Delhi District Court
Cbi vs Ashu Exports on 12 March, 2012
IN THE COURT OF MS. KIRAN BANSAL, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATEI, EAST, KARKARDOOMA COURTS,
DELHI.
RC 2(S)/1994/SIUIX & RC 2(S)/1994/SIUX
CBI Vs Ashu Exports
JUDGEMENT
a) Sl. No of the cases 72/09 and 39/09
b) Date of the commission of During the period 1985 to
offence 1987.
c) Name of the complainant Surat Singh
Dy. Director General of
Foreign Trade, Office of Jt.
Director General of Foreign
Trade, Ministry of
Commerce, New Delhi.
d) Name of the accused 1. M/s. Ashu Exports,
At 70, Okhla Industrial
Estate,
PhaseIII, New Delhi110020
(throgh its proprietor R.K.
Malhotra).
2. R.K. Malhotra
s/o Sh. P.N. Malhotra,
r/o B19, Ist Floor, Kailash
Colony, New Delhi.
g) Offence complained of or 1. u/s 120B r/w 420/468/471 proved IPC and section 5 of Import Export (Control) Act, 1947.
2. u/s 120B IPC r/w sec. 5 of Imports & Exports (Control) Act, 1947
h) Plea of the accused Pleaded not guilty
i) Date of such order 12.03.2012
j) Final Order Convicted.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :
1. By this judgement, I will dispose of the two similar and connected cases of prosecution i.e. CBI against accused M/s. Ashu Exports one bearing no.
RC 2(S)/1994/SIUIX(herein after refer to as main case) and RC 2(S)/1994/SIUX(herein after refer to as the second case).
2. Breifly stated the facts of the case bearing no. RC 2(S)/1994/SIUIX (i.e main case) are that Sh. Surat Singh, Dy. Director General of Foreign Trade filed complaint against the accused M/s. Ashu Exports and its Proprietor R.K. Malhotra u/s 120B IPC r/w section 420/468/471 IPC and section 5 of Imports and Exports Act, 1947(herein after referred to as the Act.) and substantive offences u/s 420/468/471 IPC and section 5 of Imports and Exports Act, 1947. It is stated in the complaint that the accused M/s. Ashu Exports filed an application for grant of advance license for Rs. 9,72,625/ for import of 100% cotton denim alongwith required documents, i.e, photocopy of RCMC, original treasury challan for Rs. 975/, photocopy of Export order and income tax declaration etc. The application of the accused was processed and the firm was issued advanced license no. P/K/24270741 dated 13.10.1986 with the condition that the firm shall export Jeans 15,000 pieces, long coat (Gents) 10,000 pieces for an FOB value of Rs. 16,70,000/ within a period of 9 months and this period was to begin from the date of clearance of first consignment or from the 30 days of importation of first consignment whichever is earlier. The accused firm furnished a legal agreement in pursuance to the license whereby it was agreed that the importer shall earn foreign exchange for an FOB value of Rs. 16,70,000/ and on failure the importer shall be liable to pay custom duty with interest of 18% from the date of import. The import documents were received from foreign supplier M/s. Miralka Enterprises (HK) Ltd. As required amount was deposited in Indian currency by the accusd M/s. Ashu Exports in Andhra Bank and the import documents after having received from the said Bank were handed over to M/s. Vinod. S. Mehta & Co., 6, Mehta Bldg, 26, Calicut Street, Bombay38 alongwith the license and DEEC Book. M/s. Vinod. S. Mehta & Co. filed documents for clearance of the goods and after getting the material cleared, stored the same in the godown of M/s. Thakkar Warehousing Agency. M/s. Thakkar Warehousing Agency sent the said material to M/s. Sharda Trading Co. for storage. Some of the balance material was stated to be sent to the godown of Gurugovind Industrial Estate, Goregaon, Bombay, Maharashtra. It is further stated that this material was transported through M/s. New Safe Carriers but never reached Delhi and was illegally disposed of by selling in open market. It is further stated that the accused no. 2 R.K. Malhotra while applying for the license has submitted false export order which was prepared by himself in the name of M/s. Star Enterprises, 1149, Washington Avenue, Washington Townshi, West Wood, New Jersey, U.S.A. Similarly, another advance license no. P/K/3148753 dated 23.04.1986 was also obtained for import of Brass scrap for an amount of Rs. 9,80,000/ and a false export order purported to have been issued by M/s. Exotica, Bon68, Austin, U.S.A filed alongwith the application for advance license. The advance licese for export of 70 M.T. Of Brass Artware for an FOB value of Rs. 20,00,000/ within a period of 9 months and it will begin from the date of clearance of first consignment or from 30 days of importation of first consignment whichever is earlier. The requisite amount was again deposited in the Andhra Bank and the import documents were released for clearance of the brass scrap and after receiving the import documents the same were handed over to CHA Firm M/s. Sh. Sainath Shipping Corp at Bombay and the goods, i.e, brass scrap were received and were sent to Delhi through M/s. Kay Cess Carriers, Bombay but were never received in Delhi and were disposed off illegally.
3. Again, another license no. P/K/2427033 dated 03.10.1986 for import of brass scrap was obtained. The condition in the license were also similiar that importer was to export 49 M.T. Brass Artware for an FOB value of Rs. 14,40,000/ within a period of 9 months. The goods against this license were also cleared by M/s. Sai Nath Shipping Corp. but never reached Delhi and thus were presumed to have been disposed off by the accused firm. Though the goods in pursuance to the above three licenses were imported but the correspondence export was never made by the accused and there were no entries in export books and it was thus alleged that the accused has committed an offence u/s 120B r/w 420/468/471 IPC and section 5 of Import Export (Control) Act, 1947.
