# THE STATE BY S.P. THROUGH THE SPE CBI v. UTTAMCHAND BOHRA

- **Citation:** [2021] 9 S.C.R. 821
- **Court:** Supreme Court of India
- **Decided:** 2021-12-09
- **Case number:** Criminal Appeal No. 1590 of 2021
- **Bench:** K. M. Joseph, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-by-s-p-through-the-spe-cbi-v-uttamchand-bohra-35349
- **Pages:** 25

## Headnote

Prevention of Corruption Act, 1988 - ss.13(1)(e), 13(2) -
A-1, a public servant was accused of accumulating assets
disproportionate to his known sources of income in collusion with
other accused - Respondent accused of abetting and/or conspiring
with A-1 - According to the prosecution, A-1 acquired a flat, through
a company - Respondent was alleged to be close associate and
financer of A-1 and his family - Chargesheet against the respondent
quashed by High Court - On appeal, held: Role attributed to the
respondent is that he helped in the execution of the sale deed of the
property which was seized from his house and that his employee
witnessed the sale deed - The fact that the sale deed was in the
respondent's residence cannot satisfy the ingredient of any of the
offences alleged against him - An allegation of the existence of
signatures of respondent's employee, as a witness to the sale deed
cannot amount to his aiding or abetting A-1 to acquire
disproportionate assets - FIR in the present case names only A-1
and A-2 (A-1's wife) as the accused - Respondent's name was
included in the present case, although the sale deed was seized
during a search conducted in relation to another FIR (in an earlier
case wherein respondent was co-accused) and not in relation to the
present case - The earlier case is irrelevant to the present case -
Further, respondent was not a public officer or public servant -
Therefore, he cannot be charged with committing an offence u/
s.13(1)(e) r/w s.13(2) - There is no allegation against the respondent
that he received any benefit or that he held the property in his name
for the benefit of A-1 - The property which the Company purchased
was in its name - Money trail for the property bought under the
sale deed, does not show respondent's involvement - There is no
material prima facie supporting an inference that the respondent
was either a conspirator or had abetted the commission of the
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[2021] 9 S.C.R.
offences alleged against A-1 - Alleged offences u/ss.120-B, 109,
IPC against the respondent not made out from the chargesheet -
Penal Code, 1860 - ss.120B, 109 - Code of Criminal Procedure,
1973 - ss.397, 401, 226-228, 239, 161.
Prevention of Corruption Act, 1988 - ss.13(1)(e), 13(2) -
Penal Code, 1860 - s.120B - Criminal misconduct by public servant
- Conspiracy - Standard of suspicion - Held: Material to implicate
someone as a conspirator acting in concert with a public servant,
alleged to have committed misconduct under the PCA or amassed
assets disproportionate to a public servant's known sources of
income, has to be on firm ground.
Dismissing the appeal, the Court
HELD: 1.1 The respondent is accused of abetting and/or
conspiring with the principal accused, a public servant (A-1), so
as to permit him to accumulate assets disproportionate to his
known sources of income. A-1 was a senior official of the Central
Government, working in the income tax department. According
to the prosecution, he acquired the flat, through the company
(M/s. Raviteja Trading Co. Pvt. Ltd.). Two other accused, who
facilitated the acquisition, turned approver; they also deposed
during the trail. The role attributed to the respondent is that he
helped in the execution of the sale deed of the property, and
kept custody of the title deed to it. The document was in fact
seized from his house. The seizure took place over a year before
the present case was initiated; in fact, the CBI had initiated
another criminal proceeding, in which A- 1 too was implicated. In
that case, the CBI had seized ` 50 lakhs from him. In the present
case, the recovery from respondent's custody of the sale deed of
the property, owned by the Company led to initiation of separate
proceeding; inter alia, respondent was charged with criminal
conspiracy, defined under Section 120A, IPC and punishable under
Section 120B IPC and abetment, defined by Section 107 IPC and
punishable under Section 109 IPC. [Para 22][838-D-G; 8

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 [2021] 9 S.C.R. 821
821
THE STATE BY S.P. THROUGH THE SPE CBI
v.
