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2017 (12) TMI 1445 - GUJARAT HIGH COURTHawala transactions - Offence alleged under Sections 420, 465, 467, 468, 471, 477A, 120B of Indian Penal Code 1860 - maintainability of appeal - alternative remedy of appeal - Held that: - the preliminary objection of the respondent has no merits and the petitioner has rightly invoked statutory remedy under Section 397 read with 401 of Cr.P.C., rather than invoking inherent jurisdiction - there is no hesitation in holding that it is not only within the jurisdiction, but is an obligation of this Court to look into as to whether the taking of cognizance and issuance of process was mechanical without there being any prima facie case for bringing home the charge of the offences alleged against the petitioner. The allegations in the case concern hawala, total amount of which as alleged now is likely to be more than ₹ 5000 crores. Bogus bill of entry is the genus of the scam. Total 861 Bills of Entry were under scrutiny by Custom Department, out of which at least 454 bill of entries have been found to be bogus amounting to ₹ 2846 crores - The petitioner is neither director nor any authorized person for any of these seven companies, and there is neither any allegation that any of these companies were formed and controlled by the petitioner, nor that the bank accounts of any of these companies were managed by the petitioner. Neither there is any allegation or material to show that the petitioner was fraudulently sending abroad his undisclosed income by the alleged modus operandi, nor is there any iota of allegation or material to show that he was receiving cash from any person whatsoever to fraudulently send the same abroad i.e. for hawala to earn any commission. In absence of any such tangible material, there is no strong and reasonable basis for such degree of suspicion, that the petitioner may have received commission towards the hawala scam, which can be considered sufficient for proceeding against the petitioner and subjecting him to rigours of trial. I am satisfied that there is no prima facie material against him. The trial Court has committed manifest error in taking cognizance and issuing process against the petitioner for proceedings against him for the alleged offence vide the impugned order, when there is no prima facie material sufficient to proceed against him - petition allowed.
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