4. Breifly stated the facts of the case bearing no. RC 2(S)/1994/SIUX (i.e, the second case) are that Sh. Surat Singh, Dy. Director General of Foreign Trade filed complaint against the accused M/s. Ashu Exports and its Proprietor R.K. Malhotra u/s 120B IPC r/w section 5 of Imports and Exports Act, 1947. It is stated in the complaint that the accused M/s. Ashu Exports filed an application for grant of advance license for Rs. 9,85,600/ for import of mulberry raw silk. The application of the accused was processed and the firm was issued advanced license no. P/K/2441493 dated 15.01.1987 with the condition that the firm shall export 100% mulberry raw silk fabrics other than made of dupoin yarn/50,000 mts., weight 3500 Kgs for an FOB value of Rs. 20,62,000/ within a period of 9 months and it will begin from the date of clearance of first consignment or from 30 days of importation of first consignment whichever is earlier etc. It is further stated that Andhra Bank, Sadar Bazar received the import documents including Bill of Lading no. PLR101 dated 30.06.1987 invoice no. 72080S1 dated 04.06.1987 from China Silk Corpn., Guangdong branch, Hong Kong and on the notice of the said bank accused R.K. Malhotra, Proprietor of M/s. Ashu Exports deposited the required money, i.e, Rs. 9,58,818/ excluding other expenses in the said bank for which the foreign currency documents were handed over to said Sh. R.K. Malhotra (A2). It is further stated that accused R.K. Malhotra handed over the said import documents to M/s. Sunil Shipping Agency, 111, Rex Chamber, Bombay38, the CHA firm for getting the clearance of the imported raw silk. M/s. Sunil Shipping Agency, CHA filed the bill of entry no. 2027/194 S.S. Kranj for clearing 67 bales of mulberry raw silk weighing 4049.87 Kgs., amount to Rs. 9,58,818/ on 23.07.1987 which was assessed by the Customs Authority in the O/o the Collector of Customs, Bombay and after inspecting the goods the same were released out of custom charges to the CHA M/s. Sunil Shipping Agency, Bombay. As the import was under the DEEC Scheme, therefore, no custom duty was levied. It is further stated that the said CHA firm after receiving the said material from BPT, Bombay handed over the same to M/s. Aryavarta Parivahan on 20.08.1987 to transport upto Delhi but the material was handed over to Sh. Brij Lal Goyal of M/s. Goyal Exports (Enterprises) 4378/4, Darya Ganj, Delhi on the instructions of M/s. Ashu Exports (A1) and, thus, imported material against the said import licence was disposed off illegally. It is further stated that M/s. Ashu Exports (A1) on its failure in production of the documentary evidence showing the fulfillment of export order, was declared defaulter by the Licensing Authority and the notice for recovery of the customs duty with interest was issued against the said accused firm and no extension for export was allowed to the said firm. It was thus alleged that the accued was committed an offence u/s 5 of Import Export (Control) Act, 1947.
5. In the main case, i.e, RC 2(S)/1994/SIUIX Charges u/s 120B of IPC r/w 420/468/471 IPC and further r/w section 5 of Imports Exports (Control) Act, 1947 and substantive offence u/s 420/468/471 IPC as well as U/s 5 of Imports and Exports (Control) Act, 1947 were framed against the accused on 22.05.2006 to which he pleaded not guilty and claimed trial.
6. In the second case, i.e, RC 2(S)/1994/SIUX charges u/s 120B IPC r/w sec. 5 of Imports & Exports (Control) Act, 1947 were framed against the accused on 22.05.2006 to which also he pleaded not guilty and claimed trial.
7. In both the cases, the prosecution has examined Sh. Surat Singh, Deputy Director of General Foreign Trade Office of Joint Director General, Ministry of Commerce as PW1, who has stated that he was authorized to file the present complaints. He has proved the notification dated 29.02.1988 vide Ex PW1/1. He has further stated that he had signed the complaint and the same was Ex PW1/2. He has been cross examined at length also. He has stated that they have filed the FIR with CBI and after investigation by the CBI he had filed the complaint and had gone through the same throughly alongwith the statement of witnesses. No suggestion has been put to him during his cross examination that he was not competent to file the complaint or that the complaint was not filed by him. The entire cross examination by the accused is based on the fact that another person, namely, Sh. Sunil Madnani who is PW15 in the present case was responsible and had cleared the dues. The testimoney of this witness PW1 has remained unshaken during cross and he has proved that he was competent to file the present complaint cases and both the complaints are duly proved as Ex PW 1/2 and Ex PW1/2 separately in both the cases.
8. In both the cases, PW2 is Sh. B.R. Sunderial who deposed that in the year 198687 he was working as Licencing Assistant in Advance Licencing SectionI, in the office of Joint Chief Controller of Imports & Export (CIA), New Delhi. His examination was not completed and, therefore, his testimony cannot be read for disposal of the case.
9. In both the cases, PW3 is Alka Bhatia who deposed that in the year Nov, 1993 she was posted as Deputy Director General Foreign Trade in the enforcement cum Adjudication section. She has proved the complaint vide Ex PW 3/1 which she has sent to DIG, CBI for investigation. This complaint as per PW3 was based on primary investigation conducted by the Enforcement Cell regarding nonfulfilment of export obligation. During cross examination, nothing has come on record to show that she was not authorized to make the complaint to CBI. She has further stated that during primary inquiry it was found that the firm was not in existence. Ld. Counsel for the accused has argued that the whole basis of filing the complaint, i.e, the primary investigation was faulty as CBI later on had found that the firm Ashu Exports was in existence. However, the fact remains that the present prosecution of the accused is not regarding the fact of existence or nonexistence of the firm but of the nonfulfillment of the conditions of the import licence and of not making the corresponding export and even the primary investigation was conducted regarding the nonfullfilment of export obligation.
10. In both the cases, PW4 is Sh. M.L.Khanna who has proved that the defaulter circular no. 260 dated 16.03.1989 vide Ex PW4/1, a show cause notice dated 10.11.1987 issued to M/s. Ashu Exports vide Ex PW4/2, order no. 53 dated 05.02.1988 vide which the firm was declared defaulter vide Ex PW4/3, show cause notice dated 06.11.1987 vide Ex PW4/4, DEEC books vide Ex PW4/5 to Ex PW4/8, defaulter notice vide Ex PW4/9, DEEC books vide Ex PW 4/10 to Ex PW4/11 and the memo vide which the bond was handed over to IO vide Ex PW4/12. His examination was not completed and, therefore, his testimony cannot be read for disposal of the case.
