State Vs. Ramalingam - Court Judgment

SooperKanoon Citationsooperkanoon.com/1087214
CourtKerala High Court
Decided OnSep-02-2013
JudgeHONOURABLE MR.JUSTICE HARUN-UL-RASHID
AppellantState
RespondentRamalingam
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice harun-ul-rashid monday, the 2nd day of september 2013/11th bhadra, 1935 crl.rev.pet.no. 639 of 2012 (d) ------------------------------- against the order in crl.m.p.no.1446/2011 in cc 12/2009 of special judge(spe/cbi) -ii, ernakulam dated 9.12.2011. revision petitioner/respondent: ------------------------------------------ state rep.by inspector of police cbi/spe cochin by adv. sri.p.chandrasekhara pillai, c.b.i. respondent/accused no.4: --------------------------------- ramalingam s/o.late kanniah rtd chairman airpot authority of india, now r/a.no 27 bodi chetti street cuddaloor, tamilnadu-607003 r1 by sri.s.sreekumar, senior advocate r1 by adv. sri.v.v.raja r1 by adv. sri.m.t.sureshkumar r1 by sri. u.u. lalith,.....
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935 Crl.Rev.Pet.No. 639 of 2012 (D) ------------------------------- AGAINST THE

ORDER

IN CRL.M.P.NO.1446/2011 IN CC 12/2009 of SPECIAL JUDGE(SPE/CBI) -II, ERNAKULAM DATED 9.12.2011. REVISION PETITIONER/RESPONDENT: ------------------------------------------ STATE REP.BY INSPECTOR OF POLICE CBI/SPE COCHIN BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. RESPONDENT/ACCUSED NO.4: --------------------------------- RAMALINGAM S/O.LATE KANNIAH RTD CHAIRMAN AIRPOT AUTHORITY OF INDIA, NOW R/A.NO 27 BODI CHETTI STREET CUDDALOOR, TAMILNADU-607003 R1 BY SRI.S.SREEKUMAR, SENIOR ADVOCATE R1 BY ADV. SRI.V.V.RAJA R1 BY ADV. SRI.M.T.SURESHKUMAR R1 BY SRI. U.U. LALITH, SENIOR ADVOCATE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: "C.R" HARUN-UL-RASHID, J.

------------------------ Crl.R.P. No.639 Of 2012 ---------------------- Dated this the 2nd day of September, 2013.

ORDER

The revision petitioner is the State, represented by the Inspector of Police, CBI/SPE, Cochin. The respondent is the accused No.4 in C.C.No.12/2009 on the file of the Special Judge, CBI/SPE Court-II, Ernakulam. He is the petitioner in Crl.M.P.No.1446/2011 in C.C.No.12/2009 filed under Section 239 Cr.P.C seeking discharge. He was the chairman, Airport Authority of India (hereinafter referred to as 'AAI') till his retirement on 31.12.2008. The court below by the impugned order dated 9.12.2011 allowed the Crl.M.P.No.1446/2011 and the petitioner was discharged under Section 239 Cr.P.C of all the charges alleged against him. Aggrieved by the said order the State of Kerala represented by the Inspector of Police, CBI has come up in this revision petition. Parties are hereinafter referred to as arrayed in the Crl.M.P.No.1446/2011. ::2:: Crl.R.P.No.639 O”

2. The revision petitioner arrayed as the 4th accused is sought to be prosecuted for the offences under Sections 12, 13 (1)(a) and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act (hereinafter referred to as the 'Act') and under Section 429 r/w Section 120(B) IPC. The name of the petitioner was not mentioned in the FIR and he was arrayed as 4th accused for the first time in the final report dated 30.11.2009. It is mentioned in the petition that the petitioner retired as the Chairman, AAI, after completing 36= years of unblemished service in the field of aviation, that he has held important senior level positions in various organisations, that he was on the board of AAI as Chairman and as all time member for a period of 11= years and he has also held the additional charge of Chief Vigilance Officer while holding the post of Chairman, AAI.

