Delhi District Court
M/S. Rinkoo Steels vs Central Bureau Of Investigation on 7 September, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL) DELHI
Crl. Rev. No.63/10
1. M/s. Rinkoo Steels,
B58, Mayapuri, PhaseII,
New Delhi
Also At:
7, Furniture Block Market,
Kirti Nagar, Industrial Area,
New Delhi.
2. Mrs. Jagbinder Kaur Bhatia,
W/o late Sh. Bhupinder Singh Bhatia,
R/o D44, Rajouri Garden,
New Delhi.
3. Sh. R.P. Singh,
S/o late Sh. Bhupinder Singh Bhatia,
R/o D44, Rajouri Garden,
New Delhi. .......petitioners
Versus
1. Central Bureau of Investigation,
SIUIX/ Third Floor, C.G.O. Complex,
Lodhi Road, New Delhi.
2. Sh. R.R. Chitturi,
Dy. Chief Controller of Import & Export,
New Delhi. .......Respondents
Crl. Rev. No.63/10 1
Date of institution : 28.07.2010
Date of Judgment : 07.09.2012
J U D G M E N T
Present revision petition has been filed against order dt.24.04.2010 passed by Learned Chief Metropolitan Magistrate in RC 1(S) 89, CBI/SIU/IX/ND on the point of charge, and in terms whereof charge has been framed on 27.04.2010.
2. Vide impugned order dt.24.04.2012, learned Chief Metropolitan Magistrate ordered for framing of charge against all the three accused persons - petitioners herein, observing that prima facie case for offence U/s 120B read with Sec.420/471 IPC and Section 5 of the Imports and Exports (Controls) Act, 1947 (hereinafter referred to as "the Act of 1947") was made out against them.
3. M/s. Rinku Steels through its partner Smt. Jagbinder Kaur Bhatia is alleged to have obtained "supplementary actual user license" on the basis of forged certificate purported to have been issued by Sh. A.P. Jain, Chartered Accountant of M/s Jain Gupta and Co., then imported raw material, but mis utilized the import raw material. Learned Chief Metropolitan Magistrate has observed that prima facie Smt. Jagbinder Kaur Bhatia, Bhupinder Singh Bhatia and R.P. Singh, accused had entered into conspiracy for the purpose of mis utilization of imported raw material.
4. Arguments heard. File perused.
Crl. Rev. No.63/10 2
5. Trial Court Record would reveal that Deputy Chief Controller of Imports and Exports filed a complaint against M/s Rinku Steels, Mrs. Jagminder Kaur Bhatia, Bhupinder Singh and Sh. R.P. Singh alleging commission of offence U/s 120B read with Sec.420/468/471 IPC and Sec.5 of the Act and substantive offence u/s 420, 478, 471 and Sec.5 of the Act. Sh. Bhupinder Singh (accused) is no more in the world.
6. As per allegations levelled by the complainant, accused M/s. Rinku Steels (petitioners no.1) herein, came into existence on 20.10.79 with Mrs. Agya Kaur, Ms. Jagbinder Kaur and Master Ratinder Pal Singh, as its partners. The said firm was dissolved on 01.04.87. After dissolution of the firm, Mrs. Jagminder Kaur became the sole proprietor of M/s. Rinku Steels.
7. As alleged in the complaint, during the period from 198687, Smt. Jagbinder Kaur, her husband Bhupinder Singh and their Sh. R.P. Singh entered into criminal conspiracy to obtain "supplementary user license" to import MS defective sheets and for their misutilization i.e., in contravention of conditions of license.
