MAUVIN GODINHOversusSTATE OF GOA

                         [2018] 1 S.C.R. 821                              821


                       MAUVIN GODINHO                                     A
                                  v.
                          STATE OF GOA
                  (Criminal Appeal No. 315 of 2011)
                         JANUARY 17, 2018                                 B
        [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
       Prevention of Corruption Act, 1988:
       ss. 13(1)(d)(i) and 13(1)(d)(ii) r/w s.120-B IPC – Appellants-
accused were charged for offences punishable u/ss.120-B, 409, 420,        C
465 and 471 IPC and ss.13(1)(d)(i) and 13(1)(d)(ii) of Prevention
of Corruption Act, 1988 r/w s.120-B IPC – High Court discharged
the accused u/ss. 120-B, 409, 420, 465 and 471 IPC, while
upholding the charges u/ss. 13(1)(d)(i) and 13(1)(d)(ii) of Prevention
of Corruption Act r/w s.120-B IPC – On appeal, held: Considering
the facts of the case in a holistic manner, there was no error in         D
framing charges as suggested by the High Court.
       Code of Criminal Procedure, 1973:
       s.227 – Framing of charges – Court while framing charges
should apply the prima facie standard – The standard depends on
facts of each case – A prima facie case against the accused is said       E
to be made out when the probative value of the evidence on all the
essential elements in the charge taken as a whole is such that it is
sufficient to induce the court to believe in the existence of the facts
pertaining to such essential elements or to consider its existence so
probable that a prudent man ought to act upon the supposition that
                                                                          F
those facts existed or did happen – However, at this stage, there
cannot be a roving enquiry into the pros and cons of the matter and
the evidence cannot be weighed.
       Disposing of the appeals, the Court
       HELD: 1. A court while framing charges under Section 227
                                                                          G
of the Code of Criminal Procedure should apply the prima facie
standard. Although the application of this standard depends on
facts and circumstance in each case, a prima facie case against
the accused is said to be made out when the probative value of
the evidence on all the essential elements in the charge taken as
a whole is such that it is sufficient to induce the court to believe      H
                                  821
822            SUPREME COURT REPORTS                       [2018] 1 S.C.R.


A     in the existence of the facts pertaining to such essential elements
      or to consider its existence so probable that a prudent man ought
      to act upon the supposition that those facts existed or did happen.
      However, at this stage, there cannot be a roving enquiry into the
      pros and cons of the matter and weigh the evidence as if he was
      conducting a trial. [Para 12] [827-A-C]
B
             Sajjan Kumar v. CBI (2010) 9 SCC 368 : [2010] 11
             SCR 669; State v. A. Arun Kumar (2015) 2 SCC 417 :
             [2014] 11 SCR 319; State by the Inspector of Police,
             Chennai v. S. Selvi and Ors. (2018) 1 SCALE 5 –
             referred to.
C            2. In the present case, it cannot be said that no case can be
      made out against the accused-appellants. The alleged
      Notifications dated 15.5.1996 and 1.8.1996 were issued without
      the approval of Cabinet and by violation of rules. Looking at the
      facts of the case in a holistic manner, it is necessary to go into the
D     aspect of thorough examination of merits of the case, particularly
      when the issue is still at the stage of framing of charges only.
      There is no error in framing charges, as suggested by the High
      Court, when presumably the material on record obligated the
      Court to do so. [Para 13] [827-E-F]
E            MRF Limited v. Manohar Parrikar & Others (2010) 11
             SCC 374 : [2010] 5 SCR1081; Hira Lal Hari Lal
             Bhagwati v. CBI, New Delhi (2003) 5 SCC 257 : [2003]
             3 SCR 1118 – referred to
                               Case Law Reference
      [2010] 5 SCR1081                 referred to              Para 8
F
      [2003] 3 SCR 1118                referred to             Para 9
      [2010] 11 SCR 669                referred to             Para 12
      [2014] 11 SCR 319                referred to              Para 12
      (2018) 1 SCALE 5                 referred to             Para 12
G            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 315 of 2011
             From the Judgment and Order dated 26.10.2007 of the High Court
      of Bombay at Goa in Criminal Revision Application No. 3 of 2007.
                                       WITH
H            Crl. A. No. 314, 313, 312 and 311 OF 2011
              MAUVIN GODINHO v. STATE OF GOA                                    823


