TMI Blog2016 (10) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hereby quashed and set aside which results into discharging the petitioners from the offences registered against them pursuant to complaint no. RC/20(A) /2008/GNR and charges leveled against them in CBI Special case No. 3/2010. Amongst the accused at present we are concerned with accused no. 3 as petitioner no. 2 in revision petition no. 594/2016 whereas accused no.5 as petitioner no. 2 in Revision petition no. 627/2016 accused no. 8 as petitioner no. 2 in Revision petition no. 627/2016 accused 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 REVISIO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have also disclosed the value of installed plant and machinery by way of producing a certificate issued by the Chartered Accountant and to prove the commercial production and transactions. They have also filed invoices alleged to have been issued by them prior to 31st December, 2005. 6. However, 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 fraudulent in as much as they want to declare themselves eligible under the terms and conditions of the notification dated 31st July, 2001, so as to get exemption from the payment of excise duty. It is further contended that even Chartered Accountants of the petitioner Company had issued false certificate claiming that the valuation of the plant and machinery installed is of ₹ 45.46 crores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 also officers; agreed to settle the dispute and therefore now it would not be necessary to recollect all the minute details of the F.I.R and charge-sheet, or the activities carried out by the petitioner for getting some advantage, more particularly when they have never received any advantage at all. 10. The petitioner has also produced at Annexure P-11 on record, Order No. 01/CO/2008 dated 19th December 2008 by the Chief Commissioner of Central Excise whereby he entered into a compromise and compounded 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has held that the petitioner is immune from any criminal proceedings pursuant to the certificate issued 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 511 of Indian Penal Code and under Section 15 of the Prevention of Corruption Act, 1988. After the investigation, a charge-sheet came to be filed against the officers of the aforesaid Company including the present petitioners. The Company passed a resolution in its Board Meeting and decided to apply for getting excise benefit as per Notification dated 31.07.2001 and therefore the Company submitted an application on 24.12.2005. However, from the record,it appears that before the registration of the FIR, an application seeking withdrawal of the benefit, which was sought under Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows in the instant case is that the Kar Vivad Samadhan Scheme, 1998 issued by the Government of India was a voluntary scheme whereby if the disputed demand is settled by the Authority and pending proceedings are withdrawn by an importer shall be dropped and the importer shall be immuned from the penal proceedings under any law in force. We are therefore, of the opinion that this judgment squarely comes in the face of any argument sought to be propounded by the respondent that the Kar Vivad Samadhan Scheme, 1998 does 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 he is accused in the present case was granted amnesty under the Kar Vivad Samadhan Scheme, 1998. In our opinion, the present case does not warrant subjecting a citizen especia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the management, control, supervision or direction of any mine. In fact his duties and responsibilities have not been described in the complaint. In the absence of G.N.Verma s duties having been spelt out in the complaint, it is not possible to say whether he was merely an administrative head of Karkata Colliery being its Chief General Manager or was he required to be involved in technical issues relating to the management, control, supervision or direction of any mine in Karkata Colliery. The 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 operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would need to unreasonably stretch the law to include G.N. Verma as a person vicariously responsible for the lapse that occurred in the mine resulting in a fatal accident. We are of the view that under these circumstances, there is no basis for proceeding under Section 72B of the Act against G.N. Verma. 17. In above view of the matter, I am in agreement 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 already compounded the offence if any committed by the Company. 18. The contention of the learned advocate Shri Kodekar appearing for respondent No.2 CBI is that petitioners were members of the team of the Company which had tried to execute the resolution passed by the Company whereby it was decided toapply for getting excise benefits as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 compounding dispute cannot be sustained therefore, further prosecution of such judgment has been avoided. (1) 1998 (108) E.L.T. 16 (S.C) G.L. DIDWANIA V. INCOME TAX OFFICER; (2) (2011) 2 SUPREME COURT CASES 703 KOLLA VEERA RAGHAV RAO V.GORANTALA VENKATESHWARA RAO AND ANOTHER; (2) (2004) 2 SUPREME COURT CASES 731 K.C. BUILDERS AND ANOTHER v. ASSISTANT COMMISSIONER OF INCOME TAX; (3) (2015) 4 SUPREME COURT CASES 609 SUNIL BHARTI MITTAL v.CENTRAL BUREAU OF INVESTIGATION; (4) (2013) 10 SUPREME COURT CASES 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient or not for convicting the accused. Only prima facie case is to be looked into. The charge can be quashed if the evidence which the prosecutor proposes to prove the guilt of the accused, even if fully 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 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 crossexamination 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. AIR 2005 SC 359: State of Orissa vs. Debendra Nath Padhi - The Apex Court has held that, it is seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 now well settled, that while framing charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom 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 even at that initial stage to accept all that the prosecution states as gospel truth 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 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 materials before the Magistrate, which leads him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the investigating agency (police papers). It is 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 investigate further so as to find out real culprit, else filing of charge against a person only on suspicion but without sufficient evidence against him would be a futile exercise and it will not only increase unnecessary workload but crime in the society also, since real culprits are able to get secluded them from the trial. 28. If we peruse the impugned judgment, it becomes clear that the special judge mainly relied upon the facts discussed in the FIR and charge-sheet, but failed to realize the legal position in the case of compromise or compounding of offence by the parties. There is no need to proceed further in criminal proceedings. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no financial benefit accrued by any of the petitioners. 30. In support of such conclusion, reference to certain judgments of the Apex Court are necessary, which are as under. (1) AIR 1997 S.C. 2041: 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 with a view to find out if there is ground for presuming that accused has committed an offence or that there is no sufficient 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 evidence which the prosecutor proposes to prove the guilt of the accused, even if fully accepted, it cannot show that accused committed that particular offence. Thus it is settled law that at the stage of frami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 683 - 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 agency to collect and to produce cogent evidence against the accused for framing charge 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 Supplimentary 1744 - State of M.P. Vs.Sheetla Sahai 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. 31. 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 hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X
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