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TMI Blog2016 (10) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... y common judgment. The advocates have also addressed only one set of arguments for all the three petitions and practically adopted the arguments advanced in first petition for remaining two petitions. Therefore, the discussion is also recorded in one set only to avoid duplication of work and repetition of same facts separately in three separate judgments. 4. It is also evident from records that practically impugned order is also common in all these three revision petitions, being order dated 20th January,2010, below an application for discharging the petitioner accused from the charges leveled against them. 5. The sum and substance of the case against the petitioners are to the effect that petitioners being a public limited Company incorporated under the Companies Act, 1956 namely Welspun Gujarat Sthal Public Limited which name is changed to Welspun Corporation Limited (hereinafter referred to as the "Company") has filed an application for exemption, pursuant to the notification dated 31st July, 2001 by the Central Government offering exemption from the excise duty to certain units under specific terms and conditions. It is undisputed fact that said factory has its units at Anjar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the investigation by CBI, the F.I.R and charge-sheet runs into pages, disclosing several irregularities and illegal activities alleged to have been committed by the petitioner Company and petitioner/persons. There are several communications from some of the officers and Chartered Accountants disclosing the compliance and certain terms and conditions of the notification under reference. But, mainly it was found that the contents of such communication are not correct. 8. Amongst the accused, the Managing Director of the Company namely B.K. Goenka had come forward and discussed the dispute with the department of Customs and Excise conveying that it was a bonafide error or mistake on their part and therefore he would like to settle the dispute with the department. It cannot be ignored that the basic ingredient of such settlement is the fact that practically Company has never received any exemption from payment of tax, may be because of the fact that the documents were not in order. But, the fact remains that there was no financial benefit to the Company and nor to any of its office bearers or officers in any manner whatsoever. It is also undisputed fact that otherwise also the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence subject to the payment of Rs. 50,000/- by each of the applicant before it and that such amount is deposited by the concerned petitioners; there is no reason to proceed further in criminal trial when the department is not going to come and prove that the petitioner Company and persons have obtained any illegal and undue advantage from them. Though the legal position is well settled on such issue and thereby though there is no need to continue the trial any further when CBI has filed a charge-sheet, initially the Managing Director of the petitioner Company Shri Balakrishna Gopiram Goenka (B.K.Goenka) has challenged the proceeding in a quashing petition being Special Criminal Application No. 2543/2012, such petition was resisted by the State and CBI. The copy of judgment in such petition, dated 10th April,2015, is on record at Annexure P-20; perusal of which makes it clear that the Coordinate Bench has not only quashed and set aside the FIR qua the petitioner before it namely B.K. Goenka but has categorically observed that the purpose of compounding of offence against the payment of compounding amount is to prevent litigation and encourage early settlement of dispute as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of IPC for the same allegations cannot be permitted. There cannot be two different prosecutions for the same incident and petitioner cannot be prosecuted twice for the same offence even in different proceedings 13. In the case of Rajesh Kumar Sharma v. Union of India & Ors., reported in (2007) 9 SCC 158, The Hon'ble Supreme Court, in para 6, observed as under: "6. The guidelines for compounding are contained in the Circular No. 54/2005-Cus dated 30th December, 2005.Central Government had brought in to force the Customs ( Compounding of Offences) Rules 2005 (in- short the Custom Rules') and Central Excise (Compounding of Offences ) Rules 2005) (in short the 'Central Excise Rules') with effect from 30th December, 2005. the purpose of compounding the offences against payment of compounding amount is to prevent litigation and encourage early settlement of diputes. The cases where compounding would be rejected are also spelt out in the said circular." 14. In the case of Hira Lal Hari Lal Bhagwati v. CBI, New Delhi, reported in (2003) 5 SCC 257, The Hon'ble Supreme Court, in paras 29 and 30, observed as under: "29.In our view, in the present case, the alleged criminal l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences under Section 120B read with section 420 of the Indian Penal Code are made out. 30.In our view, under the penal law, there is no concept of vicarious liability unless the said statute covers the same within its ambit. In the instant case, the said law which prevails in the field I.e. the Customs Act,1962 the appellants have been therein under wholly discharged and the GCS granted immunity from prosecution. It is well established principle of law that the matter which has been adjudicated and settled need not to be dragged into the criminal courts unless and until the act of the appellants could have been described as culpable. The true fact and import of the Kar Vivad Samadhan Scheme, 1998, in our view, is that once the said Scheme is availed of and all the formalities complied with including the payment of the duty, the immunity granted under the provisions of the Customs Act,1962 also extends to such offences that may prima facie be made out on identical allegations i.e. of evasion of Customs Duty and violation of any Notification issued under the said Act." 15. In view of the aforesaid decisions, the learned Senior Counsel is right in submitting that in the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability." (emphasis in original) It was then concluded: (SCC p. 345, para 39) "39. (I) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction." 