8. During subsistence of partnership on 30.09.86, application is alleged to have been filed by Jagbinder Kaur Bhatia in prescribed form duly certified by A.P. Jain, Chartered Accountant of M/s Jain Gupta & Company, 6/36, Ansari Road, Daryaganj, Delhi. The application was submitted to the Directorate of Industries, Delhi for their recommendations for issuance of actual user imports Crl. Rev. No.63/10 3 license for import of MS defective sheets. In this application, the address of the firm M/s Rinkoo Steels was mentioned as B58, Mayapuri, Industrial Area, PhaseII, New Delhi. Believing the information furnished in application dt. 30.09.86 as true, Director of Industries, vide letter dt.30.01.87 recommended issuance of import license, on the basis of aforesaid recommendations made by Directorate of Industries. The allegations levelled by complainant is that during investigation, it was found that Sh. A.P. Jain had not issued the above referred to certificate as to the correctness of the contents of the application dt.30.09.86 and same is false and forged.
9. On the basis of import license dt.15.05.87 Jagminder Kaur Bhatia authorized her son R.P. Singh (accused), proprietor of M/s. R.P. Industries, 5 MM Road, Delhi to import MS defective sheets. R.P.Singh opened the letter of credit dt.02.06.87 i.e. Bankers Bharat Overseas Bank, Connaught Place, New Delhi. Import license, referred to above, was utilized to the extent of Rs. 14,33,462/. Payment of import was realized by Bharat Overseas Bank, Connaught Place, from current account no. 1359 i.e. of M/s. R.P. Industries. This payment was allegedly not made by M/s Rinku Steels to M/s. R.P. Industries through legalized channel. Further, it is case of the complainant that on the instructions of M/s R.P. Industries raw material was handed over to M/s New Safe Transport Cargo, 178, Bombay.
10. The raw material reached Delhi between January,1988 to February,1988 Crl. Rev. No.63/10 4 the transport company delivered raw material to M/s. R.P. Industries. M/s R.P. Singh in turn delivered the material to B.S. Bhatia, accused somewhere in January and February,1988.
11. Initially, M/s Rinku Steels had given its address as B58, Mayapuri, Industrial Area, New Delhi. However, on 29.11.85, another address i.e. 7, Furniture Block Market, Kirti Nagar, Delhi was also got inserted in the SSI registration certificate.
12. It is also case of the complainant that on 16.10.1987, premises no.B58, Mayapuri, Industrial Area, PhaseII, New Delhi was sold to Sh. Sanjay Gambhir by Sh. Jagminder Singh for a sum of Rs.5,01,000/, meaning thereby that this premises no.B58, Mayapuri, Industrial Area, PhaseII, New Delhi had been sold by Smt. Jagbinder Kaur prior to import conditions of raw material. Accordingly, the firm was incapable of utilizing imported raw material. Hence this complaint.
Discussion
13. A perusal of Trial Court record would reveal that after the application Ex PW3/A was submitted on 30.09.1986 for issuance of actual user license, letter dated 01.05.1987 was received by M/s Rinkoo Steels from the Controller of ImportsExports. In reply to this letter dated 01.05.1987, M/s Rinkoo Steels sent reply and the same was received in the office of Chief Controller, Imports Exports on 07.05.1987.
14. As per dissolution deed, the partnership firm stood dissolved on Crl. Rev. No.63/10 5 01.04.1987, but in reply to the letter dated 01.05.1987, Smt. Jagbinder Kaur Bhatia still represented herself as a partner, whereas actually it was only a proprietorship concern at that time, as per her own case. It remains unexplained as to why she represented as a partner when the firm has got dissolved.
15. It was the duty of Smt. Jagbinder Kaur Bhatia to inform the authorities with issuance of Actual user license that the partnership stood dissolved on 01.04.1987 and M/s Rinkoo steels was henceforth only a partnership concern. However, there is nothing on record to suggest that this fact was brought to the notice of the authorities concerned.
In view of dissolution of the partnership firm and constitution of the proprietorship concern M/s Rinkoo Steels was required to file fresh application for issuance of actual user license in the capacity of proprietorship, the reason being that earlier application Ex PW3/A was submitted as a partner and on behalf of the partnership firm was not maintainable. But it was not done. This goes to show that actual facts were concealed by Smt. Jagbinder Kaur Bhatia from the concerned authorities.
