| SooperKanoon Citation | sooperkanoon.com/1227143 |
| Court | Delhi High Court |
| Decided On | Dec-11-2019 |
| Appellant | Mahmood Asad Madani |
| Respondent | Central Bureau of Investigation |
$~1 * + IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:
15. 11.2019 Pronounced on:
11. 12.2019 CRL.M.C. 4956/2017 and CRL.M.A. Nos. 19667/2017, 32081/2019, 32082/2019 and 38518/2019 MAHMOOD ASAD MADANI .....
... PetitionerThrough: Mr. Vikas Pahwa, Sr. Adv. with Mr. Manish Gupta, Mr. Rohit Tomar, Mr. Neelmani, Mr. Niaz Farooqui & Ms. Mrinal, Advs. versus CENTRAL BUREAU OF INVESTIGATION Through: Mr. Rajesh Kumar, SPP with ..... Respondent Ms. Santwana, Adv. CORAM: HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT1 Vide the present petition, the petitioner seeks direction thereby to quash the FIR dated 12.06.2014 being No.RC-08 (A), 2014/CBI/AC- III/New Delhi and subsequent proceedings emanating out of the said FIR pending for trial for the offences punishable under section 120-B read with 420/467/468/471 IPC and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act. Crl.M.C.4956/2017 Page 1 of 23 2. In the present case, FIR was registered on 12.06.2014 and on the same day, CBI registered separate FIRs in identical cases of ex-Rajya Sabha members namely Mr.Brajesh Pathak and Mrs.Renu Bala Pradhan. But this court vide order dated 11.04.2017 quash the proceedings against Mr.Brajesh Pathak in Crl.M.C. 1127/2015 and subsequent proceedings thereto. The said order has attained finality. However, in the case of Mrs.Renu Bala Pradhan, this Court in Crl.M.C. 2251/2017 vide order dated 18.07.2017 directed the Trial Court not to pass the order on charge. Till then, interim order in the said case is continued.
3. Learned counsel appearing on behalf of the petitioner submits that as per the declared guidelines of the respondent available on their website, www.cbi.nic clearly states that “CBI does not entertain anonymous/ pseudonymous complaints.” 4. Moreover, section 4(6) of the Whistle Blowers Protection Act, 2011 states as under:
"no action shall be taken on public interest disclosures by the competent authority if the disclosure does not indicate the identity of the Complainant or public servant making public the Complainant or public servant is found incorrect or false."
interest disclosure or the identity of Crl.M.C.4956/2017 Page 2 of 23 5. In addition to the above, there are clearly defined CVC guidelines and Air India Vigilance guidelines which reiterate the said position that anonymous/ pseudonymous complaints shall not be entertained.
6. It is further submitted that the allegations in the present FIR points towards an overall loss to the exchequer to the tune of INR575,135/- arising out of the alleged wrongful claims of TA/DA by the petitioner by producing companion free tickets for reimbursement. The nine tickets so alleged pertain to the period 14.02.2012-05.03.2012 immediately preceding the last month of his retirement as Rajya Sabha Member.
7. Learned counsel submits that it is an admitted fact by the respondent that the TA/DA claim format was not filled by the
... Petitionerand he has only signed the same which can be corroborated from the CFSL report. The limited allegations are about the counter signatures only, whereas, admitted by the Respondent that the
... Petitionerlike in the case of the other two ex- MP's had no communication or correspondence in emails with the travel agent or with Air India.