UTTAMCHAND BOHRA
(Criminal Appeal No. 1590 of 2021)
DECEMBER 09, 2021
[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]
Prevention of Corruption Act, 1988 - ss.13(1)(e), 13(2) -
A-1, a public servant was accused of accumulating assets
disproportionate to his known sources of income in collusion with
other accused - Respondent accused of abetting and/or conspiring
with A-1 - According to the prosecution, A-1 acquired a flat, through
a company - Respondent was alleged to be close associate and
financer of A-1 and his family - Chargesheet against the respondent
quashed by High Court - On appeal, held: Role attributed to the
respondent is that he helped in the execution of the sale deed of the
property which was seized from his house and that his employee
witnessed the sale deed - The fact that the sale deed was in the
respondent's residence cannot satisfy the ingredient of any of the
offences alleged against him - An allegation of the existence of
signatures of respondent's employee, as a witness to the sale deed
cannot amount to his aiding or abetting A-1 to acquire
disproportionate assets - FIR in the present case names only A-1
and A-2 (A-1's wife) as the accused - Respondent's name was
included in the present case, although the sale deed was seized
during a search conducted in relation to another FIR (in an earlier
case wherein respondent was co-accused) and not in relation to the
present case - The earlier case is irrelevant to the present case -
Further, respondent was not a public officer or public servant -
Therefore, he cannot be charged with committing an offence u/
s.13(1)(e) r/w s.13(2) - There is no allegation against the respondent
that he received any benefit or that he held the property in his name
for the benefit of A-1 - The property which the Company purchased
was in its name - Money trail for the property bought under the
sale deed, does not show respondent's involvement - There is no
material prima facie supporting an inference that the respondent
was either a conspirator or had abetted the commission of the
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[2021] 9 S.C.R.
offences alleged against A-1 - Alleged offences u/ss.120-B, 109,
IPC against the respondent not made out from the chargesheet -
Penal Code, 1860 - ss.120B, 109 - Code of Criminal Procedure,
1973 - ss.397, 401, 226-228, 239, 161.
Prevention of Corruption Act, 1988 - ss.13(1)(e), 13(2) -
Penal Code, 1860 - s.120B - Criminal misconduct by public servant
- Conspiracy - Standard of suspicion - Held: Material to implicate
someone as a conspirator acting in concert with a public servant,
alleged to have committed misconduct under the PCA or amassed
assets disproportionate to a public servant's known sources of
income, has to be on firm ground.
Dismissing the appeal, the Court
HELD: 1.1 The respondent is accused of abetting and/or
conspiring with the principal accused, a public servant (A-1), so
as to permit him to accumulate assets disproportionate to his
known sources of income. A-1 was a senior official of the Central
Government, working in the income tax department. According
to the prosecution, he acquired the flat, through the company
(M/s. Raviteja Trading Co. Pvt. Ltd.). Two other accused, who
facilitated the acquisition, turned approver; they also deposed
during the trail. The role attributed to the respondent is that he
helped in the execution of the sale deed of the property, and
kept custody of the title deed to it. The document was in fact
seized from his house. The seizure took place over a year before
the present case was initiated; in fact, the CBI had initiated
another criminal proceeding, in which A- 1 too was implicated. In
that case, the CBI had seized ` 50 lakhs from him. In the present
case, the recovery from respondent's custody of the sale deed of
the property, owned by the Company led to initiation of separate
proceeding; inter alia, respondent was charged with criminal
conspiracy, defined under Section 120A, IPC and punishable under
Section 120B IPC and abetment, defined by Section 107 IPC and
punishable under Section 109 IPC. [Para 22][838-D-G; 839-A]
1.2 Section 13 (1) (e) and Section 13 (2) of the PCA, are
relevant because the respondent was sought to be charged under
those provisions. The respondent, was not a public officer or public
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servant. He cannot therefore, be charged with committing an
offence under Section 13(1)(e) read with Section 13(2) of the PCA.
There is no allegation against respondent, that he received any
monetary or other benefit, or that he held the property in his
name for the benefit of A-1. This assumes significance, because
the property which the Company purchased, was in its name.
There is no evidence against the respondent linking him to the
transaction relating to the execution of the sale deed, or alleging
that he had an agreement with A-1 and others to commit an illegal
act. Further, there is no allegation of a legal act being done in an
illegal manner. Therefore, the alleged offence under Section 120B IPC against the respondent is also not made out from the
charge-sheet. The chargesheet further does not contain any
allegation which can amount to an offence under Section 109 IPC.
The prosecution has not suggested that he abetted A-1 to acquire
disproportionate assets in any manner; the only allegation is that
the title deeds to the flat, which is in the name of the Company
was seized from his custody and that he had instructed his
employee to witness the document. An allegation of the existence
of signatures of the respondent's employee, as a witness to the
sale deed cannot amount to his aiding or abetting A-1 to acquire
disproportionate assets. Witnessing a sale deed is a formal
requirement. Likewise, the fact that the sale deed was in the
respondent's residence cannot satisfy the ingredient of any of
the offences alleged against him. The statements of the approvers,
A-3 and A-4, who were tendered pardon by the Court, do not
reveal any involvement by respondent in commission of the
alleged offence. During the pendency of the present proceedings
the recording of depositions of 74 witnesses was completed. Those
were part of this Court's record; they do not show any
incriminating material as far as respondent is concerned.