3. The final report dated 30.11.2009 mentions the allegations against the petitioner in charge Nos.9 & 10. The prosecution case is closely related to a dispute between the car parking contractor Ranjith Madhavan (A3) and AAI in relation to the contract of car parking facility in Calicut Airport. Accused No.1 is R.Veeraswami, the then Airport Director, Calicut Airport. ::3:: Crl.R.P.No.639 Of 2012 Accused No.2 is G.Raghuvaran, Senior Manager, AAI (Retired), accused No.3 is Ranjith Madhavan, Proprietor, M/s.Navabharat Enterprises, accused No.5 is K.Bhaskaran, Manager (Communications), AAI Chennai Airport, accused No.6 is R.V.Narayanan, Executive Director (Commercial), AAI Corporate Head Quarters, New Delhi, accused No.7 is C.P.Singh, Additional General Manager (Commercial), AAI Head Office, New Delhi and accused No.8 is Dinesh Kumar, Executive Director (Cargo), AAI, Corporate Head Quarters, New Delhi. The prosecution case as stated in the final report is as follows: The car parking contract at the International Air Port, Calicut was awarded to one Sri.Sadanandan for the period from 18.1.2004 to 12.11.2007 for a monthly licence fee of `10,28,023/- with 10% compound escalation. The area of car parking allotted to him was 5604.15 sq.mtrs. During August, 2005, the AAI revised the car parking charges on an all India basis fixing the Minimum Reserve Licence Fee (MRLF) as ` 19.25 Lakhs per month. Officials at International Airport, Calicut negotiated the matter with the contractor Sadanandan. During Negotiation on 8.8.2005, Sadanandan offered to increase the ::4:: Crl.R.P.No.639 Of 2012 licence fee from ` 13,30,825/-, which he was paying, to ` 16,85,000/- per month. The prosecution allege that R.Veeraswami, in pursuance to a criminal conspiracy with other accused persons, fixed the monthly licence fee as ` 19.25 Lakhs per month. In the further negotiation held on 25.8.2005 at Calicut Airport, Sadanandan offered ` 17.51 Lakhs per month with 10% compound escalation from 13.11.2005. The prosecution allege that in pursuance to a criminal conspiracy, the accused public servants did not accept the offer of Sadanandan and the public servants abused their official position and decided to call fresh Notice Inviting Tender (NIT) for car parking and get it approved through the Regional Commercial Advisory Committee, Chennai on 29.8.2005. It is alleged that in pursuance to the said criminal conspiracy, Sadanandan was issued with a termination notice on 12.12.2005 and a new NIT was published in the newspapers on 13.12.2005 for the contract of car parking for the existing area of 5604.15 sq.mts with minimum licence fee of ` 20 Lakhs. It is the case of the prosecution that in pursuance of the criminal conspiracy accused No.3 quoted the highest amount in the tender with `21,60,621/- ::5:: Crl.R.P.No.639 Of 2012 and on 12.5.2006 the accused public servants abused their official positions and issued a letter to M/s. Navabharat Enterprises awarding the contract with monthly licence fee of ` 23,11,864/-, due to upward revision of car parking charges, for a period of five years and enclosed the map of three car parking areas, which includes the existing car parking area of 5604.15 sq.mts and an additional area of 7000 sq.mts which was under development. A1 awarded the work with effect from 11.6.2006 to M/s.Navabharat Enterprises. The site was taken over by the new contractor on 24.6.2006. It is alleged that after one month, in pursuance of the criminal conspiracy, accused No.3 sent a letter dated 25.7.2006 to the Airport Director stating that due to construction activities in the Airport due to which construction materials were dumped in the car parking areas, large part of the parking areas had become unavailable for car parking and hence they were losing revenue of an average of `30,000/- per day on this count and therefore, requested for compensation and suo motu decreased the monthly licence fee and started remitting the lower monthly licence fee of `11,55,932/-. Later, on 31.8.2006, M/s.Navabharat Enterprises requested for arbitration for the ::6:: Crl.R.P.No.639 Of 2012 reduction of the monthly licence fee. It is further alleged that in pursuance to the criminal conspiracy accused Nos. 1 to 3 abused their official position and conducted an inspection of the area on 9.10.2006 and observed that part of the area is unfit for the use of car parking and supported the claim of the contractor for arbitration and sent a letter to the Regional Executive Director, AAI, Chennai, mentioning that more than 50% of the car parking area is not available for car parking. According to the prosecution this was a distorted version of the facts considering the fact that Sadanandan, the previous contractor, had been paying the agreed amount for the use of the area of car park-I up to June, 2006 and in the NIT it was clearly mentioned that at present the total car parking area is 5604.15 sq.mts and the additional area is under development. The further allegation is that when the agreement was signed between accused No.3 and AAI on 13.12.2006, A1, by abusing his official position to show undue favour to accused No.3, included the maps of all the three car parking areas and on the basis of the said agreement, accused No.1 recommended and justified the claim of 50% rebate in the minimum licence fee payable by accused No.3, the ::7:: Crl.R.P.No.639 Of 2012 contractor. On the basis of the recommendation of accused No.1, on 12.3.2007, the Additional General Manager (Commercial), AAI, New Delhi, directed the Airport Director, Calicut to realise the minimum licence fee of ` 18,73,570/- from the contractor. However, in pursuance to the criminal conspiracy, accused No.3 continued to remit lesser amounts according to his calculations and accused No.1 abusing his official position continued to accept the amount and did not take any action against the contractor to realise the defaulted arrears.

4. Accused No.1 was posted and was officiating as Airport Director at Calicut Airport from 18.8.2005 to 19.8.2006 and was functioning as Airport Director, Calicut, with effect from 19.8.2006 to 31.8.2007. He was the head of AAI, Calicut Airport for all matters including operational, commercial, financial, engineering and other activities taking place at the Airport. During the material time, accused No.2 was serving as Senior Manager (Commercial) and he was the head of commercial section of Calicut Airport till he was replaced by K.K.Shobi vide letter No.AAI/CL/EH-3/07/8945 dated 25.1.2007. Accused No.5 K.Bhaskaran, brother of accused No.4, K.Ramalingam, Chairman, ::8:: Crl.R.P.No.639 Of 2012 AAI, was functioning as Manager (Communications), AAI, ATS, Chennai Airport from May, 2005 onwards till he was transferred in July, 2008. Accused No.6 R.V.Narayanan was posted and functioning as Executive Director (Commercial) at the AAI, Corporate Head Quarters, New Delhi. Accused No.7 C.P.Singh was functioning as Additional General Manager (Commercial), AAI, Corporate Head Quarters, New Delhi and accused No.8 Dinesh Kumar was functioning as Airport Director, Chennai Airport from 10.3.2006 to 3.10.2008.

