9911796707
TMI Blog2005 (10) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... ments was the letter dated 08.09.1994 of 1st accused, the present petitioner, who is the publisher of a magazine called "TAMIlARASI", which was commenced in the year 1992. The 1st accused is also the author of bi-monthly magazine "PUDIYA PARVAI", which was commenced in the year 1993. One Baskaran (2nd accused) was assisting the petitioner/1st accused, and he was also in-charge of the said publications. Allegation of criminal conspiracy among the above said four accused in getting customs clearance for the importing of Toyota car, under the condition of transfer of residence to India for permanent settlement, was made on the footing that they produced forged fabricated invoice dated 13.07.1993 showing undervalue of the car and also wrongly mentioning that the car was purchased in the year 1993, so as to fulfil the condition precedent for importing the said car. 3. There was also a letter said to have been given by the petitioner/1st accused, on the basis of which 'Foreign Inward Remittance certificate" (FIRC) was obtained by Accused Nos.1 to 4, with the connivance of 5th accused, the Manager of the bank, and also some other customs officials regarding whom prosecution was not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h respect to the discharge; against which, the petitioner preferred this Revision Case, besides, subsequently filing Crl.O.P.No.21636 of 2005 for quashing. Simultaneously, on 02.05.2005, 1st accused filed W.P.215 of 2005, on the file of Supreme Court, wherein a direction was issued on 13.05.2005 for early disposal of this Revision Case as well as the direction to 1st accused to move for stay, before the High Court. On such direction, in Crl.M.P.No.3565/2005, this Court dismissed the stay petition filed by 1st accused, on 24.05.2005. Thus, the Revision Case and the Crl. O.P. were filed. 5. The contention of the learned counsel for the petitioner is three fold; (1) petitioner has no role with respect to the production of documents for clearance of the car; (2) the concept that while framing charges, materials found in documents under section 173 of the Criminal Procedure Code alone are to be looked into, is erroneous, in view of the observation made by the Supreme Court in Sushila Rani v. CIT [2002]253ITR775(SC) and CBI v. Dunkans Agro Industries Ltd., Calcutta 1996CriLJ3501 ; (3) under section 239 of the Criminal Procedure Code, accused shall be given an opportunity of being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dischargeable points are available on the side of the petitioner, remedy in the appropriate proceedings may be given, and if such remedy is not available in either of the cases, then both have to be dismissed. 8. The learned Public Prosecutor immediately cited the decision of the Supreme Court in State of Orissa v. Debendra Nath Padhi 2004 (8) Supreme 568 which overruled the decision in the case of Sushila Rani and Dunkans Agro Industries Ltd. stated supra. 9. After referring to various case laws including the above cited cases, it was decided in the above cited decision in Devendranath Padhi's case that at the stage of framing of charge, material as produced by the prosecution alone is to be considered and not the one produced by the accused. In that case, it was contended on behalf of the State that the contention made in Satish Mehra v. Delhi Administration and another, (1996)9SCC766 , runs counter to the views expressed by this Court, in large number of decisions, which amounts to upsetting well settled legal propositions and making nugatory amendments made in Code of Criminal Procedure from time to time and would result in conducting a mini trial at the stage of framing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge from the prosecution. In case it could not form any basis for discharge or quash, then however unimpeachable it be, no useful purpose would thereby flow to petitioner. 11. Before ever testifying the utility of KVSS Scheme in favour of petitioner, the chance of statutory exclusion under section 95 of the Act shall have to be dealt with. Section 95 of the said Act provides exclusion of the provisions of the Scheme to certain categories and 95(iii) provides that the provisions of such Scheme do not apply to any person in respect of whom prosecution for any offence punishable under Chapter IX or Chapter XVII of the Indian Penal Code, the Foreign Exchange Regulation Act, 1973. the Prevention of Corruption Act, 1988, or for the purpose of enforcement of any civil liability has been instituted on or before the filing of the declaration. 12. Learned counsel for the petitioner further submitted that this exception clause may not be applicable against the petitioner, because no prosecution was instituted before filing of the declaration by 3rd accused which was done in this case on 18.01.1999; as first information report in this case was registered on 22.04.1998; charge sheet was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of first information report made, amounts to institution of prosecution. 16. What is institution of prosecution, as held in Assistant Collector of Customs, Bombay .v. L.R. Meclwani 1970CriLJ885 is as follows: "Prosecution would mean an initiation or starting of proceeding of criminal nature in a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure". 