Furthermore, crucially, the money trail for the property bought
under the sale deed, does not show the respondent's involvement.
It may implicate A-3 and A-4, however, the Court has granted a
pardon to them, for which they have turned approvers. The money
trail for the purchase of flat, under the chargesheet - which is
also discussed in the impugned judgment, is that (a) the property
was purchased by M/s. Raviteja Trading Co. Pvt. Ltd. through
sources alleged arranged by A-1 through his friend A-7; (b) A-1
THE STATE BY S.P. THROUGH THE SPE CBI v.
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had official dealings with two companies M/s. A.S. Shipping
Agencies and M/s. Aban Offshore Ltd., Chennai; (c) At A-1's
reference, a company (in which A-7 is a director (M/s. Tidal Data
Solutions, Bangalore)) had supplied data storage servers to the
said two companies (M/s. A.S. Shipping Agencies and M/s. Aban
Offshore Ltd.); (d) The latter two companies [M/s. A.S. Shipping
Agencies and M/s. Aban Offshore Ltd.] had made a payment of
about ` 1 crore in excess (over and above the invoice amount) to
A-7; (e) A-7 had collected the payments through cheques and
deposited them in current accounts of A-6's companies (Utkarsh
lnfotech Pvt. Ltd., and Utkarsh Staffings Pvt. Ltd.); (f) On A-7's
direction, A-6's companies transferred `94,82,300/- to the account
of M/s. Raviteja Trading Co. Pvt. Ltd, of which `80,00,000/- was
used by the Company (represented by approver A-4 to purchase
the property at the directions of A-1. Two demand drafts of `50
lakhs and `30 lakhs were drawn by A-4. [Paras 22-25][839-A;
840-C-H; 841-A-E]
1.3 It is clear that in terms of both the chargesheet and the
final report, respondent is not involved with the money trail or
the transaction for the purchase of the property which was acquired
by A-1, according to the prosecution. It is a fact that not only is
the investigation complete, depositions of prosecution witnesses
too have been recorded. There cannot be any question of
introducing any further evidence. CBI cannot deny that the
respondent's name was included in the present case, although
the sale deed was seized during a search conducted in relation to
another FIR (the earlier case- CC No. 3/2013 wherein respondent
was a co-accused and according to the prosecution his vehicle
was intercepted when he had attempted to help A-1 in transporting
a bribe amount of `50 lakhs received by A-1 to a safe place)- and
not in relation to the present case, which relates to the
disproportionate assets case. The FIR in the present case names
only A-1 and A-2 as the accused. The sale deed had already been
seized from respondent's house by then. The CBI had urged that
the allegations against respondent in the earlier case can be used
against him in the present case although the final report in the
present case does not make any reference to them. The final
report in the present case was filed after the registration of FIR
in CC No. 3/2013 and after the seizure of the sale deed from
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respondent's house. The final report makes a mention of the FIR
dated 29.08.2011. There is, however, no allegation against
respondent in the chargesheet in the present case [CC No. 5/
2015] on the basis of or adopting the allegations against him in
CC No. 3/2013. Thus, the two cases are separate. The allegations
against respondent in CC No. 3/2013 does not relate to
disproportionate assets. Therefore, CC No. 3/2013 is irrelevant
to the present case. [Paras 9, 26-28][841-E-H; 829-E-F;
842-A-C, F]
State of J&K v. Sudershan Chakkar 1995) 4 SCC 181
: [1995] 1 Suppl. SCR 294 - relied on.
1.4 The material to implicate someone as a conspirator
acting in concert with a public servant, alleged to have committed
misconduct, under the PCA, or amassed assets disproportionate
to a public servant's known sources of income, thus, has to be on
firm ground. In the present case, only two circumstances - the
custody of the sale deed (of the property allegedly belonging to
A-1) and the fact that it was witnessed by respondent's employee
- are alleged against the respondent. These are wholly insufficient
to raise a reasonable suspicion, or make out a prima case against
him, for conspiracy. As far as the respondent is concerned, the
initial burden of showing that a conspiracy existed, cannot even
be alleged against him, given the nature of the material presented
along with the charge sheet. An entire overview of the material
produced before the trial court, with the charge sheet and final
report, as well as deposition of the 74 witnesses who were
examined during the trial, does not support CBI's allegation of
the respondent. He did not directly or indirectly finance the
transaction by which property was sold to M/s Raviteja Trading
Co. Pvt. Ltd, which, according to that prosecution, was in fact by
A-1. The respondent also is not alleged to have facilitated the
flow of money to fund acquisition of the flat. The material put
against him is that the sale deed was seized, prior to the present
case.The other circumstance put against him is that his employee
witnessed the sale deed. The respondent is concededly neither
the owner, nor has any links with M/s Raviteja Trading Co. Pvt.