5. Altogether 17 charges were framed in the final report. Charge No.1 is that the accused Nos.1 to 3 entered into a criminal conspiracy in the year 2005 at Calicut to cheat the AAI, regularly accepted illegal gratification from accused No.3 and giving pecuniary advantage to accused No.3 to which accused Nos.4, 5, 6, 7 & 8 joined during the year 2006 and 2008 at different stages and at different places. All the charges except 9 & 10 relates to the commission and omission of all the accused except accused No.4. The act of commission and omission of all accused were dealt with in detail in charge No.1. The relevant paragraph in charge No.1 the final report that relate to the ::9:: Crl.R.P.No.639 Of 2012 petitioner who is the 4th accused reads as follows: "That A4 Sri.K.Ramalingam, AAI Chairman, Delhi, who was also in the habit of accepting illegal gratification from A3 Sri.Ranjith Madhavan, joined the above criminal conspiracy with A1 Sri.R.Veeraswamy, A2 Sri.G.Raghuvaran, A3 Sri.Ranjith Madhavan, A6 Sri.R.V.Narayanan and A7 Sri.C.P.Singh at Delhi in the year 2007 and in pursuance to the above conspiracy dishonestly acted on the letter dated 31.8.2006 of Vinod Madhavan, Advocate of A3 Sri.Ranjith Madhavan, requesting for the appointment of arbitrator, appointed A8 Sri.Dinesh Kumar, Airport Director, Chennai Airport, who has also been accepting illegal gratification from A3 Sri.Ranjith Madhavan since March, 2006, as an arbitrator on 4.4.2007 and issued order dated 10.4.2007 for the above appointment of A8 Sri.Dinesh Kumar as arbitrator knowing fully well that A8 Sri.Dinesh Kumar as Airport Director, Chennai Airport was directly dealing with A3 Sri.Ranjith Madhavan, who was also running the car parking contract at Chennai Airport". The specific allegations against the petitioner A4 are stated in charge Nos.9 & 10. In charge No.9 it is stated that the petitioner by abusing his official position as public servant dishonestly acted on the letter dated 31.8.2006 of A3 for appointment of arbitrator and appointed A8 as arbitrator in order to pass an award in favour of A3 and obtained pecuniary advantage for A3 knowing ::10:: Crl.R.P.No.639 Of 2012 fully well that A8 was directly dealing with A3, that he would pass an award in favour of A3 and obtained pecuniary advantage to him. It is also alleged that the petitioner approved the office note of A6 for withholding the action of invoking the bank guarantee for recovering the outstanding dues of licence fee from A3 and facilitated A3 obtaining wrongful gain to the extent of ` 3,21,22,924/- as on 26.2.2008 and thereby committed offences punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act 1988. In charge No.10 it is stated that the petitioner habitually accepted/obtained for himself, through his brother A5 Bhaskaran, who is the Manager (Communication), Chennai Airport, gratification other than legal remuneration to the extent of ` 12 Lakhs by cash and ` 2,91,386/- by kind in the form of taxi bills as shown in the table as a motive or reward for doing the official favour to A3 in the contract of management of car parking at Calicut Airport in pursuance to the conspiracy in the manner as narrated in charge No.1 and thereby committed offences punishable under Section 13(1)(d) r/w 13(2) of the PC Act. ::11:: Crl.R.P.No.639 O”

6. Before adverting to Section 239 Cr.P.C and the principles laid down by the Apex Court in various decisions cited below, I feel that it is the duty of the court to peruse the materials in order to find out whether or not there is sufficient ground for proceeding against the accused. I have perused the materials produced by the prosecution before the court below in depth. If upon consideration of such materials the court is satisfied that prima facie case is made out against the accused, the judge must proceed to frame charge. Only in a case where the materials which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then and then alone the court can discharge the accused. It is also settled that the court is not required to enter into meticulous consideration of materials placed before it at this stage.

7. In this revision I am not considering the legality or propriety of the charges framed against all the accused in C.C.No.12/2009. I am considering the legality and propriety of ::12:: Crl.R.P.No.639 Of 2012 the order passed by the court below in the application submitted by A4 for discharge under Section 239 Cr.P.C. Whatever findings and observations recorded herein is intended and related only for the purpose of considering the legality of the discharge petition.

8. Section 239 of the Cr.P.C reads as follows: "Section 239. When accused shall be discharged:- If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing". The scope and ambit of Section 239 Cr.P.C. and corresponding provisions in Cr.P.C has been dealt with in several cases by the Apex Court. The Apex Court in the decision reported in Dilawar Balu Kurane v. State of Maharashtra (2002 (2) SCC 135 held that a judge while considering the question of framing the charges under the Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court ::13:: Crl.R.P.No.639 Of 2012 disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused; that in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. In the decision reported in Shoraj Singh Ahlawat and others v. State of U.P and another (AIR 2013 ::14:: Crl.R.P.No.639 Of 2012 SC 52 the Apex Court held that what needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. In the same case the Apex Court followed the principles laid down in the decision reported in State of Maharashtra & others v. Som Nath Thapa and others (AIR 1996 SC 1744) which reads as follows: "If on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage". ::15:: Crl.R.P.No.639 O”

9. The Apex Court in State of Bihar v. Ramesh Singh (1977 (4) SCC 39 also considered the tests and considerations to be applied by a court in the matter of passing an order to discharge the accused or to proceed with the trial. "Reading Sections 227 & 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for ::16:: Crl.R.P.No.639 Of 2012 presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. If the scales as to the guilt or innocence of the accused are even at the conclusion of the trial, then on the theory of benefit of doubt the case must end in the acquittal of the accused; but if, on the other hand, the scales are even at the initial stage of making an order under Section 227 or Section 228, then in such a situation, ordinarily and generally the order will have to be made under Section 228 and not under Section 227. The test is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Where there is a prima facie evidence even though the ::17:: Crl.R.P.No.639 Of 2012 person charged of an offence in the complaint might have a defence, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case". The said principles were followed by the Apex court in Smt.Om Wati and another v. State, through Delhi Admn. and others (2001 Crl.L.J 1723), Sanghi Brothers (Indore) Private Limited v. Sanjay Choudhary and others (2009 (1) SCC (Crl) 87), State of Delhi v. Gyan Devi and others (2000 (8) SCC 239), Indu Jain v. State of Madhya Pradesh and others (2009 (3) SCC (Crl)

996) , Mirza Akbar v. King Emperor (AIR 1940 Privy council

176) and Union of India v. Prafulla Kumar Samal and another (1979 (3) SCC 4).

