Delhi District Court
Sandeep Khandelwal vs Cbi on 16 September, 2015
Cri. Rev. no.27/14
Sandeep Khandelwal v. CBI
16.09.2015
Pre: Ld. counsel for the revisionist.
None for the respondent.
File perused, vide separate detailed order placed along side in
the file, the impugned order dt. 26.10.2013 passed by ld. Trial court is
upheld. Accordingly, revision petition is dismissed. Thus, revision
petition stands disposed of. Trial Court record, if any, be sent back with
a copy of the order.
Revision petition/ proceedings be consigned to record room.
(RAJ KAPOOR)
ADDITIONAL SESSIONS JUDGE-03
PATIALA HOUSE COURTS, NEW DELHI
1
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE (03) , PATIALA HOUSE COURT, NEW DELHI
Criminal Rev. No.27/14
IN THE MATTER OF :
Sandeep Khandelwal
s/o Om Prakash Khandelwal
r/o 210, Navneeti Apartments,
51, I P Extensions, New Delhi.
..............revisionist
Versus
CBI
CC no.5/1/13
RC-7(E)/2005/EOW-I/DLI
................Respondent
16.09.2015
ORDER
1. This revision petition is directed against the order dated 26.10.2013 passed by ld. ACMM-II, PHC, New Delhi (hereafter referred as impugned order) whereby ld. Trial Court found a prima facie case for the offences 120-B IPC r/w 420/ 467/ 468/ 471 IPC against the revisionist Sandeep Khandelwal and one Arun Kumar Gupta. Accordingly, charge was framed on 16.11.2013.
2. Briefly the factual matrix of the case is that the case was registered U/s 120B r/w Sections 420/467/468/471 IPC on the complaint received by the CBI from Sh. J.C.Babu, Foreign Trade Development Officer, Office of Director General of Foreign Trade, Ministry of Commerce & Industries, Deptt. of Commerce, Udyog Bhawan, New Delhi. The 2 complainant had also enclosed a complaint received by him from one Sh. Ramesh Kumar Mehta of Chennai alleging the misuse of Duty Entitlement Pass Book (DEPB) .
3. It was alleged that accused no. 1 Sandeep Khandelwal and accused no. 2 Narendra Modi (since deceased) in connivance with the unknown officials of Jawahar Lal Nehru Customs House arranged 3 DEPBs licenses with its TRAs (Transfer Released Advices) for M/s Rajshri Packagers Ltd., Mangalore by dishonest and fraudulent means. It was further alleged that M/s Triveni Exports, New Delhi, M/s Om Corporation, Mumbai and M/s Param Hans Trading Company, Delhi were the holders of the three DEPB licences that formed a part of missing 46 DEPBs from the office of Director General of Foreign Trade (DGFT) and the corresponding TRAs were issued by the officials of Jawahar Lal Nehru Custom House on the basis of false and fabricated DEPBs. It was also alleged that Sandeep Khandelwal after arranging the forged DEPB licences along with TRAs sold the same to the importer M/s Rajshri Packagers Ltd. of Mangalore through his associate Narendra Modi for which a payment totaling to Rs.72,85,427/- was received by Narendra Modi through cheques/drafts. It was also alleged that the accused persons entered into criminal conspiracy during the period 2002-2003 at New Delhi, Mumbai and other places by utilization of the forged DEPB licneces and corresponding TRAs through M/s Rajshri Packagers Ltd., Mangalore for import clearance thereby causing a wrongful loss of Rs. 3 75,78,417/- of Customs Duty to Government of India. Ld. Trial Court after perusal of the case file and material available on record found a prima facie case against the revisionist Sandeep Khandelwal and another person namely Arun Kumar Gupta for the offences punishable u/s 120-B/ 467/ 468/ 471 / 420 IPC, vide detailed impugned order dated 26.10.2013. Charge was also framed against the revisionist and other person on 16.11.2013. Feeling aggrieved with the impugned order dated 26.10.2013 ld. Counsel filed the revision petition.
