9911796707
Advanced Search 
TMI Blog2008 (5) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... was said to be assisting the appellant being the incharge of these publications. The said letter dated 8.9.1994 which was used by accused Yogesh Balkrishnan was authored by the appellant and addressed to the Manager, Indian Bank, Abiramapuram, Madras on behalf of Tamilarasi publication to the following effect: "We invite reference to the various remittances made by our purchase creditors on 22.6.94 into our account, and would like to inform you that a sum of Rs.12 lacs remitted relates to the remittances made by our Foreign buyers of our weekly and fortnightly magazines. Kindly issue a Foreign Inward certificate for this sum of Rs.12 lacs." On the basis of this letter the Foreign Inward Certificate, as sought for by the appellant, was issued by the bank. Ultimately the said car was cleared and was allowed to be imported. 5. A First Information Report came to be lodged at the instance of Central Bureau of Investigation, Chennai for offences under Sections 120B read with Section 420, 468, 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. In that First Information Report, four accused were arrayed, they being, (i) Shri S. Senthivel, Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misconduct and in furtherance of the conspiracy, the appellant and the second accused fabricated documents for the purpose of clearing the imported Lexus Car which was imported by the third and fourth accused in order to take advantage of the provisions of Transfer of Residence and pay less customs duty, though they fully knew that the car was manufactured in the year 1994 which was mis-declared to be manufactured in the year 1993 and in pursuance of the said conspiracy, the fifth accused misued and abused her official position as the Branch Manager of the Indian Bank, issued the 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 the same, knowing very well that the Current Account No.872 of M/s.Tamilarasi had not received any foreign remittance, though it was one of the pre-condition that only foreign remittances could be used for payment of customs duty, thereby the accused had caused loss to the Customs Department of Rs.1,06,20,472/-. It was suggested further that third accused had fraudulently and dishonestly imported the Lexus Car by ship while the fourth accused Yogesh Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 8.9.1994 to the effect that the Lexus Car can be cleared from the Customs. She had also directed her Assistant Manager Smt.Bhavani to modify the certificate and issue the same to Shri M. Natarajan, appellant and Shri Bhaskaran, second accused. Thus the certificate was used by the four accused persons (A1 to A4) for the purposes of clearing the imported car, knowing fully well that the Current Account No.872 did not receive any foreign exchange remittance. 7. The charge-sheet, therefore, went to show that the acts of accused Nos.1 to 5 constituted offences punishable under Section 120B IPC read with Sections 420, 467, 471 IPC and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. It was pointed out further that the other accused persons named in the FIR, who were government officials, were not sent for trial as the Departmental action for major penalty was recommended against them. It was further pointed out that Smt.Bhavani, original Accused No.6 was granted tender of pardon by the 2nd Metropolitan Magistrate, Egmore, Chennai while fifth respondent was already dismissed from service and as such no sanction order was required under the law. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 18.3.1999. This final settlement was arrived at between the parties as against the original claim arrears of tax of Rs.5,68,649/-. In short, the appellant prayed that in respect of the transaction in question no prosecution could have been launched against the third accused or for that matter any other accused. For this the appellant relied on the reported decisions of this Court in Central Bureau of Investigation, SPE, SIU (X), New Delhi v. Duncans Agro Industries Ltd., Calcutta [(1996) 5 SCC 591] and Sushila Rani (Smt.) v. Commissioner of Income Tax & Anr. [(2002) 2 SCC 697] and Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257]. 10. As against this, it was argued before the learned Single Judge by the Public Prosecutor that firstly the Revision Petition under Section 239 Cr.P.C. could not co-exist with the Criminal Original Petition under Section 482 of the Cr.P.C. It was secondly suggested that the law laid down by this Court in Duncans Agro's case and Sushila Rani's case (supra) was no more a good law because of the decision of this Court in State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568]. It is also suggested by the Public Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge sheet did not have any connection with the declaration of statement (by accused no. 3) and the letter dated 8.9.1994 which was the basis for issuance of Foreign Inward Remittance certificate amounted to misrepresentation and false representation and it had no connection with the scheme whatsoever and as such the learned Judge came to dismiss the Revision Petition as well as Criminal O.P. under Section 482 Cr.P.C. 13. It is on this background that we have to proceed to decide the present appeals. 