1991 (7) TMI 78 - HC - Customs

Summary

Issues Involved:
1. Legitimacy of the refund claim by M/s. B. Sorabjee.
2. Fraudulent activities by Kumar Shah.
3. Complicity of court staff and Advocate Mr. Kantawala.
4. Judicial process abuse and necessary actions against Kumar Shah.
5. Court's procedural recommendations.

Detailed Analysis:

1. Legitimacy of the refund claim by M/s. B. Sorabjee:
The appeal was filed by the Union of India and the Customs authorities against the order directing the refund of Rs. 28,609.05 to M/s. B. Sorabjee. It was discovered that the refund claim was not legitimately made by M/s. B. Sorabjee. Malcolm M. Mowdawala, a partner of M/s. B. Sorabjee, denied filing the writ petition for the refund and stated no refund was received by him. The court concluded that M/s. B. Sorabjee had not claimed the refund through the writ petition, leading to the setting aside of the order under appeal.

2. Fraudulent activities by Kumar Shah:
Kumar Shah admitted to filing the writ petition in the name of M/s. B. Sorabjee and receiving the refund amount of Rs. 28,609.05. He used false information, forged signatures, and manipulated court documents to secure the refund. Shah opened a bank account in the name of M/s. B. Sorabjee to encash the refund cheque and subsequently withdrew the amount. He substituted Exhibit E in the copy of the writ petition submitted to the Customs authorities to claim a higher refund amount of Rs. 14,83,730.22 against 106 bills of entry.

3. Complicity of court staff and Advocate Mr. Kantawala:
Kumar Shah implicated Advocate Mr. Kantawala and court staff in the fraudulent activities. Shah claimed that Mr. Kantawala helped him obtain the original writ petition from the court's record and facilitated the substitution of exhibits. The court noted the involvement of court staff and directed an investigation to identify and proceed against the complicit members.

4. Judicial process abuse and necessary actions against Kumar Shah:
The court recognized the abuse of judicial process by Kumar Shah, who arranged the import and sale of goods using M/s. B. Sorabjee's license. Shah's actions included forging signatures and falsely verifying the writ petition. The court directed the Prothonotary and Senior Master to issue notices to Kumar Shah to show cause why he should not be prosecuted under Sections 191, 209, 210, and 468 read with 471 of the Indian Penal Code and for contempt of court.

5. Court's procedural recommendations:
The court emphasized the need for decrees and orders to explicitly state the amounts decreed or ordered to be paid to prevent manipulation of court records. The court expressed concern over the security of its records and directed an investigation into the involvement of court staff in the fraudulent activities. The court also indicated that further action against Mr. Kantawala would be considered after reviewing the investigation report.

Conclusion:
The appeal resulted in the setting aside of the order directing the refund to M/s. B. Sorabjee due to fraudulent activities by Kumar Shah. The court ordered an investigation into the complicity of court staff and Advocate Mr. Kantawala and directed the issuance of show-cause notices to Kumar Shah for prosecution and contempt. The court also recommended procedural changes to safeguard the integrity of judicial records.