9911796707
TMI Blog2024 (9) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity to claim the amount of refund and in the statement under Section 313 of Cr.P.C, Accused No. 4-Mr. K.P. Shah answered that he knew Mr. Pinakin Mody and the application for refund of Pinakin Mody was filed by him. He admitted that PW 4 given papers of M/s Jirat Chemicals for making application of refund and not for filing of the Writ Petition. It could be thus easily inferred that there was no Writ Petition filed by M/s Jirat Chemicals and its partners and Pinakin J. Shah was a fictitious entity, which was set up by Mr. K.P. Shah, in a unique way of claiming the refund in his name. From the evidence of Prakash Jaitpal (PW 15), once against the same modus operandi has featured before the learned Judge as Exh. H was also a fictitious document. As far as the present Appellant is concerned, by the Judgment dated 26/06/1997, he was found guilty of entering into criminal conspiracy with Accused No. 4-Mr. K.P. Shah of fraudulently and dishonestly claiming refund of countervailing /additional custom duty, by substituting original Writ Petition No. 304 of 1987 with fake and fictitious Writ Petition (Exh.49) and was sentenced to suffer R.I. for a term extending to seven years. In additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four Appeals are filed, and hence the Appeals are tagged together. 2. I have heard Mr. Hirani in person, in pursuance of the permission granted to him by the Committee headed by the Registrar, Judicial (I), who upon interaction with him permitted him to argue the Appeals in person. Though the matter was heard and closed for Judgment on 30/11/2023, it was directed to be listed on 19/04/2024 under the caption For Direction , as the record pertaining to the Appellant is bulky and assistance was required from Mr. Hirani as well as Mr. Venegavkar, who represented the CBI for its consideration. Thereafter, on updating the record by segregating distinct files, the matter was once again heard, with reference to the distinct original records and then reserved for Judgment. 3. Since the facts resulting into four different Judgments being delivered are in four Special Case Nos.50 of 1990, 51 of 1990, 49 of 1990 and Special Case No.78 of 1989, which are challenged through four different Appeals and since they are over lapping, for the sake of convenience, I shall first refer to the facts in Criminal Appeal No. 466 of 1997, which has raised challenge to the Judgment of the Special Judge in Spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the petition was also forwarded vide letter dt.25.2.87 by M/s.Kantawala Co. to the A/c Customs (Legal). Bombay where a new file was opened on the subject vide No. COM-4135/87 dt.27.2.87. After hearing the aforesaid petition on 24.3.87 Her Ladyship Justice Mrs. Sujata Manohar of the Bombay High Court was pleased to grant an interim relief in terms of Para-C of the Prayers directing the Custom Department, Bombay to refund the amount claimed by the Petitioner as per particulars given under Exch.N subject to verification latest by 15th May 1987 and in default thereof to pay interest 15% per annum from 15.5.87 till payment would be made. A copy of the ad-interim order of the High Court was served upon by the Bombay Customs. Mr. K.C. Sidhwa, Sr. Central Govt. Advocate, thereafter, he sent a letter dt. 25.3.87 to the A/C Customs (Legal) stating therein the Interim relief given by the Bombay High Court and requested the A/C Customs to send para-wise comments for the purpose of filing an Affidavit in reply to the petition. On receipt of order of the Bombay High Court granting interim relief to the Petitioner, Mr. Harcharan Singh, Appraising Officer of Bombay Customs made an endorse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 1 to 4 working as public servants, were also charged for committing an offence under Section 5 (2) read with Section 5 (1) (c) and (d) of the PC Act, 1947 as they faced charge of obtaining gain for themselves or for any other person due to the criminal conspiracy and by dishonestly and fraudulently misappropriating or otherwise converting the amount which was entrusted to them as public servants and allowing Accused No. 5-Mr. K.P. Shah to obtain refund orders. 5. The aforesaid charges are faced by the Accused in the background, which lies in Writ Petition being instituted before this court in form of Writ Petition No.745 of 1987, decided by this Court in its Ordinary Original Civil Jurisdiction on 24/03/1987. The Petition was filed by M/s Shah Co. and the Court made the Rule returnable on 08/06/1987, by passing order in terms of the Minutes of Order handed over to the Court and marked as X . The Minutes of Order under the signature of Advocate for the Petitioner recorded thus :- 1. Rule expedited. Interim relief in terms of prayer (c) on Petitioners giving a personal bond in favour of the Collector of Customs, Bombay. Respondents waive service. 2. Respondents are directed to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o time and claiming that it is their statutory right to demand the refund of duty of customs paid, at the time of importing of the goods. A writ of certiorari was sought for quashing and setting aside the impugned act of Respondent No. 3. 7. The Petitioner in Prayer clause (b) and (c) specifically , specifically pleaded as under :- (b) That this Hon ble Court be pleased to issue a Writ of Mandamus or any other appropriate Writ, order or direction under Article 226 of the Constitution of India directing the Respondents, their officers, servants, subordinates and agents to immediately grant refund of the countervailing/additional duty amounting to Rs. 16,30,105.55 with interest thereon at the rate of 15% per annum from the date of the said application till payment. (c) That pending the hearing and final disposal of the Petition the Respondents, their officers, servants, subordinates and agents be directed by a Mandatory order and injunction to forthwith refund to the Petitioners the countervailing/additional duty amounting to Rs. 16,30,100.55 with interest thereon at the rate of 15% per annum from the date of payment of the same till the said amount is paid to the Petitioners. 8. Wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icals and drug-intermediates not elsewhere specified. On 08/05/1975, one page circular was issued, which clarified as under:- PHARMACOPOEIAL DRUG IN BULK A bulk pharmacopeial drug, even if it contains single therapeutic agents, which is not in the nature of patent or proprietary medicine at the time of clearance, would not be covered by Item No. 14D itself. Therefore, the question of such bulk drugs being exempted under Notification No. 25/67 C.E. dated 4.3.1967 would not arise. Such bulk drugs would be covered under Item 68, provided they are otherwise classifiable under the said Item. 10. In the backdrop of the above Notification, Rakesh Enterprises, a Partnership Firm, registered under the Partnership Act, carrying its business at Mumbai, challenged the order passed by the Assessment Collector under Article 226 of the Constitution of India, wherein it claimed that Phenol USP is a basic drug or a pharmaceutical or a drug intermediate and as per the Notification No. 55/75 dated 01/03/1975, excise duty is not leviable on import of Phenol USP. Despite, the Assistant Collector of Customs levied countervailing duty at the rate of 8%, the rate specified under Item 68 of First Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of 21% per annum. This is a patent exaggeration. The fair rate would be 12% per annum. The finding, therefore, is that interest will be payable at 12% per annum on the retained sums, on the expiry of the date to be specified in the order. 