Ltd. There is no material which can prima facie support an
inference that respondent was either a conspirator or had abetted
the commission of the offences alleged against the accused A-1.
[Paras 29, 30, 32][843-D-F; 844-B-H; 845-A-C]
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA
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Deepak Surana vs. State of M.P Decision of Supreme
Court dtd. 08.02.2016 in Criminal Appeal No. 128 of
2016; Central Bureau of Investigation v. K. Narayana
Rao (2012) 9 SCC 512 : [2012] 9 SCR 54; P. Nallammal
v. State (1999) 6 SCC 559 : [1999] 1 Suppl. SCR 135 -
relied on.
Nirmaljit Singh Hoon v. State of West Bengal (1973) 3
SCC 753: [1973] 2 SCR 66
State of Bihar v. Ramesh Singh (1977) 4 SCC 39 : [1978]
1 SCR 257; Union of India vs. Prafulla Kumar Samal
& Ors 1979 (3) SCC 4 - referred to.
Case Law Reference
[1973] 2 SCR 66
referred to
Para 17
[1978] 1 SCR 257
referred to
Para 17
[2012] 9 SCR 54
relied on
Para 21
[1995] 1 Suppl. SCR 294
relied on
Para 28
[1999] 1 Suppl. SCR 135
relied on
Para 30
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1590 of 2021.
From the Judgment and Order dated 25.05.2017 of the High Court
of Judicature at Madras in Criminal Revision Case No.73 of 2017.
Vikramjit Banerjee, ASG, Ms. Ranjana Narayan, Sachin Sharma,
Ms. Swarupama Chaturvedi, Sugosh Subramanyam, Arvind Kumar
Sharma, Advs. for the Appellant.
R. Basant, Sr. Adv., Ramesh Allanki, Ms. Aruna Gupta, Siddhant
Buxy, D. V. Raghu Vamsy, Syed Ahmad Naqvi, Akshay Sahay, Dasari
Muraleemohan, Advs. for the Respondent.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. This special leave petition was filed after a delay of 447 days.
The successful respondent (Uttamchand Bohra, hereinafter
"Uttamchand/respondent"), who was issued notice as to why delay in
filing the petition should not be condoned, objected to the Court's
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entertaining the petition, urging that the certified copy of the impugned
order (delivered on 25.05.2017), was applied for on 13.03.2018 and
eventually the petition was filed on 13.11.2018. Thus, total delay of 447
days occurred in filing of the petition, which is inordinate. It was urged
that the application for condonation should not be countenanced, as no
sufficient cause was shown.
2. On behalf of the Central Bureau of Investigation (hereinafter
"CBI / prosecution"), Mr. Vikramjit Banerjee, learned Additional Solicitor
General (hereinafter "ASG") pointed to averments in the affidavit and
supported the application seeking condonation of delay on the ground
that the certified copy which had been originally applied for, could not be
collected since the receipt was misplaced and as a result, the second
certified copy was applied for. The matter had to be processed and
official approvals obtained, which took some time. The final clearance
for filing the petition was given in mid-June 2018 after which it was
drafted and eventually filed. The ASG contended that having regard to
these facts, this Court should condone the delay for filing the petition.
3. After hearing the rival arguments, this Court is of the opinion
that though the delay of over 447 days is considerable, nevertheless
explanation given by the petitioner that it lost the original receipt and had
to apply for a fresh certified copy, has to be taken note of. The delay
which occurred after the receipt of the certified copy in the opinion of
the Court is not of such magnitude as to warrant dismissal of the
application i.e., I.A. No. 178754/ 2018. The application is allowed and
the delay in filing the petition, condoned.
4. Special leave granted. With the consent of counsel for the
parties, the appeal was heard finally.
