2.

Draft a Memorandum of Appeal and a Memorandum of Revision under

the provisions of the Code of criminal Procedure.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. __________ OF 2016

1. Smt. Geet W/o. Ujwal Iyengar )

Aged about 55 years, )
Occupation : Housewife, )

2. Raja S/o. Sai Kumar, )

Aged about 61 years, )
Occupation : Retired, )

Both R/o; 401 Prem Gully, )

Shivanagar, Princeton Street, )
Gujrat, 364026 ) ….Appellants

Versus

1. State of Maharashtra, )
through Police Station Officer, )
ABC Police Station, Dholakpur, )
Satara, District – Satara. )

2. Shubh S/o. Deven Mehta )

Aged about 36 years, )
Occupation; private )
R/o: Flat No. 17A, FGH Building, )
Dholakpur, Satara ) ….Respondents

CRIMINAL APPEAL UNDER SECTION 372 OF THE CODE OF

CRIMINAL PROCEDURE.

Being aggrieved by the Judgment and Order dated 17/6/2016 passed by

the learned District Judge-13 & Additional Session Judge, Satara ( presided
over by Shri N.A. Ram,) in Sessions Case No. 507 of 2015, whereby the learned
Judge acquitted the accused namely Mr. Shubh S/o. Deven Mehta (respondent
Nos.2 herein) for the offences punishable under Sections 302, 324 of the Indian
Penal Code, the appellant is challenging the said judgment on the following
amongst other grounds after brief statements of facts :

FACTS

1. That, the appellant No.1 is the mother and the appellant No. 2 is the
father of the deceased namely Gopal S/o. Rajan Kumar, who was 25 year old
MBA Degree Holder and had been staying at Satara for searching a job. On
5/4/2019, the appellants were informed by their close relative that, their son
Gopal has been murdered in the house of the respondent No. 2 hererin. Having
received such information, the appellants had immediately left their place for
Satara and reached there in the next morning around at 7.30 am.

2. It is submitted that upon reaching Satara, the appellants learnt that, the
wife of the accused-respondent No. 2, namely Vaidehi Mehta is a characterless
lady and she had fascinated the son of the appellant. It was learnt to the
appellant that on 5/4/2015, her son had gone to the house of the accused.
Thereafter, after receiving information from someone, the accused came to his
house and found his wife sitting in her bedroom and her son standing beside
her. Upon which the quarrel took place between the accused and the son of the
appellant, which ended with the murder of the son of the appellant. It is
submitted that the statements of the appellant and her husband were recorded by
the Police officials of Police station, Dholakpur, Satara, on 8/4/2019.

3. It is pertinent to mention here that, in the statement, the appellants had

categorically stated that the accused and his wife by hatching conspiracy had
killed her son. Though, the offence punishable under section 302, 324 of IPC
was already registered against the accused, however no action was taken against
his wife. Rather the wife of the accused was made an eyewitness in the crime. It
is submitted that the respondent No. 1 had carried out the investigation in the
matter and had subsequently filed the chargesheet in the court. In the
chargesheet, the respondent No. 1 had named as many as 21 witnesses to be
examined, including the present appellants, however during the trial, the
prosecution had examined only 6 witnesses. That too out of 6 witnesses, Three
witnesses were the Police officials who had investigated into the matter and rest
of the Three witnesses includes wife of the accused and two panch witnesses.
Ironically the prosecution, instead of the examining the independent witnesses,
had much relied upon the statement of the wife of the accused, who
subsequently turned hostile and had not supported the case of the prosecution.
Moreover, even the investigating officer did not take any pain to produced the
CA report during the trial.

4. It is submitted that, all such loopholes in the trial and irregularities

committed by the prosecution had led the learned trial court to observe that,
PW1 was the eye witness, natural witness and injured witness but she turned
hostile. It has also been observed by the learned trial court that, for
circumstantial evidence there must be strong motive with the accused to commit
such offence which prosecution has failed to bring on record. It has also been
observed that, CA report which would have been conclusive proof especially
about the blood stain on knife on floor, bedsheet etc.is not produced on record.
It has also been observed that, no corroboration to the evidence of PW 4,5,6
with the evidence of PW 1,2,3 and uncorroborated evidence cannot be relied
upon that too which is not supported by the expert opinion like Chemical
Analyser. Therefore, in the judgement passed by the learned trial court, giving
the benefit of doubt to the accused, the court had acquitted the accused.
Annexed hereto and marked as EXHIBIT-A, is the copy of the judgement
passed by the learned District and District Judge-13 and Addl. Session Judge,
Satara. Whereas the compilation of the Evidence recorded, Statement of
Accused recorded under Section 313 of Code of Criminal Procedure and other
relevant papers relating to the trial, whose copies the appellants could procure
are annexed herewith and collectively marked as EXHIBIT –B.

5. It is worthwhile to mention here that, while delivering the judgment

impugned, the learned trial court was only lingered upon the loopholes in the
investigation carried out by the respondent No. 1, however the learned judge of
the trial judge, has preferred to ignore the various important aspects of the
matter including the fact that the corpus of the deceased was recovered from the
Bedroom of the accused, by the Police officials and it has come in the evidence
of the PW, the API attached to the Dholakpur Police Station, under which
jurisdiction the incident took place, that, when he reached the spot he found the
deceased lying unconscious in the pool of blood, in the Bedroom of the accused.
The appellants herein, who are the parents of the deceased, being aggrieved by
the said judgment, is compelled to file the present appeal inter alia challenging
the said judgment on the following amongst other grounds :
 GROUNDS

(i) That, the entire approach of the learned Sessions Judge in dealing with
the matter with the hyper technical view and suspicious eyes, is faulty against
the settled principles of law and, therefore, the impugned judgment is liable to
be quashed and set aside.

