for the offence punishable under the Indian Penal Code specially for the offence punishable under Section 420 of IPC.
26. The alternative submission of the learned counsel for the petitioners is that the petitioners ought not to be tried by the Special Court since the offences alleged against the present petitioners are the offences triable by the Court of Magistrate. It is pertinent to note that the petitioners cannot be tried in isolation. They are being tried with other co-accused/conspirators, who are not exonerated under the Prevention of Corruption Act. The charge-sheet filed by the Deputy Superintendent of Police, CBI, EOW, specifically reads as follows:-
âThere is evidence and statement of witnesses against Tiwari, Karade which proves that both are part and parcel of the conspiracy being hatched by Muthukumar who is absconding and others in cheating and defrauding the SIDBI to the tune of Rs.1,64,17,551/-. The sanction of prosecution is not required against Shri Muthukumar as he has retired voluntarily from SIDBI on 31.7.1991. The charge sheet has been filed against total 13 accused persons by CBI.
27. Learned Counsel for the Petitioner submits that the very fact that the appointing authority has exonerated the petitioners of all the offences and have only held that it could be negligence as far as the Petitioner had believed Muthukumar. It is sufficient to infer that the present Petitioner cannot be held liable for offence punishable under Section 420, 406 etc. of I.P.C. It is further submitted that there is nothing on record to indicate that the Petitioner Ashukumar had personally gained from the erroneous transaction. The submission is unfounded. It is enough to establish the existence of one out of wrongful loss and the wrongful gain. The law does not require that for the purpose of cheating to be established both the ingredients of Section 420 need to be established.
28. To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that the accused had subsequently demonstrated bonafide acts. In the present case, after the transaction had come to light, the petitioner is said to have taken abundant caution to prevent further loss to SIDBI. This subsequent act by itself cannot be considered to infer that he had no dishonest intention at the time when the fraudulent transaction had taken place or that he had wrongful gain which could not be detected. It cannot be ignored that even if there is nothing to indicate that there was no wrongful gain to the petitioner Ashokkumar, there was definitely wrongful loss to SIDBI.
29. In the present case, the petitioners need to necessarily face the trial as the prosecution deserves an opportunity to adduce evidence to establish that there was mens rea at the time of contravention of the established practice in SIDBI or the terms of agreement had not been followed.
30. In the case of Director of Enforcement vs. M/s. MCPTM Corporation Pvt.Ltd. and Ors. reported in AIR 1996 SC 1100, the Hon'ble Apex Court has held that mens rea is a state of mind. Under the criminal law, mens rea is considered as a guilty intention and unless it is found that the accused had the guilty intention to commit the crime. He cannot be held guilty of committing the crime.â
31. In view of this, the onus to prove that the accused had a guilty intention at the time when the fraudulent transaction had taken place, lies principally on the prosecution and only because the Department has exonerated them on unwarranted grounds, the prosecution cannot be denied an opportunity to lead evidence to approve that the accused had the guilty mind and therefore there was wrongful loss to SIDBI.
32. The Hon'ble Apex Court in the case of Madchl Chemicals and Pharma Pvt.Ltd. vs. Bioligical E Ltd. and Ors. AIR 2000 SC 1869 has held that mens rea is one of the essential ingredients of the offence of cheating. At present, the CBI has adequate material against the present petitioners which would enable the Court to frame charge against the petitioners for the offences punishable under Sections 420 and 406 of IPC.
33. The possibility that the CBI would be able to establish nexus/conspiracy between the present petitioners and the principal accused at the time of trial cannot be ruled out. Under Section 14 of the Evidence Act, facts showing existence of state of mind are relevant. It is true that there cannot be direct evidence in respect of conspiracy. Section 14 of the Evidence Act reads thus:-
âFacts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person â¦. is in issue or relevant.
A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in questionâ.
The mental condition of which a person is conscious is a fact. The expression of which a person is conscious signifies that simple mental phenomena which could be inferred from acts are made relevant.
34. The learned counsel submits that although there was no specific agreement with TML, the money could be sent through RTGS to Ramflex, the absence of which is also not mandatory and that there is no question of deliberately violating the rules. Section 16 of the Indian Evidence Act contemplates âwhen there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant factâ. In a trial for forgery or cheating, evidence of similar transaction not included in the charge is relevant as proof of intention though not as a proof of forgery.
35. In view of the above observations, on the merits of the matter, this Court is not inclined to quash the proceedings against the present petitioners for the offences punishable under Section 120-B read with Sections 420, 406, 467, 468 and 471 of IPC. The present petitioners have been discharged under the Prevention of Corruption Act for want of sanction. Moreover, besides the present petitioners, rest of the ten accused are all private persons and are not public servants. S.Muthukumar is a public servant. He is absconding. His trial be separated from the present petitioners and the other accused. Hence, the present petitioners can be tried by the Court of Judicial Magistrate, First Class since all the rest of the offences for which they are charge-sheeted are triable by a Judicial Magistrate, First Class. Hence, the following order:-
ORDER
(i) The prayer for quashing the proceedings concerning Special Case No.19/2011 from the Court of the Learned Special Judge, CBI (ACB), Pune, is hereby rejected.
(ii) The proceedings pursuant to registration of C.R.No./RC.13/E/2009/Mumbai CBI/EOW/Mumbai, be tried by a Judicial Magistrate, First Class having jurisdiction in accordance with law.
(iii) The case be transferred from the Court of Special Judge, Mumbai to the Court of Judicial Magistrate, First Class, having jurisdiction within four weeks from the date of receipt of this order.
(iv) The trial of S.Muthukumar be separated from the present petitioners and the other accused.
Both the Petitions stand disposed of.