5. The CBI is, in this appeal, aggrieved by a judgment of the
Madras High Court1 by which, exercising jurisdiction under Section 397
and Section 401 of the Code of Criminal Procedure (hereinafter "CrPC")
it quashed the charge sheet against the respondent (who was arrayed as
fifth accused in C.C. No.5 of 2015, before the Special Judge for CBI
cases (XII Addl. Judge, City Civil Court, Chennai (hereinafter "trial
court"). The trial court had, by its order dated 29.12.2015, rejected
Crl.M.P.No.6873/2015, which was an application under Section 239
CrPC seeking Uttamchand's discharge.
1 Dated 25.05.2017 in CRP 73/2017.
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
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6. The CBI, through its Investigating Officer (hereinafter "IO"),
after completing investigation, filed a final report on 20.02.2012 under
Section 173 CrPC against five (out of seven) accused. Badhe Rathnam
Mahesh, s/o B. S. Rathnam (A-3) and Badhe Anandh Chaitanya, s/o
B.R. Mahesh (A-4) were pardoned and became approvers; they were
not sent for trial. Those sent up for trial were: (i) Andasu Ravindar, (A1); (ii) Kavitha Andasu, wife of A-1 (A-2); (iii) Uttamchand (A-5); (iv)
Uday K. Agarwal, (A-6); and (v) Pothapragada Srinivas, (A-7). CBI
alleged that the accused committed offences punishable under Section
120B and Section 109 of the Indian Penal Code (hereinafter "IPC") and
Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption
Act, 1988 (hereinafter "PCA").
7. It was alleged in the final report that A-1, in collusion with the
other accused, during the period of 01.01.2005 to 29.08.2011 amassed
wealth in his name, as well as in the name of his wife (A-2) to the tune
of ` 2,32,20,296/- which was disproportionate to his known sources of
income for which he was not able to account satisfactorily. It was alleged
that A-2 was a house wife. She had filed her income tax returns for the
assessment years 2005-06, 2006-07, 2007-08, 2009-10 and 2011 through
the approver (A-4), a chartered accountant who had acted on behalf of
A-1 and received money from him. That money was returned to A-2 to
show as if she had earned the income through job contracts and business.
It was further alleged that A-1 also purchased properties on several
occasions and the income tax returns did not reflect those properties.
They were purchased in Chennai in the name of M/s Raviteja Trading
Co. Pvt. Ltd., Hyderabad (hereinafter also "Company"). They were
purchased only through sources arranged by A-1. On the directions of
A-7, ` 94,82,300/- was transferred by cheques by A-6 through his
companies' accounts (i.e., M/s. Utkarsh Infotech Pvt. Ltd., and M/s.
Utkarsh Staffing Pvt. Ltd., Secunderabad) to the current account of M/
s. Raviteja Trading Company Pvt. Ltd., Hyderabad with Standard
Chartered Bank, Secunderabad. After receiving that amount, M/s.
Raviteja Trading Co., Pvt. Ltd., represented by approver (A-4), acquired
the property at Chennai on the directions of A-1. The sale consideration
of ` 80,00,000/- was paid through two demand drafts each for the value
of ` 50,00,000/- and ` 30,00,000/- respectively and these two demand
drafts were purchased by the approver A-4, director of M/s. Raviteja
Trading Co., Pvt. Ltd., Hyderabad through its current account and the
amount was handed over to the vendor Mr. Badruzman Khan.
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8. The prosecution alleged further that the sale deed (dated
13.07.2011) of the property, Flat No.4/3 (old No.28/3), measuring 2108
sq. ft. in second floor at AIL-Ahad Apartment No.28 (present No.4)
Nageswara Rao Road (Old No.13, Krishnamcahari Road,
Nungambakkam, Chennai-34) was executed and registered under
Document No.669/2011, (hereinafter "the sale deed") in the name of
M/s. Raviteja Trading Co. Pvt. Ltd. Though the said property was
purchased in the name of the company, its original sale deed was seized
from the possession of Uttamchand who was the financier and close
associate of A-1.
9. The prosecution case, as regards Uttamchand, had two aspects:
the first, relating to the seizure of the sale deed in (C.C. No.5/ 2015),
and the second relating to the case in C.C. No.3/ 2013. In the present
case, the allegation against Uttamchand is that he was a close associate
and financer of A-1 and his family. The original sale deed was executed
in the name of the Company. The sale deed was in his custody as per
the directions of A-1. Uttamchand thereby had rendered his active
assistance to A-1 to acquire assets in his name as well as in the name of
his wife A-2 and in the name of the Company, during the period of
01.01.2005 to 29.08.2011 which, as stated above, was disproportionate
to the known sources of income of A-1 to the tune of ` 2,32,20,296/-.