8. However, each Rajya Sabha Member is entitled to various facilities and amenities by virtue of their official position on a year basis. As such, Crl.M.C.4956/2017 Page 3 of 23 every Rajya Sabha Member is entitled to 34 free single air journeys in a year as well as unlimited number of Air Journeys for official work. Moreover, out of these 34 free air journeys, spouse or companion of a Member is entitled to travel alone upto to a maximum of 8 air journeys in a year. The relevant portion of the Rajya Sabha Handbook where the travel entitlement has been recorded is extracted herein:
"4.2 TRAVELLING ALLOWANCES FOR FORWARD AND RETURN JOURNEYS PERFORMED FOR ATTENDING OFFICIAL BUSINESS (i) A Member is entitled to travelling allowances for every journey performed by him In India for attending a session of the House or a meeting of a Committee or for the purpose of attending to any other business connected with his duties as a Member from his usual place of residence to the place where the session or the meeting is held or the other business is to be transacted and for the return Journey from such place to his usual place of residence. (ii) For the journeys performed by rail, an amount equal to one first class fare plus one second class fare for each such Journey, irrespective of the class in which the Member actually travels. (iii) For the Journeys performed by air, an amount equal to one and one-fourth of the air fare for each such Journey. ....... 4.6 (i) Every Member is entitled to 34 free single air Journeys in a year from any place in India to any other place in India for self or along with spouse or any number of companions or relatives. Out of this 34 free air Journeys, spouse or companion of a Member is entitled to travel alone upto to a maximum of 8 air Journeys a year to visit AIR JOURNEYS Crl.M.C.4956/2017 Page 4 of 23 such Member. However, where the number of Journeys performed by any Member by air in a year is less than 34, the balance number of Journeys not availed by him/her shall be carried forward to the following year. Air Journeys performed in excess of 34 in a year, subject, to a maximum of eight would be adjusted from the 34 air Journeys available for the next following year. (ii) travel in Executive/ Business class of any Airlines". For the Journeys by air, a Member is entitled to 9. It is further submitted that over a period of six years as Rajya Sabha Member, the
... Petitionerwas also a member cum office bearer of various social, charitable, educational and religious organizations of national and international level. He was having full liberty to utilize the available funds in these cash surplus institutions for the stated objects of these organisations and consequently was frequently travelling to various parts of the Country including overseas travel. He has further been invited by various institutions both in India and abroad and at times has been invited as a State guest also. His travel largely as Chief Guest / Moderator with boarding, lodging etc. to be arranged by the host and his office and in no way the petitioner is involved in spending his time in travel and stay arrangements.
10. Learned counsel submits that the petitioner has never booked a ticket on his own, nor arranged his hotel bookings for his travel. In the present Crl.M.C.4956/2017 Page 5 of 23 case, it is an admitted fact that the office of petitioner was maintaining a running account with the travel agent and the payments were made at times in advance and at times post the completion of the travel. The
... Petitionerin person has never reconciled his travel agents account with the travel agent. The Respondent has not placed on record any instance wherein the
... Petitionerhimself has reconciled his travel accounts. The
... Petitionerwas not even aware of the Companion Free Scheme of Air India which in the usual course of business is known to those who are directly dealing with the Airline or those who are reimbursing such claims. However, now after going through the Companion Free Scheme, it is clear that any such ticket, which is a Companion Free Ticket can only be handed over by Air India either to the Main Ticket holder or after having an authority letter whereas there is no document on record which shows that any authority letter was signed by the
... Petitioner/Main Ticket Holder to collect the Companion Free Ticket and this aspect has not been examined by the Respondent. The
... Petitionerwas not even aware of the format of making such a claim or even of the procedure involved in claims for refund. As both the
... Petitioner's official Rajya Sabha travels as well as his private journeys were handled by his staff and M/s Bonaire Travel Services. The
... Petitionerdid not scrutinize such tickets or the Crl.M.C.4956/2017 Page 6 of 23 TA/DA claims or follow up regarding such payments which were made to M/s Bonaire Travel Services.
11. Learned counsel for the petitioner submitted that it is an admitted fact that the travel of the
... Petitionerwas very frequent and under the said circumstances not only such TA/DA claim blank formats but the blank cheques are also signed and handed over to the office to ensure smooth functioning of the offices. Thus, it can easily be drawn from the above facts that the
... Petitionerwas not in a position to check the arithmetic accuracy of each travel, stay and it was primarily delegated to his office. Moreover, it is clear that the Respondent examined the handbook of Rajya Sabha but failed to clarify that the TA/DA reimbursement process is a well-defined process which requires cent percent checking by the Drawing and Disbursing Officer prior to sending the same to Pay and Accounts Office for payment. It is purely based on the well-established principle of accounting, also referred to as the maker-checker system. In addition, there is a well-defined Audit system in the Rajya Sabha wherein both concurrent and statutory audit of the accounts takes place. The said discrepant TA/DA reimbursements, if any, have escaped the eyes of the Drawing and Disbursing Officer, Pay and Accounts Office and also the Auditors of the Rajya Sabha. It was a case of Crl.M.C.4956/2017 Page 7 of 23 recovery as and when it came to the notice of the Rajya Sabha/Air India / any other person. In such situation, as and when such discrepancies comes to the knowledge of the respective Accounts Office, a notice/show cause notice ought to be issued to the respective beneficiary regarding recovery seeking a response as to why appropriate legal proceedings should not be initiated against the beneficiary. However, in the present case, no notice/show cause was ever issued and straight away an FIR has been lodged, thus, damaging the reputation of the
... Petitioner.