11. In both the cases, PW5 is Sh. Jeevan Singh Bisht. He has proved that the advance licence no. PK/3148751 dated 22.04.1981 was applied by Sh. R.K. Malhotra vide Ex PW5/1, application addressed to Joint Chief Controller of Imports vide Ex PW5/2, another application addressed to the same office on behalf of Ashu Exports vide Ex PW5/3, another letter of request addressed to JCCIE for extension of time vide Ex PW5/4, letter dated 28.08.1996 vide Ex PW5/5, documents in the file under the head advance licence no. P/K/2427033/C/20/02/85 vide Ex PW 5/6 to Ex PW 5/18, documents in the file under the head advance licence no. P/K/2427041 dated 13.10.1986 vide Ex PW 5/19 to Ex PW 5/38. He has also proved the signatures of Sh. Harish Kumar Chadha, Manager of Ashu Export on document at Sl. no. 45 on the file under head Advance license no. 2427041 vide Ex PW 5/1A. PW5 is a very material witness and has proved various other documents and the detailed discussion regarding the documents proved by him shall follow during the course of the judgment.
12. In both the cases, PW6 is Sh. Harish Kumar Chadha who was an employee of the accused and has stated that the documents of the advanced license bearing no. P/K/3148753 have been signed by the accused. He has further stated that the documents of advance license no. P/K2427033 hve also been signed by the accused. Even the documents of advance license no. P/K2427033 bearing the signature of the accused. He has further stated that the documents advance license no. P/K/3148753 also bears the signature of the accused. During cross he has admitted that since 1985 Sunil Madnani used to make payment for salary though he was working for Ashu Exports as well as Trishul International and Neelima International. He has also stated that he had went for the extension of the period of export but the extension was not granted. The entire cross of this witness is based to establish a fact that in fact Sunil Madnani was responsible for all the acts of these advance licenses and that the accused R.K. Malhotra had never deposited the amount with the Andhra Bank and did not knew the manufacturer of Muradabad.
13. In both the cases, PW7 is Sh. Brij Lal Goel who deposed that during the year 19861987 he was running business in the name of Goyal Enterprises and dealing in sale and purchase of REF licences. He further deposed that in the year 1986 Sh. Ballu approached him and asked him about to purchase the licence at a premium of about one and a half per cent and the total value was Rs. 9,50,000/. He further deposed that he told him to approach his nephew Sh. Rajender Gupta who was dealing in such licences and was having business in Bombay. Thereafter, Sh. Balram Madnani @ Ballu went to Bombay and handed over the licence along with imported document for the clearance of imported material which was Raw Silk.
14. In both the cases, PW8 is Sh. Sanjiv Malhotra who deposed that he was working as Deputy Secretary at the office of APPAREL Export Promotion Counsel. He has further proved the Ex PW5/1G which is the registration cum Membership certificate issued to Ashu Exports and the proprietor of the same is accused Rajender Malhotra.
15. In both the cases, PW9 is Sh. P.P. Grover who deposed that in the year July,1986 he was working as Manager at Sadar Bazar Branch, Andhra Bank, Delhi. He has proved the application for opening of current A/c of sole proprietor concerns account in the name of Ashu Exports vide Ex PW9/1 and letter dated 18.02.1994 issued by Cannaught Circle Branch of Andhra Bank vide Ex PW9/2, payment slip dated 18.07.1986 of Rs. 4,65,000/ vide Ex PW9/3, payment slip dated 18.07.1986 of Rs 5,15,000/ vide Ex PW9/4, payment slip dated 20.12.1986 of Rs. 4,50,000/ vide Ex PW9/5, payment slip dated 28.07.1987 of Rs. 2,00,000/ vide Ex PW9/6. He has stated that account no. 1116 was operated by Rajender Kumar Malhotra.
16. In both the cases, PW10 is Sh. G. Sukumaran, Manager of Foreign Exchange in Andhra Bank in the period 19921996. He has proved the true copy of the FIBC ledger sheet page no. 30,67 vide which FIBC no. 214/86 and 348/86, 9/87 were marked vide Ex PW10/1 to Ex PW 10/6. He further stated that documents of the import licenses were released to the party after completion of the transaction regarding exchange of foreign exchange.
17. In both the cases, PW11 is Sh. B.S. Mamak, Manager Law, Punjab and Sindh Bank who deposed that search at the residence of the accused, i.e, B90, first floor, Kailash Colony, New Delhi took place in his residence and he has signed as a witness. He has further stated that the specimen signature of the accused has also taken in his presence and his specimen signatures are Ex PW11/2 to Ex PW11/11 (Colly).
18. In main case, PW12 is Sh. K.B. Sudan, Chief Manager, State Bank Staff College who has deoposed that the specimen signatures of accused were taken in his presence and same were S10 to S19 vide Ex PW 12/1 to Ex PW 12/10. He has also proved the sheet S41 to S43 vide Ex PW 12/11 to Ex PW 12/13, sheets S59 to S60 vide Ex PW 12/l4 to Ex PW 12/15.
19. In both the cases, PW13 is Sh.Subhash Kandupawar who deposed that he was doing the business of Clearing and Forwarding Agent (CHA) at Vyapar Bhawan no. 205, 49 P.Demoller Road, Bombay. He has proved the bill entry no. 1688/04 dated 30.07.1986 vide Ex PW 13/1, bill entry no. 1688/03 vide Ex PW 13/2, bill entry no. 3061/124 vide ex PW 13/3, BPT coy no. 2779/459 vide Ex PW 13/4, delivery challan dated 22.01.1987 vide Ex PW 13/6, delivery challan no. 438 vide Ex PW 13/7, covering letter dated 17.12.1986 vide which all the related original documents after clearance of the goods were sent to the party vide Ex PW 13/8, letter dated 12.08.1986 vide which the documents after clearance were sent to the party vide Ex PW 13/9, challan dated 12.08.1986 by which the goods were booked through Kochar Freight Carriers Bombay for transportation to New Delhi by his dock vide Ex PW 13/10.
20. PW14 is Sh. R.B. Gandhi, who deposed that during the year January, 1994 he was working as Controller of Imports and Exports in the office of DGFT, Udyog Bhawan, New Delhi. He has proved the receipt memo dated 21.01.1994 vide Ex PW14/A but again his testimony cannot be read as his cross was not conducted after charge.