(ii) That, the learned Sessions Judge while delivering the judgment of
acquittal has apparently failed to give importance to the peculiar facts and
circumstances of the present case. Nor he has given any importance to the
circumstances which were screamingly pointing out towards the guilt of the
accused. The judgment impugned is, therefore, liable to be quashed and set
aside.

(iii) That, the learned trial Judge while deciding the matter has apparently not
considered the settled principles of law and decided the matter in an absolute
slipshod manner. It is submitted that, the prosecution has much relied upon the
statement of the wife of the accused, which was recorded by the prosecution
after the incident. While scrutinising the material, the Learned Judge was
expected to keep in mind that which ultimately led to land her husband in jail
for rest of life. In the case of her husband landing in jail for the rest of life, it
would be the PW1 only, who would have been most sufferer. In that event it
would have been difficult from the PW1 to nurture herself and her two children
without support of her husband.

(iv) That, the learned trial court, instead of the lingering upon the testimony of
the eyewitness, who in any case can not be expected that would support the case
of prosecution, must have considered the circumstantial evidence. It is pertinent
to mention here that, in the testimony of the PW-4, Pranay Kanekar, the API,
attached to the Police Station Dholakpur had deposed that, upon reaching the
spot of the incident, he found the corpus of the deceased lying in the pool of
blood, in the bedroom of the accused. Thereafter after completion of some other
formalities he had lodged the complaint with Police Station Dholakpur, Satara.
He identified the said Complaint which was marked as Exh.-17. It is pertinent to
mention here that, during the investigation the officials of the respondent No. 1,
apart from other witnesses. had recorded the statement of Alexander-Arnold,
Kyle Walker, who were present at the spot, soon after the incident. Both the
abovenamed witnesses had stated in their statement that, they had seen the
deceased lying in the Pool of Blood in the Bedroom of the accused. Ironically
both the witnesses were not examined by the prosecution, despite the fact that
the statement of the witness namely Alexander Arnold was recorded under the
provisions of Section 164 of CrPC.

(v) It is pertinent to mention here that, the witness PW6 Manav Singh had
deposed during the trial that, upon getting information, he went to the spot
along with Senior Police officer and prepared Spot Panchnama, which is
marked as Exh.-14. He also deposed during the trial that, he had seized the
certain articles from the Bedroom of the accused including the knife, axe, piece
of the Bedsheet and Blood sample of the blood, which was on the floor. Another
witness PW 5 Arjun Shah, had deposed that, the WPI Krish Yadavhas arrested
the accused and seized the blood stained clothes of the accused. He further
deposed that on 6/4/2012 the investigation in the said crime was handed over to
him and the API Yadav had handed over the FIR, Spot Panchnama, Inquest
Panchnama, Panchnama of seizure of the cloths of the accused, muddemal
property to him. He further deposed that the Police Hawaldar Sandeep has
handed over the cloths of the deceased to him after Post Mortem, which were
given to him by Medical Officer. He prepared the panchnama of the same,
which is marked as Exh.21. It is pertinent to mentioned here that, upon perusal
of the Letter (marked as Exh.-28) sent to the Chemical Analyser by the PW-5, it
reveals that the PW5 had sent the Steel Knife Exh.A1 and Bedsheet piece
Exh.A2, shirt of the accused Exh B-1, Pant of the accused B2 T-shirt of the
deceased Exh-C1, Jeans Pant of the deceased C2. All these articles were blood
stained. Apart from this, the contents of the letter vide Exh. 28, reveals that, the
blood sample of the Accused, Deceased and the injured were also sent.
However, the prosecution had not taken any pain to call the Chemical Analyser
Report, which would have certainly helped the prosecution to prove its case on
circumstantial evidence.

(vi) Respondent No.2, who considering the nature of case and strong material
against him, was refused bail by the Sessions Court as well as by this
Honourable Court, during the trial of the matter. It is thus submitted that it’s a
fit case for reversal of the order of acquittal or in any case ordering for retrial of
the matter, in the peculiar facts and circumstances of the case and in the interest
of justice.

(vii) That, it is the settled law that the investigation made into a criminal
offence and trial conducted in the matter must be fair and free from any
objectionable features or infirmities, which may give rise to an apprehension in
the mind of the complainant or the accused, that the same was not fair and may
have been carried out with some ulterior motive. It is apparent from the facts of
the present case that the investigating officer and prosecution have indulged in
all kinds of mischief’s, which has resulted into giving an unfair and undue
advantage to the accused and has resulted into not bringing out the real
unvarnished version of the truth.
(x) It is respectfully submitted that ethical conduct on the part of the
investigating agency and prosecution has given ample scope for the allegations
of mala fides and bias. It will be needless to state the words like “personal
liberty” contained in Article 21 of the Constitution of India provide for the
widest amplitude, covering all kinds of rights particularly, the right to personal
liberty of the citizens of India, and a person cannot be deprived of the same
without following the procedure prescribed by law. In this way, the
investigating agencies and prosecutions are the guardians of the liberty of
innocent citizens. Therefore, a duty is cast upon them investigating officer to
ensure that an accused must not be given undue leverage.

