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2016 (10) TMI 434 - GUJARAT HIGH COURT

2016 (10) TMI 434 - GUJARAT HIGH COURT - TM - Compounding the offences - forgery of any documents - Held that:- It is undisputed fact that Central Excise Act and Rules provides for compounding the offences so also section 320 of Cr.PC. It is also undisputed fact that once main offence is compounded then there is catana of judgments by Supreme Court that when the department has compounded the offences then there is no reason to continue the criminal proceedings, more particularly when offences ar .....

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ing offence of forgery, since there is no means rea and practically there is no financial benefit accrued by any of the petitioners. - It is held as under: if the Court arrives at only opinion, there is no evidence against the accused, the Court shall not put accused to harassment by asking him to face a trial. - In view of above facts and circumstances, the revision applications are allowed. Thereby impugned order dated 20.01.2010 charge-sheet to proceed further against petitioners are .....

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cused no. 9 as petitioner no. 3 in Revision petition no. 627/2016 whereas petitioner in revision petition no. 716/2016 is accused no. 1. Complaint is already quashed and accused no. 2 whereas it is abated so far as accused no. 14. - CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 594 of 2016 With CRIMINAL REVISION APPLICATION NO. 627 of 2016 With CRIMINAL REVISION APPLICATION NO. 716 of 2016 - Dated:- 3-10-2016 - MR. S.G.SHAH, J. FOR THE APPELLANT : MR VIKRAM CHAUDH .....

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K.P. Rawal for State. Perused the record. 3. These three petitions are though by different petitioners, they are arising out of the same FIR and having common and similar disputes between the parties and therefore, they are heard and decided together by common judgment. The advocates have also addressed only one set of arguments for all the three petitions and practically adopted the arguments advanced in first petition for remaining two petitions. Therefore, the discussion is also recorded in o .....

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orated under the Companies Act, 1956 namely Welspun Gujarat Sthal Public Limited which name is changed to Welspun Corporation Limited (hereinafter referred to as the Company ) has filed an application for exemption, pursuant to the notification dated 31st July, 2001 by the Central Government offering exemption from the excise duty to certain units under specific terms and conditions. It is undisputed fact that said factory has its units at Anjar in Kutch and that the petitioners/persons had for .....

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when the Assistant Commissioner of Central Excise had visited the unit of the petitioner Company they found that the plant and machinery were not fully installed and the unit was operated only for limited production and that it was the only possible production at the time of inspection i.e. 2nd January, 2006 and thereby there is no possibility of any more production and therefore the disclosure by the petitioner Company through its officers being petitioner/persons, herein was not only false but .....

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ction. Therefore, it is alleged that even Chartered Accountants had issued such installation certificate without physically verifying the plant and machinery. Therefore, as submitted, it is found that several documents are manipulated to get the exemption from excise duty and hence investigation was conducted, wherein it has been revealed that several documents are forged and fabricated and therefore the complaint was lodged against the Company on 31st July, 2006. After investigation, CBI has su .....

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ve been committed by the petitioner Company and petitioner/persons. There are several communications from some of the officers and Chartered Accountants disclosing the compliance and certain terms and conditions of the notification under reference. But, mainly it was found that the contents of such communication are not correct. 8. Amongst the accused, the Managing Director of the Company namely B.K. Goenka had come forward and discussed the dispute with the department of Customs and Excise conv .....

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It is also undisputed fact that otherwise also the benefit if any is to be received, it will go the Company and not to any individual and that the benefit to the Company would be ultimately to its shareholders and not to any particular individual in terms of any fix amount. 9. Pursuant to such attempt and exercise by B.K. Goenka, the Managing Director of the petitioner Company, the Customs and Excise Department had; considering the bonafides of the petitioner Company and its office bearers, so .....

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pounded the offence, if any, committed by the petitioner Company or its office bearers. The perusal of such order,reveals that the Department had, after recording the facts of the case and verification by the reporting authority while recording the findings makes it clear that the applicant before it i.e. M/s Welspun Corporation Ltd., Shri B K Goenka Managing Director of M/s Welspun Corporation Ltd. and Shri Mahesh Khemka Vice President of M/s Welspun Corporation Ltd. have disclosed true facts r .....