21. In both the cases, PW15 is Sh. Sunil Madnani who has deposed that in the year 19861987 he was doing license liasoning work of export and import. He has further stated that the accused R.K. Malhotra had requested him for getting the import licenses. He has also stated that his father Balram Madnani @ Ballu was doing the same business and his father had escorted the accused to get deposit the amount in the Andhra Bank. During the cross, the accused has tried to question him regarding the other cases in which this witness was accused and was convicted. The main defence of the accused is that in fact this witness Sunil Madnani was responsibles for the acts done for obtaining import licenses. Even the cross of the witness is based on these facts. The accused during cross has tried to establish that PW15 had attached the import order placed by Star Enterprises and Exotica Austin with the application for obtaining advance licenses.
22. In both the cases, PW16 is Insp. Layak Singh, CBI who is the IO in both the cases. He has proved the copy of FIR vide Ex PW 16/1, specimen handwriting and signatures of accused R.K. Malhotra vide Ex PW 16/2 (65 no.s), specimen signatures and handwriting of Harish Chandra Wadhwa vide Ex PW 16/3, specimen signatures of Sh. Ajay Babbar vide Ex PW 16/4 (3 sheets), specimen handwriting and signatures of Sh. Jeevan Singh Bisht vide Ex PW 16/5 (5 sheets), seizure memo vide Ex PW 16/6, seizure memo of the documents received from Sh. Kishre S. Thakkar vide Ex PW 16/7, letter dated 23.06.1994 by which he has received the documents from Dy. Manager P & V Dock Bombay vide Ex PW 16/9, letter dated 05.07.1994 addressed to him from Dy. Office Supdt, MCD Supply Section Bombay vide Ex PW 16/11, seizure memo dated 22.06.1994 vide Ex PW 16/12, receipt memo dated 28.02.1994 vide Ex PW 16/13, letter dated 17.02.1994 by which he received the file vide Ex PW 16/14, receipt memo dated 09.09.1994 and 18.06.1994 vide Ex PW 16/15 to Ex PW 16/16, receipt memo dated 25.06.1994 by which he received the documents from Bharat Pandurang from Bombay vide Ex PW 16/17, letter dated 20.04.1994 which he has received from M/s. Shri Sai Nath Shipping Corp vide Ex PW 16/18, documents received from Dy. Manager, P& V Dock vide leter dated 22.10.1994 as Ex PW 16/19, documents received from Kishore Shivaji Thakkar from Bombay vide receipt memo dated 09.08.1994 vide Ex PW 16/20, documents received vide receipt memo dated 20.06.1994 from M/s. Vinod S. Mehta and Co., Bombay vide Ex PW 16/22, documents received from Andhra Bank, Parliamentary Street, New Delhi through which foreign exchange was received by accused R.K. Malhotra for making imports of material which is dated 28.02.1994 vide Ex PW 16/23 and documents received from Insp. SSI, Muradabad vide receipt memo dated 25.03.1994 vide Ex PW 16/24.
23. In both the cases, PW17 is Sh. Kirit S. Mehta who deposed that he was doing the work of clearing agent (CHA) at 6 Mehta Bldg. 26Calicut Ballard. He has proved the bill of entry no.257/165 by which the material cleared from the port vide Ex PW 17/A. He has also proved the bill of entry vide which consignment were dispatched to Thakkar Ware House and Guru Gobind Singh Indl. Estate, Jogeshwari, Mumbai vide Ex PW17/E, copy of goods consignment note dated 27.02.1987 vide Ex PW 17/G, letters dated 28.01.1987 and 30.07.1987 which were submitted by Sh. Mahander Bhai Bhandari of M/s. India Export vide Ex PW17/H and Ex PW 17/I respectively, bill of entry n o. 1894/5 vide Ex PW 17/J, consignment note of Kochhar Cargo Freight Carriers vide which the material was dispatched to the party vide Ex PW 17/K.
24. PW18 is Sh. Mahender Singh, Asst. Govt. Examiner of Questioned Documents who has proved his report Ex PW 18/C1 and the reasons in suport of his opinion as Ex PW 18/C2. He has stated he has examined all the questioned documents as well as documents in the present case.
25. In second case, PW12 Pramod Kumar Aggarwal, PW13 Taufa Ram, PW14 Bijender Singh and PW17 Mahender Shanti Lal Seth were also examined but were never cross examined after charge and hence, their testimonies are not read for the disposal of the case.
26. PW19 is Sh. R.K. Nair who deposed that in the year 1997, he was working as Appraiser of Customs and posted in Docks, STP. He has proved the duplicate copies of bill of entry no. 257/165 dated 02.02.1987.
27. PW20 is Sh. Harish Chander Wadhwa who deposed that he had made an agreement with Ashu Exports, New Delhi for manufacturing of the fabrics. He further deposed that since they did not supply material for manufacturing the fabric his firm, Harish Textiles, Amritsar could not manufacture the fabric.
28. PW21 is Sh. Bharat Pandurang Gavahne who deposed that he is the partner of M/s. Gavahne Syndicate Transport. He further deposed that he arranged the transport for sending 162 rolls of denim to Majgoan godown. He further deposed that he did not arrange transport for sending 162 rolls of denim to Jogeshwari and that he arranged the transportation on the instructions of Mr. Vinod. S. Mehta, Clearing agent at the dock.
29. PW22 is Sh. Navin Kochhar who was the proprietor of M/s. New Safe Carriers. He deposed that they have transported the said material, i.e, 162 rolls to Delhi of Denim cloth and that the delivery was taken by the party.
30. After closure of the prosecution evidence, statement of accused R.K. Malhotra was recorded u/s 313 CrPC. Accused during his statement u/s 313 Cr.P.C recorded on oath has admitted that he had submitted the application for obtaining the advance license under Duty Exempted Entitlement Certificate to import 100% cotton denim and brass scrap and raw mulbery but has further submitted that he had not submitted any forged document and all the document submitted alongwith application for obtaining license were genuine. He has also admitted that the license was subject to the condition that he was to make a corresponding export within period of 9 months. He has also admitted that he had entered into a legal agreement for earning foreign exchange. He has further stated that the goods were never received in Delhi and that Sunil Madnani had disposed off the goods at Bombay and that he had supplied the money and arranged the import of the material. He has further stated in his statement that the export obligation period was not extended and that he should have been given a further opportunity to export the goods. He has stated that all the documents submitted by him alongwith the application for obtaining import licenses were genuine and that Sunil Madnani had disposed off all the goods after obtaining the shipment documents. He has further stated that firm M/s. Ever Bright Exports was genuine but since his proprietor Fasrul Rehman had expired and therefore he could not come to the court for proving his signatures. He has further stated if the period of export obligation had been extended as per rules then he would have purchased the material from the market and fulfilled the export obligation. Accused has preferred to lead DE, thereafter, the matter was listed for DE.