14. Shri K. Subramaniam, Senior Advocate, appearing on behalf of the appellant very heavily relied on the decision in Hiralal's case (supra). He pointed out that the law laid down in Duncans Agro's case and Sushila Rani's case (supra) was reiterated in Hiralal's case, more particularly in para 27 thereof. Para 27 reads as under: "On a reading of the judgment in the case of Sushila Rani, it is clear to us that if an assessee takes the option under this scheme, he obtains immediate immunity under any proceeding under any and all laws in force. As such the present proceedings initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to be issued by the Branch Manager and, therefore, this act is independent offence, though ultimately the said certificate had been used by the third accused for getting the clearance of the car. Our attention was invited to the provisions suggesting that under the scheme the remittance is either to be made in foreign currency or atleast on the basis of the remittance by an NRI credited in the account held in the Indian Bank. He further points out that the provisions of Sections 90, 91, 95 and more particularly Section 91 were clear and couched in the language which admitted of no doubts. Relying heavily on the language of Section 91, the learned ASG suggests that this immunity has to be restricted to the offence under the Act and it could not be viewed as general immunity providing immunity covering all the other offences covered by different Acts which are distinct and separate from the tax laws. Further the learned counsel urged that the immunity was not available to a totally non connected persons like the appellant. In that behalf he pointed out that the third accused had not claimed immunity before the trial court or before the High Court. The learned counsel also sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third accused and ultimately, the tax liability was satisfied and the car was allowed to be imported. Section 90 provides for the time and manner of payment of tax arrear which have been settled on the basis of the declaration under Section 88. Indisputably, a certificate in the prescribed form was granted in favour of the third accused in which particulars of the tax arrear and the sum payable after such determination was mentioned being a full and final settlement of the tax arrears. Section 91 is the real crux of the matter. It provides immunity from prosecution and imposition of penalty in certain cases: "91. Immunity from prosecution and imposition of penalty in certain cases- The designated authority shall, subject to the conditions provided in Section 90, grant immunity from instituting any proceeding for prosecution for any offence under any direct tax enactment or indirect tax enactment, or from the imposition of penalty under any of such enactments, in respect of matters covered in the declaration under Section 88". It is this Section 91, which has been relied upon by the appellant suggesting that the language is broad enough to cover not only the declarant but any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re filed before Customs, Excise and God (Control) Appellate Tribunal, West Regional Branch, Bombay which confirmed the findings of the Collector of Customs. Against that, the GCS filed an appeal before this Court and while the matter was pending before this Court, the Government of India launched a Kar Vivad Samadhan Scheme, 1998, and in accordance thereof, the GCS had agreed to deposit a stipulated amount of over Rs.98 lakhs and also withdrew the civil appeal pending before this Court. On 19.7.1999, a certificate for full and final settlement of the tax arrears was issued to the GCS. The said certificate provided the final settlement of tax arrears and also granted the immunity to the GCS from any proceedings for prosecution for any offence under the Customs Act, 1962 or from the imposition of penalty under the concerned enactments. However, a case was registered against the appellants on the ground that the appellants in conspiracy with the Director of the GCRI, Secretary of the GCS and others had cheated the Government of India. The prosecution was for the offence under Section 120-B read with Section 420 of the IPC. It was this prosecution which was challenged and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in para 13 of this judgment. We may at this stage itself point out that the observations in paragraphs 6 and 8 in Sushila Rani's case seem to have been made only in the pursuance of tax laws. The question of prosecution under some other offences (not under the Indirect Tax Act or the Direct Tax Act) was not there. 