4. Arguments were heard. Both the parties have filed written submissions. Ld. counsel for the revisionist Sandeep Khandelwal submitted that for the offence of 420 IPC it is necessary that there has to be inducement of the persons allegedly cheated. and there has to be an exercise of fraudulent and deceitful means upon him. In the case in hand there is absolutely no evidence, documentary or otherwise to even prime facie show that the accused had at any point of time induced anybody or exercised deceitful means on anybody whatsoever. It is alleged by the prosecution itself that it is the complainant Ramesh Kumer Mehta who had himself suggested his agent leo-brother Sh . M anish Bafna to contact the accused herein for arranging licenses. Ld. counsel for the revisionist further submitted that for the offences of cheating there has to be a wrongful gain to the accused whereas even if the whole of the charge sheet taken on its face value there is absolutely no evidence on record that the 4 accused herein got any wrongful gain either from the complainant or from the person named Manish Bafna or from any other person in any form whatsoever. The only allegation which has been made against the accused herein is that he was paid an amount of Rs. 4,45,0001/- by way of pay order / demand draft in name of Mis SKG Engg Pvt. Ltd. There is not even an iota of evidence that the accused herein is in anyway a beneficiary in the said company either as a director or as Manager or in any other capacity. The said pay order was in the name of Mis SKG Engg Pvt. Ltd and neither the accused herein could encash nor could credit the same to his account nor has he done so. Even otherwise as per the material available on record the said pay order was never made from the account of the complainant or any company or firm which was stated to be the beneficiary of the DEPBs and TRAs. None of the witness or the complainant has stated or placed any record or document to show that the accused herein took any money or was even paid a single penny by anyone of the firms/ companies who have been stated to have been benefitted from the DEPBs and TRAs in question.
5. Ld. counsel for the revisionist also submitted that there is absolutely no evidence on record that the accused herein even met or entered into any criminal conspiracy with any of the accused at any specific place for doing or causing to be done any act alleged in the whole transaction. There is absolutely no evidence or other material on record to 5 show that the accused had any connection concern or beneficial interest in any of the firms namely M/s Param Hans Trading Co. or M/ s Triveni Exports or M/s Om Corporation. No connection whatsoever, direct or indirect has been established between aforesaid firms and the revisionist.
6. Ld. counsel for the revisionist further submitted that no evidence worth the name has been placed on record by the prosecution to show that the revisionist ever visited any of the customs offices either at New Delhi or at Nahavasheva Port, Mumbai, or the Mangalore port. It therefore, remains unexplained as to how the DEPBs were missing from the New Delhi office of the customs which were allegedly kept under lock and key by the officer concerned in the said office. There is no evidence on record that the accused took a single penny or was ever paid any such amount either by Mis Rajshri Packagers Mangalore or by Sh Ramesh Kumar Mehta or by Mis Mysore Agro Trade Pvt. ltd. or even the SKG Engg. Pvt. Ltd. There is absolutely no evidence on record that the accused herein either forged or fabricated any of the DEPBs and TRAs in question. The opinion of G.E.Q.D was taken by the prosecution but no forgery or fabrication has been attributed to the accused herein from whom the IO had taken hundreds and hundreds of his specimen signatures and writings. The G.E.Q.D has given his opinion against the accuse d Narender Modi only and it is the said Narender Modi who 6 has been paid either by cheque or by draft by the complainant the firm M/s Raj Shri Packagers, the company M/s Mysore Agro Trade Pvt. Ltd.
7. Further, ld. counsel for the revisionist submitted that the prosecution has failed to place on record any convincing material to even prime facie show that any document purporting to be the question documents were sent through Mis Blue Dart Courier to any of the beneficiary firm or to Mr. Manish Bafna which has been baseless claimed by them. The only evidence by which the revisionist has been connected with the offence in question is that he stayed in Hotel Sun N Sand in Juhu Mumbai the bill of which was paid by Sh . Narender Modi from his debit card. The said allegation by itself cannot attract any of the provisions of section 420 or 467 or 468 or 471 or even 120B of the IPC.
8. Ld. counsel for the revisionist further submitted that there is no chain of evidence to rope in the revisionist in the conspiracy particularly because there is no time or date or place of alleged conspiracy between Modi. Nothing has been spelt out by the prosecution in the charge sheet. The connection or concern of the accused no. 3 Arun Kumar Gupta with the revisionist has nowhere been deciphered in the whole of the charge sheet. No evidence worth the name has been placed on record to even prime facie show that any document was transacted between the accused herein and the accused Narender Modi. The call details allegedly collected by the prosecution have not been authenticated by 7 any competent officer to even prime facie proved their veracity. No document worth the name or other evidence showing communication between the accused herein and the other accused particularly the accused Narender Modi has been placed on record. Whereas in the statement of Mr. Ramesh Mehta (complainant) before Sh P.Rajendran (Inspector) Sh Bodhraj (IO) it is categorically mentioned that he had himself negotiated the purchase of the DEPB on 6.2.2003 which fact is controverted by Manish Bafna who has stated that it is Mis Mysore Agro Trade Pvt. Ltd., who has approached him for the supplies of DEPB as far back as in Dec. 2001.