31. Accused himself has appeared as DW1 and again took the same defence which he had taken during his statement recorded u/s 313 Cr.P.C. According to the accused it was the Sunil Madnani who had applied for all the licenses and had opened the current account in the name of the accused company and it was Sunil Madnani who had arranged clearance of the imported raw material from the customs. According to the accused, it was Sunil Madnani who had sold off the goods to his known persons. During his cross examination, the accused had admitted that he had signed the applications form and that he had applied for the advance licenses. He has further admitted that he has opened the RCMC and got its photocopy and submitted with the application for DEEC. He has admitted that he has signed the requisite documents for submisssion to the bank for release of the said goods from Bombay. He has further admitted that he knew that the goods had arrived at Bombay and it was only when the stipulated time period of 18 months was coming to an end and the goods had not arrived to his godown, thereafter, he applied for extension of time for the export obligations. He admitted that he had never made any complaint against Sunil Madnani or to the police or to any concerned Department for non arrival of the import goods.
32. Heard the arguments on behalf of defence as well as Prosecution. Perused the record, the testimonies and the documents proved on record carefully. In the present case, more than 400 documents were involved and exhibited and each and every documents has been carefully perused and the entire record has been thoroughly gone through.
33. The question is as to whether the accused has used any forged documents or as to whether the prosecution has been able to prove that the accused has committed offence u/s 468 r/w 471 IPC. The section 463 defines forgery and according to section 463 whoever makes any false documents with intention to commit fraud is said to commit forgery.
34. Section 467 provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 470 defines a forged document as a false document made by forgery.
35. The term "forgery" used in these two sections is defined in section 463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. Section 464 defining "making a false document" is extracted below :
"464. Making a false document. A person is said to make a false document or false electronic record First. Who dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly. Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly. Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1 A man's signature of his own name may amount to forgery. Explanation 2 The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. [Note : The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]."
36. The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record.
An analysis of section 464 of Penal Code shows that it divides false documents into three categories :
i) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
ii) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
iii) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or
(c) deception practised upon him, know the contents of the document or the nature of the alteration In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
36. (A) The export order of M/s. Star Enterprises clearly and obviously do not fall under the second and third categories of `false documents'. To fall under first category of `false documents', there is a requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
37. As far as advance license no. P/K/3148753 and another license no. P/K/2427033 are concerned, while framing the charge on 22.05.2006, no charge was framed regarding these licenses. So, there is no need to discuss the evidence regarding these two licenses and, therefore, I am restricting my evidence in respect of the advanced license no. P/K/24270741 in main case in respect of which charge was framed and, therefore we will discuss the documents proved relating to advanced license no. P/K/24270741 only. PW5 has stated that documents PW5/1/G1 bears the the signatures of accused. The documents were collectively exhibited as Ex PW5/1/G1. In this PW5/1/G1 there is an application for grant of import licence of 100% cotton denim bearing the signatures of accused Q119. This Q119, as per the report of the handwriting expert Ex PW 18/C1 have tallied with the sample as well as admitted handwriting of the accused. The sample handwriting of the accused is S4 to S63, S72 to S74 and admitted handwriting of accused is A1 to A15. PW12 has proved the fact that sample handwriting S10 to S19, S41 to S43 and S59 to S60 were taken in his presence and, thus, the sample handwriting of the accused S10 to S19, S41 to S43 and S59 to S60 have been duly proved to be the accused. PW5 Jeevan Singh Bisht has stated that Q119 to Q149 except Q135 bear the signatures of the accused. The signatures Q119 are appearing on a letter addressed to the Joint Chief Controller of the Import and Export for grant of advance license for import of 100% cotton denim and Q120 is the form of application duly filled in as per Appendix19 for advance license under the duty exemption scheme. Q121 is a part of the same document, Q122 to 123 are also on the same Appendix19, Q124 is the declaration by the accused submitted to the Joint Chief Controller of the Import and Export. Q125 is photocopy of export letter by star enterprises. All these documents show that it was the accused R.K. Malhotra who had applied for the grant of import license on behalf of M/s. Ashu Exports. The Q140 is also an application for grant of advance license which the accused had submitted on receiving a letter from the Department after removing all the objections. Q145 and 146 are infact vistors pass submitted by the accused before the central licensing area. Q147 and Q148 are on the interview slip which showed that the accsued attended interview for grant of advance license in the office of Joint Chief Controller of Import and Export. Even PW5 Jeewan Singh Bisht had stated that all these documents bears the signatures of the accused. In fact the documents collectively exhibited as Ex PW5/1/G show that the accused had submitted the application for grant of license for import of denim cotton. He had also attended the interview for the same and now it does not lie in his mouth that it was Sunil Madnani who was responsible for all these acts. The visitor pass and inverview slip show that accused had visited the office of Joint Chief Controller of Import and Export in connection with grant of license and, thus, he was wholly responsibile for all the acts in connection with the grant of the advance import license. Q152 is also an interview slip and has been proved to be in the handwriting of the accused, as per the report of the handwriting expert PW18/C1. Q153 is also a letter of the accused to the office of Joint Chief Controller of Import and Export alongwith which he had submitted the legal agreement and had asked for amendment in the license as well as in the DEEC book. Q154 on Ex PW5/1/G is the declaration whereby the accused has certified his signatures on the legal agreemnt. The legal agreement which is also Ex PW5/1/G bears the signatures of the accused as Q155 to 161. In this legal agreement, the accused had undertaken that he shall earn foreign exchange for an FOB value of Rs. 16,70,000/ by exporting 100% denim garment within a period of nine months. This condition is condition no.1 in the legal agreement. Now, this legal agreement also bears allegedly signatures of the witnesses Charanjeet and Jeevan Singh Bisht (PW5). PW5 had denied his signatures on this document. The alleged signature of PW5 is Q 162 and as per the report of the handwriting expert this Q162 has not matched with the sample handwriting S67 to S71 of Jeevan Singh Bisht. The Q164 is name and address of Jeevan Singh Bisht and this Q164 is proved to be handwriting of the accused R.K. Malhotra. Moreover, this legal undertaking is submitted by the accsued R.K. Malhotra as per the Q156 to 161 and Q154 and, thus, he has used the forged signature of Jeevan Singh Bisht. It has been proved as per the report of the handwriting expert and testimony of PW5 that Q162 is not the signatures of the Sh. Jeevan Singh Bisht and, thus, the signature of Sh. Jeevan Singh Bisht on this legal undertaking Ex PW5/1/G page no. 89 to 93 are forged.
