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Bombay High Court

TAPAS BASU AND ORSversusTHE INSPECTOR OF POLICE

Decided
Disposal
Disposed Off

Holding

Exoneration in departmental adjudication does not bar criminal prosecution where prima facie evidence of conspiracy and fraud exists, so the discharge application is rejected.

Summary

The applicants, senior officials of MSTC Ltd., filed a revision seeking discharge from a criminal case alleging a Rs 500‑crore fraud, contending that the FIR did not name them and that they had been exonerated in a departmental enquiry. The Special Judge had rejected their discharge application after considering witness statements and prima facie evidence of a conspiracy. The respondents argued that the adjudication findings are independent of criminal proceedings and that the applicants had materially participated in the fraud. The Court examined the precedent of Ashoo Surendranath Tewawri and the principles laid down in Radheshyam Kejriwal, concluding that exoneration in an administrative enquiry does not preclude criminal prosecution where sufficient evidence exists. Consequently, the revision application was dismissed, and the discharge order upheld.

Issues considered

  • Whether an applicant can be discharged from criminal proceedings on the ground that the FIR does not disclose their name and they were exonerated in a departmental enquiry.
  • Whether findings in adjudication or departmental proceedings are binding on a criminal trial.
  • Whether the failure to annex the charge‑sheet to the revision application defeats the application.
  • Whether the material on record prima facie establishes participation in a conspiracy warranting trial.

Legislation cited

Subjects

  • criminal revision
  • discharge application
  • departmental enquiry
  • exoneration
  • prima facie evidence
  • conspiracy
  • fraud
  • MSTC
  • Prevention of Corruption Act
  • adjudication proceedings
  • criminal prosecution
  • independence of proceedings

Judgment

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       Digitally
       signed by

VINA
       VINA
       ARVIND
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ARVIND KHADPE
KHADPE Date:
       2026.01.27
                             CRIMINAL APPELLATE JURISDICTION
       17:37:54
       +0530
                        CRIMINAL REVISION APPLICATION NO. 158 OF 2017



                      1 Tapas Basu
                        Indian resident
                        Age 59. R/o 13/1, Sarkhel Para
                        Lane, Bally, Howrah, 711201

                      2 Malay Sengupta
                        Indian resident
                        Aged 68 yrs, Indian Inhabitant,
                        residing At ‘Tapovan’,Block H,
                        Baishnavghata Patuli Township
                        Kolkata.

                      3 Utpal Sarkar
                        Age 59, r/o Indian resident
                        88, P.K. Dutta Sarani
                        -Bhadrakali, Hooghly 712232             … Applicants
                                       Versus
                      1 Inspector of Police
                        Anti Corruption Bureau, CBI,
                        Mumbai

                      2 The State of Maharashtra                … Respondents
                                                   ----
                    Mr. Siddhant Choudhari i/b. Mr. Mandar M. Goswami for the
                    Applicants.
                    Mr. Amit Munde, Special Public Prosecutor with Ms. Jai Vohra for
                    CBI, ACB, Mumbai.
                    Ms. Shilpa G. Talhar, APP for Respondent – State.
                                                    ----

                                              CORAM : ABHAY J. MANTRI, J.
                                              DATE        : 17th JANUARY, 2026



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ORAL JUDGMENT :-

1.            The learned Advocate Mr. Siddhant Choudhari h/f Mr.

Mandar M. Goswami submitted that Mr. Goswami is not available.

Therefore, sought time to argue the matter. However, on perusal of

the record, it appears that the impugned order was passed on 14 th

December, 2016, and the Application was filed on 7th March, 2017;

since then, the same is pending. No stay order has been granted in

favour of the Applicants. But the record indicates that the matter has

been kept pending and adjourned on one or the other grounds.

Therefore, I am not inclined to adjourn the old matter.

2.            On the other hand, the learned Special Prosecutor for the

CBI strongly opposes granting an adjournment as the matter is an

old one and he has instructions to work out the old matters on a

priority basis. He also submitted that the Applicants have not

annexed the entire copy of the chargesheet/statement of witnesses

along with the Application. It is to be noted that since 7 th March,

2017, the matter has been pending, which itself indicates that the

Applicants are not interested in prosecuting it on that ground alone;

the Application has to be dismissed. Having considered the above

facts, the request to adjourn the matter is refused.


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3.       Heard. Rule. Rule made returnable forthwith and heard

finally by consent of the learned counsel for the respective parties.