(xi) That, the appellants were kept away from participating in the trial,
otherwise they would have had some idea about the mischief played in the
matter. Nor they had access to the entire material collected in the present matter
and the evidence recorded in the trial. The Statement of wife of the accused,
who was the only direct eye witness to the heinous crime, was not recorded u/s.
164 of Cr. PC, although the statements of some witnesses were recorded or
attempted to be recorded under the said provision. The Appellants submit it is
said that the “Justice must not be said to have been done, but it should be
actually seen to have been done”, and therefore it is necessary that in the
peculiar facts and circumstances of the case and in the interest of justice if the
Honourable Court comes to the conclusion that the investigation and trial
conducted in the present matter was not fair and proper, it is necessary that the
Honourable Court may kindly exercise its inherent and supervisory powers to
ensure that the machinery set up for the administration of justice should not be
misused for abusing the process of law and making it mockery of the judicial
process. Therefore, in such an event the Honourable Court can very well order
for settling aside the order of acquittal and ordering for re-investigation and re-
trial of the present matter, in the peculiar facts and circumstances of the case
and in the interest of justice.

6. It is respectfully submitted that the appellants being the parents of the

deceased and aggrieved by the absolute perverse and illegal finding recorded in
the matter acquitting the accused- respondent No. 2, have every right to knock
the doors of this Honourable Court to exercise its powers under proviso to
Section 372 of the Code of Criminal Procedure for doing effective justice in the
matter.

7. The first cause of action arose on _______when the impugned judgement

was passed it further arose when we applied for certified copy of the said
impugned judgement. The Appellants received the certified copy on ______
hence the present appeal is not barred by the law of limitation.

8. The appellants have not approached either before this Hon’ble Court or
the Supreme Court of India any time before in the subject matter.

9. The impugned Judgement is passed by the learned District Judge-13 &

Additional Session Judge, Satara ( presided over by HHJ. Smt. N.A. Ram ,);
and the said crime was committed in the jurisdiction of this Hon’ble Court and
hence this Hon’ble Court has jurisdiction to try and entertain the present
Appeal.

10. That the requisite court fees of Rs.___ has been paid by the present
Appellants.
Hence this appeal.

PRAYER: It is therefore, most humbly and respectfully prayed that this

Hon’ble Court may kindly be pleased to :

a) After hearing the parties be further pleased to quash and set aside
Judgment and Order dated 17/6/2019 passed by the learned District Judge-13 &
Additional Session Judge, Satara ( presided over by HHJ. N.A. Ram,) in
Sessions Case No. 507 of 2019, thereby the learned Judge acquitted the
Accused/Respondent No. 2 for the offences punishable under Sections 302, 324
of the Indian Penal Code, and convict the accused/Respondent Nos. 2 for the
offences committed by him and award maximum punishment or in the
alternative order for the re-trial of the said accused by further investigation/ re-
investigation and trial, in the peculiar facts and circumstances of the present
matter and in the interest of justice;

b) Order for the expeditious decision of the instant appeal, in the interest of
justice;

e) Admit and Allow this appeal; and

c) Grant any other suitable relief to which the appellant is entitled in the
facts and circumstances of the present case.
d) And be further pleased to pass such other order and grant any other relief
as may deem fit and proper in the peculiar facts and circumstances of the case
and in the interest of justice.

And for which act of kindness the appellant shall remain duty bound and
ever pray.

MUMBAI
Dated : /07/2023

ADVOCATE FOR APPELLANT.

VERIFICATION

I, Smt. Geet Ujwal Iyengar. Aged 55 Years resident of ; XXX, PG Lane, Prince
Street, Gujrat, XXX XXX , the Appellant above named do solemnly declare
that what is stated above in the paragraphs __ to __ of the foregoing memo of
Appeal is true to my own knowledge and what is stated in the remaining
paragraph of Appeal is to the best of my knowledge and information.

Solemnly declared at Mumbai )

This day of July, 2023 ) Appellant
ABC Associates Advocate for the Plaintiff
Before me

2.2 Draft a Memorandum of Revision under the Code of Criminal

Procedure.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. _______ OF 2019
DIST- PUNE

In the matter of Exercise of power under

Section 397 and 401 R/W with Section
482 of the Code of Criminal Procedure
And
In the matter of Order dated 01.04.2019
passed by Learned Special Judge (CBI-
ACB). Pune, below Exh 167 in Special
Case No. 12/1234.

1. Swaran Kumar ]
Aged 45 years, Occupation: Service ]
Resident of Flat No 205, Dragon Building, ]
Zion Society, Hanuman Nagar, ]
Pune - 411014 ]…. Applicant No. 1
(Orig. Accused No. 5)
2. Suresh S/o. Chand Kumar ]
Aged 80 years, Occupation: Business ]
Resident of 3, Hathi Baug Society, ]
Powder Road, ]
Pune 411029 ]…. Applicant No. 2
(Orig. Accused No. 6)

..VERSUS.

Central Bureau of Investigation, ]

Anti Corruption Bureau, Pune ]
Through HOB/D.I.G. Police. ]…Non Applicant /Respondent

To,
THE HON’BLE CHIEF JUSTICE
AND OTHER PUSINE JUDGES OF THE
HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPLICATION UNDER SECTIONS 397, 401 READ WITH

482 OF THE CODE OF CRIMINAL PROCEDURE, 1973

The Applicants named above most respectfully beg to submit as under:

1. The applicants before this Honourable Court are original accused Nos. 5
and 6 respectively in CBI Special Case No. XX/XXXX for the offences
punishable under Sections 11, 13 (2) Read with Section 13 (1) (d) of Prevention
of Corruption Act, 1988 R/w. 420 and 120 (B) of Indian Penal Code. The Non-
applicant herein is the Central Bureau of Investigation, which is a premier
investigating Agency of India, operating under the jurisdiction of Ministry of
Personnel, Public Grievances and Pensions, which is a party to present
proceedings through its Head of Branch/D.I.G. Police, Pune, the prosecution in
the present matter.