10. The final report shows that during 2005 accused Nos.1 to 3 had entered into a criminal conspiracy at Calicut to cheat AAI and to regularly accept illegal gratification from A3 and also pecuniary advantage to A3 to which A4 to A8 joined during the year 2006 and 2008 at different stages and at different places. ::18:: Crl.R.P.No.639 Of 2012 The final report narrates the events that took place during 2005, 2006, 2007 & 2008. The allegation against the petitioner is that he joined criminal conspiracy with other accused in the year 2007. According to the prosecution in pursuance to the above said conspiracy A4 dishonestly acted on the letter dated 31.8.2006 of Adv.Vinod Madhavan of A3 requesting for appointment of an arbitrator and issued order dated 10.4.2007 appointing A8 Dinesh Kumar as arbitrator knowing fully well that A8 as Airport Director, Chennai Airport, was directly dealing with A3 and that the appointment was made knowing fully well that the A8 has been accepting illegal gratification from A3 since March, 2006 and as an arbitrator till 4.4.2007. A3 Ranjith Madhavan was also running the car parking contract at Chennai Airport. The other allegations are that the petitioner acted on the letter dated 31.8.2006 of A3 for appointment of an arbitrator even though no agreement to that effect has been arrived at and appointed A8 as arbitrator in order to pass an award in favour of A3 to obtain pecuniary advantage for A3. The further allegation is that A4 abusing his official position as public servant on 10.4.2007 approved office notes of A6 for withholding the action ::19:: Crl.R.P.No.639 Of 2012 of invocation of bank guarantee and had caused a wrongful gain to accused No.3 and facilitated the accused No.3 obtaining wrongful gain to the extent of `3,21,22,924/-. The other allegation is that he has habitually obtained for himself through A5 gratification other than legal remuneration to the extent of ` 12 Lakhs by cash and `2,91,286/- by kind in the form of taxi bills.

11. The commercial section of AAI is responsible for the completion of tendering process for the management of car parking contract at the Airports in India by adhering to a specified time schedule as defined/prescribed in the Commercial Manual. The management of car parking facility is given on contract to the highest bidder through open tender normally for a period of five years. The rate of car parking of all vehicles in all the the Airports was normally fixed by the AAI, Corporate Head Quarters, New Delhi and the same is implemented by all the Airports under the AAI. The management of car parking contract at Calicut Airport with an area of 5604.15 sq.mts. was awarded to Sadanandan from 18.1.2004 to 12.11.2007 with a licence fee of `10,28,023/- with 10% compound escalation every year. ::20:: Crl.R.P.No.639 Of 2012 While so, on 27.1.2005, the AAI, Corporate Head Quarters, New Delhi revised the car parking charges of vehicles at all the Airports in India including Calicut Airport. All the Airport Directors were directed to implement the above revision of car parking charges after conducting a survey of the same as regards the revision. A committee was formed to conduct a survey of revision of car parking charges. Survey was conducted from 7.6.2005 to 11.6.2005 by the committee and after the survey in the meeting held on 1.8.2005 by the LCAC, it was recommended after considering the survey report on revised car parking charges made by the Corporate Head quarters to fix the minimum licence fee at `19.25 Lakhs per month. The then contractor Sadanandan was called for negotiation. At that time, the existing licence fee was ` 11,35,825/-. In the further negotiation held on 25.8.2005 Sadanandan offered only ` 17.51 Lakhs per month. The same was not acceptable to the negotiation team who then recommended to terminate the contract and to go for fresh tender. It was also decided in the meeting held by the RCAC to fix the MRLF for the management of car parking at ` 20 Lakhs per month. A decision was also taken ::21:: Crl.R.P.No.639 Of 2012 to terminate the contract of Sadanandan and go for fresh tender. On the basis of the decision thus taken on 13.12.2005, AAI published notice inviting tender in the management of car parking contract at Calicut Airport with the existing car parking area of 5604.15 sq.mts. In the tender followed, M/s.Navabharat Enterprises, Mumbai of A3 quoted the highest amount and was awarded the licence with a monthly licence fee of ` 23,11,864/-. The contractor paid the licence fee only for one month and from the second month onwards he defaulted payment. It is alleged that the outstanding amount had reached to ` 3,70,89,245/- thereby causing wrongful loss of the said amount to AAI as on 26.2.2008. The facts above would show that the authority had given ample opportunity to Sadanandan to accept the minimum reserve licence fee fixed by the AAI at national level at `19.25 Lakhs per month. Negotiations were held on more than one occasion. Since in the last offer Sadanandan offered to increase the licence fee to 17.51 Lakhs per month, the authorities agreed for ` 19.25 Lakhs per month being the minimum amount fixed at the national level and if Sadanandan is willing to accept the said offer there should not have been any further steps in this regard. ::22:: Crl.R.P.No.639 Of 2012 Only because the negotiation failed and the fixing of rate of licence fee was not acceptable to Sadanandan, the authorities initiated steps to go for fresh tender. In the tender that followed, A3 quoted the highest amount. Therefore, he was awarded the licence of management of car parking at Calicut Airport with a monthly licence fee of ` 23,11,864/-. M/s.Navabharat Enterprises commenced the car parking contract on 24.6.2006 as per the award letter dated 12.5.2006. Going by the final report which is based on the aforesaid facts, it is difficult to appreciate prima facie the case of the prosecution that A1 to A3 entered into criminal conspiracy at Calicut Airport to cheat AAI by awarding the contract to A3, Ranjith Madhavan. Events would show that only because Sadanandan was not prepared to accept the licence fee fixed by the authorities, fresh tender was notified. Several persons attended the tender proceedings and the person who quoted the highest amount was awarded licence. The award letter is dated 12.5.2006. Re-tender was necessitated due to the decision taken at the national level by the Corporate Head Quarters, New Delhi, revising the car parking charges of all the Airports in India and in implementation of the same further steps ::23:: Crl.R.P.No.639 Of 2012 were taken at Calicut Airport as well. So far as the discharge petition filed by A4 is concerned it is not necessary to go into the events that happened during 2005-06 and the role played by A1 to A3 in the alleged criminal conspiracy.