38. Similar, is the condition with regard to Ex PW5/1/G page no. 94 to 98. This form of legal agreement for registered exporters of advance license was submitted by the accused and the signatures of the accused are on Q166. On this also the signatures of Sh. Jeevan Singh Bisht are Q174 which have not tallied with the sample signatures of Sh. Jeevan Singh Bisht S67 to S71 and, therefore, this Q174 is a forged signature. Q173 and Q175 are the names and addresses of witnessses which are in the handwriting of the accused, as per handwriting expert opinion Ex PW18/C1. The original of this legal agreement for Register's of Exports of advance license in respect of license no. P/K/2427041 is Ex PW5/O1 on which the signatures of the accused are Q25 to 32, Q33 to Q35 and Q36 are the names and addresses of the witnesses which is also in the handwriting of the accused. Q34 is the signature of PW5 Sh. Jeevan Singh Bisht at point B and he in his testimony had denied that this signatures at point B of Ex PW5/O1 belongs to him. Opinion of the handwriting expert Ex PW18/G also shows that Q34 has not matched with sample handwriting S67 to S71 of PW5 Sh. Jeevan Singh Bisht and, therefore, this Q34 is a forged signature and this document bearing the forged signature of PW5 Sh. Jeevan Singh Bisht has been used by the accused R.K.Malhotra.
39. Ex PW5/l/G page 107 is a reply to the show cause notice submitted by the accused wherein he had requested for a extension of the period for export. This signature of accused are Q180 and the document shows that accused was served with show cause notice to which he had replied also and had not fullfilled the condition of making corresponding export. Page no. 108 of Ex PW 5/1/G is a form of application for making request for extension in the export obligation on which the signature of the accused are Q181 in which also the accsued has requested for extension of period for fullfulling the corresponding export obligations. He has further admitted in this that a show cause notice was issued and that he had imported 100% cotton denim cloth 54750 meters, 110 cm width. Perusal of the contents of the document page 108 Ex 5/1/G shows that the accused had admitted that he had received cotton denim cloths and also the show cause notice and had not made the corresponding export.
40. PW17 is Sh. Kirit S. Mehta who has proved the documents Ex PW 17/J which is the bill of entry no. 1894/5 vide which the goods were cleared regarding license no. P/K/2427041. Ex PW 17/K is the bill of the transporter through whom the goods were transported. This bill also shows that goods were destined to be sent to Delhi i.e from Bombay to Delhi on 12.08.1987. PW17/A is also a bill of entry in respect of the same license and the signatures of Sh. Kirit S. Mehta at point A which has proved that the goods i.e, clothes of 26400 sq.m of 100 % cotton woven indigo denim on which the customs duties were free were cleared. Q113 is a declaration signed by the importer and has been proved to be in the handwriting of the accused which is attached alongwith Ex PW17/A. The testimony of PW17 alongwith documents which has proved shows that the goods, i.e, cotton woven indigo denim in relation to export license no. P/K/2427041 were imported. In Ex PW5/36, the letter written by accused to Thakkar Ware Housing Agencies to arrange the dispatch of the goods by road transport to Delhi. The IO PW16 has proved the various seizure memos vide which the documents in the present case were seized from various persons during investigation.
41. The document Ex PW 18/A2 is the letter purportedly issued by the Star Enterprises to Ashu Exports on which the questioned signature is Q91. This Q91 is stated to be the signature of the secretary of Star Enterprises who has signed this letter. As per the report of handwriting expert Ex PW 18/C1 & Ex PW 18/C2, Q91 has matched with the specimen as well as admitted hand writing of accused R.K.Malhotra. He has thus forged the document and used this forged document and these sample handwriting were matched with the questioned document Q91 of the accused and thus accused not only used the forged document but has forged the document and also used it for securing the import advanced license no. P/K/24270741.
42. PW5/38 is the export order dated 04.03.1986, the signatures of the President of Star Enterprises is Q114. This export order has been placed by the M/s. Ashu Expot and is allegedly confirmed and accepted by the President of Star Enterprises. The words confirmed and accepted are Q113 on Ex PW5/38 and signatures of the President is Q114 and as per opinion of handwriting expert Ex PW 18/C1, Q113 and Q114 have been written by the person whose sample signatures are S4 to S63, S73 to S74 and A1 to A5 and these sample signatures are of the accused R.K. Malhotra and this Q113 and Q114 are forged by accused R.K.Malhotra. Thus, PW5/38, the export order by M/s. Star Enterprises is forged by accused R.K.Malhotra.
43. After going through the testimony of PW5, PW12, PW16, PW17 and PW18, it is established beyond doubt that the accused obtained the license for imort of goods, i.e, cotton woven indigo denim with an undertaking to make a corresponding export of denim jeans and the goods were imported and cleared but the export was never made and the accused used forged document, i.e, Ex PW 5/O1, Ex PW 18/A2, Ex PW5/38, Ex PW5/1/G page no. 89 to 93 for obtaining the license bearing no. P/K/2427041.
44. The accused has not been able to prove that despite his undertaking as per Ex PW5/lM1 he had fulfilled the condition and had made corresponding export and, thus, he had committed an offence punishable u/s 5 of Imports and Exports Act, 1947. Accused is, therefore, convicted for the offence u/s 5 of Imports and Exports Act, 1947.
45. The accused had submitted forged document and had made the Joint Chief Controller of Import and Export believe that he had an export order and he would make the corresponding export and on the basis of the export order had obtained the import license and had, thus, cheated the office of Joint Chief Controller of Import and Export and, thus, committed and offence punishable u/s 420 IPC.
46. In view of the above discussions, the accsued has, thus, by using forged document cheated the office of Joint Chief Controller of Import and Export and, also contravened the conditions of the license, and, therefore, both the accused M/s. Ashu Exports and R.K. Malhotra have committed the offence u/s 420/468/471 IPC and section 5 of Imports and Exports Act, 1947 in main case.
