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2016 (5) TMI 1343 - HC - CustomsFraudulent availment of benefit under Duty Entitlement Pass Book Scheme - forgery of signature in DEPB - The allegation against the petitioner Pavitar Singh is that he was Accountant and that Satbir Singh was his employee and that a fake firm was floated in the name of his employee Satbir Singh and that he was involved in preparation of the forged DEPB which is transferable and can be used for setting off against the customs duty. Held that - offence u/s 132 of the Act pertains to false declaration and false documents in the transactions of the business relating to customs and Section 135 of the Acts relates to evasion of customs duty - In the CBI case against Gurkirpal Singh, allegations u/s 420, 467, 468 and 471 IPC were also levelled alleging that he has done cheating by evading customs duty to the extent of ₹ 1.85 crores and has prepared forged documents. Therefore, charges are substantially same for which accused Gurkirpal has already tried, convicted and sentenced. Therefore, present complaint against Gurkirpal is hit by the principles of double jeopardy and is liable to be quashed. CBI recorded statements of some of the witnesses under Section 108 of the Act which are admissible in evidence. Therefore, it is not possible to pre-judge the case before the trial. The complaint was previously filed at Amritsar Court. It was returned and after one year, it was filed at Jalandhar Court. Let the petitioner Pavitar Singh take a plea regarding bar of limitation for offence under Section 132 of the Act and let the lower Court decide the same. In the quashing petition, it is not possible to critically appreciate evidence, which is yet to be produced before learned Chief Judicial Magistrate, Jalandhar. Petition dismissed - decided against petitioner.
Issues Involved:
1. Quashing of the criminal complaint under Sections 132 and 135 of the Customs Act, 1962. 2. Jurisdiction of the court. 3. Double jeopardy concerning the accused Gurkirpal Singh. 4. Limitation period for prosecution under Section 132 of the Customs Act, 1962. Detailed Analysis: 1. Quashing of the Criminal Complaint: The petitioners sought to quash the criminal complaint filed under Sections 132 and 135 of the Customs Act, 1962, which was pending in the Court of the Chief Judicial Magistrate, Jalandhar. The complaint involved allegations of evading customs duty amounting to ?1.85 crores through fraudulent means. The investigation revealed that M/s. Megna Impex, a proprietorship concern, was used to fraudulently avail benefits under the Duty Entitlement Pass Book (DEPB) scheme by forging export documents. Various individuals, including Gurkirpal Singh, Ashok Kumar, Pavitar Singh, Vijay Madan, and Satbir Singh, were implicated in the fraudulent activities. Statements recorded under Section 108 of the Customs Act indicated their involvement in the forgery and submission of false export documents to obtain DEPB licenses. 2. Jurisdiction of the Court: Initially, the complaint was filed before the Chief Judicial Magistrate, Amritsar, who returned it due to lack of jurisdiction, suggesting it be presented before the Chief Judicial Magistrate, Jalandhar or Ludhiana. Subsequently, the complaint was re-filed in Jalandhar, where the summoning order was issued. The petitioners contended that the complaint should not have been returned and that the summoning order was improperly based on the previous order from Amritsar. 3. Double Jeopardy Concerning Gurkirpal Singh: The accused, Gurkirpal Singh, raised the plea of double jeopardy, asserting that he had already been tried, convicted, and sentenced by the Special Judge, CBI, Punjab, Patiala, under Sections 120B IPC read with Sections 420, 467, 468, 471 IPC, and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. The principle of double jeopardy, enshrined in Article 20(2) of the Constitution of India and Section 300 of the Code of Criminal Procedure, prohibits a person from being prosecuted and punished for the same offence more than once. The court noted that the allegations in the CBI case and the Customs complaint were substantially the same, involving the evasion of customs duty and the use of forged documents. Therefore, the complaint against Gurkirpal Singh was quashed based on the principle of double jeopardy. 4. Limitation Period for Prosecution under Section 132 of the Customs Act: The petitioner, Pavitar Singh, argued that the prosecution under Section 132 of the Customs Act was barred by limitation under Section 468 of the Code of Criminal Procedure, as the maximum sentence for this offence is two years. However, the court observed that the sentence under Section 135 of the Customs Act could extend to seven years. The court directed that the issue of limitation be decided by the lower court during the trial, as it was not possible to critically appreciate the evidence at the stage of the quashing petition. Conclusion: The court dismissed the petition filed by Pavitar Singh, finding no grounds to quash the complaint against him. However, the petition filed by Gurkirpal Singh was allowed, and the criminal complaint against him was quashed based on the principles of double jeopardy. The court emphasized that the lower court should decide the issue of limitation for the offence under Section 132 of the Customs Act during the trial.
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