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IN THE HIGH COURT OF BOMBAY
S.W. Puranik, J.
Sharadchandra Shripad Marathe.... Petitioner.
Versus
Gurushant Gangadhar Kamble others.... Respondents.
Criminal Writ Petition No. 335 of 1986, decided on 24-7-86.
Advocates appeared :
P.R. Vakil, B.M. Parekh, R.G. Sheth i/b Manilal Kher Ambalal Co., for petitioner.
Smt. S.S. Keluskar, A.P.P., for State.
Suffice it to say that according to the prosecution during the period 1981 to 9th December 1985 accused No. 1-Company alongwith the Directors and Executive Officers, accused No. 2 to 30 conspired together and did several act with the unlawful object of evasion of excise duty. The charge of conspiracy signifies an agreement between accused persons to achieve a common unlawful object and also signifies their concerted action and meeting of mind during the various steps which are taken to carry out unlawful object. All the facts stated together show that the alleged over act of accused No. 1 Company and its director and officers were done during the period 1981 to 1984. Tile present petitioner was not a director of the accused-Company till 19-11-1985, nor had be participated in any of the proceedings of the Board of Directors up to the date the raid was carried out on 9-12-1985.
There is no averment in the complaint as to when the petitioner joined the acts of the said conspiracy. Merely a bald statement has been reported many times over m the complaint, that all the director of accused No. 1-Company were in charge of and responsible to accused No. 1 for the conduct of business at the time of Commission of offence. Such a bald statement or allegation would not even prima facie be sufficient to implicit the person such as the petitioner, accused No. 17 who was not director to 19-11-1985. It is pertinent to note that the fact that petitioner joined the Board of Directors from 19-11-1985 and did not participate in any of the proceedings of the Board of Directors till after the raid was executed has not been denied in the counter-affidavit of the complainant. This is a petition not merely under Section 482 of the Code of Criminal Procedure but it also invokes power of this Court under Article 227 of the Constitution. An averment on oath not refuted on oath can be deemed to have been accepted and the Counsel for the complainant-first respondent was fair enough to accept this position. However, he contended that would be an addition to the original complaint and such an addition or a substraction is not permissible while exercising powers under Section 482, Cr. P. C.
Section 482 - Constitution of India, Article 226- There might be cases where patently false statements might be made or when true facts might have been suppressed Court could exercise its inherent power to meet ends of justice.
There could be cases where patently false statements may be made or where true facts available from the record have been either inadvertently or internationally suppressed in the complaint and they are brought to the notice of this Court. Such true facts may be of grave consequence to the very maintainability of the complaint or the allegations against a particular accused. It is sure that in such a situation also if the Court finds that suppression of material fact would result in abuse of process of Court and needless harassment to a particular accused of facing trial unnecessarily or where such a trial would be an exercise in futility against a particular accused, High Court can exercise its inherent power to meet the ends of justice at an appropriate time.
The present case is such where it would be justified in invoking the inherent powers of this Court. It is clear from the undisputed averment that the petitioner joined the Company as a Director only on 19th November, 1985 a few days before the raid was effected and had not participated in any of the earlier proceedings leading to the conspiracy of evasion of excise duty during the period 1981 to 84. It would be an exercise in futility to allow the prosecution to continue against petitioner accused No. 17. It would also amount to an abuse of process of Court and gross injustice to the petitioner. It would also not be worthwhile to call upon the petitioner to approach the trial Court for taking steps for his discharge in the face this admitted position. In order to meet the ends of justice, therefore, I allow the petition allowed and quash the process issued against the petitioner.
2. On perusal of the complaint allegations and without recording any verification statement of the complainant, who is a public servant. The learned Magistrate was satisfied that there was a prima facie case against the petitioner accused No. 17 and has issued process according to law. The petitioner, however, challenges issuance of process on several grounds.
3. Before I appreciate the submissions of the counsel on either side the brief facts as alleged in the complaint may be stated as follows :
The first respondent-complainant is the Assistant Collector of Central Excise, Pune. Original accused No. 1 is M/s Kirloskar Brothers Limited, while accused No. 2 is the Chairman and accused Nos. 3 to 18 are the Directors of the said Company. According to the allegations in the complaint, accused No. 3 to 17, who include the petitioner, accused No. 17 are Directors of accused No. 1 and were in charge and responsible to accused No. 1 for the conduct of business at the time of the commission of the offence. Accused Nos. 19 to 30 are senior executive officers of the said Company and were in charge of and responsible to accuse No. 1 for the conduct of business at the material time. Accused No. 31 is M/s. Kirloskar Proprietary Ltd. Accused Nos. 32 to 36 were the Directors of the said Company while accused No. 37 was the Secretary of accused No. 31 Company.
4. The case of the prosecution is that accused No. 1 Company deals in manufacture of hermestically sealed compressors of various categories. At all material time the day to day work of the factory was managed by the Board of Directors (accused Nos. 2 to 18) under the supervision of efficient and highly placed business executives (accused Nos. 19 24 to 30).
5. The complaint further alleges in para 9 that on the basis of the information received and in the reasonable belief that Company accused No. 1 was evading payment of central excise duty, the factory premises its registered office and branch offices as well as the residences of some of the directors were searched on and after 9-12-1985. Several incriminating documents indicating under valuation of their products and also miscalculation of assessible value were seized and recovered. The records of accused No. 1 Company for the period of five years prior to 9-12-1985 were examined and it became clear to the Excise Department that accused No. 1 Company has committed the offence of evasion of Central Excise duty to the tune of Rs. 5.4 crores. According to the complaint accused No. 1 Company and its director-accused Nos. 2 to 18 deliberately declared lower prices during the period 1-1-1981 to 31-10-83.
6. The complaint further alleges that three price lists were also recovered during the search, two from Secunderabad and one from Madras, the two price lists from Secunderabad were to come into effect from 15-9-1985 and 1-1-1985 respectively. The price list recovered from Madras office was to come into effect from 1-11-83. The complaint says that accused Nos. 1 to 30 consciously declared less value for assessment of excise department, that accused Nos. 1 to 30 had worked out the cost of structure of various machines, that accused Nos. 1 to 30 had hit upon this plan to suppress the aforesaid charge, which ought to have been included in the assessable value.
7. In paragraph 16 of the complaint the modus operandi for evasion of duty has been stated which related to the acts of the directors during 1-1-1981 to 14-1-1982, 15-1-1982 to 17-10-1
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