16. This Court finds prima facie that had true facts been brought to the notice of the concerned authorities, actual user license would not have been issued. Therefore, this Court does not find any merit in the contention of learned counsel for petitioners that this is not a case of inducement. Crl. Rev. No.63/10 6
Forgery and cheating in getting issued Actual Users Licence
17. It has been contended by learned counsel for petitioners that there was no dishonest intention on the part of the petitioners for the purpose of issuance of license, particularly, when the record available with the department of industries is correct; that no misutilization was ever noticed earlier; that utilization of the raw material was to be reported to the Department of Industries and not to the office of the complainant and that it is only for the sponsoring authority to see whether the raw material was properly utilized or not.
18. As regards issuance of Actual Users License, Para 5 of Import (Control) Order, 1955 provides that the licensing authority issuing the license may issue the same subject to one or more of the conditions stated below: Schedule V1 available under Appendix IB of Import (Control) Order 1955 issued by Govt. of India, Ministry of Commerce and Industries prescribes following conditions which shall be applicable to all import licences
1. The following conditions shall apply to all import licences : (1) Where an irrevocable letter of credit is opened by the holder of the licences to finance the import of any goods covered thereby, the authorised dealer in foreign exchange, through whom the credit is opened, shall be deemed to be a joint holder of the licence to the extent of the goods covered by the credit.
(2) Payments authorised to be made against the licence shall not cover any commission, discount or like rebate(s) allowed by foreign supplier(s)/manufacturer(s) to the importer/agent(s) in India.
2. The following conditions shall apply to import licences issued to Actual Users with 'Actual User' conditions : (1) Goods imported under the licence shall be used by the licensee Crl. Rev. No.63/10 7 only for the purpose for which they were imported, at the factory, commercial establishment, institution, professional office or other premises concerned, at the address given in the application against which the licence is granted. No portion thereof shall be transferred to any party or utilise or permitted to be utilised in any other manner; however, where necessary bonafide, it may be got processed in another factory or put to use in another establishment, so long as the Actual User condition is complied with.
(2) The licensee shall maintain proper account of consumption and utilisation of the goods imported against the licence in the form and manner laid down, and produce such account to the licensing authority or any other Government authority within such time as may be specified by it.
(3) All Actual Users (Industrial units) shall submit production returns regularly to the Directorate General of Technical Development, New Delhi or the concerned sponsoring authority.
(4) Actual Users (Industrial units) shall submit to the Directorate General of Technical Development, New Delhi or the sponsoring authorities concerned and the Department of Electronics, New Delhi as appropriate to the item imported, half yearly returns of the items imported by them.
(5) All research and development units shall inform Department of Science and Technology, if the value of imports made by them at any one time exceeds Rs.1 lakh within 30 days of clearance of the goods, through the customs. In case of any electronic items they should also inform Department of Electronic, New Delhi.
As noticed above, one of the conditions which could be imposed by the licensing authority is that the goods covered by the license shall not be disposed of except in the manner prescribed by the licensing authority or otherwise, dealt with without the written permission of the licensing authority or in person.
Conditions as available in schedule V would reveal that goods imported under the license are required to be used by the license holder only for the Crl. Rev. No.63/10 8 purpose for which they were imported, at the factory, commercial establishment, institution, professional office or other premises concerned, at the address given in the application against which the license is granted. It has further been provided that no portion of the goods imported shall be transferred to any party or utilized or permitted to be utilized in any other manner. However, where it is necessary bonafide, goods imported may be got processed in another factory or put to use in another establishment, so long the actual user conditions are complied with.
19. Licensee is required to maintain proper account of consumption or utilization of the goods imported against the license in the prescribed form and manner. "Such account" is required to be produced before the licensing authority or "any other Government authority" within the specified time. In case of actual user (industrial units), they are required to submit production returns regularly. Therefore, there is no merit in the contention of Learned counsel for petitioners that no account of utilization for goods imports was to be submitted to the complainant.