13. Before, I conclude, I will have to deal with a submission of Dr. Kantawala that Respondents be directed to deposit the cheques representing the sums payable unto Petitioners, in Court. The grievance is that despite orders, the authorities take their own time to comply with directions of the Court, thus compelling the successful Petitioners to take out further proceedings. I do not think that whatever may have happened in the past will be repeated in the instant case. The operative portion of the order read thus :- Petitions succeed. The orders rejecting the applications for refund moved by the Petitioners, are hereby quashed. Respondents are directed to refund to the Petitioners the Additional duty recovered from them within eights weeks from this date. Failure to pay the same within the time stipulated will siubject Respondents to the additional liability of having to pay the said sums along with interest at the rate of 12 per cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the writ petition for refund of additional duty of customs paid in respect thereof and no refund of additional customs duty had been received by him. On 7th and 10th October, 1998, Kumar Shah made statement before the Customs authorities that he has filed the petition in the name of M/s B. Sorabjee and had shown one Harshad Jayantilal Shah as its sole proprietor and he has received the refund of Rs.28,609.05 that was ordered to be made by the order under appeal. It was also disclosed in the affidavit that the Customs authorities had seized from the premises of Kumar Shah, the original Writ Petition that was lodged and filed in the Court and which ought to have been in the court record, which had sought relief in form of directions to deposit sum of Rs.28,609.05, with further interest at the rate of 15% p.a. from 10/04/1987. The Court then made a reference to the statement of Kumar Shah and recorded thus :- The statement of the said Kumar Shah needs to be set out in some detail. He stated that this writ petition was filed in the name of B. Sorabjee of Raut Chambers, Samuel Street, Wadgadi, Bombay and showed the name of Harshad Jayantilal Shah as the sole proprietor thereof. This w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e large amounts from the Customs authorities by way of substitution of exhibits, it was felt that a substitution of the exhibits in the original writ petitions filed in court would help him and the advocate, should the fraud be detected by the Customs authorities. Dr. Kantawala was aware that he, the said Kumar Shah, had been substituting the exhibits of the original writ petitons filed through Mr. Kantawala and, therefore, Dr. Kantawala had agreed to help him. The original writ petition had been received by the said Kumar Shah from Mr. Kantawala. The said Kumar Shah had requested Mr. Kantawala to get the original writ petition from the court. He did not know how Mr. Kantawala had obtained it. The photocopy that he had obtained of the original writ petition had been obtained unofficially with the help of Dr. Kantawala s staff. Both the original writ petition as well as the photocopy had been received by the said Kumar Shah from Mr. Kantawala. The said Kumar Shah had taken Mr. Kantawala into confidence and told him that as he had already substituted exhibit in the copy of the writ petition submitted to the Customs authorities for obtaining a higher amount of refund than that covered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Mr. Shah substituted Exhibit E in the copy of the writ petition submitted to the Customs authorities and now Exhibit E quoted the sum of Rs.14,83,730.22, due against 106 bills of entry. 16. The Division Bench recorded that the complicity of the members of the staff of Customs authorities in the substitution is evident, though it is not clear whether the amount in the substituted Exhibit E was received by Mr. Shah. Recording that the intention was to effect substitution of Exhibit E in the original writ petition, so that in accordance with the substituted exhibit, the refund can be claimed and mentioning in the writ petition that the refund amount shall be as per Exhibit E, without setting out what the amount was, the fraud was played upon the court. Being tormented, as the Court was used as a medium to commit forgery, in a very terse manner, Justice Bharucha noted as under :- There is, with respect, a lesson in this for judges : that, so far as is possible, the decrees and orders they pass should set out what the amount is that is decreed or ordered to be paid. We live in parlous times when the court s records are no longer considered sacrosanct either by the litigant or by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecured wrongful gain. We request the Commissioner of Police to depute a senior officer familiar with detention of cases of such nature and direct him to undertake the investigation after registering the complaint, and thereafter proceed against every person who is found guilty of the commission of the offence. The entire record in respect of this petition and appeal shall be forwarded by the Prothonotary and Senior Master in a sealed cover to the Commissioner of Police. The Commissioner shall inform this Court the steps taken in pursuance of this judgment. The Commissioner of Police may record statements of any person who could throw light on the fraud perpetuated. The advocate for Union of India shall also assist the Commissioner of Police in ascertaining the modus operandi adopted by the persons to commit fraud. The Commissioner of Police shall not spare any person if found involved in such serious offence. 19. In the backdrop of these observations, an FIR came to be registered against the Customs Officers alongwith Kumar Prabhulal Shah and in distinct criminal cases, they came to be charged with act of conspiracy of duping the Customs Department, by playing fraud in a concerted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh attached to Legal Cell of Customs Department as Appraiser, who was assigned the task of filing Appeals against the order of learned Single Judge of the High Court to its Division Bench, is examined as PW 7. PW 8 Venkappa Rai, is the Deputy Office Superintendent (DOS), serving in the Refund Department of Customs Department, who was assigned the task of supervising the work of UDCs and LDCs. PW 31 Yashodhan Parande serving as Deputy Collector, Customs, is also another witness who is examined to establish the procedure adopted for refund. The aforesaid witnesses are examined for establishing the working pattern of the Customs Department and as to how the files travelled from Legal Department to the Refund Department and to establish the process that ought to be adopted, and the one which is actually adopted. 21. Outside the Department of Customs, another set of witnesses is PW 9-Parmanand Raut, working as Custom Clearing Agent who was confronted with the bills of entry, which formed the basis of issuance of refund order, alongwith some private individuals like PW 10 Parikshit Shah, partner of M/s. Chemida Enterprise, PW 11 Narayan Masand, carrying on the business of a private li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original Writ Petition No.745 of 1987 from the Custom file and substituting it with a fake one. 24. The prosecution alleged that Accused No. 5, Proprietor of M/s. Shah Co. filed a Writ Petition No.745 of 1987, by relying upon the decision delivered by the Bombay High Court in Writ Petition No. 1808 of 1982 dated 12.08.1986, thereby declaring that the import of PHENOL USP is not liable for countervailing duty under Section 3 of the Customs Tariff Act, 1975, and praying for a similar relief of quashing and setting aside the impugned action of Respondent No. 3 i.e. the Assistant Collector of Customs, in levying the customs duty and therefore, seeking its refund with interest at the rate of 15% p.a. It is the case of the prosecution that prayer clause of the original Writ Petition, prayed for refund of Rs.1,34,319.14, in accordance with Exhibit H containing a statement of refund amount with reference to the file number alongwith the date of payment of duty and the amount of duty paid. Exhibit G to the said Petition was the Application in Form A for refund of Customs duty and charges and in this case, the claimant being Shah Co. who had signed for Pooppally Foods, it being described as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same amount, a relief claimed by way of ad-interim relief. The Petition received was shown to have been affirmed by Mr. K.P. Shah, described as the Sole Proprietor of the Petitioners. Exhibit H is alleged to be the substituted document in form of statement of refund amount and in utter contrast to Exhibit H in the certified copy of the Petition which include 11 entries based on bill of entry, totaling to Rs.1,31,319.14, Exh. H include 121 entries of distinct dates reflecting distinct payments totalling to Rs.16,30,105.85. 