2. It is most respectfully submitted that the Non-applicant after completing

the investigation in the present Crime has filed a Chargesheet in the matter,
wherein the present Applicants are arrayed as Accused Nos. 5 and 6 therein.
The Applicant No. 2/Accused no. 6 herein is the partner of one M/s. Kumar and
Company, which is a Partnership firm and is into the said business since the
year 1966. The Applicant No. 1/ Accused No. 5 is the employee of the said firm
of the Applicant No. 2/ Accused no. 6. Needless to state that the said firm of the
Applicants has earned great name and fame in its business and it is considered
as one of the leading garment manufacturer and supplier of branded and non-
branded clothing in City of Pune.

3. It is submitted that the it is the case of the prosecution that the Accused
No. 1 to 4, who are Public Servants viz. Accused No. 1- Lt. General Tinder
Ping, the then Commandant of National Defence Academy, Accused No. 2-Col.
Kabir Singh, the then Staff Officer to Commandant, National Defence
Academy, Accused No. 3- Shri O.K. Gambir, the then Senior Accounts Officer,
Defence Accounts Service, Pune and Accused no. 4- Lt. Col. Ramkrishnan, the
then Assistant Quarter Master General, National Defence Academy, Pune,
conspired with the Applicants herein and favoured their firm thereby concluding
a rate contract for supply of various branded clothing items to the cadets of the
National Defence Academy for a period of three years w.e.f. 2011 to 2014.
Accordingly, a CBI Case No. RC PUNE/XXXX/AXXX was got registered by
the Non-Applicant. Annexed herewith and marked as EXHIBIT-A is the copy
of F.I.R. filed in the matter.

4. It is most respectfully submitted that a detailed investigation was carried

out by the Non-Applicant in the said Crime and ultimately a Chargesheet came
to be filed against the Applicants herein and four others and accordingly a
Special Case no. XX/XXXX was registered before the Learned Special Judge,
CBI-ACB, Pune. Annexed herewith and marked as EXHIBIT-B is the copy of
the formal part of the Chargesheet filed in the matter.

5. It is most respectfully submitted that the only allegation attributed to the

present Applicants/Accused Nos. 5 and 6 in the Chargesheet is that the Accused
nos. 1 to 4 i.e. the officials of the National Defense Academy, Pune, during the
period of January 2011 to June 2011 at Pune transpired with the Accused nos. 5
and 6 i.e. the present Applicants at Pune with an object to cheat National
Defense Academy and in pursuance with the object of Criminal Conspiracy,
awarded a contract of supply of branded clothing items to the cadets of National
Defence Academy to the firm of the Applicants and thereby caused wrongful
gain for them.

6. It is the case of the prosecution that the Commandant of the National

Defense Academy, Pune, constituted a Board of Officers (Herein after referred
to as BOO) sometime in 2010 for the purpose of identifying suitable vendors for
supply of branded clothing to the cadets of NDA. The said BOO was supposed
to carry out market survey and after making assessment of their ability to supply
branded clothes, submit recommendation to the Commandant. Accordingly, the
BOO Identified (a) M/s. Desmonds, (b) M/s. O.K. Apparels, (c) M/s. Diyaram’s
(Luxemberg) Axis Fashion, (d) M/s. Athlete (Visionary Sports) and (e) M/s.
Mumbai Dying and recommended for procuring the branded clothing. The
presiding officer of the Board was Lt. Col. W. R. Steady who finally submitted
those recommendation to Col. Admin. The said recommendations were not
accepted citing that the items sought are of miscellaneous nature and it will be
difficult to find out branded Companies for supply of those items. Hence, the
proposal of BOO dt. 23/09/2010 was not considered by Col. Admin.

7. It is the further case of the prosecution that the Accused No. 4 – Lt. Col.
Ramkrishnan joined the National Defense Academy as Assistant Quarter Master
General, National Defense Academy, Pune, and he initiated a fresh note on
31/03/2011 regarding rate contract for supply of branded/ superior quality
clothing item to the cadets to be procured on parent’s expenses. In the said note
dated 31/03/2011, it was mentioned that on 24/01/2011, a preliminary inquiry
was issued to number of firms seeking their willingness for participating in the
tender process and seven firms/ Companies expressed their willingness to
supply branded clothing viz (a) M/s. Desmonds, (b) M/s. S. Kumars, (c) M/s.
Raj Textiles and General Industries Private Limtied, (d) M/s. Diyaram’s, (e)
M/s. Mumbai Dying, (f) M/s. Kapil Enterprises and (g) M/s. Kumar & Co.
(Firm of the Applicants). Subsequently, they were asked to supply the samples.
It is the case of the prosecution that the firm of the Applicants namely M/s.
Kumar and Co. is a tailor located inside the NDA Campus since its inception
and it is neither a manufacturer nor a supplier of branded clothing.