      M. L. Varma, Sr. Adv., Umesh Kumar Khaitan, Ms. Asha Gopalan              A
Nair, Ms. Nivedha Nair, Ms. Dimple Nagpal, Pitamber Dutt Nautiyal,
Triveni Potekar, Chander Shekhar Ashri, Ms. Binu Tamta, Advs. for the
Appellant.
      Ms. A. Subhashini, Mrs. Anil Katiyar, Pratap Venugopal,
Ms. Surekha Raman, Anuj Sarma, Ms. Kanika Kalaiyarasan (For M/s.                B
K J John and Co.), Umesh Kumar Khaitan, Advs. for the Respondent.
      The Judgment of the Court was delivered by
       N. V. RAMANA, J. 1. These Criminal Appeals, by way of
special leave, are filed by the appellants against a common order dated
26th October, 2007 passed by the High Court of Bombay at Goa in                 C
Criminal Revision Application Nos. 3, 10, 19, 21 and 22 of 2007, whereby
the High Court while setting aside the charges framed by the learned
Special Judge, Panaji against the accused—appellants for the offences
punishable under Sections 120-B, 409, 420, 465 and 471, IPCand directed
to frame charges against them under Sections 13 (1)(d)(i) and 13(1)(d)(ii)
of the Prevention of Corruption Act, 1988 read with Section 120-B, IPC.         D
        2. In a nutshell, the genesis of the dispute in all these
appealspertains to a Notification dated 30thSeptember, 1991 issued by
the Government of Goa, duly approved by the Cabinet, according to
which those industrial units who apply for bona fide use of High Tension
or Low Tension power supply to their industrial units would be eligible         E
for a rebate of 25% in their tariff for a period of five years. The appellant
in Criminal Appeal No. 315 of 2011 (Accused No. 1) was the Minister
of Power for the State of Goa during the period 22-12-1994 to 29-07-
1998 whereas the appellant in Criminal Appeal No. 313 of 2011 (Accused
No. 2) was also a public servant at that time being Chief Electrical            F
Engineer.Accused Nos. 3 and 4 were Managing Director and Executive
Director, respectively, of the appellant Company in Criminal Appeal 314
of 2011 (Accused No. 6), while the appellant in Criminal Appeal No.
312 of 2011 (Accused No. 5) was the General Manager of appellant
Company in Criminal Appeal No. 311 of 2011 (Accused No. 7).
                                                                                G
         3. The Government of Goa, during the tenure of accused No. 1
as Minister of Power, with the consent of Cabinet, issued another
Notification dated 31-03-1995 cancelling the earlier Notification dated
30-09-1991 without assigning any reason for its cancellation. Afterwards,
it is alleged that another Notification dated 15-5-1996 was issued, without
                                                                                H
824             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     approval of the Cabinet introducing another category of ‘Extra High
      Tension’ power supply and after that one more Notification dated 01-
      08-1996 was issued, again without Cabinet approval, restoring the benefit
      of 25% rebate, at the instance of accused No. 1, only to benefit accused
      nos. 6 & 7 Companies.
B            4. Acting upon a complaint lodged by an M.L.A., the State levelled
      allegations against the accused individuals that by entering into a criminal
      conspiracy they provided wrongful gains to both the appellant Companies
      (Accused Nos. 6 & 7) and favored the two Companies for availing 25%
      rebate on power tariff by illegal means and thereby caused huge loss of
      Rs.4,52,77,856/- to the exchequer of Government of Goa.
C
             5. Taking note of the allegations levelled against the accused, the
      Special Judge, Panaji by order dated 8thDecember, 2006 framed charges
      against the accused—appellants for the offences punishable under
      Sections 120-B, 409, 420, 465, 468 and 471, IPC and also under Section
      13(1)(d)(i) and 13(1)(d)(ii) read with Section 13(2) of the Prevention of
D     Corruption Act, 1988. The aggrieved appellants approached the High
      Court by way of Criminal Revision Applications. The High Court on the
      analysis of facts, arrived at the conclusion that the facts of the case do
      not disclose an offence of cheating and there was no offence of criminal
      breach of trust. Accordingly, the appellants were discharged from the
E     offences punishable under Sections 120-B, 409, 420, 465, 468 and 471,
      IPC. However, the High Court observed that there is sufficient prima
      facie material against the accused for framing charges against them
      under Section 13(1)(d)(i) and 13(1)(d)(ii) read with Section 120-B, IPC.
      Feeling aggrieved thereby, the accused—appellants are before us in these
      appeals.
F
            6. We have heard Mr. M.L. Varma, learned Senior counsel
      appearing for the appellant in Criminal Appeal No.315/2011, Ms. Binu
      Tamta, learned counsel appearing for the appellant in Criminal Appeal
      No.311 of 2011, Ms. Asha Gopalan Nair, learned counsel appearing for
      the appellant in Criminal Appeal No.313 of 2011 and alsothe learned
G     counsel appearing for the State of Goa at length.
            7. Learned senior counsel for the appellant in Criminal Appeal
      No. 315 of 2011 relying upon this Court’s order in Civil Appeal Nos.
      3206-3217 of 1999, passed on 13th February, 2001 while dealing with the
      same Notifications, submitted that there is no need to continue further
H
              MAUVIN GODINHO v. STATE OF GOA                                   825
                    [N. V. RAMANA, J.]

