TMI Blog2023 (6) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... hey exported high quality ''PRINTING INK FOR REFILLING CARTRIDGES''. Further, A1 to A3 have sold the said licence to various persons for monetary consideration and thereby, enable the bonafide purchaser to use the fraudulent DEPB licence and cause wrongful loss to tune of Rs.33,49,718/- to the Government. P.W.20 clearly deposed that he was working as Chief Manager of Dhanalakshmi Bank, George Town, Chennai from October 2002 to 2004. At that time, A5 was working as an Assistant Manager in the said Bank. A5 was working under him for about nine months and he was well versed with his handwriting, signatures and initials that the current account opening Form of M/s.Sevenstar Global Logistics which is introduced by A1. He further deposed that either the said branch or A5 is not empowered to issue BRC. Therefore, the BRC's issued by A5 to the accused are forged and fabricated one. The learned Senior Counsel appearing for the revision petitioner/A1 contended that CBI has no authority to register and investigate the case, whereas, to investigate into the contraventions under the customs Act power is given only to the officers of Customs. However, the learned Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Petitioner in Crl.R.C.No.1161 of 2018 : Mr.B.Kumar Senior Counsel for Mr.N.Balaji For the Petitioner in Crl.R.C.No.1007 of 2018 : Mr.K.Selvamani For the Respondent in both Crl.R.Cs : Mr.K.Srinivasan Special Public Prosecutor for CBI Cases COMMON ORDER These Criminal Revision Cases have been preferred against the judgment dated 28.04.2018 passed in Crl.A.Nos.308 of 2008 and 312 of 2008 by the learned Principal Sessions Judge, Chennai, confirming the judgment dated 5.11.2008 in E.O.C.C.No.435 of 2004 by the learned Additional Chief Judicial Magistrate, E.O.II, Egmore, Chennai. 2. The petitioner in Crl.R.C.No.1161 of 2018 is arrayed as A1 and the petitioner in Crl.R.C.No.1007 of 2018 is arrayed as A5 in E.O.C.C.No.435 of 2004 on the file of the learned Additional Chief Metropolitan Magistrate Court, E.O.II, Egmore, Chennai. 3. The case of the prosecution is that A1 to A5 along with the deceased A6 during the period October 2002 to January 2003 entered into a criminal conspiracy in order to get ineligible Duty Entitlement Pass Book [hereinafter referred to as 'DEPB' for the sake of convenience] in the name of various exporters by producing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.O.1 to M.O.17. 7. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the accused and they were questioned under Section 313 Cr.P.C., wherein they denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, 4 witnesses were examined as D.W.1 to D.W.4 and 5 documents were marked as Ex.D1 to Ex.D5. 8.1 The trial Court, after hearing the arguments advanced on either side and also considering the materials available on record, found the accused A1 to A5 guilty for the offences under Sections 120B r/w 420, 467, 468 and 471 IPC and Sections 132 and 135 of CS Act; as against A4 under Section 468 IPC and Section 468 r/w 471; as against A1 to A5 under Section 467 IPC; as against A1 to A4 under Section 467 r/w 471 IPC; as against A1 to A4 under Section 420 IPC; as against A1 to A4 under Section 420 IPC; and as against A1 to A4 under Sections 132 and 135 of CS Act. 8.2 The petitioner/A1 in Crl.R.C.No.1161 of 2018 was convicted and sentenced as under : Offence Sentence Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment. The said sentences were ordered to run concurrently and the period of detention already undergone by the accused was directed to be set off under Section 428 Cr.P.C. 9. Challenging the said conviction and sentences, the revision petitioners/A1 and A5 filed Crl.A.Nos.308 and 312 of 2008. The learned Principal Sessions Judge, Chennai by judgment dated 28.04.2018 confirmed the conviction and sentence passed by the trial Court and dismissed the appeals. Aggrieved by the same, the petitioners/A1 and A5 have come up with the present Criminal Revision Cases. 10.1 Mr.B.Kumar, learned Senior Counsel representing Mr.N.Balaji, counsel on record for the petitioner/A1 submitted that the issuance of DEPB is concerned, the firm which has got Import Export Code (IEC) alone is entitled to undertake export or import, such licence is issued by the Director General of Foreign Trade [hereinafter referred to as 'DGFT' for the sake of convenience]. To motivate such exports, the Government give benefits proportionate to the value of exports, by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the seized consignment is not high quality printing ink, but water mixed with carbonaceous matter, colorant and inorganic salt. However, the details furnished by the DRI with respect to the outcome of the chemical examination was a verbatim replica report. Further, the prosecution alleged that the revision petitioner/A1 gave Ex.P1 and Ex.P.17 confession statements under Section 108 of CS Act before the DRI officials admitting that by mixing locally purchased ink powder with water he prepared the seized consignments. By making false declaration to the Custom Department as Computer Cartridge Printing Ink and also prepared shipping bills for the said consignment with the help of A4 and also packed the same in pet bottles with the labels of ''BEST Brand Printing Ink'' with fake address. The investigating officer found that Bangalore address of the BEST Brand Printing Ink Company was found to be fictitious. Further, A1 also admitted that he exported the same materials in the name of M/s.Prime Stones and Monuments, M/s.Sri Mahalakshmi Iron and Steel and M/s.Seven Star Global Logistics and M/s.Trans Ind Impex, but no proceeds were realized against the exports and the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that she obtained incriminating materials in the presence of independent witnesses, convicted the petitioner/A1. However, no independent witness was examined to substantiate the evidence of P.W.2 and