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ly, 2001 and has removed the cost of payment of duties by utilization of CENVAT Credit, thereby there has been no loss of revenue to the department by any act of the Company. Therefore, it is certainly a clear position that when department by which the proceeding has been initiated has compounded the offence and that too by imposing condition to pay the amount for such compounding and thereby when the Chief Commissioner of Central Excise compounded the offence subject to the payment of ₹ 5 .....

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tor of the petitioner Company Shri Balakrishna Gopiram Goenka (B.K.Goenka) has challenged the proceeding in a quashing petition being Special Criminal Application No. 2543/2012, such petition was resisted by the State and CBI. The copy of judgment in such petition, dated 10th April,2015, is on record at Annexure P-20; perusal of which makes it clear that the Coordinate Bench has not only quashed and set aside the FIR qua the petitioner before it namely B.K. Goenka but has categorically observed .....

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ed under the scheme. 11. In light of the above background, I have considered the arguments canvassed on behalf of the learned advocates appearing for the parties. I have also gone through the documents produced on record. In the present case, the FIR came to be registered against one B. C. Macwana, the then Assistant Commissioner, Central Excise, Rajkot, M/s. Welspun Gujarat Sthal Rohren Limited and against unknown person for the offences punishable under Sections 120B, 420, 467, 468, 471 and 51 .....

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FIR, an application seeking withdrawal of the benefit, which was sought under Notification dated 31.07.2001, was submitted by the Company and, therefore, the Company has not received any wrongful gain on the basis of its earlier application dated 24.12.2005 and therefore, no pecuniary loss is caused to the Department. Thus, the ingredients of the alleged offence punishable u/s. 420 of IPC are not attracted. 12. It is also clear from the record and more particularly from the order dated 19.09.20 .....

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ompounded the offence, initiation of proceedings under the provisions of IPC for the same allegations cannot be permitted. There cannot be two different prosecutions for the same incident and petitioner cannot be prosecuted twice for the same offence even in different proceedings 13. In the case of Rajesh Kumar Sharma v. Union of India & Ors., reported in (2007) 9 SCC 158, The Hon ble Supreme Court, in para 6, observed as under: 6. The guidelines for compounding are contained in the Circular .....

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spelt out in the said circular. 14. In the case of Hira Lal Hari Lal Bhagwati v. CBI, New Delhi, reported in (2003) 5 SCC 257, The Hon ble Supreme Court, in paras 29 and 30, observed as under: 29.In our view, in the present case, the alleged criminal liability stands compounded on a settlement with respect to the civil issues and, therefore, the First Information Report was erroneously issued and was totally unwarranted. From the aforesaid judgment, the proposition that follows in the instant ca .....

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not absolve the appellants from criminal liability under the Indian Penal Codee. The learned Single Judge of the High Court of Delhi, in our opinion, has not appreciated the fact that the continuance of the proceedings in the instant case would only tantamount to driving the present appellants to double jeopardy when they had been honorably exonerated by the Collector of Customs by their adjudication and further the GCS of which one of the appellants is the General Secretary in which capacity h .....

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ed No. 2 & Accused No. 1, inter alia , on the ground alleging that the appellant in conspiracy with the co-accused named therein with each other have cheated the Government of India in terms of evasion of Customs Duty and by concealment of facts obtained CDEC in respect of MRI and Lithotripsy machines and by violating the provisions of actual user condition as per Import Export Policy and Customs Notification No. 279/83 dated 30.9.1983 and Customs Notification No. 64/88 dated 1.3.1988 during .....

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therein under wholly discharged and the GCS granted immunity from prosecution. It is well established principle of law that the matter which has been adjudicated and settled need not to be dragged into the criminal courts unless and until the act of the appellants could have been described as culpable. The true fact and import of the Kar Vivad Samadhan Scheme, 1998, in our view, is that once the said Scheme is availed of and all the formalities complied with including the payment of the duty, t .....

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e prosecution, the impugned FIR and the charge-sheet be quashed and set aside qua the petitioners also. 16. In case of G.N.Verma v. State of Jharkhand & Anr., reported in (2014) 4 SCC 282, the Hon'ble Supreme Court, in para 18, 19, 20 and 25, observed as under: 18. It is nobody s case that G.N. Verma was appointed as an agent of any mine. Also, the complaint does not allege or state anywhere that G.N. Verma acted or purported to act on behalf of the owner of the mine or that he took part .....