12. Learned counsel submitted that the Drawing and Disbursing Officer and Pay and Accounts Office are experts who are dealing with such documents on daily basis, whereas a Rajya Sabha Member is not an accountant by profession and is nominated because of his understanding of the constituency and his ability to represent the same in a meaningful manner. In the case of Arvind Gupta vs Union of India &Ors. W.P. (C) No.393/2012 vide an Order dated 01.10.2012, the Hon'ble Supreme Court has remarked in Court as under:
"CAG is not a munimji or an accountant or something like that... He is a constitutional authority who can examine the revenue allocation and matters relating to the economy. CAG is the principal auditor whose function is to go into the economy, effectiveness and Crl.M.C.4956/2017 Page 8 of 23 efficiency of the use of resources by the government. If the CAG will not do, then who else will do it".
13. Learned counsel submits that going by the same corollary, Rajya Sabha Members are not munimji or individuals who can verify the vouchers and arithmetic accuracy of each TA/DA bill.
14. In addition to other benefits mentioned above, every Rajya Sabha Member is entitled to spent an amount of INR500,00,000/- (Rupees Five Crore Only) through MPLAD funds for the development of his constituency. It clearly shows the level of trust and faith reposed in such constitutional positions.
15. On the other hand, learned counsel appearing on behalf of the respondent CBI submitted that despite having received genuine air tickets from M/s. Bonaire Travels Services, the petitioner in conspiracy with his P.A. Mohd. Mubashir fraudulently and dishonestly used forged main tickets and forged CFS tickets with an object to cheat and claim excess payment from Rajya Sabha. In furtherance of the above mentioned conspiracy, the petitioner submitted TA Bills to Rajya Sabha through Mohd. Mubashir. All these TA Bills were prepared by Mohd. Mubashir in his own handwriting and the same were duly signed by the petitioner for claiming the same. Thus Crl.M.C.4956/2017 Page 9 of 23 the total claim is INR580,804/- against an amount of INR5669/-, thus caused loss to the exchequer to the extent of INR575,135/-.
16. Regarding registration of separate FIRs on 12.06.2014 in identical cases of false claims by ex-Rajya Sabha Members, namely, Mr. Brajesh Pathak and Ms. Renu Bala Pradhan, counsel for the CBI submitted that on 31.10.2013 CBI, AC-III, New Delhi registered a case No.RC-09(A)/2013 against Mr. Anil Sahani, the then M.P. Rajya Sabha and others. Subsequently on 12.06.2014, CBI registered six (6) FIRs against Rajya Sabha Members, namely, RC-03(A)/2014 (Mr. Brajesh Pathak & Others); RC-04(A)/2014 (Ms. Renu Bala Pradhan & Others); RC5A)/2014; RC6A)/2014; RC-07(A)/2014 & RC-08(A)/2014 (Mr. Mahmood A. Madani & Others) (one of the accused is the petitioner herein). All these cases have been registered on the allegations of false TA claims by the Rajya Sabha Members. After completion of investigation, CBI has filed final reports in these cases before the competent courts and the same are proceeding adjudication as per law. However, the case of Brajesh Pathak is not applicable in the facts and circumstances of the present case, as CBI had filed the closure report in the said case on the ground that no substantial evidence/material could be collected and there was deficient evidence Crl.M.C.4956/2017 Page 10 of 23 against him. However, no such report has been filed in the present case and there is sufficient material/evidence on record to show that the accused persons had conspired and forged the documents in order to cause wrongful loss to the Exchequer of Government of India and corresponding wrongful gain to the
... Petitionerherein.
17. As the case of Ms.Renu Bala Pradhan is concerned, she had also filed Crl.M.C. 2251/2017 and the same is still pending before this court.