47. As far as second case is concerned, the same relates to the import of Mulbery raw silk for which the advanced license no. P/K/2441493 was granted. The application for grant of duty free advance license for import of Mulbery raw silk Ex PW 18/A13 on which the signatures of the accused is Q261. The aplication form as per Annexure2 to Appendix19 is Ex PW5/1C on which the signature of the accused and the handwriting of the accused is at Q262 to Q280 and Q282 to Q284. All these documents are collectively Ex PW 5/1C which shows that accused had made an application to the office of office of Joint Chief Controller of Imports & Export (CIA), New Delhi for grant of license. Ex PW5/1C page 28 having the hand writing of the accused at Q285 which is the visitor's pass showing that the accused has visited the office of Joint Chief Controller of Imports & Export (CIA), New Delhi in connection of grant of license. Ex PW5/1/C page 84 on which the questioned signature are at Q288 to Q289 is the bond form of export obligation executed by the accused. With this bond the accused had undertaken as per clause 5 that importer shall within 9 months from the date of clearance of the first consignment or the 30 days after the import of first consignment export the goods corresponding to the resultant product. This bond is on page 84 to 87 of Ex PW 5/1C. This bond form on the stamp paper is Ex PW5/M1 on which the signatures of the accused is at Q1, Q2, Q4, Q6, Q8 and Q10. Ex PW5/1C page 89 on which the questioned signatures of the accused are Q300 is a letter written by accused to the office of Joint Chief Controller of Imports & Export (CIA), New Delhi wherein he had stated that the buyer Joyshee International Inc. had cancelled the silk fabric order and, therefore, the accused wanted to change the item of export. All these documents show that the accused was granted the license and, thereafter, he had also requested for change of the item of export. The prosecution has, therefore, been able to prove that the accused has committed an offence punishable u/s 5 of the Imports and Exports Act, 1947.
48. Ld. Counsel for the accused has argued that ingredients of conspiracy has not been proved and, therefore, the accused cannot be convicted for the offence u/s 120B IPC. M/s. Ashu Exports is a sole proprietorship firm as per the case of the prosecution and this fact is admitted by the accused during his statement u/s 313 Cr.P.C. Accused R.K. Malhotra was the sole proprietor of the firm. In the charge framed it has been alleged that accused with unknown persons had conspired for obtaining the license unde the duty free agreement entitlement certificate. It is a settled principle of law that to prove the offence of conspiracy, there must be an agreement between two persons and the prosecution must prove by leading cogent evidence that at least two persons were involved in committing the offence. Hon'ble Supreme Court has also held in CBI Vs. V.C. Shukla & Ors. AIR 1998 Supreme Court, 1406 and in case title as CBI Vs. Sukhbasi Y Ors., AIR 1985 Supreme Court 1224(1) that to prove the charge u/s 120B of the Code, there must be a criminal conspiracy at least between two or more persons. In the present case, none of the witnesses has stated that the accused R.K. Malhotra in conspiracy with some other persons has obtained the advance license. Rather it is the defence of the accused that all the acts were done by Sunil Madnani. The accused has rather taken two contradictory arguments in this context. The first argument is that the prosecution has not been able to prove that any other person was involved and, therefore, offence of conspiracy does not stand proved. The other argument taken by the accused is that it was Sunil Madnani who had taken advantage of the financial crisis of the accused and that in fact all the dealings were done by Sunil Madnani. The advance license were granted to M/s. Ashu Exports. The accused R.K. Malhotra is the sole proprietor and the Sunil Madnai has no concern with the M/s. Ashu Exports, in whose favour licenses were granted. At the time of framing of charge of conspiracy, it can be said that accused had conspired with the unknown persons but during the trial, the prosecution has to prove by way of cogent evidence that accused in fact had conspired with somebody else to prove the offence of conspiracy. The Ld. Special Prosecutor for the CBI in fact argued that the accused R.K. Malhotra had conspired with the accused M/s. Ashu Exports and, therfore, offence u/s 120B stands proved. However, I am not in agreement with the argument of Ld. Prosecutor. M/s. Ashu Exports is the sole proprietorship firm and a firm cannot have a mind of its own. It acts through its proprietor and, therefore, proprietor could not have conspired with M/s. Ashu Exports which was his sole proprietorship firm. Moreover, no charge was framed stating that accused R.K. Malhotra had entered into criminal conspiracy with M/s. Ashu Exports and the charge against the accused that he was conspired with unknown persons. After going through the testimony of the witensses, I do not find sufficient evidence which could prove beyond reasonable doubt that the accused R.K. Malhotra had conspired with any other persons to obtain the advance license and, therefore, offence of conspiracy does not stands proved. The accused is acquitted of the offence us/ 120B IPC.
49. As far as offence u/s 5 of Imports & Exports (Control) Act, 1947 is concerned.
As per section 5 "If any person contravenes or attempts to contravene, or abets a contravention of, any order made or deemed to have been made under this Act, or any condition of a license granted under any such order, (or any authority under which imported goods were received from or through a recognised agency) he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Customs Act, 1962, (be punishable:
(a) where the value of the goods, in relation to which such contrvention or attempted contravention or abetment of contravention has been made, exceeds ten lakh rupees, with imprisonment for a term which may extend to seven years and also with fine, and
(b) in any other case, with imprisonment for a term which may extend to three years and also with fine.
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for less than six months.]
50. Ld. Counsel for the accused has argued that the even if the accused has failed to fulfill the corresponding export obligation, the department could have imposed the penalty u/s 4.I and if the accused faced the penalty, then, he should not be liable under section 5 the Act. Let us see section 4.I:
4.I (1) Liability to penalty: Any person who:
(a) in relation to any goods or materials which have been imported under any licence or letter of authority, uses or utilises such goods or materials otherwise than in accordance with the conditions of such licence or letter of authority; or
(b) being a person to whom any imported goods or materials have been delivered by recognised agency, uses or utilises such goods or materials or causes them to be used or utilised, for any purpose other than the purpose for which they were delivered to him
(c) having made a declaration for the purpose of obtaining
(i) license or letter of authority to import any goods or materials, or
(i)any amendment of such licence or letter of authority,or
(ii) allotment of any imported goods or materials, is found to have made in such delcaration, any statement which is incorrect or false in matrial particulars; or
(d) acquires, sells or otherwise parts with, or agrees to acquire, sell or otherwise part with, any imported goods or materials in contravention of the conditions of any licence or letter of authority in pursuance or which such goods or materials had been imported; or
(e) acquires, sells or otherwise parts with, or agrees to acquire, sell or otherwise part with, any imported goods or materials in contravention of the term of any allotment made by any recognised agency; or
(f) contravenes any direction givesn under a control order with regard to the sale of gods or materials which have been imported under any licence or letter of authority or which have been received from, or through, a recognised agency.