The percentage of disproportionate assets is calculated at 171.41% for
the total income of A-1 and A-2, which they could not satisfactorily
account for. The second case (hereafter called "the earlier case") was
that Uttamchand was a co-accused (A-3) in R.C. No. 33(A)/2011 (CC.
No. 3/2013) and was facing trial in that case. According to the prosecution,
his vehicle was intercepted when he had attempted to help A-1 in
transporting a bribe amount of ` 50 lakhs received by him A-1 to a safe
place. That case was registered on 20.02.2012 with CBI, ACB, Chennai
under Section 13(1)(e) PCA and Section 109 IPC.
10. Uttamchand's complaint before the High Court was that the
only evidence relied upon by the prosecution against him was possession
of the sale deed. His argument was that even if the CBI were to prove
what it alleged - which is that his employee (V. Sridhar / PW-45) had
witnessed the execution of the document, per se that circumstance could
not make him criminally liable. It was also urged that since Uttamchand's
relationship with A-1 and A-2 was known to the prosecution and admitted
by it, i.e. as a financer, (which was borne out by the fact that he had
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
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advanced monies to A-2 and had disclosed these in the income tax returns),
the sale deed, belonging to a third party, with him in no way implicated
him. It was also urged that the deposition of V. Sridhar, or even those of
the approvers established in any manner that Uttamchand had links with
the company which purchased the flat. That Uttamchand was to face
trial in the earlier case could not have been an incriminating circumstance
for him to be joined in the second case against A-1, A-2 and other accused.
11. On the other hand, the CBI urged that Uttamchand's role as
the holder of title documents of property clearly pointed to a conspiracy
between him and A-1, the public servant. He was a facilitator for the
purchase of benami property by A-1 in the name of the company. It
was argued that the Court, while examining whether to frame charges
or otherwise against an accused sent up for trial, is not concerned with
the probability of truth but whether there is a reasonable suspicion of the
accused having committed an offence. Viewed from this perspective,
the role attributed to Uttamchand at the stage of framing of charges,
i.e., of being in possession of the sale deed, the real owner of the property
being A-1, was probable reasonable cause, sufficient for the trial court
to frame charges. In any event, it was sufficient for the trial court to
reject his application for discharge which it correctly did.
12. The High Court accepted the arguments on behalf of
Uttamchand Bohra. After an overall examination of the statements made
by the witnesses relied upon by the prosecution under Section 161 CrPC,
the High Court concluded that the mere possession of the registered
sale deed which was witnessed by Uttamchand's employee, could not
incriminate him. It could not amount to satisfying the prescribed standard,
i.e., of reasonable suspicion of commission of the crime, of being
attributable to him, i.e., of abetment and conspiracy with a public servant
to enable the latter to amass wealth which was disproportionate to his
known sources of income. The High Court also noticed that the approver's
evidence, i.e., the statements under Section 161 CrPC, in no manner
tended to implicate Uttamchand. Those statements merely pointed to
the acquisition of property by the Company i.e., M/s.Raviteja Trading
Co. Pvt. Ltd., Hyderabad.
Contentions of the prosecution
13. On behalf of the CBI, it was argued by the learned ASG that
the chargesheet contained clear allegations of collusion which amounted
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to criminal conspiracy on the part of Uttamchand with A-1. It was pointed
out that the consideration of ` 80,00,000/- paid for the property was
never disclosed. Although A-1 contended that the property belonged to
the Company, nevertheless it was a mere front. The property was
purchased through A-1's friend P. Srinivas, director of M/s. Tidal Data
Solutions, Bangalore. A-1 had official dealings with two entities (M/s.
A.S. Shipping Agencies and M/s. Aban Offshore Ltd., Chennai) to whom
M/s. Tidal Data Solutions had approved unified storage servers. The
said P. Srinivas received payments from those companies in excess of
the invoice value which were deposited in the account of the companies
of A-6, Udhay K. Agarwal. Those amounts were then diverted to the
Company i.e., M/s. Raviteja Trading Pvt. Ltd. which ultimately bought
the flat.
14. It was submitted that the original sale deed purchased by the
said companies was seized from the possession of Uttamchand. He had
no explanation as to how the sale deed was in his possession. Uttamchand
was the financer to lend money to A-2. Uttamchand's acquiescence to
the close dealings with A-1 and A-2, the manner in which the property
was purchased after routing the money into the account of the Company,
from entities which had official dealings with A-1, and the further
circumstances that Uttamchand's employee was witness to the sale deed,
pointed to his complicity and guilt. Therefore, the trial court correctly
framed charges against him. It was further argued that during pendency
of the present proceedings, the trial went ahead, and statements of most
witnesses were recorded. In this context, the depositions of PW-70 and
PW-71 were relied on, to say that A-1 amassed wealth illicitly and was
aided by others like Uttamchand.