18. Learned counsel for CBI further submits that present FIR has been registered on the basis of a reliable 'source information' which pertains to inputs where private/public individuals made complaints but do not want to reveal their identity. As large part of crime unearthed by CBI of corruption and serious offences based on information provided by individuals in confidence. CBI has very well laid down policy of handling such information and informants had followed scrupulously. Disclosure of the identity of the informant cannot be demanded even by the senior officers, of the officer to whom the information has been provided. The identity of such informant was never put in writing in any record. It is not even disclosed to the courts and no action is initiated by CBI on such information alone without subjecting them to discreet verification. Moreover, it is only after Crl.M.C.4956/2017 Page 11 of 23 ensuring that a prima facie criminal case is made out, a case is registered and further action taken. Therefore, merely because the identity of the complainant was not revealed, it cannot be said that there was no complainant in the present case.
19. Further submitted, the petitioner while being a public servant had claimed excess amount of Rs. 5,75,135/- against nine tickets during February-March 2012. He had claimed funds which were never spent by him and thus illegally benefitting himself by this excess amount putting the Govt. Exchequer to loss by the amount mentioned above. The
... Petitionerwas a regular client of M/s Bonaire Travel Services and had been booking Domestic as well as International air tickets since the past 10-15 years. PW- 12, Amir Khan, Proprietor of M/s Bonaire Travel Services has testified that he used to receive direct calls from the petitioner and his P.A. Mohd. Mubashir for the booking of air tickets and that M/s. Bonaire Travel Services was maintaining a running account of the petitioner which reflected the transactions for booked and issued air tickets for the petitioner. During the period February-March, 2012, the petitioner got issued Companion Free Scheme (CFS) tickets on the basis of nine main tickets issued in his name by M/s Bonaire Travel Services. The CFS tickets were issued by M/s Bonaire Crl.M.C.4956/2017 Page 12 of 23 Travel Services from the office of Air India as per the instruction of the petitioner. A hard copy of the CFS ticket was then handed over to M/s Bonaire Travel Services, who then scanned the same and sent the scanned copy of the CFS ticket along with the main e-ticket to the petitioner. Therefore, it stands proved that the petitioner used to regularly book his tickets through Bonaire Travel Services and that he was very much aware of the Companion Free Scheme of Air India. The said facts have been verified the respondent and to this effect, there is an evidence on record that the petitioner with conspiracy to his PA and other staff, has caused loss to the government exchequer.
20. Also submitted, the e-tickets are to be countersigned by the Member concerned and on receipt of the TA/DA claim, a bill is prepared as per the prescribed rules and after countersignature by the controlling officer, the same was forwarded to the P&AO for audit and arranging payment therein. The petitioner had been associated in processing his TA Bills and that identified the signatures of the petitioner. Moreover, the CFSL vide Report dated 30.06.2015 confirmed signatures of the petitioner on the TA Bills and its enclosures including the forged e-tickets. The CFSL report dated 10.12.2014 has also confirmed the handwriting of Mohd. Mubashir on the Crl.M.C.4956/2017 Page 13 of 23 TA/DA claims forms. The claim of the fake full fare tickets also concealed the fact that the corresponding CFS tickets were issued at a concessional fare under the Companion Free Scheme. The companion tickets so claimed with the TA bills were of full/inflated amount and no CFS ticket bore the logo of Air India. These details have also been established from the statements of Naseem Ahmed (PW-15) and Abhijit Chakaraborty (PW-14), employees of M/s TSI Yatra Pvt. Ltd., Amir Khan (PW-12), Proprietor of M/s Bonaire Travel Services, Prasanna Kaushik (PW-10) and Lakshman Singh (PW-11) of Safdarjung Airport Reservation Office. Thus, the Rajya Sabha Secretariat, processed the TA bills of the petitioner believing the same to be true and actual expenditure incurred by the petitioner. However, the petitioner deceived the Drawing and Disbursing officer by submitting forged air tickets and made him believe the same to be genuine documents and received the false claim and thereby cheated the Government Exchequer. Thus, the present petition deserves to be dismissed.
21. To strengthen his arguments, learned counsel for the CBI has relied upon the case of Chilakamarthi Venkateswarlu & Anr. vs. State of Andhra Pradesh & Anr. in CRL.A. No.1082/2019 whereby “the power to quash the proceedings is generally exercised when there is no material to proceed Crl.M.C.4956/2017 Page 14 of 23 against the
... Petitioners even if the allegations in the complaint are prima facie accepted as true.” 22. During this entire period, there is not a single instance of misuse of the said MPLAD funds or any other allegations of impropriety by the
... Petitioneras Member Rajya Sabha and the conduct of the
... Petitionerhas been unimpeachable during his entire time.