8. It is the further case of the Prosecution that in pursuance of the object of

Criminal Conspiracy, the Accused no. 4- Lt. Col. Ramkrishnan, dishonestly
added the names of three firm/ Company viz. M/s. Raj & General Industries
Private Limited, M/s. Kapil Enterprises and M/s. Kumar & Co., even through
none of them were identified by the BOO as the branded supplies and there was
no open tender floated. It is the further case of prosecution that out of such
seven suppliers, only four filled up tenders namely (a) M/s. Desmonds, (b) M/s.
Raj Textiles and General Industries Private Limited, (c) M/s. Kapil Enterprises
and (d) M/s. Kumar & Co. of which the firm of the Applicants namely M/s.
Kumar & Co. emerged as L-1. Thereafter, the Accused No. 1 namely Lt. Tinder
Ping being the Commandant of NDA and the Competent Authority to accept the
tender, accepted the tender of the firm of the Applicants for the period of year
2011-2014 (3 Years) for an amount of Rs. 6.10 Crores. The tender was accepted
without bothering about the fact that BOO was purposefully constituted to
identify branded vendors for making supplies to the NDA Cadets so that
superior quality of clothing could be provided to them and by accepting the
offer of firm of Applicants, the entire purpose of formation of BOO and its
recommendations were defeated, for which the Accused Nos. 1 and 4 were
directly responsible.

9. It is the case of the prosecution that the Accused No. 3 - Shri O.K.
Gambir, the then Senior Accounts Officer of Principal Director of Audit,
Defense Accounts Service, conducted an audit regarding tenders allotted to the
firm of the Applicant, whereby he raised objections in respect of inclusion of
three parties i.e. (a) M/s. Raj Textiles and General Industries Private Limited,
(b) M/s. Kapil Enterprises and (c) M/s. Kumar & Co. in tender despite the same
were not part of recommended manufacturers for branded items. Further various
objections were raised in respect of the procedural lapses in the said tender
process, which resulted into failure to generate competition and achieve most
economical rates.
10. It is the further case of the prosecution that in pursuance to said
conspiracy in August 2011, the Accused no. 2- Col. Kabir Singh met with
Applicants herein at Tiraki Restaurant, Pune, wherein he introduced Sgt. Rohan
Shah to the Applicants and asked him to make suitable reply for audit
objections with a view to settle the same. According to the case of prosecution,
the preliminary reply to Audit Objection was prepared by Accused no. 4 and
was handed over to one Shri Birendra Arya to handover the same to Accused
no. 3, who was accompanied by Applicants. Further, the Accused No. 3 made
certain corrections in said draft reply through his assistant Shri Y.G. Joshi.
Subsequently, it is alleged that Accused No. 3 along with Shri Y.Z.Doshi met
the Applicants at Coffee Point, Pune. Ultimately on 10/12/2012, the Applicants
submitted their reply that the said work is regimental activity since these
expenses were met by parents of Cadets and not from Government funds.
Accordingly, an Audit Settlement Memo was issued.

11. It is the further case of the prosecution that subsequently, in June 2012,
the Accused No. 2 requested Applicant No. 1 to book five executive rooms in
Nevershine- A Keys Resort, Mahabaleshwar for stay of Accused No. 1 and 2
and their families and accordingly, the Applicant No. 1 booked the rooms for
which he paid Rs. 40,000/-. It is based on such material and allegations, a false
crime was registered against the Applicants and others and subsequently a
Chargesheet was filed against them for the offences punishable under Sections
11, 13 (2) Read with 13 (1) (d) of Prevention of Corruption Act, 1988 R/w. 420
and 120 (b) of Indian Penal Code.

12. Be that as it may as it is apparent from the charge sheet also that there are
only vague allegations against the applicants without any actual proof of their
involvement in the said Crime. The entire crime is registered on the basis of a
cooked up story of the prosecution, which in any manner cannot be
substantiated from documentary proof. In this connection it is worthwhile to
mention here that from bare perusal of the entire charge sheet it is crystal clear
that there is no material in the entire charge sheet to point out the role played by
the applicants, therefore, by any stretch of imagination it cannot be said that the
applicants before this Honourable Court have committed alleged offence and
thus they can’t be prosecuted for the aforesaid alleged offences.

13. The applicants thereafter on 10/01/2019 filed an application seeking

discharge of present applicants. By the said application, it was brought to the
notice of the Learned Special Judge, CBI-ACB, Pune that the firm of the
Applicant No. 2/Accused no. 6 is working with National Defence Academy
since the year 1966 and was the existing contractor at the said relevant time and
as the contract period was coming to an end, they were aware that new tenders
will be called for the following years and after getting the information for the
tender for 2011 to 2014, the Applicants showed their willingness to apply for
the tender on 15/03/2011. Subsequent to which, Tender Enquiry inviting
samples of branded/superior clothing were issued on 11/04/2011 to seven firms,
with a direction to submit samples on 12/05/2011.

14. It was brought to the kind notice of the Learned Trial Court that further
invitation for bids dated 06/06/2011 was issued and accordingly, the documents
for tender were submitted by the Applicants on 21/06/2011 and accordingly,
upon the recommendation by the BOO, Commercial bids were issued to the
Companies/ Firms which participated in tenders and said bids, which said bids
were opened on 21/06/2011 and since the firm of the Applicants quoted lowest
price amongst all bidders, they were recommended by the BOO for price
negotiation. The Applicants thereafter submitted their revised rates on
24/06/2011, after which, the BOO concluded that the rates of the firm of
Applicants are reasonable and thereafter the Contract between National Defence
Academy and the firm of the Applicants was executed on 29/06/2011.

15. It was brought to the notice of the Learned Trial Court that the firm of the
Applicants had complied with all the procedures and directions issued by the
National Defence Academy. Further, the Learned Court was also appraised that
there were certain Audit objections, which were clarified as also the complaints
relating to ill-fitting of clothes were raised, which were also rectified. There was
absolutely no complaint with regards the quality of the cloth used. It was also
appraised that the name of the firm of Applicant was included since the firm of
Applicant was an existing contractor and it had shown its willingness to supply
clothes. It was also brought to the notice of the Learned Trial Court that there
were different Board of Officers at different stages of tender process viz. (a)
The BOO for Market Supply and Selection of Branded Clothing, (b) BOO for
Opening of commercial bids for purchaser of superior quality clothing and
outfit items for cadets, (c) BOO for Price Negotiation for conclusion of rate
Contract and (d) BOO for evaluation and selection of clothing items. As regards
the increase of rate of contract is concerned, it was clarified to the Learned Trial
Court that the same was increased due to requirement of NDA of branded
clothing and not of local made, which said lowest rate quoted by firm of
Applicants was further negotiated and reduced.