15. It was urged that Uttamchand aided and assisted in the
execution of the sale deed and abetted the benami purchase made by
A-1 by making his employee (PW-45) sign as a witness to the sale deed.
It was also urged that during the search on 30.08.2011, at the residence
of Uttamchand, the original sale deed was seized, in addition to
` 48,20,000/-. Counsel also submitted that it was clear from the statement
of the chartered accountant, Siddharth Mehta (PW-73) that the sale
deed was handed over to A-1 by Siddharth Mehta. The sale deed
eventually was recovered from Uttamchand's residence. This clearly
showed the sale deed was given by A-1 himself to Uttamchand only to
protect A-1 from any legal pursuit.
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
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16. The ASG also alluded to the facts of the earlier case, in R.C.
No. 33(A)/2011 (CC. No. 3/2013) (registered on 29.08.2011 u/s 120B
IPC r/w 7 of PCA, 1988. He submitted that A-1 organized survey
proceedings in the premises of M/S Everonn Education Ltd., Chennai
and concealed taxable income of ` 100 crore. He demanded and accepted
` 50 lakhs from Shri P. Kishore on 29.08.2011 for showing undue favor
and concealing income tax liability. He further urged that the CBI team
intercepted Uttamchand going to A-1's residence about 9.00 p.m., and
assisting A-1 in transferring the money to a safe place by driving the car
in which A-1 was seated. A-1 had a carton, containing ` 50 lakhs. Thus,
Uttamchand colluded in transporting the bribe amount received by A-1
to a safe place for which he arrived at the latter's residence, which was
also proved by telephonic surveillance.
17. Learned ASG urged that this Court, in Nirmaljit Singh Hoon
v. State of West Bengal2 held that in a criminal trial, the test was whether
there was sufficient grounds for proceeding prevalent, and not whether
there was sufficient ground for conviction. When there was prima facie
evidence, even though person accused may have a defense, the case
had to be relegated to be decided by appropriate forum at the right stage.
He also urged that strong suspicion was sufficient for framing charges
and relied on State of Bihar v. Ramesh Singh3.
18. Mr. R. Basant, learned Senior Counsel submitted that prima
facie the prosecution failed to produce any material to implicate the
respondent in the crime of conspiracy. It was submitted that most of the
witnesses had already deposed. The only other evidence available to the
prosecution to connect the respondent with the crime was a confession
of the co-accused which according to the learned counsel was
inadmissible in evidence. However, the depositions of PW-70 and PW71 did not inculpate Uttamchand. Therefore, he contended that the High
Court was justified in allowing his discharge application since the
prosecution failed to establish even a prima facie case against the
respondent.
19. It was argued, by referring to Union of India vs. Prafulla
Kumar Samal & Ors4 that the test to determine a prima facie case
depends upon the facts of each case. However, if two views are equally
2 (1973) 3 SCC 753.
3 (1977) 4 SCC 39.
4 1979 (3) SCC 04
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possible and the judge is satisfied that the evidence produced before him
may give rise to some suspicion but not grave suspicion against the
accused, the judge would be justified in discharging the accused. Counsel
also pointed out that while exercising jurisdiction under Section 227 of
CrPC, the Court could not merely act as a Post Office or a mouth-piece
of the prosecution, but had to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced before
it, if any basic infirmities appear in the case, etc.
20. Mr. Basant urged that the High Court correctly held that mere
presence of the sale deed in the respondent's residence and other
allegations did not constitute any of the offences charged against him.
The allegations against Uttamchand in the charge-sheet / final report
prima facie did not constitute any of the offences for which he was
being prosecuted. It was submitted that Uttamchand was not a public
servant, and could not commit an offence under Section 13(1)(e) read
with Section 13(2) of the PCA. There was no allegation that he received
any monetary benefit, or profited from A-1's amassing assets
disproportionate to his income. Furthermore, there was no evidence linking
the transaction of sale of the flat, with Uttamchand. Further, no allegation
against Uttamchand was made in the chargesheet that may amount to
an offence under Section 109, IPC.