12. In the NIT it was clearly mentioned that the total area of car parking is 5604.15 sq.mts. When the agreement was signed on 13.12.2006 it appears that some foul play has been done by some of the officials accused to favour A3 by including additional area of 7000 sq.mts. by adding plot Nos. 2 & 3 in the map. The prosecution has no case that at the time of execution of the contract agreement on 13.12.2006, the petitioner had joined the conspiracy. The allegation against A1 & A2 is that instead of mentioning about the car parking area of 5604.15 sq.mts as per the tender, they dishonestly included sketch map of car park area Nos. 2 & 3 also in order to obtain wrongful gain to A3, not to remit the licence fee on the ground that the full car parking area was not available for parking and knowing fully well that car park Nos.2 & 3 were not ready for car parking. It is also alleged that A1 collected a letter dated 25.7.2006 from A3, who requested for a rebate of 30% in the licence fee saying that the ::24:: Crl.R.P.No.639 Of 2012 full car parking area has not been allotted to him. A3 through his advocate issued letter dated 31.8.2006 addressed to the Chairman, AAI, New Delhi requesting to appoint an arbitrator with regard to the dispute of car parking with the understanding with the other accused persons that an arbitrator doing official favour to the contractor, alone would be appointed by the above officers in the CHQ, New Delhi, who had received illegal gratification from A3. In the lawyer notice it is inter alia stated that car parking area of plot Nos.2 & 3 has not come into existence till date and in respect of car parking plot No.1, major portion has been utilised by AAI for dumping construction materials. It is also stated that Calicut Airport by its letter dated 27.7.2006 declined to accede to the request of A3 giving rise to a dispute. The request was to appoint a sole arbitrator to resolve the dispute by reference to arbitration.

13. The allegation against the petitioner is that he joined the criminal conspiracy with A1, A2, A3, A6 & A7 at New Delhi in the year 2007 and pursuant to the conspiracy dishonestly acted on the letter dated 31.8.2006 of Adv.Vinod Madhavan of A3 requesting to appoint an arbitrator and appointed A8 Dinesh ::25:: Crl.R.P.No.639 Of 2012 Kumar as the arbitrator who has been accepting illegal gratification from A3 since March, 2003 and issued order dated 10.4.2007 appointing A8 as arbitrator knowing fully well that A8 was directly dealing with A3. I have perused the notes of all the officials leading to the appointment of arbitrator. In note No.23 of Annexure 13 dated 2.2.2007 the Assistant Manager (Commercial), Mrs.Kavitha, endorsed that the request for appointment of arbitrator is recommended to CHQ for necessary action. The DGM (Commercial), S/R in letter No.AAI/SR/M/38(21)/Comml. dated 10.1.2006 forwarded the specific recommendation of RCAC. In the said letter it is inter alia stated that out of the total three areas (1, 2 &

3) earmarked for the subject licence in the award letter/tender notice only the car park area-1 was handed over to the licensee and park area Nos.2 & 3 were not handed over due to ongoing construction of new terminal at Calicut Airport. It is also stated that in view of the said position, the present licensee should pay minimum licence fee of ` 17.51 Lakhs per month plus 7% increase on account of revision of rates due to service tax liability. Thus the total licence fee payable worked out to ` 18,73,570/- per month ::26:: Crl.R.P.No.639 Of 2012 plus service tax. In note No.24 of Annexure 13(2) dated 5.2.2007 endorsed by Mrs.Radhika, Senior Commercial Manager, it is inter alia stated that it is for consideration the issue of grant of rebate in view of the parking area actually not handed over to the licensee and to appoint an arbitrator. She also noted that as on date an amount of ` 1.05 Crores is outstanding as against the security deposit of `2.03 Crores. In note No.25 of Annexure 13(4) dated 5.2.2007 of A7, who is the Additional General Manager (Commercial), it is endorsed that it may be advisable to consider the request of A3 for referring the dispute to the sole arbitrator under clause 30 of the licence agreement and simultaneously to take action for realizing the outstanding dues to the tune of Rs.1.05 Crores. He also forwarded three names of officers to act as sole arbitrator. It is further stated that Law Department may also suggest any other name and submit the file to the competent authority for consideration/approval. On the same day, in note No.26, Executive Director ::27:: Crl.R.P.No.639 Of 2012 (Commercial), General Manager (Law), Member (P&A) endorsed that Airport Director, Calicut should also be asked to expedite the handing over the site to the party as stated and if any dispute is raised they recommend termination of contract and invite fresh bids. Subsequently, in note No.27of Annexure 13(4) on 7.2.2007, General Manager (Law) recommended to resolve the dispute amicably as advised by RHQ to avoid the litigation, failing which an arbitrator be appointed. He also endorsed that termination of contract at this stage is not advisable as it would be against the interest of AAI on the above facts. In note No.29 of Annexure A13(5) dated 12.2.2007, A7 inter alia endorsed that the RED, Southern Region in consultation with RCAC has recommended total licence fee of ` 18,73,570/- per month in addition to applicable service tax i.e., the amount AAI was getting from the previous contractor and has also recommended arbitration in the matter. It is further stated that Commercial Director, CHQ has recommended arbitration and has also suggested the names of three officers of AAI as prospective arbitrator. He further endorsed that keeping the above facts in ::28:: Crl.R.P.No.639 Of 2012 view, we may endorse the recommendations of RED as also supported by Law Department, CHQ i.e., till time the total parking area is handed over to the licensee, a licence fee of ` 18,73,570/- per month in addition applicable service tax may be levied instead of amount of licence fee as per agreement. It was further stated that it is advisable to place the matter before the Commercial Advisory Board for consideration after seeking the concurrence/comments of Finance department. In note No.30 of Annexure 13(6) dated 28.2.2007 note No.29 was approved by the Finance Department. In note No.32 of Annexure 13(7) endorsement is that the Director of Commerce is again requested to clarify the observations in note No.30. Note No.33 of Annexure 13(8) dated 7.3.2007 was placed before A7. It is endorsed that under the given circumstances it may be advisable to resolve the dispute through sole arbitrator. Therefore the proposal in note No.25 may be considered. In the same note A6 made certain endorsement and directed his office to put up the file after receipt of reply to the point Nos.1 to 4. In note No.35 of Annexure 13(10) it is stated that in note ::29:: Crl.R.P.No.639 Of 2012 No.25 Commercial Directorate has suggested three names to act as sole arbitrator. It is also recommended that it may be advisable to refer the dispute to the sole arbitrator as was recommended by RCAC vide letter dated 10.1.2006. Vide Note No.36 dated 23.3.2007 name of one of the arbitrators was changed. S.K.Saraswati was replaced by Suresh Chandra. Note No.37 of Annexure 13(10) dated 23.3.2007 was endorsed by the Head of Commercial Administration, CAB, who is not an accused. He is a member of P&A. It was endorsed to confirm if the agreement has been signed for invoking the arbitration clause. In note No.38 of Annexure 13(10) dated 28.3.2007, A6 endorsed that appointment of arbitrator accordingly be considered from the following or from any other officers as decided by the Chairman. Note No.38 was approved by Head of CAB (member P&A) and endorsed his statement that "may consider the appointment of arbitrator". Thereafter the file reached the Chairman. In note No.39 of Annexure 13(11) dated 4.4.2007 the ::30:: Crl.R.P.No.639 Of 2012 Chairman appointed Sri.Dinesh Kumar, A8, Airport Director, Chennai Airport, as the sole arbitrator. Note No.41 of Annexure 13 (12) is the draft letter dated 10.4.2007 appointing Dinesh Kumar as arbitrator. That was placed for approval and the same was approved by all the officials.