26. This Petition is accompanied with distinct forms of Application for refund by giving different names of Importers alongwith Shah Co. and specimen forms also specifically mention name of the clearing agent, one of which is Eagle Transport Services, whose employee has been examined as one of the witness. The distinct amounts of refund are claimed by asserting that as the goods imported are bulk drugs/drug intermediaries, they are exempted from civil duty under the Notification and all the specimen has different quantity of PHENOL USP, but in every form the commonality is presence of Shah Co., an Importer alongwith some other Importers and refund is claimed on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xh.22 as the starting point of the file and identified the endorsement by Harcharan Singh, an appraiser in the Legal Cell, as they were directed to prepare the grounds of Appeal urgently against the order granting interim relief. By the second endorsement on the file made by him, it was forwarded to the Refund Department for calculation of refund and he has deposed that it was done after discussion with the Assistant Commissioner (Legal) who made an endorsement about the order being an interim order. He has deposed that implementation of any court order is done by the Assistant Commissioner (at that time, he was referred to as the Assistant Collector ). However, on being confronted with Exhibit 20, 20A, 20B and 20C, he has deposed that he did not find Assistant Collector s approval anywhere in the Exhibits. In the cross-examination, he has admitted that the number of Writ Petition, name of the party or the amount of refund is not mentioned in the exhibits, nor he was aware whether Writ Petition No.745 of 1987 was received by the counsel representing the Customs Department. 29. As far as Writ Petition No.745 of 1987 is concerned, he has deposed that the file was not handled by him a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho made the calculations annexed to the refund order, showing the total amount to be refunded. On being confronted with Exh.21(colly), he identified the endorsement DOS/Pre-audit for n/a pleas in blank ink and identified his handwriting as well as his initials . He also identified the endorsement showing Ms. Balani for issue of R.O . According to him, after his endorsement, the file went for pre-audit and the stamp of pre-audit reflected so. Thereafter, it came back to R.O. cell and he made the second endorsement after the file was pre-audited for issuance of refund order and he stated that Ms.Balani was serving in the R.O cell. Similarly, when he was confronted with Exhibit-22, he identified two endorsements made by him to the similar effect and also identified the signature of Mr. Hirani, the Appraiser, who had signed on 16/6/1987, after which the file was sent for pre-audit and the stamp of pre-audit was put thereupon. After the file came from pre-audit, he again made the endorsement, Shri Nair, Please issue R.O , since he was in-charge of the file. 31. Three endorsements made on Exh.22 were identified by PW 8, the DOS which were checked by the Appraiser Mr. Hirani. In cross-exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truck off, depose that according to him, it was not R.K. Vig s signature, though it was the signature of A.C, and he also identified the endorsement in the handwriting of Maya Kotwani along with the signature of the DOS as well as stamp of pre-audit by the Audit Section. Very categorically, he deposed that he could not identify any signatures from that section, except the last endorsement in the handwriting of Appraiser H.K. Hirani, which is initialed and signed by him on 2/6/1987 and 12/6/1987. PW 2 was working under the supervision of Mr. Hirani, the Appraiser, though his superior authority was DOS. When CBI recorded his statement, he was not sure whether the two signatures dated 21/5/1987 were shown to him. He referred to an endorsement on page 3, for calling of documents and has testified that the original and duplicate bills of entry are generally called from MCD and the triplicate is called from the party. He also clarified that there is a manual for the Appraising Section, but it was not available in the Department and he had never seen the manual. He has also deposed that he was unaware of the procedure for calling of the triplicate bills, but despite this, he kept on insis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents when the requisition slip was given, is examined as PW 5. When confronted with Exhibit-22, he admit that he had signed at the foot of it and identified the first endorsement thereupon. When confronted with Exh.22C, he deposed that the bills of entry mentioned in this endorsement, were not seen by him before he made the endorsement but he did so as per the say of the superior. When the Court questioned him, who was the superior, he informed that it is the appraiser and the Office Superintendent, but he did not recollect who was the appraiser or the OS who directed him to put an endorsement. Since he had not seen the bills of entry, he was unable to depose whether the numbers mentioned in the endorsement were collected or not. He also admit that prior to the endorsement, there was no requisition slip for calling of those bills of entry. According to him, the old bills of entry are maintained in the MCD, which is two kms away from Customs House. 35. PW 5 deposed about the procedure to be followed when any bill of entry is required to be obtained, when the relevant officer would issue a requisition slip, which go to the Dispatch Department, which is given by the peon to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om duty. Being the party who paid the duty. As far as I know the scrutiny is done by the Appraiser. TO COURT: (The party not named in the triplicate bill of entry will not be granted refund of the customs duty even if he produces the triplicate bill of entry and even if the payment under that bill entry has not been made before unless he is a high sea purchaser. Therefore the production of triplicate bill of entry is a must. Therefore the production of triplicate bill of entry is a must. It is also a must for another reason that once the refund is sanctioned the triplicate bill of entry has to be defaced by an endorsement to prevent further claims on that bill of entry.) 3. After the scrutiny and verification by the Appraiser the papers go to the Assistant Collector. The A.C. sanctions the amount. TO COURT: (He sanctions the amount by passing an order or refund of the amount in the file.) 4. After the refund is sanctioned a copy of the refund order is sent to the Income Tax Dept. When he was confronted with Exh.21A, he deposed that page I and page II are the endorsements of the legal cell and he has signed at the end of page II as D.C. (Legal) . He deposed that file was put before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment from the refund department, but vaguely stated that, he may be the despatch peon or clerk of the department. He also admit that he would not make any noting, mark or initial on the bill of entry, while giving it out. When he was confronted with 121 bills of entry, asking as to whether these bills of entry were given out by him, he answered in the negative, saying that he had not given out the bills of entry and he cannot say whether anyone else had given them out on the requisition slips. He deposed that bills of entry are not kept in lock and key and they are kept in open rack and any member of the staff can take out the bill of entry. When he was shown Mr. Naik (Accused No. 3), who was present in the Court, he admitted that he knew him and he was in the Refund Department and he used to sometime come to MCD for some work with the permission of the A.C. of the MCD. He was unable to state, whether More would have been in a position to take out the original bills of entry from the rack, with or without requisition slip. When, he was confronted with H.K. Hirani, he stated that he do not know him, but he identified R.K. Vig (Accused No. 1), since he was the A.C. for few months. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) having serially numbered pages (which shall be duly certified on the fly-leaf of the register.) (d) fill up a cyclostyled acknowledgment memo (Annexure B ). (e) at the end of each day put up to the ministerial supervisor all the claims received during the day together with filled in acknowledgment memos and the refund register. (f) pass on to the despatch clerk for issue of all signed acknowledgment memos as soon as they are received back from the ministerial supervisor and (g) receive all correspondence pertaining to refund, enter them in the inward diary, put them up to the ministerial supervisor for being marked to the concerned dealing clerk or officer as the case may be. (2) The ministerial supervisor, on his part, shall sign all the acknowledgment memos, put up to him along with refund claims and return the same for issue. He shall them mark each claim to the dealing clerk/officer, strictly according to the predetermined allocation of work and at the end of each day sign the last entry in the refund register after due checking, and immediately submit the same (but not the claims or the acknowledgment memos.) to the Asstt. Collector in charge for his attestation after the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a final decision himself if he is competent or submit the case file together with his recommendations direct to the competent officer. Before, however, any claim is sanctioned by him or is put up to other competent officer for sanction, he shall obtain the original/duplicate Bills of Entry on which duty was paid and scrutinise the same for ensuring that the claim has been made in respect of the correct Bill of Entry and the same duly merits admission. If on such further scrutiny, however, the Appraiser finds that additional information and documents not called for initially are required, he will put up the case to the officer competent to decide the claim and obtain his approval for calling for the additional information or documents so that the competent officer gets a chance to satisfy himself that the additional information or documents so that the competent officer gets a chance to satisfy himself that the additional information and documents are really necessary and that they could not have been called for earlier. (7) The dealing clerk will take all necessary clerical action in respect of his case files. Among others he will (a) arrange for the issue of all letters, requisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the concerned voucher or credit entry is received from the Cash and Accounts Department for audit of daily transactions. After auditing the file with the voucher etc. the complete case file will be passed on to the C.R.A.D. also for post-audit. (15) on return the file shall be closed and recorded under the orders of the ministerial supervisor and the entry in the case register closed accordingly under countersignature of the ministerial supervisor. Similarly the relevant entry in the claims register shall also be closed. The Manual also contain distinct annexures, which include the Register of Claims, Refund Claim Acknowledgment, Register of Refund Cases (to be maintained by the dealing clerk) etc. 41. From reading of the procedure of refund, it is evident that all the claims received are to be entered in the Refund Register and as soon as a claim is received by the dealing clerk/officer, he shall arrange the case file and submit the same to the Refund Appraiser. The Refund Appraiser is to scrutinise each claim received from the dealing clerk and on scrutiny of the claim, either take a decision himself or submit the file to the competent authority, but he shall obtain the origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms, Central Intelligence Unit to Deputy S.P., CBI, Bombay on 16/09/1987. The refund order issued on 17/06/1987 mentioned the number C004135/87 in respect of R.O. duty 1561 to 1681/87 and the refund order is issued in favour of M/s Shah Co. The order mentioned that the refund order must be presented for payment within 30 days of its date before the Accounts Department, New Custom House, Bombay with a stamp receipt discharged by the parties to whom the order is payable. The refund order make a reference to the Writ Petition No.745/87 and inform that the claim of Shah Co. has been admitted for the sum of Rs. 16,30,105.55 in respect of customs dues for B/E Cash No.given P.T.O. (overleaf) dated P.T.O. This refund order is encashed by the proprietor of Shah Co. on 18/06/1987 from the Chief Accounts Officer of Customs, Bombay and it is encashed in Punjab Sind Bank as per the endorsement made thereon. Exh.20A is the list of CVD with reference to the cash NO., date and the amount and each entry is tick-marked. There are in all 121 entries in the said exhibit and the total of which is worked out as Rs. 16,30,105.55. The refund order bear the signature of Appellant, Mr. Hirani, which is app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fifteen only) is verified in respect of 128 bills of entry, which may please be sanctioned in record of court s order. The R.O. may be issued on the basis of duplicate B/E after usual verification. 44. A perusal of Exh. 22 would disclose the portion marked 22C which has inscribed as below : AO Legal Original Duplicate. B/E No. 1810/32, 34, 35 36 etc. placed Opp. pl. SD / 3.4.87 AO Legal then has put his stamp on 5/3/87 to be followed by remark of AC Legal dated 20/4 as below :- Pl. see, in this case only interim relief is granted and not finally decided L. M. arrange for parawise comments. A further comment from AC Legal reads thus :- As discussed the file may be forwarded to Refund for cancellation of refund amount After that in the handwriting of Hirani there is a following Noting :- Off/RO Cell. Pl. issue R/slip (original duplicate) B/E and cash verification and put up. SD/-2/6 Kindly see the legal note prepared and the minutes of the Court s orders. As per the minutes of the Court s orders by CWD Collector in the goods Phenol will have to be refunded to the party. As such refund of duty of Rs.16,30,105.85 (Sixteen Lakhs Thirty Thousand One Hundred and give and Paise eithtyfive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh he did not identify the other signatures. He has identified the signature of Hirani on Page II of the Note Sheet, circled Page (IV) and has deposed that the endorsements are in the hand-writing of HK Hirani, Appraiser and they are initialled and signed by him on 02/06/1987 and 12/06/1987, but he could not identify the signature made in blue ink at the food of noting signed by HK Hirani. Even he could not identify the hand-writing against the stamp showing the figure Rs.16,30,105.85. PW 2, though working as UDC in Refund Order Cell, a small section of Refund Department in which Maya Kotawani was serving alongwith Anil Nair, LDC and the DOS was Mr. Rai who was handling the responsibility of checking the work. He testified that the movement of the file between the Cells in the department was recorded in a Register and on confronting with Exh.22, an endorsement on Page 3 is identified by him to be made by Hirani. He also categorically stated that the original and duplicate bills of entry are called from MCD and the triplicate is called from Party and for calling the first two the triplicate is necessary. When the Court queried him specifically, as when Mr. Hirani, who was his boss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30,105.85 based on 121 bills of entry, she has deposed that the noting on Page 1 of Exh.22 was made by Harcharan Singh and he, in his hand-writing had filled in the blank spaces in the type-written portion and made endorsement below in his hand-writing, which he has initialed at the foot of the page by noting the date as 31/03/1987. According to her, this was made by him after she marked the file to him in the normal course. On being confronted with the revert side of Exh.20A, she deposed to the following effect :- The first endorsement on this page is made by Rajesh Singh, Lower Division Clerk (L.D.C.). I think he has initialed at the foot of the endorsement. The second endorsement which is in black ink is made by A.C. Mr. Jagdishchandra, I identify his handwriting and his signature at the end of the endorsement. Below that endorsement I have made one endorsement in my handwriting and initialed at the foot of the handwriting. My endorsement shows that a letter dt.25/3/87 was received by our Cell and was put up on 14/4/87. The next endorsement is made by the Appraiser, Ishwar Singh. He has marked the file to A.C. Legal. The next endorsement in blue ink may also be of Ishwar Singh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over to the concerned Appraiser. When we opened the C-file we given number to the file. As in this case the number is C-4135/87. This number is also written on the top of page 3 of the note sheet. This number is also written on the top of page 3 of the note sheet. I do not remember the date on which the order of refund was passed by the High Court in this Writ Petition. The order on which Interim Reliefs were given in this case is mentioned on page 1. From the deposition of this witness, it is clear that the files were kept in cupboards which were not locked and she is unable to distinguish between the Writ Petition which was received in the Customs Department and the actual Writ Petition that was filed in the Court. 49. PW 6 Anil Nair, who was confronted with the Refund Order (Exh.20), had admitted that the order was prepared by him and he had initialed near the Appraiser i.e. H.K. Hirani s signature, but he state that the calculations attached to the Refund Order are not prepared by him and he cannot identify the initial at the foot of page 2,3; though he identified that the last page is signed by the Appraiser H.K. Hirani, who was present in the Court. 