4.            The original Accused Nos. 8, 9, 10 are challenging the

order dated 14th December, 2016, passed by the learned Special

Judge, CBI, Mumbai (for short, ‘the learned judge’), in Special Case

No.22 of 2013, whereby rejecting the Application filed by them for

discharging them from the Special Case.

5.            The learned Advocate for the Applicant vehemently

contended that FIR does not disclose the names of the Applicants,

nor is any iota of evidence found against them in the charge sheet to

frame the charge against them. Hence, he urged that, on the said

ground alone, the applicants are entitled to discharge themselves

from the case. He further argued that Applicant No.1 Tapas Basu,

who is Accused No.10, was exonerated from the departmental

enquiry initiated by the concerned office. Therefore, the Applicant

No.1 is entitled to discharge from the present case. During the

argument, he has drawn my attention to the order dated 30 th May,

2016, passed in enquiry No. Ref. No. P&T:07:030:14:186 conducted

by the enquiry officer, i.e. the Chairman cum Managing Director &

Disciplinary Authority. (Which is at page No. 145 of the Petition.)



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6.             To buttress his case, he relied upon the Judgment in

Ashoo Surendranath Tewawri Vs. Deputy Superintendent of Police, EOW,

CBI, (2020) 9 SCC 636, and points out Paragraph 13 of the said

Judgment, and submitted that in view of the law laid down in the

said Judgment, the Applicant No.1 is entitled to discharge, as the

allegations made in the departmental enquiry and in the Criminal

proceedings are the same. As such, he urged that the Application be

allowed.

7.            On the contrary, the learned Special Public Prosecutor

strongly opposed the Application and contended that the order

passed by the learned Special Judge is just and proper and no

interference is required in it. He has drawn my attention to

paragraphs 12 and 13 of the impugned Judgment, and submitted that

the learned Judge has considered the statement of witnesses

Mahendra Kumar Joshi and Jayesh Desai, and after considering the

same, observed that prima facie material appears against the

Applicants in the present case and therefore rejected the

Application. He further canvassed that on the relevant time all

Applicants were holding key posts, i.e. Applicant No.1 was General

Manager, Applicant No. 2 was the Chairman and Managing

Director, Applicant No.3 was the Deputy General Manager, Finance

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and Audit along with other accused persons had made a conspiracy

and caused loss to MSTC to the tune of Rs. 500 crore and thereby

cheated the MSTC. The material collected on record prima facie

indicates that they entered into a criminal conspiracy with other

accused persons and committed fraud amounting to more than Rs.

500/- Crores. Therefore, he urged that no interference is required in

the impugned order.

8.            He further pointed out paragraph no.12 of the Judgment in

Ashoo Surendranath Tewawri (supra) and submitted that ‘the findings

against the person facing prosecution in the adjudication

proceedings is not binding on the proceeding for criminal

prosecution, and therefore even though assuming that Applicant

No.1 was exonerated from the departmental enquiry, he is not

entitled to seek discharge from the present proceedings, hence, he

submitted that Application be rejected.