14. On a reading of note numbers 23 - 41 it is clear that all the officers have applied their mind to the proposal for appointment of an arbitrator. The RCAC has recommended the request for appointment of arbitrator to CHQ for necessary action. Appointment of arbitrator was considered by the CHQ at different levels. As early as on 5.2.2007, the Senior General Manager, CHQ, after taking note of the facts and circumstances reported to accept the request for arbitration and to appoint an arbitrator. Thereafter, the matter was considered at the Senior level by A7, who is the Additional General Manager (Commercial), A6, who is the Executive Director (Commercial), AAI Head Office, New Delhi, K.P.Singh, General Manager (Law)(Not an accused), General Manager (Finance)(Not an accused), Member (P&A)(Not an accused), Commercial Advisory Board and ultimately by the ::31:: Crl.R.P.No.639 Of 2012 Chairman. In note No.25, A7 after suggesting name of three officers to act as sole arbitrator also endorsed that Law Department may also suggest any other names and submit the file to the competent authority for consideration. The Chairman in the order dated 10.4.2007 communicated to M/s.Navabharat Enterprises, appointed Sri.Dinesh Kumar as sole arbitrator for the adjudication of dispute between the parties and also counter claims of AAI if any subject to their admissibility in terms of the contract. Thus, the order passed by the Chairman not only direct adjudication of dispute raised in the letter and also the counter claims of AAI. The Chairman is the appointing authority. He has exercised his power conferred by clause 41 of the agreement. He has the right to appoint one among the three names suggested by the CHQ. I have in depth examined the various notes put up by the officers at different levels. All of them on facts endorsed that in view of the dispute has arisen between the parties, appointment of an adjudicator has become necessary. He being the authority conferred with the power of appointment under clause 41 of the agreement it is within his powers to appoint the sole arbitrator. I could not find any irregularity, impropriety or ::32:: Crl.R.P.No.639 Of 2012 foul play in the matter of appointment of A8 as arbitrator.

15. All the officials in the department suggested three names including A8. The officials at any point of time did not point out any disqualification or misconduct on the part of A8 to act as an arbitrator. At the relevant time, A8 was Airport Director, AAI, Chennai Airport. Taking note of the events from the very beginning, continued after the sending of advocate notice on 31.8.2006 for appointment of an arbitrator and till the appointment of arbitrator, I do not find any materials in this case even to suspect the petitioner that he had appointed the sole arbitrator in pursuant to a criminal conspiracy by abusing his official position as public servant and that he dishonestly acted on the letter dated 31.8.2006 and appointed A8 Diensh Kumar as arbitrator in order to pass an award in favour of A3 and obtained pecuniary advantage for A3 knowing fully well that A8 was directly dealing with A3 and he would pass an award in favour of A3 and obtained pecuniary advantage for him. Dinesh Kumar as Airport Director, Chennai Airport may have to deal with A3 Ranjith Madhavan who is also licensee of car parking area of Chennai Airport as well. Therefore, there may be occasions for ::33:: Crl.R.P.No.639 Of 2012 A8 to deal with A3. Clause 30 of the licence agreement provides for appointment of a sole arbitrator or a person to be appointed by the Chairman/member of the authority in all matters relating to disputes and differences arising out of or in any way touching or concerning the agreement. It further provides that it will be no bar that the arbitrator appointed as aforesaid is or has been an employee of the AAI and the appointment of the arbitrator will not be challenged or be open to question in any court of law on this account. On a perusal of the records I find that appointment of a sole arbitrator has made only in the fitness of things and there is no absence of bonafides or presence of malafides. It is seen that A8 was chosen and picked up for appointment when the venue for arbitration may be at Calicut, the nearest officer available will be A8. There is nothing on record justifying an inference as to the existence of mental element of knowledge that A8 would pass an award in favour of A3 which attributed against the petitioner. The very same contractor was conducting management of car parking facility at Chennai during 2004-06. Whenever occasion comes there may be chances of A8 dealing with A3 in relation to the conduct of management of car parking facility at Chennai. ::34:: Crl.R.P.No.639 Of 2012 The arbitrator, who is the Airport Director, Chennai, may have to deal with A3 in the matter of management of car parking at Chennai in his capacity as licensor. There is nothing wrong in it. The said fact does not necessarily mean that A3 & A8 are having unholy alliance and that had come to the notice of the petitioner so as to exclude A8 in the matter of choosing arbitrator from among the panel. The prosecution has no case that at the relevant time A8 was for any reason a man of ill-repute in the matter of consideration as a member in the panel for appointment of an arbitrator. The prosecution has also no case that the petitioner had accepted and acted upon the award dated 30.9.2008 till he retired from service on 31.12.2008. Therefore, no dishonesty or malafides can be attributed against A4 Chairman in his having chosen A8 as arbitrator from the panel placed before him. I have not come across any materials or circumstances which would go to show that the petitioner appointed the arbitrator knowing fully well that he would pass an award in favour of A3 and obtained pecuniary advantage for him.