17. It has been held in Balkishan .v. State of Maharashtra 1980CriLJ1424 that the mode of initiating prosecution by submitting a report under section 173 read with clause (b) of 190 of the Code is not, therefore, available to an officer of the Railway Protection Force, etc. The only mode of initiating prosecution of the person against whom he has successfully completed the inquiry, is by making a complaint under Section 190(1)(a) of CrPC to the Magistrate empowered to try the offence. 18. The learned counsel also relied upon section 154 CrPC and other connected provisions under Chapter XII of the said Code. Those provisions deal only with the investigation by the concerned police officer. Even under section 170 CrPC, if, upon an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable to the present facts of the case. Therefore, the utility point of the KVSS Scheme can be gone into, so that it can be found that the said Scheme can be successfully relied on or cannot be done so by the petitioner for the purpose of quashing or discharging. 20. After having made it clear that there is no statutory exclusion under section 95 of the Act and that section 95 of the Scheme is not going to act against the petitioner in excluding him from availing the benefits of the Scheme, then it was argued that as per section 91 of the said Act, there is immunity of prosecution available in favour of the petitioner. It was further contended by the learned counsel for the petitioner that if this material of "KVSS" in the final settlement arrived at between the parties was taken into consideration, then there shall be a discharge. 21. Learned counsel for the petitioner has drawn my attention to various provisions of the Finance Act 2 of 1998 and the "KVSS" framed thereunder. That scheme was dealt with in Chapter IV of the said Act and sections 88, 90 and 91 of the said Act are to be looked into. Section 88, provides settlement of tax payable and according to which, where any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 by alleging that the appellants, in conspiracy with the Director of Gujarat Cancer and Research Institute (GCRI) had cheated the Government of India in evasion of customs duty. A charge sheet was prepared for the commission of offence under section 120-B read with 420 IPC. Upon the charge sheet, cognizance was taken and summons were issued. Appellants were furnished copies of the charge sheet. In the meantime, they preferred special criminal application before the High Court of Gujarat, seeking quashing of first information report. Appellants also filed an application under section 482 Cr.P.C. read with Article 227 of the Constitution of India seeking an appropriate direction, quashing the first information report. Learned single Judge of the High Court of Delhi, dismissed the said petition. Hence, two appeals were preferred by way of special leave petitions. 25. It was argued that by theory of estoppel, by having accepted the claim of appellants on the basis of KVSS, it is not permissible for the respondents now to turn around and take a different stand in prosecuting them. It was further argued that the complaint filed against the appellants is unsustainable and that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been quashed with immediate effect". 29. To my notice, the following further observation made in that case was also drawn:- "The learned single Judge has not appreciated the fact that the continuance of the proceedings in the instant case would only tantamount to driving the appellants to double jeopardy when they had been honourably exonerated by the Collector of Customs and the GCS of which one of the appellants was granted amnesty under KVSS, 1998". 30. It was further pointed out in para 30 of the said judgment, which runs as follows:- "...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". That is why in para 31 of the said judgment, it was held that there was no prima facie case made out in respect of the alleged offence under section 120-B read with 420 IPC and therefore, the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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". 34. Thus the law is well settled that under section 482 CrPC, the express legal bar engrafted either in the Code or in the concerned Act, providing efficacious redress for the grievance of the aggrieved party is available, then an order under section 482 CrPC can be well founded upon that legal bar. Thus the legal bar and the constituent element that gives rise to such bar can be looked into not as of evidence on the side of defence but as a bone of contention of the representation made by the accused and which representation was made by availing an opportunity of being heard, as provided under section 239 CrPC itself. Thus not exactly the evidence on the side of the accused need be looked into but the forensic exigencies and formidable compulsions and the legally translatable material relevant to the issue have to be considered and refusal to consider the same may amount to miscarriage of justice and in fact, there is a legal command to consider those aspects. It is therefore the "KVSS" can be looked into and if it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. That is also in respect of matters covered under the declaration under section 88. 