The Delhi high court on Monday in response to a plea from a chartered accountant requesting the quashing of a 2016 order charging the CA with the offense of misappropriation of assets has moved to quash the order.
The trial court had observed while issuing the order that the possibility could not be ruled out that one of the accused persons could become an approver and disclose to the court the entire conspiracy.
The High Court has directed for quashing of the order stating that,
“There is no gainsaying that such reasoning is indeed convoluted. Charge can be framed only on the material before the court and cannot be based on speculation. The court had to consider whether on the chargesheet and documents relied upon by the CBI, including the retracted confessional statements recorded under Section 164 CrPC, there were sufficient grounds to frame charge against the petitioner.”
The main accused in the case was stated to be an executive engineer of the Bangalore Metro Rail Corporation who had allegedly amassed wealth disproportionate to his known sources of income.
The CBI had alleged that the CA played a “pivotal role” in routing illegal money of the main accused by arranging companies and persons whose bank accounts were used to redirect the illegal money.
The petitioner’s counsel presented that nothing incriminating against the petitioner had emerged from the examination of 44 witnesses, out of a total of 120 witnesses. He also highlighted that the petitioner had at no point in time held any amount of money on behalf of the main accused in the case. The counsel argued that the money in question belonged to the wife of the main accused and the petitioner was merely the chartered accountant for her company and had nothing in connection with the accused.
The CBI counsel pointed out that the scope of the petition was limited and narrow and as a consequence, the court was unable to re-assess the material on the record.
He further argued that the court ought to exercise its revisional or inherent powers only to correct jurisdictional errors and that too in the rarest of rare cases.
The trial court, it was submitted, was not required to assess the material presented by the prosecution in depth while framing the charge and it had rightly framed charges against the petitioner.
At the time of framing of the charge against the petitioner, the trial court observed that the question of intent in committing the act could not be considered and no conclusion could be drawn that he had unintentionally acted so during the normal course of his business as a chartered accountant.
“The trial court also held that the possibility of one of the accused coming into the witness box under Section 315 CrPC read with Section 21 IPC could not also be ruled out and, therefore, when such a situation arose, the court would be justified to consider the aforesaid confession(s) of that/those accused to reach a decision after the trial. It concluded that grave doubt was enough to frame charge,” the High Court noted.
Justice Menon also found it strange that the trial court thought it appropriate to refer to Section 315 (accused to be a competent witness) CrPC rather than to Section 319 of the CrPC that empowered the court to proceed against any person appearing to be guilty of an offense during the course of the trial, after the submission of the charge sheet.
According to the HC, the trial court record did not disclose independent material against the petitioner. The HC order held,
“Even the learned trial court in the impugned order refers to no such material. Retracted statements of a co-accused will be utterly inadequate to establish, prima-facie, the participation of the petitioner in a conspiracy with the co-accused to facilitate the commission of the offenses… in respect of which the charge has been framed against the petitioner which was why the learned trial court wanted to wait and watch, for a probability that did not exist in the immediate present, and which decision of the learned trial court cannot be upheld,”