50. From the evidence of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Audit. Once the file came from Pre-Audit, he made further endorsements since he was in charge of the file and endorsement made on 17/06/1987 read to the following effect Sri Nair plese Issue R.O. . PW 8 identified the initial and hand-writing as well as the three endorsements made by him and checked by the Appraiser H.K. Hirani, on Exh.22D, which is encircled in Red. The file was, therefore put up for Post-Audit (Exh.22E). PW 8 has categorically deposed that the refund order has been sanctioned by the Asst. Collector Mr. Vig whose signature is on the endorsement. 52. In light of the aforesaid evidence brought on record, the manner in which the implementation of the order passed by the High Court was done in the Customs Department, has become evident. The file has first travelled to the Legal Cell, thereafter, marked to Refund Department only for the purpose of computation of the refund. According to PW 8, it is on the signature of Mr. Vig, the Refund Order was issued as he had specifically endorsed that the Refund Order may be issued on the basis of original/duplicate B/E available on record after usual verification. Through the evidence of this witness, it is evident that the Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal course of conduct of the business. Nobody is aware as to who had prepared the computation of the bills of entry for the purpose of refund and though there are tick marks on Exh.20A, the prosecution has failed to establish that they are done by Mr. Hirani as the person who made an endorsement on each of the page of Exh.20A, is not examined. The prosecution witnesses have stated that they are unaware who has made this computation. Admittedly, the bills of entry were not called from the MCD , but one thing is clear, that is the existence of these bills of entry, on which the CVD was paid. 53. In the whole procedure that was followed, the Appellant Hirani played the assigned role of signing on the Refund Order, but just because he has signed the order, do not make him a conspirator with Mr. Shah and this is where the learned trial Judge has gone wrong, when she has put entire blame on Mr. Hirani, by holding him guilty of hatching a conspiracy with Mr. Shah (Accused No. 5). Surprisingly, Mr. Vig, whose signature has been identified by PW 8, has been completely absolved. Even Accused No. 3-Naik, UDC rom Refund Department and Rajendra Gandhi, LDC from Refund Department, are also acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only Exh.41, which he had typed, but he had typed many other papers in which he had filled up the blanks in the cyclostyle papers. He also disclosed that they used to bring cyclostyle copies from one shop in Fort or some person used to deliver the cyclostyle papers. Responding to the Court s query he state that the shop is in a lane, which is behind the shop of Advocate (Vakil) one Mr. Kantawala and he can show the shop. 55. PW 13 has admitted that Mr. Kantawala was Mr. K.P. Shah s Advocate and he used to also go to Mr. Kantawala s office with Mr. K.P. Shah and sit outside. When confronted with Exh.20, the Refund Order from Customs Department, he categorically deposed as under :- I used to go to the refund section of customs dept. alongwith K.P. Shah. I used to stand out and K.P. Shah used to go in. K.P. Shah used to go there to get the refund We used to go the Customs Dept every day 3 months. When he was asked as to who was K.P. Shah meeting in the Refund Department and he initially says that he do not know who all he was meeting, but he point out to Mr. Hirani , Accused No. 2, sitting in the Court and says that he was meeting this man. He was asked whether he was meeting him in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot pointed out any errors or omissions in my statement to Mr. Godbole. 58. From deposition of this witness, a peon working with Accused No. 5, it is evident that the cyclostyle petitions were obtained by him and the gaps were filled in, in relation to its foundation and the amount to be refunded and this was all done at the instance of the Accused No. 5. As far as the bills of entry are concerned, he has categorically admitted that they use to bring the bills of entry from the Customs Department and he clarified by stating that they were not the blank bills of entry forms but they were filled in and Mr. Naik, Accused No. 3, used to give these bills for entry to K.P. Shah, who in turn use to give it to his peon for typing to present them to the Court. On a Court query, he admit that he typed out the amounts from these bills of entry as in the statement which was shown to him (Customs File No. 4135) in which he identify Exhibit H and categorically admit that he had typed the statement after seeing many bills of entry. On completion of procedure, when the refund orders were issued, according to him, Shri K.P. Shah, used to withdraw cash from the bank accounts and on each occasion on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seas purchaser and purchase the imported goods on high seas sale basis from M/s Poopally Foods. Paragraph No. 1 of Exhibit 41, however reads thus:- THE PETITIONER IS A SOLE PROPRIETARY FIRM AND CARRY ON BUSINESS INTER-ALIA AS IMPORTER OF DRUGS AND PHARAMCEUTICAL PRODUCTS AT 33, DARIYASTHAN STREET VADGADI, BOMBAY-400 003. THE PETITIONER IS A NATIONAL CITIZEN OF INDIA. THE PETITIONER IS A HIGH-SEAS PURCHASER AND PURCHASE THE IMPORTED GOODS FROM AS BELOW COMPANIES. 1. ANUP ORGANICS. 2. ASTATIC INDUSTRIES. 3. AMRITLAL CHEMAUK LTD. 4. ABBASI BROTHER (P) LTD. 5. C. N. A. EXPORTS PVT. LTD. 6. CREATIVE GARMENTS. 7. CHEMIDA ENTERPRISES. 8. COLOUR CHEM LTD. 9. CHAJAD PLASTICS. 10. FAIRDEAL TRADERS. 11. FARMSON PHARMACEUTICAL GUJRAT P. LTD. 12. FARMSON ANTIOXIDANTS. 13. C.A. RANDERIAN LTD. 14. G. AMPHRAY LABORATORIES. 15. GUJRAT ORGANIC PRODCTS. 16. GANDHI CHEMICALS. 17. GUPTA TRADING CO. 18. GREAVES FOSECO LTD. 19. IVP LIMITED. 20. MOTI LAMINATES PVT. LTD. 21. MILTEX LAMINATES PVT. LTD. 22. PREMIER PHARMACHEM PVT. LTD. 23. PUKHRAJ ENGINEERING PVT. LTD. 24. PIYUSH CORPN. 25. R. L. CORPORATION. 26. SOHANLAL BACHHRAJ GELRA. 27. STK CORPORATION. 28. SHAH TRADING CO. 29. TIPCO THE INDUSTRIAL PLA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/S Amritlal Chemauk Ltd, Abbasi Brother (P) Ltd., C. N. A. Exports Pvt. Ltd., 6. Creative Garments., Chemida Enterprises., Colour Chem Ltd., Chajad Plastics., Fairdeal Traders., Farmson Pharmaceutical Gujrat P. Ltd., Farmson Antioxidants., i.e. entities upto serial No. 12 in paragraph No. 1 of the petition. The form (G) are only annexed as a few among the 121 refund applications and Exhibit-H reflected the amount by referring to each bill of entry with the amount mentioned therein computing it to 16,30,105.55 whereas in the Writ Petition filed before the Court, Exhibi-H only covered a sum of Rs. 1,31,319.14 in respect of file No. S/6-C. Exh. H of the petition filed before the Court and Exh. H, the petition produced before the Customs Department are completely at variance and it is clearly established that the petition, which was received in the Customs Department had substituted the description of the petition in paragraph No. 1, as well as the claim of refund. 61. The question that arose for determination is, who was responsible for this. PW-1, the Solicitor tallied the certified copy of WP No.745 of 1987 (Exh.16) with his office copy and he admit that his client did not sign the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , called upon the prosecution to produce the original Writ Petition No. 745 of 1987, as it was alleged that the substitution had taken place in the High Court itself. The certified copy (Exh.16) was certified to be a true copy as on 26/08/1987 and upon this stand being taken, the original copy of Writ Petition 745 of 1987 along with cyclostyle letter of Kantawala and Company was produced before the Court. PW 1 admitted that he had filed around 20 to 25 Writ Petitions on behalf of K.P. Shah and or Shah and Company and also volunteered before the Court that, there were number of such orders, which were passed. He has admitted that one copy of the Writ Petition was forwarded to Assistant Collector of Customs, Legal Department and one letter along with copy of Writ Petition was addressed to the Central Government Advocate, but he was not sure, whether the copy was directly forwarded to Refund Department. 