criminal proceedings against the appellants herein. The said order reads       A
thus:
        “The High Court by the impugned judgment has held that the
        circular dated 31st March, 1998 issued by the Government of
        Goa suspending the release of rebate with immediate effect as
        well as suspension of rebate agreed to be governed in sixty            B
        monthly installments has no legal efficacy and is, therefore,
        invalid. The High Court has further held that the notification dated
        24th July, 1998 is legal and valid. Consequently the High Court
        directed that the writ petitioners are entitled to 25% rebate in
        power tariff till 26th July, 1998. This has been challenged by
        means of the present appeals. Second set of appeals have been          C
        filed by the writ petitioners against the judgment of the High
        Court whereby and whereunder the High Court has held that
        notification dated 27th July 1998 is valid.
        We have heard counsel for the parties and perused the record.
        The High Court has taken the aforesaid view after taking into          D
        consideration overall facts and circumstances and inasmuch as
        public interest which, according to us, is very balanced view of
        the matter. We, therefore, are not inclined to interfere with the
        matters Both the sets of appeals fail and are accordingly
        dismissed. There shall be no order as to costs”.
                                                                               E
       8. It is further argued before us that the High Court erred in not
taking into account the factum that the complaint against the accused—
appellants was filed by political opponent of the appellant whohad foisted
the charges which are mala fide, misconceived and concocted with a
view to score political vendetta.Whereas power rebate policy was existing
in the State since 1991 and in 1993, out of the High Tension category an       F
Extra High Tension category was carved out by the Government for the
purpose of providing additional benefit to industrial consumers. Drawing
our attention to a judgment of this Court in MRF Limited vs. Manohar
Parrikar & Others, (2010) 11 SCC 374, learned senior counsel submitted
that this Court has already considered the Notifications in question, in an    G
earlier round of litigation and expressed the view that the decision taken
by the appellant herein—accused No. 1 as a Minister was balanced.
       9. Ms. Binu Tamta, learned counsel appearing for the appellantsin
Criminal Appeal Nos. 311 & 312 of 2011 submitted that as a matter of
fact, the complaint in question was already closed on 2.2.1999, but to         H
826             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     meet the political will of the complainant when he came to power in the
      State, the complaint was reopened at his instance. The view taken by
      the Courts below in framing charges against the accused is entirely wrong
      inasmuch as the trial Court made an observation that the circumstances
      give rise to suspicion that accused Nos. 1 to 5 conspired to extend benefit
      to the accused Nos. 6 & 7 Companies. Mere suspicion does not warrant
B
      framing of charges against the appellants. learned counsel wrongly placed
      reliance on a decision of this Court in Hira Lal Hari Lal Bhagwati Vs.
      CBI, New Delhi, (2003) 5 SCC 257 and submitted that by virtue of the
      Notifications in question, no benefit was got by the appellant and whatever
      amount had to be paid, has already been paid, and accordingly the charges
C     against the appellant should be dropped.
             10. Learned counsel appearing for the appellant in Criminal Appeal
      No.313 of 2011, Ms. Asha G. Nair, submitted that the appellant in his
      official capacity had only made submissions in accordance with the
      instructions received by superiors in the normal course of discharging
D     his official duties. By any stretch of imagination, the appellant cannot be
      equated as conspirator when the deciding authorities were the Secretary
      and the Minister. She has further submitted that the appellant has already
      retired from his service and virtually he has no role to play in the alleged
      conspiracy and the allegation that he is close to Minister does not form a
      ground for levelling charges against him.
E
             11. Learned counsel for the State while supporting the impugned
      judgment, submitted that there was enough material on record to establish
      that accused Nos. 1 & 2, being public servants at the relevant time, had
      entered into a criminal conspiracy to facilitate wrongful gains to accused
      Nos. 6 & 7 Companies in collusion with their officials (accused Nos. 3
F     & 4). In pursuit of their criminal conspiracy, they abused their positions
      and caused huge loss to the public exchequer and benefited accused
      Companies by illegal means. It is also vehemently argued that accused
      No. 1 while abusing his official capacity prepared a false document
      giving an appearance of genuine one and deceived the Government in
G     taking policy decision and enabled the accused Companies to avail 25%
      rebate on power supply. He ultimately made a submission that taking
      note of misdeeds of all the accused, the High court has in clear terms
      expressed the opinion that there is sufficient prima facie material to
      frame charges against all the accused, hence there is no occasion for
      this Court to interfere and revisit the matter.
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               MAUVIN GODINHO v. STATE OF GOA                                   827
                     [N. V. RAMANA, J.]