20. As per case of the complainant, application for issuance of supplementary actual user license for import of M S Defective sheets was filed by Smt. Jagbinder Kaur Bhatia. The sponsoring authority is Directorate of Small Scale Industries, Delhi.
It is also case of the complainant that during investigation, it was found Crl. Rev. No.63/10 9 that Sh. A. P. Jain, Charted Accountant had not issued any certificate as was appended to the application in the prescribed form.
Trial Court record would reveal that application for import of raw material was submitted by Smt. Jagbinder Kaur Bhatia as partner of M/s Rinkoo Steels. Application is Ex PW3/A. It is dated 30.09.1986. Certificate of Charted Accountant, in the prescribed form is also dated 30.09.1986. It was purported to have been issued by Sh. A. P. Jain, 7/36, Pahar Ganj, Delhi.
21. However, while appearing in Court as PW10 Sh. A. P. Jain stated before Learned CMM that this certificate appended to application Ex PW3/1 was not bearing the signatures or the seal of the firm M/s Jain Gupta & Co. Similarly, PW11 Sh. N. K. Gupta, partner of M/s Jain Gupta & Co. also stated that the certificate appended to application Ex PW3/A was not issued by him or his partner. Further according to PW11, impression of seal available on points Q2, Q3 and Q4 were not of the seals of their firm. He also displayed ignorance as to who had signed this document.
22. In the course of arguments, learned counsel for the petitioners submitted that the impression of the seal collected during investigation was of a seal of M/s Jain Gupta & Co. as available in the year 1980.
Firstly, it is in the statement of PW27 Dr. B. A. Vaid, the expert witness that the seal impression Q4 did not tally with the seal impression S25 to S28.
Secondly, no argument has been advanced regarding denial by PW10 and Crl. Rev. No.63/10 10 PW11 about the signatures at point Q2 and Q3.
23. Therefore, on the basis of material available on record Learned CMM rightly observed in the impugned order that prima facie Smt. Jagbinder Kaur Bhatia as a partner of M/s Rinkoo Steels (as during those days it was a partnership firm) obtained supplementary actual user license on the basis of false certificate/forged documents.
24. Supplementary import license dated 15.05.1987 was issued by Directorate of Industries to M/s Rinkoo Steels on the basis of application dated 30.09.1986 and the aforesaid forged documents. So forged documents having been used as genuine. Learned CMM rightly observed that prima facie case for an offence under Section 420 and 471 IPC is also made out.
Import of Raw material
25. As noticed above, it is case of the prosecution that the import license dated 15.05.1987 was passed by the licensing authority to Smt. Jagbinder Kaur Bhatia. However, Smt. Jagbinder Kaur Bhatia authorised her son Sh. R. P. Singh (accused) proprietor of M/s R. P. Industries to import M. S. Defective Sheets. Admittedly, Sh. R. P. Singh (accused), opened the letter of credit dated 02.06.1987. The import license was utilized to the extent of Rs.14,33,462/. Payment was utilized by Bharat Overseas Bank, Connaught Place, New Delhi.
As alleged payment for the raw material was made by M/s Rinkoo Steels to M/s R. K. Industries and that on the instructions of M/s R. P. Industries, raw Crl. Rev. No.63/10 11 material was handed over to M/s New Safe Transport Cargo, 178 Bombay. When the raw material reached Delhi, it was delivered M/s R. P. Industries and Sh. R. P. Singh in turn delivered the material to Sh. B. L. Bhatia (accused) somewhere in January/February 1988.
Letter of authority issued by M/s Rinkoo Steels in favour of M/s R. P. Industries, 59, MM Road, New Delhi placed on record and admitted by Smt. J. K. Bhatia would reveal that M/s R. P. Industries was permitted to place orders, to open letter of credit, to make remittance for importing of goods (as per import license dated 15.05.1987), subject to the condition laid down in para 118 of Hand Book of ImportExport Procedure and to clear the same through customs, on behalf of the license holder. However, perusal of letter of authority would reveal that it does not bear any date of its execution. Learned counsel for petitioners has referred to para 118 of the Procedure and submitted that by authorization Smt. Jagbinder Kaur Bhatia and did not violate any rule and regulations.
