IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 4023 of 2007()
1. NATARAJA AIYER, DY.MANAGER (REFINERY
... Petitioner
Vs
1. CENTRAL BUREAU OF INVESTIGATION,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.S.GOPAKUMARAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :13/11/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. Nos. 4023 and 4024 OF 2007
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Dated this the 13th day of November, 2007
O R D E R
The common petitioner in these two revision petitions
is the first accused(Nataraja Aiyer) in C.C.No.3/2001 on the file of
the Special Judge(SPE/CBI)-II, Ernakulam. He challenges the
common order dated 29.10.2007 passed by the Special Judge
(SPE/CBI)-II, Ernakulam in Crl.M.P.Nos.894/07 and 895/07 in
C.C.No.3/2001.
2. The case was investigated by the CBI which filed the
final report originally against 8 accused persons. Three among
the 8 accused persons were made approvers of whom one died
and two survived. The court below took cognizance of the
offences against the surviving 5 accused persons and registered
the case as C.C.No.3/2001.
3. The case of the prosecution can be summarised as
follows:-
The first accused(revision petitioner) was the Deputy
Manager, Refinery Co-ordination in-charge of South Tanker berth
at Ernakulam during the period from January to May, 2000. He
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entered into a criminal conspiracy with the other accused for the
purpose of committing theft and misappropriation of high speed
diesel oil discharged from the tanker ships to the IOC, BPC, HPC,
etc. In prosecution of the common object of the said criminal
conspiracy, A1, A2 and A5 during the intervening night of
22/23.4.2000, 15/16.5.2000 and 28/29.5.2000 dishonestly diverted
high speed diesel oil from south tanker berth to the IOC jetty and
illegally loaded 1,10,000 litres high speed diesel oil in a Dolphin
barge owned by A2 and A5 and conveyed the same to Bava
Enterprises, a petrol pump owned by A3 and A4 and located at
Thoppumpady. The accused thus made wrongful gain to
themselves and caused wrongful loss to the oil companies. The
accused have thereby committed an offence under section 13(1)
(c) of the Prevention of Corruption Act, 1988 and punishable under
sections 13(2) of the Prevention of Corruption Act, 1988 and
sections 409 and 411 read with section 120B IPC.
4. On the side of the prosecution 52 witnesses were
examined. After the close of the prosecution evidence, the
accused were questioned under section 313(1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against them
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in the evidence for the prosecution. They denied those
circumstances and maintained their innocence. The case was
thereafter posted for defence evidence. On the side of the
revision petitioner he cited 3 witnesses. The first witness
E.K.Venugopal is a retired Senior Refinery Co-ordinator of Indian
Oil Corporation, Ambalamugal. In fact, he was prosecution charge
witness No.55 who was given up by the prosecution. He was cited
to speak about the discharge programme and co-ordination work
carried out by the IOC at the tanker jetty. The 2nd witness was the
Superintendent of Central Excise and Customs(Petroleum Wing),
Ernakulam. He was cited to speak about the statements in AR-3A
Forms submitted by various oil companies specifying the
particulars of oil receipt. The 3rd witness was one
C.M.Chandrakanthan, Chief Terminal Manager, Indian Oil
Corporation, Trichy to speak about the role of Port Co-ordinator at
the tanker jetty and also about the enquiry conducted by the IOC
with respect to the alleged incident. The petition filed by the
revision petitioner before the court below to summon the aforesaid
3 witnesses was Crl.M.P.No.895/07. The revision petitioner had
also filed Crl.M.P.No.894/07 seeking to summon two documents.
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The first document was AR-3A Forms submitted by the respective
oil companies specifying the particulars of oil receipt during the
period from January to October 2000. It was to prove those Forms
that the second witness was cited. The other document which
was sought to be summoned was the file maintained by the CJM,
Ernakulam as C1-3307/01 in RC 7/A/2000 of CBI and in the
custody of the Sheristadar of the CJM Court, Ernakulam to prove
the mode of recording the 164 statements of the approvers.
According to the revision petitioner, sufficient safeguards were not
taken before the 164 statements of those approvers were
recorded and the Magistrate who recorded the 164 statements
when examined before court was not able to confirm or deny
whether the statements were recorded consecutively after giving
them sufficient time for reflection.
5. The aforesaid applications filed by the revision
petitioner were opposed by the CBI and the court below as per the
common order dated 29.10.2007 permitted examination of the 3rd
witness only but refused examination of the first two defence
witnesses. The court below also dismissed Crl.M.P.No.894/07 for
summoning the aforesaid two documents. It is the said common
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order which assailed in these revisions.
6. I heard Advocate Sri.S.Gopakumaran Nair, the learned
counsel appearing for the revision petitioner and Advocate
Sri.S.Sreekumar, the learned standing counsel for the CBI.
7. Sri.S.Sreekumar, the learned standing counsel
appearing for the CBI, made the following submissions before me
in support of the impugned order:-
The purpose of examining the two other witnesses and
summoning the said documents was only to protract the trial of the
case. The prosecution has already examined witnesses to speak
about the discharge programme and co-ordination work carried on
by the IOC at the tanker jetty and the examination of the first
defence witness will only lead to duplication of evidence. The AR-
3A Forms submitted by the respective oil companies giving
particulars of oil supply is also unnecessary. The administration
file maintained by the CJM, Ernakulam with regard to the
procedure followed by the Magistrate while recording the 164
statements of the approvers also cannot be summoned since the
Magistrate has already testified before court. There is also the
presumption under section 80 of the Evidence Act with regard to
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the same.
8. After hearing both sides and after perusing the
impugned order, I do not think that the examination of the three
witnesses cited by the revision petitioner is totally irrelevant to the
fact in issue before the court below. The revision petitioner has a
contention that he was in charge of the refinery co-ordination of
the discharge operations of IOC only and that he had no role to
play in the discharge of high speed diesel oil to BPC, HPC, etc. It
was this aspect of the matter that is sought to be proved by the
first defence witness. The second witness cited is for proving AR-
3A Forms and according to the revision petitioner, none of the oil
companies had complained of short delivery of high speed diesel
oil and this is sought to be proved by the second witness for
whose examination the first set of documents made mention of in
Crl.M.P.No.894/07 is to be necessarily summoned. The second
document, namely the file pertaining to the 164 examination of the
approvers, also can be pressed into service by the revision
petitioner to substantiate his contention that the approvers were
not given sufficient time for reflection. The question as to whether
they were given time for reflection and if not, what is the probative
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value of their statement, etc. are matters for the trial court to
consider after the trial is over. At any rate, there is no justification
to shut out evidence as proposed by the revision petitioner.
Accordingly, Crl.M.P.No.894/07 will stand allowed in toto and
Crl.M.P.No.895/07 will stand allowed in respect of defence witness
Nos.1 and 2. I am told that the 3rd witness cited by the revision
petitioner is scheduled for examination today and he shall be
examined without undue delay. I am also told that the first and
second witnesses cited by the revision petitioner are both local
witnesses easily available for examination. Those two witnesses
shall be summoned and examined without unnecessary delay.
The defence evidence of the revision petitioner shall be concluded
within three weeks of commencement of the examination of the
first defence witness.
In the result, these revisions are allowed as above.
(V. RAMKUMAR, JUDGE)
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