Back
2017 Supreme(Bom) 1156
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
B.R. Gavai, Indira Jain, JJ.
Amit Suresh Arya – Applicant
Versus
Central Bureau of Investigation, through Police Station Inspector, Nagpur – Respondent
Criminal Application (APL) Nos. 218 & 320 of 2015
Decided On : 20-03-2017
For the Applicants : Shri Shashank Manohar, Shri A.S. Manohar and Shri U.P. Dable.
For the Respondents: Shri Ezaj Khan, Mrs. Mugdha Chandurkar and Shri J.Y. Ghurde.
Headnote:Criminal Procedure Code, 1973 - Section 154-Filing of FIR.-FIR alleging cognizable offences, can be filed by any person orally or in writing.
The proposition of law relating to information in cognizable cases is well- settled and any person orally or in writing can set criminal law into motion. In this background, Court does not find any infirmity regarding the locus to lodge the report. The third contention raised by the counsel for the applicants is, therefore, negatived in the above background.
Criminal Procedure Code, 1973 - Sections 154 and 300-Central Excise Act, 1944, Sections 9, 9-AA and 10-IPC, 1860, Sections 415 and 468-General Clauses Act, 1897, Section 26-Double jeopardy.-Since offences alleged in FIR are distinct and separate offences against same persons hence filing of complaint and FIR not attracts double jeopardy.
Non-applicant No. 1-CBI filed additional reply-in-affidavit and along with additional reply, order dated 18.2.1963 issued by Government of India, Ministry of Home Affairs, New Delhi has been annexed. Vide this order, power and jurisdiction of members of the Delhi Special Police Establishment are extended to State of Maharashtra for investigation of offences under Sections 420, 467, 468 and 471 of the Indian penal Code alleged against the applicants.
Indian Penal Code, 1860 - Sections 420, 468, 471 and 120-B-Central Excise Act, 1944, Sections 9 and 10-Criminal Procedure Code, 1973, Section 482- Cheating, forgery and criminal conspiracy.-In absence of any evidence about connivance of officers in perpetrating fraud for evasion of excise duty, proceedings against applicant liable to be quashed.
The Central Excise Department has already taken care of by instituting a complaint an evasion of Customs and Excise duty. The grievance made in the complaint by Central Excise Department are almost identical to the allegations in FIR. The doctrine of double jeopardy would not be attracted in the present case, but since the allegations are almost common and particularly the sanctioning authority did not find any evidence on close scrutiny, that continuance of the criminal prosecution against the applicants would be nothing but an abuse of process of law.
Delhi Special Police Establishment Act, 1946 - Section 6-Indian Penal Code, 1860, Sections 120-B, 420, 468 and 471-Jurisdiction of C.B.I.-Power of CBI to institute prosecution in State of Maharashtra is subject to consent of State of Maharashtra.
Indian Penal Code, 1860 - Sections 120-B, 420, 468 and 471-Cheating & Forgery.-Since allegations of cheating and forgery are in personal capacity of applicants, Director of Company, hence question of company sharing criminal liability with its officers cannot be said to be imperative.
In the present case, allegations of cheating and forgery are in the personal capacity of the applicants. The offences alleged being under the penal law element of mens rea also needs to be considered. The question of company sharing the criminal liability with its officers cannot be said to be imperative in the present set of facts and circumstances and particularly in view of the offences alleged against the applicants. The facts are distinguishable. Court therefore, does not find any merit in this contention also raised by the counsel for the applicants.
Indira Jain, J.
1. By these applications under Section 482 of the Code of Criminal Procedure, applicants are seeking quashing of proceedings in Regular Criminal Case No. 2303/2007 pending before the Chief Judicial Magistrate, Nagpur registered pursuant to the filing of charge- sheet bearing No. 5/2007 dated 7.7.2007 in Crime No. RCNAG 2005/A0012 for the offences punishable under Sections 120-B, 420, 468 and 471 of the Indian Penal Code.
2. The facts giving rise to the applications may be stated, in brief, as under:
(a) Applicants are proprietors of M/s. Eva Tex Private Limited, situated at M.I.D.C. Butibori, District-Nagpur. They applied for license for setting up a Private Bonded Warehouse at the premises of the firm. Vide their communication dated 5.2.2004, they informed the Customs and Central Excise department that machines have been installed and firm is ready to execute B-17 Bonds. The then Assistant Commissioner, Customs and Central Excise, Division-II, Nagpur Shri V.S. Kumbhare directed Shri V.P. Patki, the then Superintendent of Customs and Central Excise, Range-Butibori to carry out the verification of the premises of the unit. Shri Om Prakash Shirpurkar was the then Inspector of Customs and Central Excise, Range-Butibori.
(b) On 1.3.2004, B-17 Bond was accepted by Shri V.S. Kumbhare from the applicants. Shri V.P. Patki issued CT-3 certificates in the name of firm to procure duty free Polyster Texurised Yarn/Roto Polyster Yarn from various units in the Domestic Tariff Area. Shri Shirpurkar has certified the receipt of raw material at the factory premises. Allegations against applicants are that after purchasing yarn they did not manufacture polyester fiber and did not transfer them to Export Oriented Unit (EOU) as per the terms and conditions agreed. They disposed of the yarn by evading excise duty to the extent of Rs. 71 Lacs.
(c) The officers of Customs and Central Excise department visited the unit of applicants on 1.7.2004. At the time of visit, they found that premises were closed since 9.6.2004. No stock of raw material or finished goods was found in the godown. The officers also did not notice number of machines installed in the unit, as informed by the applicants, vide their communication dated 5.2.2004. Both the applicants were interrogated from time to time and on 17.8.2004, they were arrested by the officers of the department of Customs and Central Excise. Criminal Complaint No. 1955/2009 was filed by the Assistant Commissioner, Customs and Central Excise, Division-II, Nagpur before the Chief Juridical Magistrate, Nagpur under Sections 9, 9AA and 10 of the Central Excise Act, 1944 alleging therein that applicants intensionally evaded excise duty to the tune of Rs. 72 Lacs by preparing bogus and forged documents, by showing fictitious transaction only on paper and by furnishing false information with a view to cheat the department and caused loss to government exchequer.
(d) On 28.9.2005, on the basis of source information, non-applicant no. 1 registered offences punishable under sections 120-B read with Sections 420, 467, 468 and 471 of the Indian Penal Code and Section 13 (2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988 against the three officers of the Customs and Central Excise Department named above and both the applicants. The first information was lodged by Narasimha Komar, Superintendent of Police attached to non-applicant no. 1. The allegations in FIR against the applicants are that they diverted the raw material to the Domestic Tariff Area and thereby caused loss of revenue to the tune of approximately Rs. 70 Lacs by evading Customs and Central Excise duty on deemed imports to the Department of Customs and Central Excise, Nagpur and corresponding pecuniary gain to themselves in active connivance with officers of the Customs and Central Excise department, who misu