26. As per provisions of para 118 (1) license holder was given the authority to appoint another person as his agent for arranging the imports permitted by the licensee. However, the functions of such holder of letter of authority were limited to place orders, to open letter of credit, to make remittance of payment for importing the goods, to arrange movement and to clear the same through the customs on behalf of licensee and other related matters connected with the Crl. Rev. No.63/10 12 operation of the license.
27. Para 118 (1) reads as follows:
118. (1) In the Import Policy in force since 197879 no special provision has been made for the licensing authority to issue a Letter of Authority, authorising another person to import goods against a licence on behalf of the licence holder. The licence holder is hereby given the authority to appoint another person as his agent for arranging the imports permitted by the licence. The licence should, however, continue to be in the name of licence - holder and the other provisions of the Imports (Control) Order 1955, in regard to the duties and obligations of the licenceholder or Letter of Authority holder will continue to apply respectively to the persons concerned.
Subject to these conditions and legal requirements, it will be open to the licence holder to decided upon his own form of Letter of Authority. But the functions of the holders of such Letter of Authority shall be limited to place orders to open Letter of Credit, to make remittance of payment for importing the goods, to arrange movement and to clear the same through the Customs having regard to Sec.147 of The Customs Act, 1962, on behalf of the licencee and other related matters connected with the operation of the licence in question, but not its ownership.
28. In view of the provisions of para 118, it cannot be said that M/s Rinku Steels could not authorised M/s R. P. Industries to import goods but subject to conditions laid down in para 118.
Delivery of imported raw material
29. A perusal of Ex PW27/35 (delivery note dated 18.01.1988), vide this document executed by M/s R. P. Industries, M/s Rinkoo Steels with address 7A, Furniture Block, Kirti Nagar called upon to receive M S Defective sheets. Accordingly, these goods are purported to have been received by Sh. B. S. Crl. Rev. No.63/10 13 Bhatia for Rinkoo Steels on the same day. Similarly, other deliver notes dated 20.12.1987, 17.01.1988, 17.01.1988, 29.12.1987 and 29.01.1987 Ex PW27/36 to Ex PW27/40 respectively that as per delivery notes issued by R. P. Industries and addressed to M/s Rinkoo Steels, 7A, Furniture Block, Kirti Nagar, the goods mentioned therein are purported to have been received by Sh. B. S. Bhatia. There is no explanation why the goods were received by Sh. B. S. Bhatia and not by Smt. Jagbinder Kaur.
Ex PW27/52 is letter dated 14.11.1987 from R. P. Industries to Manager, Bharat Overseas Bank with prayer to depute the amount from its current account (R. P. Industries) and to receive the documents from the foreign supplier. Ex PW27/62 is letter of request from R. P. Industries to Bharat Overseas Bank Ltd. with prayer to open letter of credit for import of M S Defective sheets. The name of supplier finds mention in the documents as M/s Gena Morsa of Belgium. However, it is yet to be established that payment of raw material was made by M/s Rinkoo Steels. How payment could be made by Rinkoo Steels which sold premises no. F58 on 16.10.1987 and delivery was made sometimes in JanuaryFebruary 1988.
Correspondence during the period from 25.05.87 to 13.07.88 by R.P. Industries with Manager, Bharat Overseas Bank, Connaught Place Branch is on its letter heads. It is significant to note that these letter heads depict one of the addresses of R.P. Industries as B58, Mayapuri Industrial Area, New Delhi. Crl. Rev. No.63/10 14 However, the documents Ex.PW27/25 to Ex.PW27/40, which also pertains to R.P. Industries, depict its address as 55 MM, Rani Jhansi Road, New Delhi. (These documents are dt.20.12.87, 29.12.87, 17.01.88 & 18.01.88).
