2023 (1) TMI 1360 - HC - Customs

Application for discharge under Section 245(2) of Cr.P.C. - learned Magistrate dismissed the application for discharge stating that the various contentions raised by the petitioners-accused can be considered after full-fledged trial, and the same was confirmed by the learned Sessions Judge - HELD THAT - At para 4 of the complaint lodged by the respondent, it is alleged that the petitioners accused by making use of the fabricated purchase orders have availed the benefits under the Notification No. 21/2002-Cus dated 1.03.2002. However, along with the complaint, the respondent has not placed any material to substantiate the allegations that the petitioners accused by making use of the fabricated purchase orders availed the benefit under the said notification. More so in the backdrop that the alleged fabricated documents were seized from the office of the accused, which implies that, the said documents were not made use of for claiming the benefits. Hence, in the absence of any material the cognizance taken by the learned Magistrate is impermissible. The continuation of the criminal proceedings against the petitioners-accused will be an abuse of process of law, since the probability of the conviction of the petitioners-accused is remote and bleak. The impugned proceedings on the file of The Special Court for Economic Offences, Bengaluru, is hereby quashed - Criminal petition is allowed.

Summary

Issues:
- Dismissal of application for discharge under Section 245(2) of Cr.P.C.
- Allegations of possession of fabricated purchase orders and claiming benefits under Customs Act.
- Consideration of essential ingredients for the offence under Section 132 of the Customs Act.
- Lack of material to substantiate allegations of availing benefits under a specific notification.
- Abuse of process of law and probability of conviction.

Analysis:
The judgment addressed the dismissal of the application for discharge under Section 245(2) of Cr.P.C. by the learned Magistrate, which was confirmed by the Sessions Judge. The petitioners-accused had filed the application for discharge, contending that the allegations of possession of fabricated purchase orders did not constitute the offence under Section 132 of the Customs Act as they had not used these orders to claim benefits under the Customs Act or related notifications. The counsel for the petitioners argued that the cognizance taken without essential ingredients for the offence was unsubstantiated.

The respondent-complainant, on the other hand, argued that the petitioners-accused, by fabricating purchase orders, had committed the offence under Section 132 of the Customs Act. The respondent contended that whether benefits were availed by using these fabricated orders needed to be determined in a full-fledged trial. The court scrutinized the submissions made by both counsels and examined the complaint's contents.

The court noted that the complaint alleged that the petitioners-accused had availed benefits under a specific notification by using fabricated purchase orders. However, no material was provided to support this claim. The court emphasized that the seized fabricated documents were not used for claiming benefits, indicating a lack of substantiation for the allegations. Consequently, the court deemed the cognizance taken by the learned Magistrate impermissible due to the absence of material evidence.

In light of the analysis, the court concluded that continuing the criminal proceedings against the petitioners-accused would amount to an abuse of the legal process. The court observed that the likelihood of convicting the petitioners-accused was remote and improbable. Consequently, the court allowed the criminal petition and quashed the impugned proceedings in the Special Court for Economic Offences, Bengaluru, in the specified case number.