16. Both parties challenged the arbitral award. The arbitrator passed award on 30.9.2008 granting relief to the ::35:: Crl.R.P.No.639 Of 2012 contractor. The arbitrator awarded 35% of the licence fee as rebate from 24.5.2006 to 31.8.2007. During that period car park area 2 & 3 were not handed over to the claimant and 30% of the licence fee as rebate from 1.9.2007 to 7.4.2008 during which car park area No.1 was withdrawn from the claimant. The contractor M/s.Navabharat Enterprises challenged the arbitral award to the extent the award refuses some of the claims of the A3 under Section 34 of the Arbitration and Conciliation Act, 1996, before the District Court, Manjeri. The District Judge by order dated 21.6.2011 found that the O.P. is devoid of any merit and the same was dismissed. Thus, the order has become final.

17. Another allegation in charge No.9 is that A4 approved by abusing his official position the office note of A6, who is the Senior Manager (Commercial) for withholding the action of invoking the bank guarantee for recovering outstanding dues of licence fee from A3 and facilitated A3 obtaining wrongful gain to the extent of ` 3,21,22,924/- as on 26.2.2008. In this connection I have perused note No.41 prepared by Radhika, Senior Manager (Commercial) on 10.4.2007. It is endorsed in the note that Airport Director, Calicut Airport vide fax dated ::36:: Crl.R.P.No.639 O”

5. 4.2007 advised the bankers to invoke the bank guarantee of M/s.Navabharat Enterprises for an amount of ` 1,83,00,000/-. The Department received a complaint from M/s.Navabharat Enterprises dated 6.4.2007 indicating that invocation of bank guarantee by AAI is totally illegal since the same has been done without proper notice when the matter is still under dispute and referred for arbitration. In the aforesaid facts it is also stated that a letter was therefore sent by Executive Director (Commercial) to Airport Director, Calicut on 9.4.2007 requesting him to withheld the action of invoking the bank guarantee at the stage pending decision of the arbitrator. The Airport Director has, subsequently, stopped the invoking action vide fax dated 9.4.2007. From the note put up and approved by all the higher officials, it is stated that invocation of bank guarantee was withheld by the Department after receipt of a complaint dated 6.4.2007 from the licensee. On receipt of the complaint the Executive Director (Commercial) in his communication to Airport Director on 9.4.2007 requested him to withhold the action of invocation of the bank guarantee at the stage pending decision of arbitrator. The Airport Director stopped the invoking action. ::37:: Crl.R.P.No.639 Of 2012 Withholding of invocation of bank guarantee is an act originally done by the Airport Director, Calicut. At the instance of Executive Director (Commercial), subsequently, the Airport Director stopped the invoking action. The file shows that A4 has no role to play either in invocation of the bank guarantee or withholding the same. Note No.41 prepared by the Senior Commercial Manager, Mrs.Radhika, is for approval of the draft letter appointing Dinesh Kumar as arbitrator. The draft letter appointing Dinesh Kumar as arbitrator was approved by all the higher officials including the Chairman. Note No.41 does not relate to the invocation or non-invocation of bank guarantee. The file shows that the approval of A4 Chairman is not needed nor the chairman approved the invocation at any point of time. The petitioner only initialled note No.41 seeking his approval of his draft letter for appointment of A8 as arbitrator which alone was placed before him for approval. Admittedly, the bank guarantee was subsequently invoked and then there was a stay from this Court as per the judgment dated 12.9.2007. Hence the allegation against the petitioner regarding withholding of invocation of bank guarantee, the case that the petitioner ::38:: Crl.R.P.No.639 Of 2012 approved the office note of A6, is without any substance, basis and it is against the positive proof that he has not taken any decision in the matter of withholding the invocation of bank guarantee.

18. Prosecution has no case the petitioner was part of the alleged conspiracy at the inception. The role alleged is only in the matter of choosing A8 as arbitrator long after the dispute arose. There is no material available on the prosecution records at least to prima facie show that there was any direct relationship between A3 & A8 or that such relationship was sufficiently known to the petitioner so as not to consider him in the matter of selection of arbitrator as an element to favour A3. There is nothing to indicate that the petitioner had any previous dealing with A3 so as to confer any benefit on him.