30. Ex.PW2/B is agreement to sell and purchase. Vide this documents, premises no.B58, Mayapuri, PhaseII, New Delhi was agreed to be sold and vacant possession of the said premises was delivered by Smt. Jagbinder Kaur Bhatia to M/s. Vee Engineering (P) Ltd. against sale consideration of Rs. 5,01,000/. In view of the aforesaid agreement to sale and purchase Ex.PW2/B and the other documents executed in respect of this sale transaction (Ex.PW2/C, Ex.PW2/D & Ex.PW2/E), it can safely be said that premises B58, Mayapuri Phase - II, was sold by Smt. Jagbinder Kaur Bhatia to M/s Vee Industrial (P) Ltd. and its vacant possession was delivered to vendee on 16.10.87 itself. Surprisingly, there is nothing on record to suggest that Director of Industries or the complainant was ever apprised by Smt. Jagbinder Kaur Bhatia about sale of the premises B58, Mayapuri Industrial Area, Phase - II, Delhi. Once the premises was sold and its possession was delivered, it cannot be said that on or after 16.10.87, M/s. Rinkoo Steels was running its business in this premises.
It remains unexplained as to how M/s R.P. Industries was depicting its factory address as B58, Mayapuri Industrial Area, Phase - II, Delhi, during the period 25.05.87 to 13.07.87 when corresponded with Bharat Overseas Bank, Connaught Place Branch.
Crl. Rev. No.63/10 15
31. Learned counsel for petitioners has submitted that M/s Rinkoo Steel had furnished two addresses i.e. one of B58, Mayapuri Industrial Area, Phase - II, Delhi and 7, Furniture Block Market, Kirti Nagar, New Delhi.
It has been submitted that two addresses of M/s Rinkoo Steels were furnished and as such it is not case of misutilization of imported raw material as the factory was being run at another place i.e. a sanctioned place, even if no manufacturing activity was going on there. In support of this submission reference has been made to the account opening form in support of the account opened with Punjab and Sind Bank, Motia Khan branch by Ms. Jagbinder Kaur, on 01.04.1987 where both the addresses i.e. B58, Mayapuri, PhaseII and 7, Furniture Block, Kitri Nagar find mention.
32. As regards the allegations levelled by the complainant that M/s Rinkoo Steels never filed any production excise returns/sales returns, the contention raised by learned counsel for the petitioners is that no sales tax return was required to be furnished by M/s Rinkoo Steels as it was dealing in manufacture of agricultural instruments. It has been submitted that labour was found present at 7Furniture Block Market, Kirti Nagar, New Delhi and furthermore that even on 12.09.1987 work was going on there.
33. A perusal of application dt.08.04.81 submitted by Smt. Jagbinder Kaur Bhatia to the Director of Industries would reveal that only address of M/s Rinkoo Steels was given as B58, Mayapuri Industrial Area, Phase - II, Delhi. Crl. Rev. No.63/10 16
34. Ex.PW27/11 is letter dt.10.09.85 submitted by Smt. Jagbinder Kaur Bhatia to the Registration Cell, Directorate of Industries to the effect that Rinkoo Steel had started its second unit of the factory at 7, Furniture Block Market, New Delhi w.e.f.01.09.85. Vide letter Ex.PW27/12, dt.26.09.85, M/s. Rinkoo Steel submitted to the same office copy of rent receipt of Plot NO.7A, Kirti Nagar, Industrial Area, New Delhi. Learned counsel for petitioners refused to Ex.PW1/D2 letter dt.29.11.85 in support of addition of address of second unit at 7, Kirti Nagar Industrial Area.