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e averment in the complaint is bald and vague and is to the effect that at the relevant time G.N. Verma was the Chief General Manager/deemed agent and was exercising supervision, management and control of the mine and in that capacity was bound to see that all mining operations were conducted in accordance with the Act, the Rules, Regulations, Orders made thereunder. 19. It has been laid down, in the context of Sections 138 and 141 of the Negotiable Instruments Act, 1881 in National Small Indust .....

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out as to how and in what manner Respondent 1 was in charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability. (emphasis in original) It was then concluded: (SCC p. 345, para 39) 39. (I) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariou .....

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Act, the Rules, Regulations, Orders made thereunder. In the face of such a general statement, which does not contain any allegation, specific or otherwise, it is difficult to hold that the Chief Judicial Magistrate rightly took cognizance of the complaint and issued summons to G.N. Verma. The law laid down by this Court in Harmeet Singh Paintal (though in another context) would be squarely applicable. Under the circumstances, we are of the opinion that on the facts of this case and given the abs .....

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greement with the argument canvassed by the learned Senior Counsel Shri Chaudhari for the petitioner that since there is no specific allegation in the FIR or in the charge-sheet against the petitioner and merely because the petitioners were employees of the Company, they have been implicated in the offence, the petitioner cannot be made vicariously liable for the act and/or omission on the part of the Company for the offence punishable under the provisions of the IPC. Whereas Department has alre .....

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he fact that merely because the petitioners were members of the team of the Company and Company had decided to give an application for getting the benefit of excise, it cannot be said that petitioners were having any intention to commit the alleged offence. 19. In fact no specific role is attributed to each of the petitioner with regard to the alleged offence. Further, the Company has also decided to withdraw the application given for getting the benefit as per the Notification dated 31.07.2001 .....

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said person is coaccused in the chargesheet which is filed against the Company and its officers. In the statement given by the said co-accused, no specific allegations are made by the said coaccused against the petitioner. 20. In view of the aforesaid discussion, when it is prima facie proved that the petitioner has not wrongfully gained anything and/or any wrongful loss is caused to the Department and the Company and its officers including the petitioners have been granted immunity, in the opin .....

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nd all proceedings initiated pursuant thereto are nothing but a gross abuse of the process of the Court and therefore in the interest of justice, the same are required to be quashed and set aside. Accordingly, FIR being RC20(A)/2008 - GNR and the charge-sheet filed pursuant thereto are hereby quashed and set aside qua the petitioner. Rule is made absolute. 22. The petitioners are also relying on the following cases which are confirming same principles that prosecution and proceedings after compo .....

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S 686 CENTRAL BUREAU OF INVESTIGATION v. JAGJIT SINGH; (5) (2013) 7 SUPREME COURT CASES 789 MOHIT alias SONU AND ANOTHER v. STATE OF UTTAR PRADESH AND ANOTHER. 23. As against that learned Advocate Mr. Kodekar for the CBI is relying on the decision reported in (2013)10 SCC 686 Central Bureau of Investigation v. Jagjit Singh wherein Hon ble the Supreme Court has held that settling the dispute with the bank is no ground to quash criminal proceedings against defaulter/loanee because such offences ar .....

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on the contrary the Managing Director of the Company, the Company and its Vice President paid ₹ 50,000/- each i.e. a total of ₹ 1,50,000 for compounding offences thereby practically there was benefit to the department and there was no benefit to the accused. 24. Mr. Kodekar is also relying upon the decision in (2013) 7 SUPREME COURT CASES 789 between MOHIT alias SONU AND ANOTHER v. STATE OF UTTAR PRADESH AND ANOTHER wherein Hon ble Supreme Court has considered the revisional powers o .....

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pport of such conclusion, reference to certain judgments of the Apex Court are necessary, which are as under:- 1. AIR 1997 SC 2041 between State of Maharashtra Vs. Priya Sharan Maharaj - It is held that at the stage of framing the charge, the Court has to consider the material only with a view to find out that whether there is ground for presuming that accused has committed an offence or that there is no sufficient ground for proceeding against him and not to arrive at the conclusion that whethe .....