23. The case of the
... Petitioneris that nothing is on record which would give even a 'prima facie' indication of the involvement of the
... Petitionerin any manner. The CBI has completely dispensed with the requirement of even taking Sanction and has dispensed with the said legal requirement by merely stating that as
... Petitionerwas a retired Rajya Sabha member, sanction was no longer required.
24. It is nothing on record that the
... Petitionerhad at any time given instructions to either his P.A./his office in Rajya Sabha or M/s Bonaire Travel Services to book tickets under any particular scheme. All e-mail correspondences had been inter-se the
... Petitioner's P.A's email ID and the e- mail ID of M/s Bonaire Travel Services and nothing was placed on record to show that the
... Petitionerhad either been aware of the CFS Scheme or that Crl.M.C.4956/2017 Page 15 of 23 M/s Bonaire Travel Services had been informing the
... Petitionerof the same. The Charge sheet has continuously referred to the email exchanges/ correspondence between the office of the
... Petitionerand M/s Bonaire Travel Services and has nowhere even hinted to any oral statement or document that would indicate that
... Petitionerhad ever participated in the process of creating fake tickets. The chargesheet has failed to show that that the entire process of checking of the bills as well as TA/DA claims is extremely detailed and there are numerous steps/internal scrutiny as well as internal checks involved in ensuring that the Bills submitted are genuine and why despite there being an internal mechanism in the Rajya Sabha guidelines, no action was taken and an anonymous complaint against the
... Petitionerwas entertained. The Respondent has arrived at the conclusions in the Chargesheet on the basis of mere surmises and without appreciating the basic fact that even the Director of M/s Bonaire Travel Services had stated that he always coordinated with the
... Petitioner's PA for all purposes and even the payments were made to him in bulk by the office of the
... Petitionerand not the
... Petitionerhimself.
25. It is relevant to mention that there is a strong maker-checker accounting principle followed by Rajya Sabha as per the Handbook before Crl.M.C.4956/2017 Page 16 of 23 processing such claims. The guidelines prescribe a clear mechanism for verifying claims and the action to be taken in case the claims are not in order for the purposes of recovery of the excess amounts paid. However, without resorting to any of these in-built recovery mechanisms available, the
... Petitionerhas been hauled up under severe allegations of forgery.
26. It is not in dispute that the petitioner‟s office was maintaining a running account with M/s Bonaire Travel Services for the travel of the
... Petitionerand his family members and the
... Petitionerhas made several payments from his personal account in the last so many years wherein not even a single payment has been disputed.
27. It is not a case of claiming the money without travel. The petitioner was maintaining healthy balances in the Bank Accounts and was also drawing handsome tax free salary being the member of the Rajya Sabha and it is difficult to make an assumption that he had any intention to make such false TA/DA claims. However, Ld. Special Judge has assumed criminal conspiracy as a matter of due course without appreciating that such an allegation has made in the Chargesheet and the FIR must be on cogent material which indicates an active involvement of the
... Petitionerin the commission of the crime. Despite, the Chargesheet itself admitting that not Crl.M.C.4956/2017 Page 17 of 23 even a single e-mail was marked to the
... Petitionerand the entire affairs of the
... Petitionerwere managed by his P.A, however, the Ld. Special Judge has inferred the existence of a conspiracy.
28. The fact remains that in Brajesh Pathak, Member Rajya Sabha mentioned above, the allegations were of a conspiracy with unknown private persons and claimed wrongly inflated reimbursement for eight companion tickets amounting to Rs.2,19,887/- from the Pay and Accounts Office, Rajya Sabha Secretariat, New Delhi but had only paid an amount of Rs. 10,499/- whereas in the present case, FIR was registered on reliable information, filed after a lapse of 2 years of incidence by which alleges that the petitioner has caused wrongful loss to the exchequer to the tune of ₹.5,75,135/- by producing Companion Free Scheme (CFS) tickets to the Pay and Accounts Office, Rajya Sabha Secretariat, New Delhi.