62. From the testimony of PW 1, who was the Solicitor through whom Writ Petition No. 745 of 1987 was filed, it is evidently clear that the certified copy of the Writ Petition matched with the copy in his office and. therefore, the changes or substitution had taken place before it reach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, but she was unable to state which Writ Petition copy was received. When she was shown a copy of the Writ Petition in the file (Exh.18), she admit that there is no endorsement of the Legal Cell on any of the pages of the Writ Petition and therefore, she cannot say with certainty whether this copy of the Writ Petition was served along with Exh.17 or whether any other copy of the Writ Petition was served with Exh.17. She was unable to identify the copy of Writ Petition in the Custom file, yet unnumbered, which was received along with letter Exh.17, as according to her version, when a Writ Petition is received along with a covering letter, the receipt is given only on the covering letter and there is no endorsement on the copy of the Writ Petition. She also was unable to answer as to how File No. 4135 of 1987 of Customs Department pertain to Writ Petition No.745 of 1987. It is thus seen from the evidence, particularly from Exhs. 20, 20 (A), 20 (B), 20 (C), as well as Exh.21 r/w Exh.17 that there is no certainty about which Writ Petition was received in the Customs Department, as the receiving person could not say with certainty that it was Writ Petition at Exh.18, as what was endo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id the custom duty mentioned in the bill of entry, but never claimed the refund nor filed any Writ Petition for refund. He also deposed that he had never given power of attorney to anyone to claim refund of the duty and he had no relation with M/s Shah and Company or K.P. Shah. On similar lines PW 16, PW 17, PW 18, PW 19 have deposed that they were in the business of Chemicals and they have imported the goods mentioned in the bill of entry and paid custom duty mentioned in the bills, which were included in Exh.29 (colly). PW 19 produced the triplicate bill of entry, which was with him and all these witnesses have categorically stated that they had never claimed refund on these bills nor they had ever sold the same to Mr. K.P. Shah Accused No. 5. 66. PW 9, a Custom Clearing Agent Parmanand Raut, was shown a triplicate bill of entry for home consumption in the name of M/s Chemida Enterprises, one of the entity, whose name is reflected in para 1 of the fabricated Petition No. 745 of 1987. He admitted that the bill of entry is signed by him on behalf of his firm as Clearing Agent. He produced the triplicate copy of the bill of entry for sum of Rs. 36790.72 (Exh.33), which was an entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in the bill of entry (Exh.33), from M/s Chemida Enterprises on high seas basis and paid the custom duty in the bill of entry. He deposed that he never claimed refund of such custom duty nor he filed any Writ Petition in the Bombay High Court and according to him, his company was the end user of Phenol and never sold the product further. 69. From the evidence that is lead before the learned trial Judge, the modus operandi of Accused No. 5, has surfaced on record in crystal manner and the case of the prosecution against him also gain strength from PW 20, the Manager of Vitthal Co-operative Bank Ltd, who was confronted with an account opened in the name of Vidya Agro Chemicals Ltd, showing K.P. Shah as the proprietor. He was confronted with the certified extract of the account of Shree Vidya Agro Chemicals taken out from the ledger and it reflected 8 paying slips received and stamped in normal course showing the amounts deposited, which bear the stamp of the branch. The extract of the account of Shree Vidya Agro Chemicals, Account No.675 along with different amounts credited into the account on the basis of the cheque issued on RBI, is proved through this witness. 70. PW 23, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I saw the exhibit on the basis of which the refund is claimed. I saw the total amount claimed in Prayer-C. Q.7 Is is correct that you also saw the bills of entry ? Ans. Yes. I saw the original and duplicate bills of entry. Q.8 How did you get the original and duplicate bills of entry ? Ans . By way of my endorsement, I marked it to my office to get the original and duplicate bills of entry. Q.10 Did you call for the Triplicate Bills of entry? Ans . There is no provision to call for triplicate bills of entry. 72. When Mr. Hirani was shown Exh. H to Exh.41 (Writ Petition No. 745 of 1987) and also Exh.29 (colly) and queried, whether the bills of entry in Exh.29 (colly) are the the ones shown in Writ Petition copy Exh. H, he answered in the affirmative. He was also asked, whether he had called for original bills of entry and he once again answered in affirmative, by saying that 121 bills of entry were called by him. He admit that when he signed the Refund Order, he did not call for the triplicate bills of entry and he asserted that he followed the High Court order and sanctioned the refund to Shah Co.. When specifically asked that the copy of the Writ Petition No.745 of 1987 served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. The duty is paid by the High Sea Purchaser and therefore, he can claim the Refund, which the petitioner (A-5) had claimed in the petition before the High Court and who passed the favourable orders to the petitioner. As the orders were given by the Collector of Customs and Asstt. Collector of Customs to implement the Court orders within the time-limit prescribed by the High Court, I was duty bound to process the file and my role was limited to the extent of verification of amount claimed in the petition with respect to the original/duplicate Bill of Entries which I did correctly. I cannot go beyond the merits of the Refund claim as I say that these Refund claims were not admissible to the petitioner as per the Customs Act Sec. 27 being time barred but were processed with the force fo the Court Orders. Since the department had taken the decision to implement the Interim orders of the Court and appeal against the decision of the High Court orders, it was decided to pay the refund amount claimed by the petitioner and as directed by the High Court. The petitioner (A-5) got this opportunity to substitute the fake petition and obtain the original/duplicate Bills of Entries from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cell and, thereafter, till the issuance of Refund Order, I have seen involvement of several officers and in fact it included some of the witnesses also. The role of Accused No. 1-Ravindra Kumar Vig, Assistant Collector of Customs (Refund Department), Accused No. 3-Yashwant Naik, Upper Division Clerk and Accused No. 4-Rajendra Gandhi in the whole process, which has surfaced through PW 2, PW 3, PW 4, PW 5, PW 6 and PW 8, is completely ignored. I must agree with the observations of the learned Judge about the fraudulent activities of Accused No. 5-Kumar P. Shah, as it is observed that his fraudulent activities know new bounds and as far as the case in hand, he has availed the refund of Rs.16,30,105.85 in the account of Punjab Sind Bank, as per the Refund Order. However, the trial Judge has completely failed to appreciate the evidence on record, which failed to establish the alleged conspiracy by Mr. Hirani and mere suspicion definitely cannot take place of proof. Merely because the Refund Order was finally issued under the signature of Mr. Hirani (Exh.20), he is held to have acted in conspiracy with Kumar P. Shah. It is no doubt true that there were 121 bills of entry, which were sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the original bills of entry, it was only verified, whether the custom duty has been paid and whether the bill of entry exists and that the amount has not been refunded. In the whole process, large number of orders from the Court were received for refund and since the Writ Petition itself was substituted, while it came to the Legal Department, only the exhibit containing the statement of the bills of entry was tallied with the total, which was claimed in the prayer clause of the Petition and this is what Mr. Hirani tallied. 76. On the note-sheet at 20 and 22, there are notings at all levels, including the level of A.C.(Refund) as well as the Legal Department and even the final Refund Order (Exh.20) has signature of Mr. Vig as well as two other witnesses i.e. DOS AND UDC and, therefore, the trial Judge has completely fallen in error in attributing conspiracy to Mr. Hirani, though Mr. Vig (Accused No. 1) and even Mr. Yashwant Naik (Accused No. 3), who actually brought the bills of entry to Mr. Shah s office, received clear acquittal. 