TMI Blog2015 (4) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department. Thus, the ingredients of the alleged offence punishable u/s. 420 of IPC are not attracted. It is also clear from the record and more particularly from the order dated 19.09.2008 passed by the Chief Commissioner, Central Excise that when the Central Excise Department had initiated the proceedings under Section 9 of the Central Excise Act against the company and its officers with regard to the similar set of allegations made in the impugned FIR, the department compounded the offence and therefore the allegations made in the proceedings initiated under Central Excise Act have come to an end. Thus, when the company and its officers including the petitioner have compounded the offence, initiation of proceedings under the provisions of IPC for the same type of 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. Since there is no specific allegation in the FIR or in the chargesheet against the petitioner and merely because the petitioner was the Managing Director of the company, he has been implicated in the offence, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemselves by cheating, by preparation of false documents, using them as genuine and by abuse of their official position. It is stated in the said FIR that after the earthquake of 26th January 2001, the Government declared various plan for rehabilitation of human beings and industries and tax relaxation policies. One such tax relaxation measure was issuance of Notification No.39/2001CE dt. 31.07.2001. This notification was specifically meant for the units located in the Kutch District. As per the said notification, central excise duty amount paid by the unit could be refunded on fulfilling certain conditions. One of such conditions was that the commercial production of the unit should have started not later than 31.12.2005. it is alleged that the company, vide letter dated 24.12.2005 addressed to the concerned authority informed that they would be commencing commercial production by 27.12.2005. The company also applied for necessary certificate referred to in para 3 of the aforesaid notification for claiming refund. Copies of the necessary documents required for availing said benefit were also enclosed with the said communication. One Shri S.P.Gawade, Assistant Commissioner, Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected the application for discharge filed by the petitioner by an order dated 26.06.2012. Petitioner has, thereafter, preferred this petition under Article 226 of the Constitution of India and under Section 482 of the Code for quashing and setting aside the FIR and all the consequential proceedings initiated pursuant thereto. 5. Learned Senior Counsel Shri P.M.Thakkar appearing for the petitioner submitted that name of the petitioner is not reflected in the FIR and there is no evidence on record to indicate the involvement of the petitioner with the crime in question. Petitioner is a Managing Director of the company and is residing at Mumbai. Petitioner is falsely implicated by the Investigating Agency merely because he is the Director of the company. Learned Senior Counsel submitted that petitioner is sought to be involved in the offence punishable under the provisions of Indian Penal Code on the basis of vicarious liability. He further submitted that the principle of vicarious liability is not applicable for the offence punishable under Indian Penal Code. There is no specific allegations in the impugned FIR against the petitioner that how he has committed the alleged offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the provisions of IPC. Learned Senior Counsel, therefore, submitted that there cannot be two different prosecutions for one solitary incident and petitioner cannot be prosecuted twice for the same offence even in different proceedings and he cannot be compelled to suffer double jeopardy, especially when the earlier offence has been compounded by the competent statutory authority. In fact, no new material is produced by the CBI in support of the offences mentioned in the FIR or in the chargesheet. Therefore, the impugned FIR and the chargesheet filed pursuant thereto are required to be quashed and set aside. 8. Learned Senior Counsel referred to Section 415, 420, 467, 468, 471 of IPC and submitted that ingredients of the alleged offences are not at all made out against the petitioner in the impugned FIR or in the papers of chargesheet and therefore the same may be quashed and set aside qua the petitioner. Learned Senior Counsel further submitted that the impugned FIR is filed with a mala fide intention and instituted with an ulterior motive for putting pressure on the petitioner and therefore the same be quashed and set aside. 9. Learned Senior Counsel further refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned FIR and the chargesheet be quashed and set aside qua the petitioner. 12. Learned Senior Counsel further relied on the decision rendered by the Hon ble Supreme Court in the case of M/s. GHCL Employees Stock Option Trust v. M/s. India Infoline Limited, reported in 2013(1) G.L.H. 754 (SC), and submitted that summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. Learned counsel submitted that in the present case no specific allegation is made against the petitioner in the impugned FIR and he has been implicated on the basis of the statement of the coaccused and it is alleged that the petitioner has hatched conspiracy with other accused. 13. Learned Senior Counsel further relied upon the decision rendered by the Hon ble Supreme Court in the case of G.N.Verma v. State of Jharkhand Anr., reported in (2014) 4 SCC 282. In the said case, in the complaint, no allegation was made against G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the unit had not commenced the commercial production in order to cause undue peculiar advantage to the unit for availing the refund of the duty. The Chief Commissioner of Central Excise, therefore, ordered for investigation in the matter. The officers of the Directorate General of Central Excise Intelligence, Ahmedabad unit carried out the investigation and during the said investigation it was revealed that company had fabricated its record in respect of the production and supply of the goods. Thus, learned advocate Shri Kodekar submitted that prima facie the ingredients of the alleged offence are made out in the FIR and after the registration of the FIR, during the course of the investigation, since it is revealed that petitioner is also involved in the said offence as Managing Director of the Company, chargesheet came to be filed against him. Learned advocate Shri Kodekar referred to the statement of Shri Kuttan Mohanan Pillai. The said statement was given by the said person during the course of inquiry before the officer of the Central Excise and in the said statement he has stated that forged documents were prepared by he officers of the company. Thus, learned advocate submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord, 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 punishable u/s. 420 of IPC are not attracted. 17. It is also clear from the record and more particularly from the order dated 19.09.2008 passed by the Chief Commissioner, Central Excise that when the Central Excise Department had initiated the proceedings under Section 9 of the Central Excise Act against the company and its officers with regard to the similar set of allegations made in the impugned FIR, the department compounded the offence and therefore the allegations made in the proceedings initiated under Central Excise Act have come to an end. Thus, when the company and its officers including the petitioner have compounded the offence, initiation of proceedings under the provisions of IPC for the same type of allegations cannot be permitted. There cannot be two differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned 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 honourably 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 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 appellants in conspiracy with the coaccused 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 mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously liable for the act and/or omission on the part of the company for the offence punishable under the provisions of the IPC. 23. The contention of the learned advocate Shri Kodekar appearing for respondent No.2 CBI that petitioner was one of the members of the Board Meeting of the company wherein the resolution was 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 petitioner is involved in the aforesaid crime. However, the said contention is misconceived in view of the fact that merely because the petitioner was one of the members of the Board Meeting in which the Company had decided to give an application for getting the benefit of excise, it cannot be said that petitioner was having any intention to commit the alleged offence. No specific role is attributed to the petitioner with regard to the same. Further, the company has also decided to withdraw the application given for getting the benefit as per the Notification dated 31.07.2001 and therefore the company has given an application for withdrawal on 17.07.2006 i.e. before the registration of the FIR. Therefore, it cannot be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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