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accepted, cannot show that accused committed particular offence. Thus it is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has .....

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Code that in a case triable before the Court of Session, if the Court on consideration of the record of the case and the documents submitted therewith and after hearing the submission of the prosecution and the accused if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused after recording reasons for doing so. 4. (1997)4 SCC 393 = 1997 AIR SCW 1833: State of Maharashtra vs. Priya Sharan Maharaj - Referring to the case of Niran .....

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gospel truth and even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out that whether there is any ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction 5. AIR 2007 SC 2149 = 2007 AIR SCW 3 .....

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arge and Court can convict the accused only if such charges i.e. evidence is proved on record without reasonable doubt. Therefore, if there is no chance to prove a commission of offence by the accused, charge cannot be framed. 7. AIR 2009 SC (Suppl) 1744 - State of M.P. Vs.Sheetla Sahai - It is held that if the Court arrives at only opinion, there is no evidence against the accused, the Court shall not put accused to harassment by asking him to face a trial. 26. Thus, the law on the subject is n .....

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probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that whether it is likely to lead to a conviction or not. 27. However it cannot be ignored that what is to be looked into is a very strong suspicion founded upon mat .....

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be laid down either in the statute as well as its interpretation by the Apex Court and not otherwise. Therefore, there can be order of discharge if there is no evidence with charge sheet which gives rise to even a slight suspicion to presume the commission of offence by the accused. Needless to say that even if there is suspicion regarding commission of offence, what is required to frame discharge is suspicion of commission of offence by the accused against whom charge sheet is filed. Thus even .....

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of offence alone is not sufficient to frame charge against any person, there must be some suspicion that offence had been committed by the said person and not by any other person. If the suspicion is to the effect that though offence has been committed, probably accused might have not committed such offence but real offender may be someone else, Court has to see that truth comes out whereby the Investigating Agency may not be permitted to put their hands down merely by filing charge sheet again .....

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the Court's duty to frame independent opinion regarding not only commission of crime but involvement or role of the accused against whom charge sheet is filed and if there is no possibility of even little suspicion against the accused regarding commission of offence by him, there is no bar to discharge such person from the charges leveled against him. In such cases, it would be open for the original complainant and the investigating agency to keep such person under suspicion but to investig .....

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position in the case of compromise or compounding of offence by the parties. There is no need to proceed further in criminal proceedings. The Trial Court has also failed to appreciate the factual details that in fact the Company has never been benefited by seeking exemption of tax and that now there is one final judgment in favor of the Company and against the prosecuting agency. But the determination of co-ordinate bench which is recollected herein above is certainly applicable to all the accus .....

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if any received by the Company. When factually Company has never received any financial benefit it cannot be ignored that the present petitioner Company, and officers of the Company have to follow the instructions and directions of the Company through its chairman and Managing Director and when Chairman has been relieved from the charges on compounding the offences so also the Company, it cannot be said that its officers can separately prosecuted. At the most department or investigating agency m .....

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f rules or technical offences. In the present case, though some documents are alleged to be forged practically there is no forgery of any documents. It is submitted by the petitioners that, in fact an advance appreciation of work by the Company as per project report happens as per fixed schedule was disclosed. However for one reason or another if such time schedule could not be adhered to either during installation or during production it may not amount to committing offence of forgery, since th .....

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fficient ground for proceeding against him and not for the charges by arriving at the conclusion that it is not likely to lead to a conviction. (2) AIR 2000 SC 665 = 2000 SCC(2) 57 : State of MP vs. SB Johari - It was held that, the Court at the stage of S.227 and S.228 is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. Only prima facie case is to be looked into. The charge can be quashed if the ev .....

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ourt is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. (3) 2005 SC 359: State of .....

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7 AIR SCW 1833: State of Maharashtra vs. Priya Sharan Maharaj - Referring to the case of Niranjan Singh Karam Singh Punjabi (supra) held that at the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected ev .....

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ot likely to lead to a conviction. (5) AIR 2007 SC 2149 = 2007 AIR SCW 3683 - Soma Chakravarty v. State - It is held as under: Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. (6) AIR 2012 SC 1890 - General Officer Commanding Vs.CBI It is held as under: The cognizance has to be taken of the offence and not of the offender and that it is the duty of the investigating ag .....

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