38. Thus, it is clear that the immunity is only to offence under enactment of direct or indirect tax or "any of such enactment"; thereby meaning that the enactment shall be relating to tax. Thus, the immunity is only against offences found in the enactment of taxation. Immunity does not extend to offences under IPC, which is not "such enactment" as covered under section 91; that being not an enactment under taxation. Thus, even in respect of matters covered under in the declaration under section 88, there cannot be an immunity from offences excepting that are mentioned in the tax enactment. Section 87(h) of KVSS, 1998 defines "direct tax enactment" which reads as follows:- "87(h) "direct tax enactment" means the Wealth Tax Act, 1957 (27 of 1957) or the Gift Tax Act, 1958 (18 or 1958) or the Income Tax Act, 1961 (43 of 1961) or the Interest Tax Act, 1974 (45 of 1974) or the Expenditure Tax Act, 1987 (35 of 1987)". Section 87(j) of KVSS, 1998 defines "indirect tax enactment", which reads as follows: "87(j) "indirect tax enactment" means the Customs Act,1962 (52 of 1962) or the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the appellants is unsustainable.... In the instant case, under the said law which prevails in the field i.e. the Customs Act, 1962 the appellants have been wholly discharged and GCS granted immunity from prosecution. It is a well established principle of law that the matter which has been adjudicated and settled need not be dragged into criminal courts unless and until the act of the appellants could have been described as culpable. The true fact and import of KVSS,1998 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. In the present case, there is no prima facie case made out in respect of the alleged offence under Section 120-B read with Section 420 IPC and, therefore, the charge sheet and the process issued thereunder has to be quashed. To bring home the charge of conspiracy within the ambit of Section 120-B IPC, it is necessary to establish that there was an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot so. This is evident from the following Police Report under section 173 CrPC. "During the year 1994 A1 to A5 and approver Smt. R. Bhavani, in the aforesaid capacities, conspired at Chennai and other places to cheat the Government of India and to commit act of criminal misconduct and in furtherance of the said criminal conspiracy A1 and A2 fraudulently and dishonestly, fabricated documents for the purpose of clearing the imported Lexus Car which was imported by A3 and A4, fraudulently and dishonestly, in order to take advantage of the Transfer of Residence provision and pay less customs duty, knowing very well that the said car was manufactured in the year 1994, misdeclared the same as if it was manufactured in the year 1993 and in pursuance of the said conspiracy Smt. Sujarith Sundarrajan, A5, misused and abused her official position or by illegal means, as Branch Manager, Indian Bank, Abhiramapuram, Chennai issued a Foreign Inward Remittance Certificate to the effect that the Lexus Car which was imported would be released by the Customs Department on the basis of same, knowing very well that the Current Account No.872 of M/s. Tamilarasi Publications did not receive any foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in order to take advantage of the Transfer of Residence provision and pay less customs duty, knowing very well that the said car was manufactured in the year 1994, misdeclared the same as if it was manufactured in the year 1993 and in pursuance of the said conspiracy Smt. Sujaritha Sundarrajan, A5, misused and abused her official position or by illegal means, as Branch Manager, Indian Bank, Abhiramapuram, Chennai issued a Foreign Inward Remittance Certificate to the effect that the Lexus Car which was imported would be released by the customs and thereby caused a wrongful loss of ₹ 1,06,20,472/- and corresponding wrongful gain to themselves". 45. The contents of declaration under section 88 may be found in the columns of statutory Form-1B, wherein, besides name, status and address of the declarant, the other substantive particulars required are the Commissionerate of Central Excise/Customs where assessed or from where a show cause/demand notice issued regarding tax arrears, the reference number of the same along with description of seizure of goods and the pendency of the departmental appeal and other remarks; with the amount of tax arrears and the balance amount payable as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter to be seen only in the course of trial as to the purport of the statements made. It is another important point to see as to whether the statements and annexures to declaration under section 88 are alone based for the prosecution. In other words, in the absence of annexures to declaration under section 88 in Form I-B, it may not be very much clear as to whether the prosecution against the petitioner is founded on statements of accounts made elsewhere apart from the declaration under section 88. This can be made clear only in the course of trial. Since the tax was compromised, one cannot say that all the allegations made in the prosecution are only for evasion of customs duty and violation of any notification. In what way issuance of FIRC will have connection of customs duty is made not known. Production of supporting documents, which were found false on the side of prosecution, in order to wrongly obtain FIRC has a direct bearing upon the wrong import instead of bearing with the evasion of customs duty. It is in this view of the matter, the facts of the case are different from that in Hiralal's case. It is the paramount duty of the petitioner to demonstrate how he is enti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