seizure was also not proved in the manner known to law. The trial Court not sending the materials to experts opinion for comparing the seal and signatures invoking Section 73 of Indian Evidence Act, is against law. It is the bounden duty of the prosecution to prove its case beyond reasonable doubt. If there is any iota of doubt in the mind of the Court, then the benefit of doubt should be extended in favour of the accused. He further submitted that the evidence of P.W.11 shows that the application for issuance of DEPB credit licence and receipt of the same can be made ready and received only by the concerned exporters. Therefore, implications of the petitioner/A1 with the availment and sale of DEPB licence is contrary to the evidence of P.W.11. The trial Court wrongly relying on the report of chemical examination came to the conclusion that the petitioner alone prepared the alleged printing ink and exported the same by making false declaration to the Custom Department as Computer Cartr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d his guilt. It is in the form of a questionnaire, wherein, for answer to question No.6, A1 had admitted that he had forged the signature of the petitioner/A5 in 3 BRC forms. He has also admitted that the rubber stamp (seal) were actually made with the local seal maker and affixed in the said BRC forms. When such being the case, the Courts below have erred in relying on the evidence of P.W.20 and P.W.21 and identified the signature of the petitioner. The learned counsel further submitted that P.W.20 and P.W.21 have not worked with the revision petitioner/A5 in the Bank at the relevant point of time and their statements cannot be believed. Further, when there is a categorical admission of A1 with regard to the forgery, at the earliest point of time, the evidence of P.W.51 the handwriting expert cannot be taken into consideration. He further submitted that the Custom House Agent (CHA) and the revision petitioner/A5 were not aware of the activities of A1 and they were not involved in any offence of forgery and fabrication. The appellate Court acquitted A3 and A4 on the ground that A1 in Ex.P17 admitted his guilt with regard to the forgery. There is no evidence against the petitioner/A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss to the Government. He further submitted that the revision petitioner/A5 was working as an Assistant Manager in the Dhanalakshmi Bank, George Town, Chennai. From the evidence of P.W.20 and P.W.21 it is evident that A5 is not authorised to issue BRC certificate and the branch in which A5 was working during the year 2002 is also not empowered to issue the said certificate, since it comes under C-category. A5 fraudulently issued BRC certificates Ex.P91 to P93, in pursuance of the conspiracy with other accused persons and thereby, he has committed the charged offence. Further, as per the evidence of P.W.18, P.W.20 and P.W.21, it is evident that Exs.P83 to P93 BRC's enclosed by the accused persons were forged and the same were used as genuine by the accused persons, which is evident from the evidence of P.W.11. Therefore, from the evidence of the prosecution witnesses and materials seized from the premises of A1, the prosecution proved its case beyond reasonable doubt. 12.3 The learned Special Public Prosecutor further submitted that the defence taken by the learned counsel for the petitioner is that CBI has no jurisdiction to register and investigate the present case, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown to be issued by the Dhanalakshmi Bank, George Town Branch, Chennai, but the said branch is not empowered to issue B.R.C's. Therefore, the evidence of P.Ws.20 and 21 clearly show that B.R.C's produced by the petitioner/A1 are not genuine, but with the connivance of A5, A1 had produced the said B.R.C's before the Customs Department and availed DEPB credits. 17. P.W.35 has deposed that he works under A1 and used to carry out the instructions of A1. He collected various documents and filled up various forms in the name of the exporters on the instructions of A1 and he does not know any of the exporters. The evidence of P.W.35 is corroborated with his statement recorded under Section 164 Cr.P.C. P.W.35 had identified the challans which were filled by him and payment made to Central Bank of India, Mount Road Branch. On the basis of the information furnished and the amount given by A1, it is seen that the said challans were related to M/s.Prime Stone Monuments. The evidence of P.W.35 connects A1 with the alleged crime. 18. P.W.39 has deposed that he works under A1 and used to carry out the instructions of A1. As such he had withdrawn the amount from Standard Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government. In the case on hand, the prosecution proved that the accused entered into a conspiracy with the other accused and in pursuance of the conspiracy they availed illeligible DEPB by producing the forged BRC and causing loss to the Government. Therefore, the contention raised by the petitioner that Customs Authority can only proceed with the offence under the Customs Act is not acceptable. 23. The learned Senior Counsel for the petitioner/A1 further contended that the statement of A1 recorded under Section 108 of CS Act is not involuntary and has been taken under harassment and coercion by the DRI officials, which has been subsequently retracted from prison. However, the petitioner/A1 was produced before the learned Magistrate, after remand, at that time the petitioner did not complain to the Magistrate that the alleged statement were obtained by using force and torture by the DRI officials. 24. The scope of revision is very limited. The Trial Court and the Appellate Court had already appreciated and re-appreciated the entire evidence and also given findings and while exercising the revisional jurisdiction, this Court cannot sit in the arm chair of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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