9. Further, ld. counsel for the revisionist submitted that there is no evidence oral or documentary evidence on record to even prime facie show that the accused herein either forged or fabricated any of the DEPBs or TRAs in question. There is no expert opinion even on the said point by the G.E.Q.D. There is no oral or documentary evidence to even prime facie show that the accused herein used any of the aforesaid documents. Therefore, the question of section 467 or 468 or 471 of I PC cannot and shall not arise. The person named Manish Bafna had given the import details for getting the TRA issued through Blue Dart Courier on 4.3.2003 and after that it was alleged that the revisionist sent that 3 transfer release advises with DEPB's. However one of the disputed TRA related to OEPB no. OS10076922 dated 31.12.02 which 8 was already utilized by the importer Mis Rajshri Packagers on 21.2.2003 as per document No 10 (0-10) .
10.Ld. counsel for the revisionist again submitted that very strangely, the prosecution filed charge sheet in the court of the CMM who is not competent to take cognizance against a public servant as it is exclusively the court of a Special Judge under the P. C Act who can take cognizance against the public servant. The prosecution while filing chargesheet before a court other than the court of a Special Judge presumed that there is no offence made out against the public servants named in the charge sheet but easily let off them on frivolous grounds. The prosecution ought to have filed the charge sheet before the court of a Special Judge under the P.C.Act. The court below ought to have returned the charge sheet to the prosecution for being filed before a Special Judge, so that in the event of the court coming to a conclusion that the public servants have been wrongly let off the said court ought to have taken cognizance of the case. On these grounds therefore prayed that this Hon'ble court be pleased to call for the records to examine in the legality, validity and propriety of the order dated 26.10.2013 passed by the court of Sh Balwant Rai Bansal ACMM- II aforesaid in case No. CC No.5/1/13 RC No. 7(E)/2005/EOW-I/DLI and discharge the revisionist.
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11.Contrary to it, ld. Spl. PP for CBI also filed written synopsis in which it has been submitted that it is in the evidence that the revisionist Sandeep Khandelwal had dishonestly and fraudulently managed forged DEPNs/TRAs and other related documents and that the same were supplied to M/s Rajshree Packagers Ltd. through one Manish Bafna, who happened to be an Agent of Sh. Ramesh Kumar Mehta, Proprietor of M/s M R Impex, Chennai, the complainant in this case. From the call detail records of telephones, it has been established that Sandeep Khandelwal was in touch with Manish Bafna. There is oral and documentary evidence that Sandeep Khandelwal was a close associate of Narendera Modi (since expired) in as much as the former had stayed in Sun N Sand Hotel, Juhu, Mumbai during the period 13.03.2013 to 17.03.2013 and that the payment amounting to Rs.15,876/- for the say was made by Narendra Modi (since expired) through his Debit Card, which is linked to his Saving Bank Account where the proceeds of the forged DEPBs had been credited. There is sufficient oral and documentary evidence to prove that he had received a sum of Rs. 4,45,000/- through a Pay Order got issued by Narenra Modi from his account maintained with Standard Chartered Bank, Vile Parle (W), Mumbai and that the same was utilized by Sandeep Khandelwal for the purchase of another genuine DEPB licence from M/s S K G Engineering Pvt. Ltd., Vasant Kunj, New Delhi. On these grounds, ld. Spl. PP for CBI submitted that revision petition is liable be to be dismissed. 10
12.Having given careful consideration to the submissions of ld. counsel for the revisionist and ld. Spl. PP for CBI, I am of the view that contentions raised by the ld. counsel for the revisionist and ld. Spl. PP requires trial to reach at the definite conclusion. Apart from this, this court has limited jurisdiction to interfere in the discretionary power of the ld. Trial Court to set over the wisdom of trial court at this stage. The determination of the fact on charge is exclusive domain of the original court of jurisdiction yet this court has limited jurisdiction to enter the area of discretion of Ld. Trial Court on the ground of propriety and correctness. Besides, the evidence in the case in hand is yet to be led. Therefore, exercising of discretionary power by the ld. trial court does not appear illegal and improper. In view of this the impugned order dt. 26.10.2013 passed by ld. Trial court is upheld. Accordingly, revision petition is dismissed. Thus, revision petition stands disposed of. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room. ANNOUNCED IN THE OPEN COURT ON THIS 16.09.2015 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS, NEW DELHI 11