9.            Having heard the learned Advocate for both the parties and

having gone through the impugned order, and record it appears that

the learned Special Judge dealt with the statements recorded by the

witnesses, and after considering the material on record, has passed

the detailed order. I would like to reproduce relevant paragraphs 12

and 13 of the said order :-

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        “12.    It is worth noting that the accused are allegedly involved in a
               conspiracy to dupe the MSTC. The secrecy is the hallmark of
               a conspiracy, & there can be hardly any direct evidence of
               conspiracy. Mainly, there is circumstantial evidence to
               prove the conspiracy. The circumstances against the present
               accused are that the fraud was indeed committed in a
               transaction in which the accused played an important role.
               The circumstance is that a person who was not registered with
               IRDA was appointed as an insurance consultant/broker . The
               accused persons are justifying that act by saying that he
               was already working as an insurance consultant of STC.
               However, if anything wrong is done by any person, it does
               not mean that the same wrong done by others is
               justifiable. Another circumstance is that one of the
               accused, namely Jayesh Desai, is the director of the
               exporter company, i.e. Joshi Bulions, and he also had
               connections with the buyer companies. PW-15, Mahendra
               Kumar Joshi, has stated that he was the owner of Joshi
               Bulions & has sold the goodwill to the accused, Jayesh
               Desai. PW-19 Rohit Pandya has stated that the accused
               Jayesh Desai is 100% shareholder of M/s. Superior
               General Trading FZE. This firm is shown as a buyer firm
               in the charge sheet. So also, the charge sheet reveals that
               the accused Jayesh Desai was also the owner of firms
               M/s. Leo Diamond, M/s. Himalaya Diamond, M/s. Golden
               Stock Electronics, which was the identified buyer. The
               question arises how the same person can be an exporter
               as well as an importer. If there was a business deal wherein
               the exporter himself acted as the importer, then the inference
               is that the MSTC only acted as a financier under the disguise
               of exporting the goods itself. It is further to be noted that, as
               per clause 11(d) of the MOU, it was the responsibility of
               the associate companies to ensure that the buyers pay the
               price & they were responsible for the loss, if any. This
               again shows whether the MSTC acted as a financier or
               exported the goods itself. It is further to be noted that
               witness Dayal Munda, who was DGM (Administration),
               MSTC, has stated that the business of jewellery export was
               new and he was reluctant to accept the proposal, but there
               was pressure from CMD and GM (F&A), and hence the
               action was started.

        13.    This is not the stage of evaluating the circumstances in detail.
               In my opinion, the prosecution should be given an
               opportunity to adduce the evidence & then only any decision
               as to the culpability of the accused is required to be made.
               Thus, considering the gravity of the offence, the aforesaid
               circumstances & the fact that the accused were an important
               chain in the transaction wherein the fraud of about Rs. 500
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                 crores was committed, in my opinion, the accused should be
                 put to trial. Hence order.

                                   ORDER
                  1. The discharge application Exh.54 is rejected.”


10.           A bare perusal of the said order, it appears that the learned

Judge has categorically held that the material on record prima facie

indicates that the Applicants, along with other Accused persons,

were involved in the present crime. Also, a chain of transactions

wherein the fraud of about Rs. 500 Crores was committed, and

therefore rejected the Application.

11.                The learned APP during the course of argument also

pointed out that the draft charge submitted by the investigating

officer and pointed out paragraph/clause 12 of the said charge,

which reads thus:-

      “12     That investigation reveals that the accused directors of the
              aforesaid six associate firms entered into a criminal conspiracy
              with the accused public servant, namely Shri Malay Sengupta,
              the then Chairman and Managing Director of M/s. MSTC Ltd.,
              Shri Tapas Basu, General Manager (F & A). M/s MSTC Ltd. and
              Shri Utpal Sarkar, Dy. General Manager (F&A) Operation of M/s
              MSTC Ltd. and other accused persons and in pursuance of the
              said criminal conspiracy purchased the jewelleries from various
              local sellers and made the export to the buyers at UAE identified
              and arranged by Shri Jayesh Desai and Mrs. Gul Raihna Omer
              on the understanding that they would accept the documents on
              2% commission of the invoice value without having any genuine
              business. It is also revealed that the consignments of gold
              jewellery were received by the two consignees, namely M/S
              RKM General Trading of Jayesh Desai and M/S. Bin Karam
              of Dubai, who cleared the consignments from the UAE
              customs. In pursuance of the criminal conspiracy Shri Jayesh
              Desai and M/s Bin Karam disposed of the gold Jewellery in

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              the open market at UAE without supplying it to the buyers
              who accepted the documents and diverted the sale proceeds
              of the said consignments as per the directions of Shri Prem
              Kumar Sharma, Shri Shishir Dharkar and Mrs. Gul Raihana
              Omer and paid them 2% commission for abetting them in
              their endeavour to commit crime. The documents accepted by
              the approved buyers on the commission of 2% of the invoice
              value, and their signature, were identified by their bankers in
              the UAE, and were sent back through the buyers' bankers to
              the bankers of MSTC. After the receipt of the bill of
              acceptance, MSTC released 80% of the total export value to
              the above-said six associates. The total payments made to the
              six accused associates during the year 2008-09 are as under:




12.             Perused the Judgment in Ashoo Surendranath Tewawri

(supra) wherein facts were that “the trial Court found that since no

sanction was taken under the Prevention of Corruption Act, the

offences under that Act cannot, therefore, be proceeded with and

against the appellant therein, and therefore the Appellant therein

was discharged.” Similarly, in paragraph 13, it is observed that the

allegations in the adjudication proceedings as well as the

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proceedings for prosecution were identical, and the exoneration of

the person concerned in the adjudication proceedings is on merits. It

was also found on merit that “there was no contravention of the

provisions of the Act in the adjudication proceedings; therefore, it

was observed that the trial of the person concerned would be an

abuse of the process of the Court”.