77. The learned trial Judge ought to have noticed that Exh.16 was the certified copy of the Writ Petition, which has been identified by PW 1 to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused No. 5 was the sole beneficiary of this goof-up, I fail to understand how Mr. Hirani could have been convicted under Sections 420, 467, 468 and 471 of IPC. As far as Section 420 of IPC is concerned, the ingredients of the Section necessarily contemplate; (i) fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property, or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he was not so deceived and (c) the action of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. Section 420, thus clearly contemplate cheating and dishonestly inducing delivery of property which induces the person to do a particular act. As far as Sections 467 and 468 are concerned, Section 467 punishes an act of committing a forgery of valuable security, will etc. where as Section 468 contemplates forgery committed intending that the document shall be used for the purpose of cheating. Since the prosecution has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97, he is entitled for acquittal from all the charges levelled against him for which he was subjected to trial in Sessions Case No.78 of 1989. Resultantly, Criminal Appeal No. 466 of 1997 is allowed. CRIMINAL APPEAL NO. 465 OF 1997 79. Criminal Appeal No. 465 of 1997 arises out of the judgment delivered in Special Case No. 51 of 1990, where the Appellant-Hirani is convicted for engaging himself in a criminal conspiracy alongwith Accused No. 4-Kumar Prabhulal Shah in substituting Writ Petition No.746 of 1987 with fake and fictitious Writ Petition (Exh. 26). On being convicted under Section 120-B, he is sentenced to suffer R.I. for a term extending to seven years. He is also held guilty by the learned Judge and is convicted for having abused his official position, as a public servant, by corrupt and illegal means by obtaining gain for himself and for Mr. K.P. Shah and, therefore, his guilt is recorded under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 and is sentenced to suffer R.I. for three years. In Special Case No. 51 of 1990 (RC-28/88), Appellant-Hari Krishna Hirani faced the charge alongwith three other accused persons; accused No. 2-Rajen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) Srikrishna Pandey (PW 16) 82. The Court also examined Ramchandra More, working in the Manifest Clearance Department as Court Witness No. 2, who was also examined in the earlier case. 72. The prosecution case, which was led before the Court in Special Case No. 51 of 1990 is comparable with Sessions Case No.78 of 1989, except the number of Writ Petition and the claim of refund. The original Writ Petition claiming the refund is alleged to have been substituted in a similar fashion and after its processing through the Legal Department and Refund Department, Refund Order is issued in the sum of Rs.11,35,384.32, which is signed by Mr. Hirani on 22/05/1987, which is accompanied with a computation of refund amount of Rs. 11,35,384.32. Several other refund orders in name of Shree Vidya Agro Chemicals, also form part of the F.I.R., which was filed on 18/04/1988 on the basis of source information, setting the investigating machinery into motion. 83. The only difference in the case decided by the impugned judgment dated 26/07/1997 is restricting the number of witnesses to seventeen and though the Court Witness was also specifically examined. Except the Upper Division Clerk of the Refund De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he used to give copy of the writ petitions to K.P. Shah. In his cross-examination, on he being examined as PW 10, he identified one Piyush Patel. He admit that whatever he has stated in the evidence of Special Case No.78 of 1989 was correct. 84. The entire procedure, which was followed in respect of Writ Petition No.745 of 1987, the same was adopted in case of Writ Petition No.746 of 1987 and Mr. Hirani was also examined under Section 313, where he maintained an identical stand as to how he signed the Refund Orders. 85. In the wake of specific reasoning recorded as in Cri. Appeal No. 466 of 1997 arising out of Sessions Case No.78 of 1989, even in this case, the prosecution has failed to establish the charge of criminal conspiracy against Mr. Hirani and, therefore, the finding of conviction recorded against him under Section 120-B is liable to be set aside. For the reasons recorded in Cri. Appeal No. 466 of 1997, since the prosecution has failed to establish that he obtained in pecuniary advantage by misuse of his official position, his conviction under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 and the sentence imposed thereon is also liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Bangalore and certain other Refund Orders came to be issued, the details of which were contained in the charge-sheet and reflected in the charge framed on 03/02/1997. The Appellant face a charge that he did not call for original and duplicate bill of entry from Manifest Clearance Department nor did he call for the triplicate bills of entry from Mr. Kumar Shah, on the basis of which the Refund Orders were issued and in furtherance of the aforesaid conspiracy, Mr. Rajendra Gandhi handed over all the Refund Orders either to Mr. Kumar Shah or his representative instead of dispatching them by R.P.A.D. and these orders were presented by Mr. Kumar Shah with the signatures of the officials of the Syndicate Bank. 88. The Appellant, who was arraigned as Accused No. 1, pleaded not guilty and, hence, he was tried alongwith the other co-accused. The prosecution examined 19 witnesses in support of the charge and 3 witnesses were examined as Court Witnesses. 89. This case differs from the other two cases to which I have made reference, in a sense, that the charge levelled against the accused persons is, that despite no Writ Petitions being filed by Accused No. 3-Kumar Shah or served upon the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n some of the refund orders. The other refund orders do not show any number of the writ petitions also. It could be the mistake of the clerk, the D.O.s or the auditor or anyone. I can not identify the initials of all the clerks who could have prepared different refund orders. Only the last three refund orders the particulars of which are mentioned about are initialled by me. The others could have been prepared by Anil Nair or Ms. Maya Motwani. The annexures are in respect of the refund order. They show the refund order number cash number and amount. The U.D.C. used to give the refund numbers. The cash number and the amount would be taken from the relevant bill of entry. That would the original or duplicate bill of entry. The original and duplicate bill of entry were definitely there. 92. Responding to the Court Question as to without the triplicate bills of entry, how would one get the original and duplicate bills of entry, he stated that in case No. 49 of 1990, all the Refund Orders used to come to him for preparation with the original and duplicate bills of entry and when asked whether there was any note in the file for all these bills of entry, he was unable to answer, on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund orders also. 94. As per PW 3 one Mr. Rai was working as DOS and according to her, the files were given to him for Refund Orders as a matter of practice, but the files never came back. PW 3 categorically state as below :- We used to sent the R.O.s to the D.O.S. Mr. Rai.. He used to checked up the file numbers and other particulars in the R.O.s and send down to the appraiser, who used to check up the documents and the R.O. amounts. PW 3 is specifically confronted with the portion in the statement of witness marked as A and she deposed as under :- The Appraiser sanctioned the amount that was to be refunded. I do not remember whether I stated to the officer that after the approval of the A.C. Mr. Vig, the amount was sanctioned and the refund orders were prepared. She contradicted her statement in portion mark A and stated that she do not remember, what she has stated to the officer and she cannot say, whether it is correct or not. Voluntarily she stated that the Officer had asked her the procedure and she has told him the procedure about the Refund Orders. Even, she is not aware of the Refund Manual. According to PW 3, the calculations which were kept alongwith the Refund Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 9 cheques signed by Proprietor of Shree Vidya Agro Chemicals were issued and 3 pay-in-slips showing the credit of the amount were also proved by him. Evidence of this witness on the application of the prosecution was accepted in Special Case Nos. 50 and 51 of 1990. 