16. It was also brought to the kind notice of the Learned Trial Court that there
is no evidence to show on record that the Accused have given any illegal
gratification to any of the BOO and it is the BOO’s only who have issued
Commercial bids and Tender inquiry inviting samples, invitation for bids or
members of final price negotiation team. The BOO only had recommended the
firm of the Applicants, after examining the documents and approving the
samples. Despite this being the position, no BOO is arrayed as accused in the
present Crime. Moreover, there is no evidence on record to show that the
Applicants had approached Accused no. 1 to issue tender contract. Infact, the
Accused no. 1 Commandant had no active role till the tender process was
finalized and he is only approver. Moreover, there is ample material on record
to suggest that there was fair tender process with complete transparency.

17. It is worthwhile to bring to the kind notice of this Honourable Court that
the samples of the firm of the Applicants were selected by the BOO on
12/05/2011 and therefore by any stretch of imagination, it cannot be said that
the Applicants have supplied sub-standard or non-branded clothing to the
National Defence Academy for their cadets. Moreover, it is the BOO who has
recommended that the rates of the firm of the Applicants are reasonable and the
rate contract may be awarded to them after obtaining sanction of the
Commandant. The prosecution without making the said BOO’s as accused have
tried to implicate the Applicants in a false crime.

18. As regards the allegation against the Applicants that they had booked
rooms in hotel for stay of Accused No. 1 and 2 and their families for which they
paid Rs. 40,000/- is concerned, the same does not conclude involvement of
Corruption in the said tender. Even as per the case of the prosecution, the hotel
booking was done in the name of Accused No. 2, who has already been
discharged by the Honourable Court by its order dated 05.12.2018 observing
that he is not part of tender process. It was appraised to the Learned Trial Court
that the contract was executed between NDA and firm of the Applicants on
29/06/2011, however, said rooms were booked by the Applicants on June 2012
i.e. one year after execution of Contract and said amount of Rs. 40,000/- was
thereafter repaid by the said Accused nos. 1 and 2. It was brought to the notice
of the Learned Trial Court that the firm of the Applicants is supplying uniforms
to NDA with punctuality and quality since last more than 60 years and they
have also received various Certificates for their good services and they are
known to various officials of NDA in routine course of business and they have
booked rooms in resort in good faith and their amount is already repaid by said
officials. A room booking made after a period of one year of Contract cannot be
said to be done for obtaining a tender contract. Not only this, it was also brought
to the notice of the Learned Trial Court that the Accused no. 2 was already
discharged by the Learned Trial Court vide its order dated 05/12/2018, thereby
holding that the Accused no. 2 was not part of the conspiracy. Applying similar
yardsticks, if the Accused No. 2, who according to the case of prosecution had
asked the Applicants to book rooms in resort is held not involved in any
conspiracy, the Applicants also need to be discharged in the matter. Annexed
herewith and marked as EXHIBIT-C is the copy of order dated 05/12/2018
passed by the Learned Trial Court, thereby discharging the Accused No. 2 from
the said Crime.

19. As regards the alleged meetings of Applicants with officials of NDA is

concerned, it was brought to the notice of the Learned Trial Court that the
Contract was executed between NDA and firm of the Applicants on 29/06/2011
itself and the said alleged meetings are said to be in August 2011 and one in
2012, which in any manner cannot be said to bear any relevance for the tender
contract as the firm of the Applicants was wayback awarded the tender and
hence the allegation of the officials of NDA having favoured the Applicants,
does not holds any water. It was therefore requested to the Learned Trial Court
to discharge the Applicants from the said Crime as no case is made out against
them as there is no evidence against them for framing charges. Annexed
herewith and marked as EXHIBIT-D is the copy of discharge application filed
by the Applicants. The prosecution also filed its reply to the said application
filed by the Applicants, however, the prosecution did not even attempted to deal
with the grounds raised by the Applicants in their discharge Application and on
the contrary tried to mislead the Learned Trail Court relying upon some oral
irrelevant statements. Annexed herewith and marked as EXHIBIT-E is the
copy of the reply filed by the prosecution to the discharge Application of the
Applicants.

20. During the pendency of the said discharge Application filed by the
Applicants, the Accused No. 4 namely Lt. Col. Ramakrishnan also filed a
discharge Application before the Learned Trial Court. The prosecution also
filed its reply opposing the said Application filed by the Accused No. 4. The
learned Trial Court after perusing the material placed on record passed a
detailed order dated 27/11/2018, thereby allowing the said Application filed by
the Accused No. 4 namely Lt. Col. Ramakrishnan and discharging him from the
said Crime. Annexed herewith and marked as EXHIBIT-F is the copy of order
dated 27/11/2018 passed by the Learned Trial Court.