35. It is significant to note that as per No Objection Certificate available on judicial record, Sh. Bhupinder Singh Bhatia, husband of Smt. Jagbinder Kaur Bhatia was the owner of said plot no.7A, Kirti Nagar, Industrial Area, New Delhi. Vide subsequent correspondence Director of Industries was informed that the number of the plot was 7 and not 7A. It is case of the complainant that the partnership firm formed on 20.10.79 was dissolved vide deed dt.01.04.87 and vide resolution deed Ex.27/29. In para - 1 of this dissolution deed, it finds specifically mentioned that M/s. Rinkoo Steel was carrying business as partnership at B58, Mayapuri Industrial Area, Phase - II, Delhi. It does not find mention in the dissolution deed that any other unit of M/s Rinkoo Steel was being run by the partnership firm upto 31.03.87, at 7, Kirti Nagar, Industrial Area, Delhi. Surprisingly, after constitution of initial partnership firm, at no point of time any partnership deed was entered into between the partners for Crl. Rev. No.63/10 17 starting any second unit at 7, Kirti Nagar, Industrial Area, New Delhi.
36. In the course of arguments , learned counsel for petitioners has referred to document mark D1 and submitted that it should have been accepted and read in evidence.
A perusal of order dated 22.02.2010 would reveal that the application filed by counsel for petitioners for production of additional documents, was got dismissed as withdrawn.
37. It has also been contended by learned counsel for petitioners that requisite procedure was not followed by the competent authority as no opportunity of being heard was given by issuing any show cause notice. In this regard reference has been made to the statement of PW 37 A. U. Ansari.
A perusal of show cause note Ex.PW1/A dt.15.01.98 issued by Commissioner of Industries, CPO Building, Kashmere Gate, would reveal that during inspection conducted by ADI(W) and area Inspector, Sh. A.U. Ansari Joint Director of Industries observed that some construction work was going on at B58, Mayapuri Industrial Area, Phase - II, Delhi and that they were informed that the factory had been sold out.
As regards the other premises i.e. 7, Furniture Block, inspecting team found that premises was started at back and some wooden work was being done there. Machinery shown at the time of registration was also not found installed there. On issuance of this show cause notice, Smt. Jagbinder Kaur Bhatia should Crl. Rev. No.63/10 18 have appeared before the concerned authority, but record reveals that none appeared on behalf of M/s Rinkoo Steels despite letters dt.05.10.87 and reminder dt.04.11.87.
Vide this show cause notice Ex.PW1/A, M/s Rinkoo Steels was called upon to explain, receipt of imported raw material. Record reveals that reply to the show cause notice was furnished. It was considered and found to be not satisfactory. That is how, vide order Ex.PW1/B dt.07.04.88, Sh. A.U. Ansari, Joint Director of Industries ordered for cancellation of SSI Registration Certificate of M/s Rinkoo Steel. So, prima facie it cannot be said that proper procedure was not followed in this regard.
38. As per application submitted to Directorate of Industries, Registration of M/s. Rinkoo Steels as small scale industries was sought for manufacture of general steel fabrication i.e. Almira, tables, shelves, trays, dished goods and agriculture implements. Letter Ex.PW27/23 of M/s Rinkoo Steel to the Director of Industries, on 15.05.86 would reveal that item "electro galvanising" was not added in the certificate of registration. Therefore, this court does not find merit in the contention of learned counsel for petitioners that no sale tax returns were required to be filed by M/s. Rinkoo Steels. Rather, this court finds merit in the contention of learned counsel for respondent that having regard to the registration of M/s Rinkoo Steel for the purpose of manufacture of all type of goods, mentioned above, in case of any manufacturing activities carried out by Crl. Rev. No.63/10 19 M/s Rinkoo Steels at 7, Kirti Nagar, Industrial Area, Phase - II, sales tax returns etc. must have been submitted. In absence of any such record, prima facie it can be said that the raw material imported by M/s. Rinkoo Steel under the import license was not utilized by the proprietorship concern for its own use.
39. Learned counsel for petitioners has submitted that in this case M/s Rinkoo Steels had been given actual user license on the basis of earlier performance and that in the past, it was never found to be case of misutilization or non utilization. As noticed above, certificates at point mark X purported to have been appended by Sh. A.P. Jain, Chartered Accountant to the application Ex.PW 3/A has been prima facie found to be forged and fabricated.