13.           Similarly, in the said Judgment, the Hon’ble Apex Court,

after referring to the various Judgments, in paragraph 12, has culled

out the ratio of those decisions which were referred to in paragraph

38 of the Judgment in Radheshyam Kejriwal Vs. State of W.B. (2011) 3

SCC 581, which reads thus:-

       12. After referring to various judgments, this Court then culled out
            the ratio of those decisions in para 38 as follows:
            (Radheshyam Kejriwal case, SCC p. 598)

              "38.    The ratio that can be culled out from these decisions
                     can broadly be stated as follows:
                            (i) Adjudication proceedings and criminal
                     prosecution can be launched simultaneously;
                            (ii) Decision in adjudication proceedings is not
                     necessary before initiating criminal prosecution:
                            (iii) Adjudication proceedings and criminal
                     proceedings are independent in nature to each other:
                            (iv) The finding against the person facing
                     prosecution in the adjudication proceedings is not
                     binding on the proceeding for criminal prosecution:
                          (v) Adjudication proceedings by the Enforcement
                     Directorate is not prosecution by a competent court of
                     law to attract the provisions of Article 20(2) of the
                     Constitution or Section 300 of the Code of Criminal
                     Procedure;
                            (vi) The finding in the adjudication proceedings in
                     favour of the person facing trial for an identical violation
                     will depend upon the nature of the finding. If the
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                 exoneration in adjudication proceedings is on a technical
                 ground and not on merit, prosecution may continue; and
                         (vii) In case of exoneration, however, on merits
                 where the allegation is found to be not sustainable at
                 all, and the person held innocent, criminal prosecution
                 on the same set of facts and circumstances cannot be
                 allowed to continue, the underlying principle being the
                 higher standard of proof in criminal cases."


14.           In Clauses (iii) and (iv), it is categorically observed that

adjudication proceedings and criminal proceedings are independent

in nature to each other, and the finding against the person facing

prosecution in the adjudication proceedings is not binding on the

proceeding for       criminal prosecutions. Based on the said

observations themselves, the Applicants are not entitled to claim

discharge in the present proceedings.

15.           It is pertinent to note that the learned Advocate for the

Applicants, prima facie, failed to point out from the record how the

allegations in the adjudication proceedings and criminal prosecution

are identical.

16.           He has also failed to produce a copy of the chargesheet

along with the Application. Apart from that, the charge sheet in the

criminal prosecution case was not available before the enquiry

officer in the departmental enquiry; therefore, I do not find any

substance in the contention of the learned Advocate for the

Applicants that Applicant No.1 is exonerated in the departmental
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enquiry. So, Applicants are entitled to discharge from the present

Criminal proceedings.

17.            Thus, having considered the facts in the present case

and material on record as well as in view of the dictum laid down in

paragraph 12 of the Judgment, I am not inclined to the submissions

made by the learned Advocate for the Applicants that the Applicants

be discharged from the criminal proceedings. Therefore, in my view,

the law laid down in Ashoo Surendranath Tewawri (supra) is hardly of

any assistance to the Applicants in support of their contention to

seek discharge from the criminal trial.

18.           On the contrary, it appears that from the record that the

learned Judge, after considering the material on record, has rightly

held that the material on record prima facie indicates that the

Applicants, along with other Accused persons, were involved in the

present crime and also a chain of transactions wherein the fraud of

about Rs. 500 Crores was committed.

19.           It also reveals from the findings of the Trial Court that

allegations in the case in hand are grave and serious, wherein fraud

of about Rs. 500 Crores has been committed, and material on record

prima facie indicates the complicity of the Applicants along with

other accused persons in the present crime. Therefore, non-

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disclosure of the names of the Applicants in the FIR would not

entitle them to claim discharge in the proceedings.

20.           To sum up the above discussion, it emerges that the

Applicants failed to point out that no material was collected against

them by the prosecution to implicate them in the present crime. On

the contrary, material on record prima facie denotes the complicity

of the Applicants, along with other accused persons, in the present

crime.

21.           As a result, the Revision Application, being bereft of

merits, stands dismissed. No order as to costs. Rule stands

discharged. Inform the order to the learned Trial Court accordingly.



                                           (ABHAY J. MANTRI, J.)




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