Analysis and Findings
21. In Central Bureau of Investigation v. K. Narayana Rao5
this Court, after reviewing the previous decisions that dealt with the
question of the applicable standard relating to discharge of accused in a
criminal case, summarized the principles in the following terms:
"13. Discharge of the accused under Section 227 of the Code
was extensively considered by this Court in P. Vijayan [(2010)
2 SCC 398 wherein it was held as under: (SCC pp. 401-02,
paras 10-11)
"10. ... If two views are possible and one of them gives
rise to suspicion only, as distinguished from grave
suspicion, the trial Judge will be empowered to discharge
the accused and at this stage he is not to see whether the
trial will end in conviction or acquittal. Further, the words
'not sufficient ground for proceeding against the accused'
5 (2012) 9 SCC 512
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
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clearly show that the Judge is not a mere post office to
frame the charge at the behest of the prosecution, but has
to exercise his judicial mind to the facts of the case in
order to determine whether a case for trial has been made
out by the prosecution. In assessing this fact, it is not
necessary for the court to enter into the pros and cons of
the matter or into a weighing and balancing of evidence
and probabilities which is really the function of the court,
after the trial starts.
11. At the stage of Section 227, the Judge has merely to
sift the evidence in order to find out whether or not there
is sufficient ground for proceeding against the accused.
In other words, the sufficiency of ground would take within
its fold the nature of the evidence recorded by the police
or the documents produced before the court which ex facie
disclose that there are suspicious circumstances against
the accused so as to frame a charge against him."
12. The first decision in Ramesh Singh [(1977) 4 SCC 39]
relates to interpretation of Sections 227 and 228 of the
Code for the considerations as to discharge the accused
or to proceed with trial. Para 4 of the said judgment is
pressed into service which reads as under: (SCC pp. 4142)
"4. Under Section 226 of the Code while opening the case
for the prosecution the Prosecutor has got to describe the
charge against the accused and state by what evidence he
proposes to prove the guilt of the accused. Thereafter comes
at the initial stage the duty of the Court to consider the record
of the case and the documents submitted therewith and to hear
the submissions of the accused and the prosecution in that
behalf. The Judge has to pass thereafter an order either under
Section 227 or Section 228 of the Code. If 'the Judge
considers that there is no sufficient ground for proceeding
against the accused, he shall discharge the accused and record
his reasons for so doing', as enjoined by Section 227. If, on
the other hand, 'the Judge is of opinion that there is ground
for presuming that the accused has committed an offence
which- ... (b) is exclusively triable by the court, he shall
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frame in writing a charge against the accused', as provided
in Section 228. Reading the two provisions 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 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. We may just illustrate the difference
of the law by one more example. If the scales of pan as to the
THE STATE BY S.P. THROUGH THE SPE CBI v.
UTTAMCHAND BOHRA [S. RAVINDRA BHAT, J.]
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guilt or innocence of the accused are something like even at
the conclusion of the trial, then, on the theory of benefit of
doubt the case is to end in his acquittal. But if, on the other
hand, it is so at the initial stage of making an order under
Section 227 or Section 228, then in such a situation ordinarily
and generally the order which will have to be made will be
one under Section 228 and not under Section 227.
14. While considering the very same provisions i.e. framing
of charges and discharge of the accused, again in Sajjan
Kumar [(2010) 9 SCC 368] , this Court held thus: (SCC pp.
375-77, paras 19-21)
"19. It is clear that at the initial stage, if there is a strong
suspicion which leads the court to think that there is ground
for 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 only for the purpose of deciding prima
facie whether the court should proceed with the trial or
not. If the evidence which the prosecution proposes to
adduce proves 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.
20. A Magistrate enquiring into a case under Section 209
CrPC is not to act as a mere post office and has to come to
a conclusion whether the case before him is fit for
commitment of the accused to the Court of Session. He is
entitled to sift and weigh the materials on record, but only
for seeing whether there is sufficient evidence for
commitment, and not whether there is sufficient evidence
for conviction. If there is no prima facie evidence or the
evidence is totally unworthy of credit, it is the duty of the
Magistrate to discharge the accused, on the other hand, if
there is some evidence on which the conviction may
reasonably be based, he must commit the case. It is also
clear that in exercising jurisdiction under Section 227
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CrPC, the Magistrate should not make a roving enquiry
into the pros and cons of the matter and weigh the evidence
as if he was conducting a trial.
Exercise of jurisdiction under Sections 227 and 228 CrPC
21. On consideration of the authorities about the scope
of Sections 227 and 228 of the Code, the following
principles emerge:
(i) The Judge while considering the question of framing
the charges under Section 227 CrPC 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 test to determine prima
facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court 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.
(iii) The 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, etc.