20. A reference must be made, at this stage, to the judgment of this Court reported in Alpesh Navinchandra's case (cited supra) which was again decided by the Division Bench consisting of Hon'ble Lakshman and Kabir, JJ., the judgment was, however, authored by Hon'ble Lakshmanan, J. This was the case of immunity granted under Sections 127H of the Customs Act, 1962, however, the appellant and his brother were preventively detained under COFEPOSA. The detention was challenged on the ground that once the immunity under Section 127H of the Customs Act was granted in respect of customs offences, after settling the taxes finally by the Settlement Commissioner, the preventive detention could not have been ordered by the authorities for the same reasons. The case of Hiralal (cited supra) was relied upon, which is clear from a reading of paras 17 and 46. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ralal's case is removed by the observations made in paragraphs 46 and 47 in Alpesh Navinchandra Shah's case. It was contended that the legislature had created a Settlement Commission for generating revenue and had also made provisions for release of the goods on payment of duty and had also made provisions for granting immunity from prosecution under the Customs Act, 1962 under the Penal Code and also under the other Central law and, therefore, it was clear that the intention of the legislature was more on revenue aspect rather than prosecution and punishment aspect or in continuing with multiple litigations. And, therefore, it would be unjust, unfair and unreasonable if a person is made to suffer preventive detention mainly after his application for settlement is allowed to e proceeded with, and after realization of the customs duties not only the goods are ordered to be released but on considering the cooperation extended by him in the settlement proceedings, the Settlement Commission had also granted to him immunity from prosecution under the Customs Act, 1962 as well as under IPC. The reliance there, however, as being made not on KVSS 1998, but on the Scheme under Section 127-H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics of a particular description. On allegations in regard to the grant of the license, an FIR came to be lodged on 2.3.1995 for commission of offences under Sections 120-B, 420 and 471 IPC as also Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 136 of the Customs Act, 1962. The Company and its Directors had given a declaration on 31.12.1998. However, the charge sheet against them and the four public servants was filed on 12.4.1999, originally against the 7 accused persons, 3 out of whom were the private parties, namely, the Company and its 2 Directors. The High Court quashed the criminal proceedings against the private parties as also the Government servants. Challenging this quashing, the CBI came before this Court. It was urged before this court that: (i) the High Court had erred in holding that though the private parties have become entitled to immunity from prosecution, the official respondents would also be covered thereby, (ii) the High Court erred in holding Section 95(iii) of the Act to be inapplicable to the present case, and (iii) public servants were not entitled to any relief under the Scheme and far less immunity from pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transfer of application of Salex Tax Act would not be covered by the immunity under KVSS, 1998. This Court in paragraph 33 observed as under: "33.....an immunity is granted only in respect of offences purported to have been committed under direct tax enactment or indirect tax enactment, but by no stretch of imagination, the same would be granted in respect of offences under the Prevention of Corruption Act. A person may commit several offences under different Acts; immunity granted in relation to one Act would not mean that immunity granted would automatically extend to others. By way of example, we may notice that a person may be prosecuted for commission of an offence in relation to property under the Penal Code as also under another Act, say for example, the Prevention of Corruption Act. Whereas charges under the Prevention of Corruption Act may fail, no sanction having been accorded therefore, the charges under the Penal Code would not." Thus this Court accepted the principle that the immunity could not cover certain other offences than those covered in direct and indirect tax enactments. The Court also accepted that the immunity could not be granted to any other person a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the observations expressed in paragraph 27 hereof, we must proceed in terms of the subsequent judgment where the arlier judgment was taken note of. 27. By way of almost a desperate effort Shri K. Subramaniam, learned Senior Advocate then urged that the only offence which could have been alleged against any of the accused was under Section 132 of the Customs Act, 1962, i.e., of making a false declaration. The argument was that since the offence complained of related to the false declaration and false documents, the appellant could be prosecuted only under Section 132 of the Customs Act and not under the offences covered under the Indian Penal Code. Section 132 of the Customs Act is as under: "132. False declaration, false documents, etc. - Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years or with fine, or with both." The argument is only to be rejected. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