20. Insofar as the criminal complaint is concerned, it does not contain any allegation against G.N. Verma. The only statement concerning him is that he was the Chief General Manager/deemed agent of the mine and was exercising supervision, management and control of the mine and in that capacity was bound to see that all mining operations were conducted in accordance with the Act, the Rules, Regulations, Orders made thereunder. In the face of such a general statement, which does not contain any allegation, specific or otherwise, it is difficult to hold that the Chief Judicial Magistrate rightly took cognizance of the complaint and issued summons to G.N. Verma. The law laid down by this Court in Harmeet Singh Paintal (though in another context) would be squarely applicable. Under the circumstances, we are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department. The reliance placed by learned advocate Shri Kodekar on the statement of Shri Kuttan Mohanan Pillai is also misconceived in view of the fact that the said person is coaccused in the chargesheet which is filed against the Company and its officers. In the statement given by the said co-accused, no specific allegations are made by the said coaccused against the petitioner. 20. In view of the aforesaid discussion, when it is prima facie proved that the petitioner has not wrongfully gained anything and/or any wrongful loss is caused to the Department and the Company and its officers including the petitioners have been granted immunity, in the opinion of this Court, there is no need to continue with the criminal prosecution against the present petitioners. Moreover, neither in the FIR nor in the charge-sheet any specific allegations are leveled against the petitioners that they have forged any document. Even otherwise, looking to the impugned FIR and from the papers of chargesheet, the ingredients of the alleged offence are prima facie not made out. 21. Thus, in view of the aforesaid discussion, the impugned FIR being RC20(A)/2008 - GNR and all proceedings initiated pursua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HER wherein Hon'ble Supreme Court has considered the revisional powers of the Court under Section 397(2) with reference to interlocutory order and held that when there is specific remedy provided by way of appeal or revision, inherent powers under section 482 cannot and should not be resorted to. Therefore, when the present petitions are not under Section 482 of the Code for quashing the complainant but under Section 397 the Court has to verify the irregularity and illegality if any in the impugned order. Hence, this judgment would not help the respondent. 25. In support of such conclusion, reference to certain judgments of the Apex Court are necessary, which are as under:- 1. AIR 1997 SC 2041 between State of Maharashtra Vs. Priya Sharan Maharaj - It is held that at the stage of framing the charge, the Court has to consider the material only with a view to find out that whether there is ground for presuming that accused has committed an offence or that there is no sufficient ground for proceeding against him and not to arrive at the conclusion that whether it is not likely to lead to a conviction or not. 2. AIR 2000 SC 665 = (2000)2 SCC 57 between State of MP Vs. S.B. Johari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out that whether there is any ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction 5. AIR 2007 SC 2149 = 2007 AIR SCW 3683 - Soma Chakravarty v. State - It is held that before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. 6. AIR 2012 SC 1890 - General Officer Commanding Vs.CBI - It is held that the cognizance has to be taken of the offence and not of the offender and that it is the duty of the investigating agency to collect and to produce cogent evidence against the accused for framing charge and Court can convict the accused only if such charges i.e. evidence is proved on record without reasonable doubt. Therefore, if there is no chance to prove a commission of offence by the accused, charge cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused, there cannot be a presumption against the accused that he had committed the offence and he may be entitled to get discharged from the charges levied against him under the charge sheet. Needless to say that the charges levied against the person is to be considered and not the story or history of incident which results into the commission of offence. For more clarity, commission of offence alone is not sufficient to frame charge against any person, there must be some suspicion that offence had been committed by the said person and not by any other person. If the suspicion is to the effect that though offence has been committed, probably accused might have not committed such offence but real offender may be someone else, Court has to see that truth comes out whereby the Investigating Agency may not be permitted to put their hands down merely by filing charge sheet against any one including any innocent person. In such cases, trial cannot be allowed to continue only upon opinion of the investigating agency that accused had committed the offence as alleged in charge sheet. The Court has to arrive at independent opinion, after considering the available prima facie evidenced on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and directions of the Company through its chairman and Managing Director and when Chairman has been relieved from the charges on compounding the offences so also the Company, it cannot be said that its officers can separately prosecuted. At the most department or investigating agency may ask for penalty in the form of compounding charges from all the accused. 29. It is undisputed fact that Central Excise Act and Rules provides for compounding the offences so also section 320 of Cr.PC. It is also undisputed fact that once main offence is compounded then there is catana of judgments by Supreme Court that when the department has compounded the offences then there is no reason to continue the criminal proceedings, more particularly when offences are either in the form of breach of rules or technical offences. In the present case, though some documents are alleged to be forged practically there is no forgery of any documents. It is submitted by the petitioners that, in fact an advance appreciation of work by the Company as per project report happens as per fixed schedule was disclosed. However for one reason or another if such time schedule could not be adhered to either during in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and the accused if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused after recording reasons for doing so. (4) (1997) 4 SCC 393 = 1997 AIR SCW 1833: State of Maharashtra vs. Priya Sharan Maharaj - Referring to the case of Niranjan Singh Karam Singh Punjabi (supra) held that at the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth and even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out that whether there is any ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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