TMI Blog2017 (1) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... ome 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 there is no mens rea and practically there is no financial benefit accrued in favour of the petitioners. Revision application allowed - charge-sheet to proceed further against petitioners are hereby quashed and set aside - decided in favor of petitioner. - CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 857 of 2016 With CRIMINAL REVISION APPLICATION NO. 859 of 2016 - - - Dated:- 29-12-2016 - MR. S.G.SHAH, J. FOR THE APPLICANT : MR PRATIK Y JASANI AND MR.DIGANT M. POPAT, ADVOCATES FOR THE RESPONDENT : MR RC KODEKAR, ADVOCATE COMMON CAV JUDGMENT 1. Heard learned advocate Mr.Pratik Jasani and Mr.Digant M. Popat for the petitioners and learned Standing Counsel Mr. R.C. Kodekar for CBI. Perused the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on 28.12.2005 specifically confirms that there was such production on that day. Such report is at page 75 / C dated 2.1.2006 by Mr.S.P. Gawade, Assistant Commissioner of Central Excise of Bhuj. Therefore, fact is quite clear that there is no dispute so far as production and its supply is concerned, inasmuch as, production is dated 27.12.2005, invoice is dated 28.12.2005 and supply of goods is dated 4.1.2006. So far as measurement in terms of thickness of plates are concerned, when immediately goods is supplied practically petitioner has no chance either to accept or to reject the goods but it cannot be said that there was no production even if goods were having some discrepancy in measurement. Therefore there is no clinching evidence to confirm that petitioner has committed any offence as alleged in such chargesheet i.e. either under Sections 424, 463, 468, 471 and 511 read with 120B of the Indian Penal Code. 5. The petitioner in Criminal Revision Application No.859 of 2016 namely; Babubhai Chhotalal Makwana is retired Assistant Commissioner of Central Excise Department. The Chargesheet (Page no.22 i.e. running page 212 of the petition, paragraph of the petition) against him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused who are concerned with the Company and came forward to settle the issue with the Department. 8. So far as petitioner Babubhai Chhotalal Makwana is concerned, he has been charged with Sections of Indian Penal Code as stated hereinabove so also for the alleged offences under Section 13(1) and 13(1)(d) of the Prevention of Corruption Act, 1988. The bare reading of the provisions of Prevention of Corruption Act makes it clear that in any case, there are no ingredients or details in the FIR or in the Chargesheet so as to attract the provisions of Corruption Act and then to prosecute the petitioner under such Act. 9. It is quite clear and obvious that under Section 13(1)(d), the basic requirement is to the effect that the accused himself should have obtained either for himself or for any other person either any valuable thing or pecuniary advantage either by corrupt or illegal means or by abusing his position and without any public interest. Therefore, when there is no allegation about any such fact, it can be said that there is no prima-facie evidence regarding criminal misconduct as alleged. 10. Learned advocate for the petitioner is relying upon the decision in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d prior to 31st December, 2005. 13. However, when the Assistant Commissioner of Central Excise had visited the unit of the 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 Company through its officers was not only false but fraudulent in as much as they wanted 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 Company had issued false certificate claiming that the valuation of the plant and machinery installed is of ₹ 45.46 crores and ₹ 83.69 crores; though there was no such plant and machinery available on the day of inspection. Therefore, it is alleged that even Chartered Accountants had issued installation certificate without physically verifying the plant and machinery. Therefore, as submitted, it is found that several documents ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recollect all the minute details of the F.I.R and charge-sheet, or the activities carried out by the Company for getting some advantage, more particularly when they have never received any advantage at all. 17. It is submitted by petitioners that by an Order No.01/CO/2008 dated 19th December 2008 the Chief Commissioner of Central Excise had entered into a compromise and compounded the offence, if any, committed by the 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 relating to the case and therefore the Chief Commissioner granted them immunity from prosecution under Section 9 of the Central Excise Act, 1944. While granting such immunity, it has been recorded that the basis on which the Application for exemption was rejected is false information furnished by the Company which constitutes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R came to be registered against one of the petitioners namely; B. C. Macwana, the then Assistant Commissioner, Central Excise, Rajkot, M/s. Welspun Gujarat Sthal Rohren Limited and also against present petitioner namely; James Samual for the offences punishable under Sections 120B, 420, 467, 468, 471 and 511 of Indian Penal Code and under Sections 13(1)(d) and 13(2) 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 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 punishabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 especially senior citizens of the age of 92 70 years to fresh investigation and prosecution on an incident or fact situation giving rise to the offence under both the Customs Act and the Indian Penal Code when the matter has already been settled. Likewise, the respondent herein has initiated criminal proceedings against Accused No. 2 Accused No. 1, inter alia , on the ground alleging that the appellant in conspiracy with the co-accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 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 Industries Corpn. Ltd. v. Harmeet Singh Paintal reported in (2010) 2 GLH 766 that Section 141 is a penal provision creating a vicarious liability. It was held as follows: (SCC p. 336, para 13) 13. It is therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no specific allegation in the FIR or in the charge-sheet against petitioners and merely because the petitioners were in picture during the activities by the Company, they have been implicated in the offence, but the petitioners 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 or Prevention of Corruption Act when there is no evidence against them to prove such offences. Whereas Department has already compounded the offence if any committed by the Company. 25. 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 to apply for getting excise benefits as per the Notification dated 31.07.2001 and therefore the petitioners are involved in the aforesaid crime. However, the said contention is misconceived in view of the fact that petitioners were never members of the team of the Company and when Company had decided to give an application for getting the benefit of excise, it cannot be said that petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 30. 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 are not related to banking activities and it has harmful effect on public and it threatens the whole society and therefore though bank seems to be the victim society in general is victimized and hence criminal complaint was denied to be quashed only because paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f there is no evidence to link such suspicion with the accused, there cannot be a presumption against the accused that he had committed the offence and he may be entitled to get discharged from the charges levied against him under the charge sheet. Needless to say that the charges levied against the person is to be considered and not the story or history of incident which results into the commission of offence. For more clarity, commission 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 against any one including any innocent person. In such cases, trial cannot be allowed to continue only upon opinion of the investigating agency that accused had committed the offence as alleged in charge sheet. The Court has to arrive at independent opinion, aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, 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 be separately prosecuted. At the most department or investigating agency may ask for penalty in the form of compounding charges from all the accused. 34. 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 are either in the form of breach of 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 anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 even at that initial stage to accept all that the prosecution states as 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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