        12. At the outset it would be pertinent to note the law concerning      A
the framing of charges and the standard which courts must apply while
framing charges. It is well settled that a court while framing charges
under Section 227 of the Code of Criminal Procedure should apply the
prima facie standard. Although the application of this standard depends
on facts and circumstance in each case, a prima facie case against the
                                                                                B
accused is said to be made out when the probative value of the evidence
on all the essential elements in the charge taken as a whole is such that
it is sufficient to induce the court to believe in the existence of the facts
pertaining to such essential elements or to consider its existence so
probable that a prudent man ought to act upon the supposition that those
facts existed or did happen. However, at this stage, there cannot be a          C
roving enquiry into the pros and cons of the matter and weigh the evidence
as if he was conducting a trial. [Refer Sajjan Kumar v. CBI, (2010) 9
SCC 368; State v. A. Arun Kumar, (2015) 2 SCC 417; State by the
Inspector of Police, Chennai vs. S. Selvi and Ors., (2018) 1 SCALE 5.]
       13. Having thoughtfully considered the arguments advanced by             D
respective learned counsel and upon going through the record, particularly
the impugned judgment, in the light of sequence of events, prima facie,
it cannot be said that no case can be made out against the accused—
appellants. Allegedly, the Notifications dated 15-5-1996 and 1-8-1996
were issued without the approval of Cabinet and by violation of rules.
Looking at the facts of the case in a holistic manner, we do not think it       E
necessary to go into the aspect of thorough examination of merits of the
case, particularly when the issue is still at the stage of framing of charges
only. There is no error in framing charges, as suggested by the High
Court, when presumably the material on record obligated the Court to
do so.                                                                          F
       14. In light of the above discussion, we do not see any illegality in
the impugned order. Therefore, we find no reason to interfere with the
order passed by the High Court. However, learned counsel appearing
for the appellants, at this stage wants to place before the trial Court, the
material, judgments and the earlier passed order of this Court which are        G
referred before us. We grant liberty to the learned counsel to do so.
       15. With the above observations, the appeals are disposed of.


Kalpana K. Tripathy                                      Appeals disposed of.
                                                                                H