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TMI Blog2018 (3) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... Dokiparu in Guntur District. b) A4Company imported six numbers of autoconers (capital goods) during the year 1996 valuing Rs. 5,91,84,990/- availing 100% Customs Duty Waiver facility as per Notification No.13/81-Customs. While so, on 05.02.2002 it made an application to the Development Commissioner, Visakhapatnam Export Processing Zone, Visakhapatnam seeking permission to destroy two autoconers out of six, stating that the said two autoconers were burnt due to short circuit and not serviceable. Accordingly, on 27.02.2002 the Development Commissioner accorded permission for disposal of two autoconers subject to observance of customs formalities. Then, A4 requested the Deputy Commissioner, Central Excise, Guntur to pass orders for destruction, who in turn passed orders on 24.07.2002 permitting the petitioner/A4 to destruct two autoconers in the presence of Central Excise Officials. c) When the matter stood thus, A1 to A3Excise Officials entered into criminal conspiracy with A4 and in pursuance of the same they went to the premises of A4Company on 25.07.2002 to supervise the destruction of two autoconers, but did not ensure destruction. A1 by abusing his position as a public se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed. 5a) Opposing the petition, learned Special Public prosecutor for CBI would argue that A1 to A3 who are the officials of Central Excise Department, in collusion with A4 and A5 have created documents as if two autoconers have been destructed without there being any factual destruction. On the other hand, A4 and A5 have sold the said two autoconers to M/s.SJSML for Rs. 50 lakhs on 09.10.2003 and those two autoconers were very much found in working condition with M/s.SJSML by Superintendent, Preventive, Central Excise, Guntur, hence they were seized. Since two autoconers were disposed of by A4 and A5 evading customs duty with the conveyance of A1 to A3, who are deputed to witness the physical destruction, which in fact was not done, the prosecution is very much maintainable in view of fraudulent acts committed by the accused. b) Learned Special Public Prosecutor would staunchly further argue that the order of CESTAT dated 13.06.2012 being the order in civil proceedings is not binding in the criminal proceedings. He submitted that for another reason also the order passed by the CESTAT is not binding in the criminal proceedings. Before CESTAT the department argued that in Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yalakshimi Spinning Mills Limited. Further, he imposed penalty of Rs. 25 lakhs on A4 and Rs. 20 lakhs on M/s.Sri Jayalakshimi Spinning Mills Limited and Rs. 20 lakhs on Sri Anil Kumar Agarwal and Abhishek Aggarwal. Against the aforesaid order appeals were preferred by A4 and others before CESTAT, Bangalore. The CESTAT in its order dated 13.06.2017 has set aside the order of the Commissioner as per its findings mentioned in Paras-6 and 7 which, in my view, are germane in this petition and hence extracted thus: Para-6 As it is not in dispute that the machinery was dismantled under the supervision of the Central Excise Range Officers and cleared from the factory as scrap, in our view, it should be considered to be a DTA clearance by the EOU attracting Central Excise duty. It was not the clearance of the capital goods as such from the factory. Therefore the payment of Central Excise Duty by the assessee at the time of clearance of the scrap to M/s.SJSML cannot be faulted. The Department has no case that there can be no penalty on the assessee or co-appellants under the Customs Act in relation to clearance of goods on payment of excise duty under the provisions of the Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit to the effect that agreement to sell was not forged or fabricated is binding in the criminal proceedings. The Apex Court after verifying the previous judgments on the issue, held: Para-19: Thus, in view of the above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice-versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872 dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration. However, in view of the facts peculiar to that case, the Apex Court approved the decision of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 SC 2195, the Apex Court was considering the application of provision of Section 320 Cr.P.C. The factual background was that the appellant and her husband (A4) along with others including the officers of Oriental Bank of Commerce was facing prosecution for the offences under Sections 120B, 420, 468, 461 IPC and also Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. The bank for realization of the amount, initiated parallel civil proceedings before the Debt Recovery Tribunal wherein the appellant and bank entered into settlement, pursuant to which, a sum of Rs. 25.51 lakhs was paid. Thereafter, the appellant filed a petition under Section 320 Cr.P.C. for discharge submitting that in view of the settlement arrived at by the parties and payment of the amount, no criminal proceedings can be continued. The CBI opposed the petition contending that mere payment of the loan to the bank would not exonerate the appellant from criminal proceedings. The Special Court dismissed the application of the appellant. The matter was carried in revision to the High court and it was dismissed. Then, the appellant went to the Apex Court, which observed thus: Para-18: It is now a well s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a civil dispute with certain criminal facets and also considering the compromise arrived at between the Company and the Bank and observing that continuation of the criminal proceedings in view of compromise arrived at by the parties would be a futile exercise, allowed to quash the proceedings. However, in Rumi Dhars case (4 supra) the Apex Court did not incline to follow the said decision and observed thus: Para-23: The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstance of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing charge. 16) In Sh.Vishnu Dutt Sharma vs. Smt. Daya Sapra (2009) 13 SCC 729 observing that acquittal of the accused in a criminal prosecution under Section 138 of Negotiable Instru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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