19. As regards charge No.10, it has to be noticed that even if A5, who is the brother of the petitioner, has accepted any bribe or other benefits in kind from any person including A3, the said act is not shown to have any direct nexus with the petitioner. The prosecution has no case that any of the amounts alleged to have been accounted in the name of the petitioner as ::39:: Crl.R.P.No.639 Of 2012 donation or other benefits actually reached the hands of the petitioner. Even if there was any conspiracy involving any or some of the accused persons evidently there is no material to show that the petitioner was one among them. The learned counsel for the CBI Sri.Chandrasekhara Pillai drew my attention to Document Nos.28 to 33 and 34 to 63. D28 to D33, D62 & D63 are day books. D34 to D58 are email statements regarding payment of bribe. The learned standing counsel also placed reliance on the statement of CW3 and CW11. CW3 is the Accounts Manager, M/s.Navabharat Enterprises, Chennai International Airport. He stated that the day books are usually maintained by him in his handwriting and in his absence E.K.Ramesh used to make the entries. The statement contain the details of bribe paid to the officials of Chennai, Calicut and New Delhi including the taxi bills of Lakshmi Travels, engaged by K.Bhaskaran and other staff of the AAI. In the statement it is said that Ranjith Madhavan and his accountant K.P.Varghese have paid the bills of Lakshmi Tavels engaged by K.Bhaskaran, AAI, who is the brother of Chairman, K.Ramalingam, and he entered the bills made to the above Lakshmi Travels in the day to ::40:: Crl.R.P.No.639 Of 2012 day registers as donation, taxi fare to the Chairman, AAI. The statement shows that the taxis were engaged by K.Bhaskaran, AAI, Chennai, who is accused No.5. None of the witnesses stated that the petitioner had ever availed the taxi service from Lakshmi Travels nor travelled in any of the taxis alleged to have been engaged by K.Bhaskaran, who is the brother of the Chairman, AAI. CW18 is Paichi Muthu, who is an associate of the contractor. According to him he visited A8 Dinesh Kumar with Ranjith Madhavan several times at the official residence of A8 Dinesh Kumar and A6, R.V.Narayanan and during those visits Ranjith Madhavan had given bribe to Dinesh Kumar as entered in the day books. CW11 is K.P.Varghese, Accounts Manager of M/s.Navabharat Enterprises. His statement also shows that the taxis were engaged by K.Bhaskaran and that he made the entries in the registers and day books as told by CW3. Going by his statement, he has no direct knowledge regarding the payment of bribe or regarding the use of taxis by A4. CW12 is the Proprietor of Lakshmi Travels. CWs 15, 16 & 17 are the taxi drivers of Lakshmi Travels. Their statements also show that A5 Bhaskaran had engaged the taxis and he travelled many times in the taxis. ::41:: Crl.R.P.No.639 Of 2012 Nobody has a case that the petitioner, A4, at any point of time, travelled in the taxis engaged by Bhaskaran. It is true that D28 to D33,D62 & D63 entries in the day books and D34 to D58 email statements show endorsement of payment of bribe and availing taxi service by A5. The learned counsel for the CBI also relied on the statement of CW6, DGM, Calicut Airport, Assistant Manager, Calicut Airport and CW21, CW23, Director, Garuda Travels, who was the previous contractor to prove the nature of the contract.

20. The learned senior counsel Mr.U.U.Lalit appearing for A4 contended that the above mentioned entries are unilateral documents maintained by an individual and do not necessarily bind the petitioner. The entries discussed above are no doubt entries in the nature of unilateral documents. Another ground alleged on behalf of the CBI relates to relevance of evidence of conspiracy in view of Section 10 of the Evidence Act. The learned senior counsel cited the decision of the Apex Court in Kehar Singh and others v. The State (Delhi Admn.) (AIR 1988 SC 1883). After referring to Section 120A IPC the Apex Court observed that it is necessary that a prima facie case of conspiracy has to be established for application of Section 10 of the Evidence ::42:: Crl.R.P.No.639 Of 2012 Act. Once such reasonable ground exists, anything said, done or written by one of the conspirators in furtherance to the common intention, after the said intention was first entertained, is relevant against others. It is relevant against others, not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it. The Court further observed that it is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the Section is clearly established ie., there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120A. It is only then the evidence of action or statements made by one of the accused could be used as evidence against the other. The Court also followed the principles of law laid down in Sardar Sardul Singh Caveeshar v. State of Maharashtra (AIR 1965 SC 682). The concept of criminal conspiracy was dealt with in detail at length in Kehar Singh's case. The learned standing counsel also placed reliance on the decision reported in State of Delhi v. ::43:: Crl.R.P.No.639 Of 2012 Gyan Devi and others (2000 (8) SCC 239). The Apex Court in the said case held that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At this stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. The very same principles were stated in the decisions reported in State of Bihar v. Ramesh Singh (1977 (4) SCC 39), Indu Jain v. State of Madhya Pradesh and others (2009 (3) SCC (Crl)

996) and Firozuddin Basheeruddin v. State of Kerala [2001 (3) KLT 189 (SC)]. The learned senior counsel Mr.U.U.Lalit placed reliance on the decisions reported in Union of India v. Prafulla Kumar Samal and another (1979 (3) SCC 4 and Dilawar Balu Kurane v. State of Maharashtra (2002 (2) SCC 135 and contended that the the judge who is considering the issue has to exercise his judicial mind to the facts of the case in order to determine whether the case for trial has been made out by the prosecution. ::44:: Crl.R.P.No.639 Of 2012 It is also urged that in assessing this fact it is not necessary for the court to enter into pros and cons of the matter and weigh the evidence as if he was conducting a trial. While considering the question of framing charges, the judge has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The learned senior counsel for the respondent also invited the attention of this Court with regard to the evidentiary value of entries relevant under Section 34. The learned senior counsel placed reliance on the decision reported in CBI v. V.C.Shukla and others (1998 (3) SCC 410). It is settled law that the evidentiary value of entries though relevant were only corroborative evidence and it is to be shown further by some independent evidence that the entries represent honest and real transaction and that monies were paid in accordance with those entries.

21. None of the witnesses cited by the prosecution seemed to have made statement to the investigating officer that they made any payment to the petitioner as bribe or as consideration for any favour done or to be done to any person including A3 ::45:: Crl.R.P.No.639 Of 2012 licensee. Therefore, the entries in the books of accounts are in no way helpful and cannot be proved against the petitioner. Even correct and authentic entries in books of accounts cannot without independent evidence of their trustworthiness, fix a liability upon a person. There is no material to show any meeting of mind between the petitioner (A4) and any other accused at any point of time. There was no sufficient ground for trying the petitioner (A4) in this case. The question examined in detail by the learned judge is as to whether the charge against the accused to be groundless or not. In short, the learned judge examined whether a prima facie case has been made out against the petitioner. I have examined the legality and propriety in passing the impugned order. I find no infirmity, legal or otherwise, in passing the impugned order. In fact this Court is of the opinion that the prosecution has not been able to draw any suspicion. Therefore, I confirm the order. For the reasons given above, impugned judgment is affirmed and the criminal revision petition is dismissed. HARUN-UL-RASHID, Judge. bkn/-