97. Mr. Jaysukh Doshi (PW 7) deposed before the Court that Mr. Jagdishbhai Mehta approached him for opening new bank account in Punjab Sind Bank, Fort Branch and Mr. K.P. Shah signed for introducing him in opening of the account. This witness identified the signature on the account opening form for Account No. 3300. He was confronted with Exh.30(colly) and identified his signature and also with Exhs.35 and 36 and admitted that he opened all four accounts at the instance of Jagdishbhai and he met Mr. K.P. Shah in Punjab Sind Bank, Fort Branch. He also admit that he never deposited or withdrawn any amount in any of the four accounts, but Jagdishbhai used to deposit the cheques and withdraw the amount. He was given commission of Rs. 8,000/- for his co-operation in opening four accounts of Jagdishbhai. 98. The key witness even in this trial is peon of Mr. K.P. Shah, Mr. Prakash Jaitpal, examined as PW 12. In his examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund Order ? Ans . Yes Q.10A (Shown the last few Refund Order from Ex-8 Colly) Which Writ Petition Copy did you see in case of these Refund Orders. Ans . I cannot say which Writ Petition copies I saw from these Refund Orders. The Writ Petition Nos. are not mentioned Only the Legal Section File number is mentioned. Q.11 Do you check up the Writ Petition number in the R.O.? Ans . No. I check up the amount and name of the party and the file number. Q.13 In whose handwriting are the calculations are made ? Ans I can not identify the handwriting. But these calculations were put up to him alongwith the R.O. for sanction. Q.14 Is it correct that these calculations were done by your office staff ? Ans Yes. Q.15 Who were office staff to make this calculations? Ans . Mr. Rai, Mr. Ghag, Mr. Nair and Ms. Kotwani (Shown Calculations to the second, third, seventh, nineth, twelfth and the last R.O.s) Q.16 These calculations are not signed by you. Therefore, would it be correct that they were not verified by you ? Ans . It is not correct that because I have not signed these calculations I have not check them. I have ticked the calculations. Two persons have ticked the calculations. I cannot say wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessed the writ petition on the basis of the org. and duplicate bills of entry, as per details given in that refund order. 102. Mr. Hirani had categorically stated before the Court that the Refund Order was always processed on the basis of minutes of order and the copy of Writ Petition in the Custom File and minutes of order were in the name of the petitioner and he would call for the bills of entry shown as Exh. D to the Writ Petition. Responding to the evidence coming from Mr.Jaitpal, the Appellant answered that he met Mr. K.P. Shah in the Department sometimes during the period of April to July 1987, when he came to pursue his refunds. In response to question No. 58, he answered thus : Q.58 PW Mr. Parande has deposed that a triplicate bill of entry is always required to verify and examine the claim of the party applying for refund because it is the receipt of the party of the payment of custom duty and shows that he is entitled to his refund. What do you have to say to that? Ans . Mr. Parande never worked in the refund dept. He never knew the refund manual. I distinctly remember the Court Order of Her Lordship Mrs. Justice Sujata Manohar that the refund has to be given without ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same for ensuring that the claim has been made in respect of the correct bill of entry and it merits admission. What was, therefore, required to be tallied is the number of bill of entry in Exh. H with the original/duplicate and just to ascertain, whether the amount of custom duty was paid. The learned trial Judge has wrongly interpreted the Rules and expressed dismay over the Appellant-Mr. Hirani, acting in absence of the triplicate bill of entry. In absence of any cogent and reliable evidence establishing conspiracy to cheat the Bombay Customs Department by fraudulently claiming refund of countervailing/ additional duty paid on import of goods and in this case, without filing of Writ Petition, the finding rendered in the impugned Judgment against the present Appellant cannot be sustained. The peculiarity of this case is, the entire record about the Writ Petition was missing from the Refund Section, but one thing is clear that the Refund Order cannot come into existence, without the relevant custom file, as it was bearing the number and as far as the Appellant is concerned, who was the Appraiser, he was to only sign upon the Refund Order upon the sanction accorded by the Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy, Mr. K.P. Shah filed a Petition in the name of Mr.Pinakin J. Shah, Sole Proprietor of M/s Jirad Chemicals, shown as carrying business of import of drugs and pharmaceuticals at Mumbai. In the said Writ Petition, Mr. K.P. Shah is accused of claiming refund of Rs.34,396/- as the CVD between the year 1983 and 1986, as per the cash numbers shown and referred in Exh. H to the Petition. The Bombay High Court passed an ad-interim order in terms of prayer clause C of the Writ Petition for refund of Rs. 34,396/- with interest at the rate of 15% p.a. and by substituting the Writ Petition, an amount of Rs. 3,34,918.60 was paid as per Exh. H , which referred to 21 cash numbers. The Appellant, being arraigned as Accused No. 1, was accused of issuing Refund Order in the sum of the aforesaid amount, without proper verification of the importer and the genuineness of the claim and did not call for triplicate copy of bill of entry from the importers and also deviated from the procedure laid down by the Refund Cell of the Bombay Customs. Worth it to note that Mr.Yashwant Naik is alleged to have played active role in substituting the original Petition with fictitious one and of securing the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven the papers to Mr. Harshad Shah, who in turn, given them to Mr. K.P. Shah and was told that nothing was received from the Customs Department. Mr. Harshad Shah (PW 4) deposed that he knew Pinakin J. Mody and Mr. K.P. Shah and he has given papers of Pinakin Mody to Kumar Shah, after Pinakin Mody gave him those papers, but he had never given the papers to any Solicitor or Advocate. 107. On the basis of the evidence of PW 3 and PW 4, it is concluded by the learned trial Judge that the Petition was filed in the name of a ghost entity to claim the amount of refund and in the statement under Section 313 of Cr.P.C, Accused No. 4-Mr. K.P. Shah answered that he knew Mr. Pinakin Mody and the application for refund of Pinakin Mody was filed by him. He admitted that PW 4 given papers of M/s Jirat Chemicals for making application of refund and not for filing of the Writ Petition. It could be thus easily inferred that there was no Writ Petition filed by M/s Jirat Chemicals and its partners and Pinakin J. Shah was a fictitious entity, which was set up by Mr. K.P. Shah, in a unique way of claiming the refund in his name. From the evidence of Prakash Jaitpal (PW 15), once against the same modus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 987 in COC 3952/87, he admitted that page numbers on the Index are in his handwriting, but the words, P.J. Shah Sole Proprietor are not in his handwriting. He has admitted to have filled all the blanks in the cyclostyled Writ Petition and also of putting date and month in the Vakalatnama of the Writ Petition. He had put the number of the Writ Petition in the Index as well as in the affidavit-in-support of the Writ Petition and typed blanks in Exh.C and the particulars Exh. H to the Writ Petition. In addition, copy of the Writ Petition in file No. 3952 in which the handwriting as well as the typing, was identified by him. The testimony of this witness remains the same as in two other cases. The prosecution in addition to the Solicitor has also examined Mr. Vijay Ghag (PW 2) and he was specifically confronted with File No.COO-3958/87. He admitted that he had made noting on page No. 2 of the file and mentioned the amount of refund and the name of the party. He initialed on the said page on 20/04/1987 and the DOS had initialed below his name in blank ink. The Appraiser initialed on the right side below his endorsement on the same date and, thereafter, it was pre-audited. He was unable ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