21. The Learned Court while passing the said order dated 27/11/2018, has
observed that the Accused No. 1 in its application had contended that the letters
of M/s. Raj and General Industries, M/s. Kapil Enterprises, S. Kumar and M/s.
Kumar and Con. were already in file and they were willing to participate in
tender process and therefore he added their names by making note-sheet and
send it for approval to his superiors through proper channel. It is the case of
prosecution that the said Accused only had sent his officials alongwith the
Applicants by drafting reply for the objections to which the Learned Trial Court
held that the same cannot be said to be part of conspiracy.
22. What was expected from the Learned Trial Court was to apply similar
yardsticks while deciding the application of the Applicants for discharge.
However, the Learned Trial Court on absolutely erroneous consideration and
non-application of judicial mind, passed an order dated 01/04/2019, partly
allowed the Application for discharge filed by the Applicants, thereby
discharging the Applicants from the offence punishable under Section 420 of
Indian Penal Code and further ordered for framing of charges against the
Applicants for the offences punishable under Section 120-B of Indian Penal
Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of Prevention of Corruption
Act. Annexed herewith and marked as EXHIBIT-G is the order impugned
dated 01/04/2019.

23. It is worthwhile to state here that the grounds for not discharging the
Applicants from then offences punishable under Section 120-B of Indian Penal
Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of Prevention of Corruption
Act by the Learned Trial Court appears to be the payment of Rs. 40,000/- made
by the Applicants for booking the hotel for Accused nos. 1 and 2, however, fact
remains that the said Accused No. 2- Col. Kabir Singh, who according to the
prosecution had asked the Applicants to book the said rooms for himself and
Accused no. 1, was discharged by the same Learned Trial Court vide its order
dated 05/12/2018. The Application of Applicants for discharge to the extent of
Section 120-B of Indian Penal Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d)
of Prevention of Corruption Act, the Learned Trial Court rejected the same on
the ground of statement of Mr. Ayan that Applicants had managed the Auditor
i.e. Accused No. 3 to resolve the objections taken by him in tender process.
However, while holding so, the Learned Trial Court failed to take into
consideration that there is no cognizant material placed on record by the
prosecution substantiating the said allegation. Needless to state that the
discharge Application of the Applicants to the extent of Section 120-B of Indian
Penal Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of Prevention of
Corruption Act was rejected by the Learned Trial Court only on the basis of oral
statement of one Mr. Ayan, which needless to state is against the settled
principle of law. Therefore, the said order dated 01/04/2019 being against the
settled principles of law and passed on erroneous considerations and non-
application of judicial mind, is assailed by the Applicants by the present
Application on various grounds amongst others:

GROUNDS

a) The Learned Trial Court made a grave mistake by partly allowing the
discharge application of the Applicants, discharging them from the offence
under Section 420 of the Indian Penal Code but disallowing the same for
Section 120-B of the Indian Penal Code R/w. Section 11 and 13 (2) R/w. 13 (1)
(d) of the Prevention of Corruption Act. The order was flawed as it lacked
judicial consideration of the evidence on record. Therefore, the order impugned
to the extent of disallowing the discharge application for Section 120-B of the
Indian Penal Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of the Prevention
of Corruption Act should be quashed and set aside.
b) The Learned Trial Court erred in not considering that the prosecution did not
include the responsible officials in the tender process and selection as accused.
Additionally, different yardsticks were applied to different accused without any
reasonable explanation. This aspect was overlooked in disallowing the
Applicants' application under Section 120-B of the Indian Penal Code R/w.
Section 11 and 13 (2) R/w. 13 (1) (d) of the Prevention of Corruption Act,
necessitating the quashing of the said order.
c) The Learned Trial Court should have acknowledged that two accused
persons, considered to be the main culprits by the prosecution, were already
discharged. Since the Applicants could not have committed the alleged offence
without these accused, their involvement in Section 120-B of the Indian Penal
Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of the Prevention of
Corruption Act is questionable. The Trial Judge's failure to recognize this and
the absence of any evidence against the Applicants led to the erroneous
decision, necessitating the quashing of the order.
d) The Learned Trial Judge neglected to consider that there were no allegations
of illegal gratification or specific evidence against the Applicants. Therefore,
disallowing their application under Section 120-B of the Indian Penal Code
R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of the Prevention of Corruption Act
without proper judicial analysis was incorrect, and the order should be quashed.
e) The Learned Trial Judge erred in not realizing that the charge sheet did not
contain any allegations against the Applicants regarding their firm's bidding
process or charging higher amounts from NDA. This lack of evidence should
have prevented their inclusion as accused. However, the Trial Court's order
disallowing the application under Section 120-B of the Indian Penal Code R/w.
Section 11 and 13 (2) R/w. 13 (1) (d) of the Prevention of Corruption Act was
in disregard of this fact and should be quashed.
f) The Learned Trial Court failed to consider that the ingredients of the offences
were not satisfied based on the charge sheet alone, leading to the incorrect
rejection of the Applicants' discharge application under Section 120-B of the
Indian Penal Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of the Prevention
of Corruption Act, which amounts to an abuse of process of law and should be
quashed.
g) The Learned Trial Court did not apply the principle of "Equality before law"
and used different standards for different accused in the same crime.
Consequently, the order rejecting the Applicants' application under Section 120-
B of the Indian Penal Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of the
Prevention of Corruption Act needs to be quashed.
h) The Learned Trial Court made a significant error in proving charges against
the Applicants without sufficient material. This lack of application of mind
resulted in the rejection of the application under Section 120-B of the Indian
Penal Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of the Prevention of
Corruption Act, warranting its quashing.
i) It is a settled law that evidence considered at the time of discharge must be of
such a character that it could form the basis of conviction if unrefuted. The
Learned Trial Court overlooked this principle and rejected the Applicants'
application without proper evidence under Section 120-B of the Indian Penal
Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of the Prevention of
Corruption Act, necessitating the quashing of the order.
j) The Court must consider substantial evidence at the time of framing charges.
However, the Learned Trial Court failed to do so while rejecting the application
under Section 120-B of the Indian Penal Code R/w. Section 11 and 13 (2) R/w.
13 (1) (d) of the Prevention of Corruption Act, leading to the need for its
quashing.
k) The Learned Trial Court neglected to take into account the provisions and
purpose of Section 227 of the Criminal Procedure Code while rejecting the
Applicants' application. This error resulted in an unjust order regarding Section
120-B of the Indian Penal Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of
the Prevention of Corruption Act, which should be quashed.