29. In case of Pathak, there was no dispute pertaining to the sale of tickets and of the travel as is in the present case. There was no sanction taken by the CBI under section 197 of Cr.P.C. in case of Pathak and same is the position in the present case. Crl.M.C.4956/2017 Page 18 of 23 30. As per the chargesheet filed in case of above named Sh.Pathak and Companion Free Scheme of Air India, it was mandatory to issue the Companion Free ticket only to the primary member in person and/or on his written instructions. No such approval/instruction from Mr.Pathak was on record. In the present case also, no approval/instruction from the petitioner was on record. Moreover, in case of Pathak, no dispute regarding the non- payment of air ticket fee to the travel agency and in the present case, the petitioner has been running account with M/s Bonaire Travel Services and regularly used to make his payments.
31. It is pertinent to mention here that in case of Brajesh Pathak, the CBI had filed closure report and the same was not accepted by the Trial Court and being aggrieved, the Brajesh Pathak challenged the same before this court and this court quashed the FIR with emanating proceedings thereto. The order has attained finality.
32. In view of the facts recorded above, the facts and evidence on record are same and similar and FIR was filed against Brajesh Pathak and Ms.Renu Bala Pradhan and the petitioner herein, however, in two cases, the CBI has filed the closure report, the same were not accepted by the Trial Court and in Crl.M.C.4956/2017 Page 19 of 23 the present case, the chargesheet is filed and the case is pending for trial. Two parameters cannot be accepted.
33. I am conscious about the directions of the Hon‟ble Supreme Court in Chilakamarthi Venkateswarlu & Anr. (Supra) vide order dated 31.07.2019 whereby “the power to quash the proceedings is generally exercised when there is no material to proceed against the
... Petitioners even if the allegations in the complaint are prima facie accepted as true.” 34. However, in case of S.W. Palanitkar and Ors. vs. State of Bihar and Anr.: (2002) 1 SCC241the Hon‟ble Supreme Court has held that “in order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating.” Thus, it is held that the essential ingredient for committing an offence under section 420 IPC, "mens rea" is an essential ingredient.
35. In case of C.K. Jaffer Sharief vs. State (CBI): (2013) 1 SCC205whereby held that “dishonest intention is the gist of the offence under section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means Crl.M.C.4956/2017 Page 20 of 23 and abuse of position as a public servant. To make a person criminally accountable it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively.” 36. In case of Central Bureau of Investigation vs. K. Narayana Rao: (2012) 9 SCC512 the Hon’ble Supreme Court has held that “the ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in Crl.M.C.4956/2017 Page 21 of 23 pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.” 37. Moreover, in case of Ramesh Rajagopal vs. Devi Polymers Pvt. Ltd.: (2016) 6 SCC310 whereby the Hon‟ble Supreme Court has held that “in the absence of any act in pursuance of the website by which he has deceived any person fraudulently or dishonestly, induced any one to deliver any property to any person, we find that it is not possible to attribute any intention of cheating which is a necessary ingredient for the offence under Section 468.” 38. Accordingly, in view of above discussion and legal position mentioned, I am of the view that in the present case, there is no conspiracy established by the petitioner, thus, has no criminality or mens rea in the present case. Though access amount has been claimed but that is due to inadvertence on the part of P.A. of the petitioner, however, he has not Crl.M.C.4956/2017 Page 22 of 23 claimed access amount at all with ill intention. Therefore, I hereby quash the FIR and emanating proceedings thereto against the petitioner.
39. The petitioner is directed to deposit the access amount received, if already not deposited, within one week from the receipt of this order.
40. Due to the inadvertence of the petitioner, the Government machinery came into motion and a lot of public time has been wasted, therefore, I hereby impose cost of ₹5,00,000/- (Rupees Five Lacs) upon the petitioner. Out of the said amount, ₹2,00,000/- (Rupees Two Lacs) shall be paid in „Delhi Police Martyr Fund‟ and ₹2,00,000/- (Rupees Two Lacs) in favour of Rajya Sabha account. Balance amount of ₹1,00,000/- in favour of „Delhi High Court Legal Services Committee‟.
41. The petition is, accordingly, allowed and disposed of. CRL.M.A. Nos. 19667/2017, 32081/2019, 32082/2019 and 38518/2019 42. In view of the order passed in the present petition, these applications have been rendered infructuous and are accordingly, disposed of. (SURESH KUMAR KAIT) JUDGE DECEMBER11 2019 ab Crl.M.C.4956/2017 Page 23 of 23