Complainant examined in evidence PW27 Ms. Meenakshi Passi, Excise and Narcotics. In May,1989, she was serving with Assistant Director Central Excise, Division - III, Delhi. Area of Kirti Nagar also fell under her jurisdiction. According to this witness, any factory which is manufacturing goods has to furnish either a declaration with a central excise department or a license was required, in 1989, if a manufacturing goods were more that 15 lacs, and thereafter from the year 1989 onwards, only if the manufacturing goods were of the value of Rs.10 lacs. She further stated that M/s. Rinkoo Steels did not file any such declaration nor applied for a license. In view of this evidence, there is no merit in the contention of learned counsel for petitioners.
As regards consumption of raw material, in the course of arguments, Crl. Rev. No.63/10 20 learned counsel has submitted that from letter dated 29.03.1988 to the Commissioner of Industries and Ex DX2 document date 29.08.1989 and annexures to letter dated 10.09.1985 consumption stands proved.
40. In the given circumstances and from the material available on record, this court further finds that although license holder of import license had the authority under para - 118 to authorize anyone else to import i.e. effective sheets but when M/s Rinkoo Steels was not found running any unit at B58, Mayapuri Industrial Area, Phase - II, Delhi or 7, Kirti Nagar, Industrial Area, PhaseII, Delhi, it can prima facie be said again that the goods imported under the license were not utilized by M/s Rinkoo Steels and rather the same appears to have been misutilized, in violation of the conditions of the import licence.
41. Since material available on record prima facie reveals that Smt. Jagbinder Kaur Bhatia, her son R.P. Singh, in furtherance of criminal conspiracy violated conditions of actual user license, in the manner indicated above, learned Chief Metropolitan Magistrate has rightly ordered for framing of charge of offence U/s 5 of the Act of 1947.
42. It has been argued by learned counsel for the petitioners that Sh. R. P. Singh, accusedpetitioners was minor during the days of commission of offence and as such the complaint is not maintainable against him.
On the other hand, Learned counsel for the respondent has submitted that as per record R. P. Singh was born on 10.02.1969, at the relevant time i.e. as on Crl. Rev. No.63/10 21 16.05.1987 i.e. soon after the issuance of the import license, he had attained majority. Therefore, there is no merit in the contention of learned counsel for the petitioners that R. P. Singh accusedpetitioners was minor at the relevant time.
43. It has also been submitted that since M/s Rinkoo Steels is a proprietorship concern, no prosecution could be launched against the proprietorship concern.
On the other hand, learned counsel for the respondent has submitted that Smt. Jagbinder kaur, being partner of M/s Rinkoo Steels as on 30.09.1986, when application was submitted for issuance of actual user license, only she has been arrayed as accused for forging the document and using the same as genuine and that M/s Rinkoo Steels then partnership firm is not to be got prosecuted, it having ultimately attained the status of proprietorship as per case of accused.
A perusal of the trial Court record would reveal that the charge has been framed against M/s Rinkoo Steels as well. Since M/s Rinkoo Steels is not to be got prosecuted, the charge dated 27.04.2010 needs amendment.
44. Accordingly, amended charge needs to be framed against Smt. Jagbinder Kaur Bhatia and Sh. R. P. Singh accused only, for offence under Section 5 of of Import Export (Control) Act, 1947 and Section 120B r/w Section 5 of Import Export (Control) Act, 1947.
45. As regards the offence under Section 420 & 471 IPC, committed only by Smt. Jagbinder Kaur Bhatia charge is required to be framed under separate Crl. Rev. No.63/10 22 heads only against Smt. Jagbinder Kaur Bhatia. So in this regard also charge needs amendment. Trial Court to do the needful. Revision petition is dismissed subject to modifications in the manner indicated above. Trial Court Record be returned and revision petition be consigned to Record Room.
Announced in Open Court
on 07.09.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
Crl. Rev. No.63/10 23