24. It is further submitted that thus from the aforesaid facts and grounds, it is
crystal clear that the entire alleged offences are not at all committed by the
Applicants. Therefore the present application is filed to challenge the said
impugned order, rejecting the application for discharge filed by the Applicants
to the extent of Section 120-B of Indian Penal Code R/w. Section 11 and 13 (2)
R/w. 13 (1) (d) of Prevention of Corruption Act by the Learned Trial Court and
the filing of Chargesheet against the present applicants, contrary to the material
placed on record as stated above and the applicants are confident that they will
succeed in the present matter. However, the fact remains that the matter before
the Learned Trial Court is now fixed for evidence and the adjudication of the
present application before this Honourable Court would take its own time and if
during the pendency of the present application the Learned Trial Court
proceeded to record with the evidence in the present matter, the entire purpose
of the applicants in filing the present application to assail filing of chargesheet
and rejecting their discharge Application to the extent of Section 120-B of
Indian Penal Code R/w. Section 11 and 13 (2) R/w. 13 (1) (d) of Prevention of
Corruption Act by the Learned Trial Court in the present proceeding will be
frustrated therefore considering the aforesaid facts and grounds it is requested to
this Honourable Court that the further proceedings before the Learned Trial
Court in Special Case No. XX/XXXX be stayed during the pendency of the
present application, which will not cause any prejudice to the non-applicant and
on the other hand if the interim stay as prayed to the said proceeding is not
granted the same will cause serious prejudices to the applicants before this
Honourable Court, apart from the fact that the same will frustrate the entire
purpose of the applicant of filing the present application. Hence considering the
aforesaid facts and circumstances there is absolutely no legal impediment in
granting stay to the further proceedings of Special Case No. XX/2013 before the
Learned Special Judge, (CBI-ACB), Pune, during the pendency of the present
application. Needless to mention here that applicants are ready to abide by all
the terms and conditions as may be imposed by this Honourable Court.

25. That, in view of the above facts and circumstances, the applicants herein
are left with no other alternative than to approach this Honourable Court
praying for exercising its powers under Section 397 and 401 R/W. Section 482
of Code of Criminal Procedure, thereby discharging them of the said offences
by invoking its Revisional powers under Section 401 of Criminal Procedure and
its inherent powers under section 482 of the Criminal Procedure.

26. The applicant crave leave to add, amend or to modify the Application,
incorporating further grounds of challenge, if required in future.

27. The Applicant submits that they are residents of Pune as per the address
mentioned in the cause title. The Respondent agency is also situated at Pune.
Therefore this Hon’ble Court has jurisdiction to adjudicate upon this
Application.

28. That, the Applicant submits that there has been no delay or laches in
filing the present Application.

29. The Applicant has affixed a fixed Court Fees of Rs. _____/- on this
application.

30. The applicant undertake to file true translations of the annexed documents
as and when directed by this Hon’ble Court and further undertake to remove the
office objections if any arises.

31. That, the applicants herein have not filed any other proceedings before
any other court earlier, relating to the subject matter of the present application,
including the Honourable Apex Court.
PRAYER : It is therefore prayed that the
Honourable Court may kindly be pleased to :
a) Call for record of the Special Case No. 12/1234
pending before the Learned Special Judge, (CBI-
ACB), Pune, now fixed for 26-04-2019, in the
 peculiar facts and circumstances of the case and in the
interest of justice;

b) Peruse the order dated 01/04/2019 passed by the

Learned Special Judge (CBI-ACB), Pune and after
hearing the applicants be further pleased to quash and
set aside the order dated 01/04/2019 to the extent of
Section 120-B of Indian Penal Code R/w. Section 11
and 13 (2) R/w. 13 (1) (d) of Prevention of Corruption
Act and discharge them of said offences, in the
peculiar facts and circumstances of the case and in the
interest of justice;

c) Grant stay to the further proceeding of Special

Case No. XX/XXXX before the Learned Special
Judge, (CBI-ACB), Pune, in the interest of justice;

d) Grant Ad-interim relief in terms of prayer

clause (c);

e) And be further pleased to pass such other order

and grant such other relief as may deem fit and proper
in the peculiar facts and circumstances of the case and
in the interest of justice.
And for which the act of kindness the applicants
shall remain duty bound and ever pray.
MUMBAI
DATED :

(APPLICANT NO.1) (APPLICANT NO.2)

 COUNSEL FOR APPLICANTS

VERIFICATION

I, Mr. Swaran Kumar, aged about 45 years, Adult, Inhabitant, Applicant No.1
abovenamed residing at Flat No 203, Dragon Building, Zion Society, Hanuman
Nagar, Pune – 411014 and on behalf of Applicant No. 2, do hereby solemnly
affirm and say that whatever is stated in the foregoing application from
paragraph 1 to _____is true and correct to my own knowledge and paras ___ to
___ is based on legal advice received which I believe to be true.

Solemnly declared at Mumbai )

This ___Day of April, 2019 )

Applicant No.1

Advocate for Applicants

Before me,