Shall be liable to a penalty not exceeding five times the value of the goods or materials, or one thousand rupeees, whichever is more, whether or not such goods or materials have been confiscated or are available for confiscation.
Perusal of the above provision, i.e, 4.I (1) of the Act shows that penalty could have been imposed but merely by paying penalty it cannot be said that the accused would not be liable u/s 5 of the Act and section 4 J of the Act, supports this view.
51. As per section 4.J: No confiscation made or penalty imposed under this Acts prevents the infliction of any other punishment to which the person affected thereby is liable under the provision of this Act or under any other law for the time being in force.
Thus, in view of section 4.J, the above argument of the Ld. Defence Counsel is not sustainable.]
52. Ld. Counsel for the accused has also relied upon Clause 8 of the Imports Control Act, 1947.
Clause 8 of the Imports Control Act, 1947, whatever is relevant for the purpose is as under:
"Power to debar from importing goods or form receiving licenses or allotments or imported goods. (1). The Central Government or the Chief Controller or Imports & Exports may debar a licence or importer or any other person from all or any of the following, i.e, importing any goods or receiving licences or allotment of imported goods through the State Trading Corporation of India, the Minerals and Metals Trading Corporation of India, the Minerals and metals Trading Corporation of India, or any other similar agency and direct, without prejudice to any other action that may be taken against him in this behalf, that no licence or allotment of imported goods shall be granted to him and he shall not be permitted to import any goods for a specified period under this Order:
(a)......
(b) if such application is found ot contain any false, fradulent or misleading statement; or
(c) if he is found to have used in support of his application any document which is false or fabricated or which has been tampered with; o
(d) .........
(e)...........
(f) if he fails to comply with or contravenes or attempts to contravene or abets the contravention of any conditions embodied in , or accompanying, a licence or an application for a licence.
8 (3).The Central Government or the Chief Controller of Imports and Exports may debar an importer or a licence or any other person from importing any goods or from receiving licences or allotment of imported goods through the State Trading Corporation of India, the Minerals and Metals Trading Corporation of India, or any other similar agency and direct; without prejudice to any other action that my be taken against such person in this behalf, that no licence o r allotment of imported goods be granted to such person and such person shal not be permitted to import any goods for a specified period under this Order if, in the opinion of the Centrl Government or the Chief Controller of Imports & Exports,
(a). such licensee, importer or other person; or
(b) where such licensee, importer or other person is a partner in a partenership firm or a whole time director or manging director thereof, as the case may be; or
(c) where such license, importer or other person is a partner in a partnership firm or a whole time director or managing director of a limited company, such patnership firm or limited company as the case may be.
(i) has failed without sufficient cause, to utilise or to utilise fully and import licence granted to such licensee, imorter or other person or such partner or wholetime director or managing director or such partnership firm or limited company,as the case may be.........
53. Ld. Counsel for the accused has further argued that Department of complainant could have taken action clause 8 of the Imports Control Order , 1955 and could have debarred him for importing good for a specified period. However, I am not in agreement with Ld. Counsel for the Defence in view of the Clause 8 (3) of the Import Control Order, 1955. In view of section 8(d) wherein it is held that action of debarring an importer is without prejudice to any other action that may be taken againt the importer.
54. Ld. Counsel for the accused has also relied upon Clause 10 of the Imports Control Act, 1947.
Clause 10 of the Imports Control Act, 1947, whatever is relevant for the purpose is as under:
Opportunity of being heard to be given (1) No action shall be taken under clause 7 or subclause (1) or subclause (3) of clause 8 or clause 8A or clause (1) of clause 9 against a license or an importer or any other persons unless he has been given a reasonable opportunity of being hear.
(2). Where any person is aggrieved by any action taken under subclause (1) or subclause (3) of clause 8 or clause 8A or subclause (1) of clause 0 he may prefer an appeal against such action to such authority as the Central Government may, by notification in the official Gazette constitute for the purpose of hearing appeals within fortyfive days from the date of communication of the action taken.
Provided that an order to increase period for which an applicant is a debarred under clause 8 shall not be made under this subclause unless he has had an opportunity of making a representation, and, if he so desires, of being heard in his defence.
55. Ld. Counsel for the accused has also argued that opportunity of hearing was not given to him as per clause (10) of the Imports Control Act, 1955. However, I am not in agreement with this argument of Ld. Counsel for the Defence as opportunity of hearing should be granted only if the department contemplates an action under clause 7 or subclause (1) or subclause (3) of clause 8 or clause 8A or clause (1) of clause 9 against a license or an importer or any other persons unless he has been given a reasonable opportunity of being hear. No provision could be shown by the defence counsel that opportunity of hearing is to be granted by the Department before proceedings u/s 5 of the Imports and Exports (Control) Act 1947.
56. In Abdul Aziz Vs. State of Maharashtra, AIR 1963 SC 1470, it has been held that Subclause (4) of Clause 5 provides that licensee shall comply with all conditions imported or deemed to be imposed under that claim. The contravention of any condition of a license thus amounts to the contravention of the provisions of subclause (4) of clause (5) of the Order and consequently to the contravention of Order made under the Act. If the licensee do not comply with the conditions of the license about the use of the goods to be imported, contravenes the Order made under the Act and makes himself liable to Punishment under section 5 of the Imports and Exports (Control) Act.
57. The accused has stated that the extension was not granted to him and, therefore, he could not fulfill the export obligation but the extension is not a matter of right and was the discretion of the Department. The accused vide his legal undertaking has undertaken that he would make the corresponding export within nine months and merely because extension was not granted he cannot shift the blame on the Department. He was liable to fulfill his legal undertaking which he has failed to fulfill and thus has violated section 5 of the Imports and Exports Control Act (1947).
58. In view of the above discussions, the accsued has, thus, by using forged document cheated the office of Joint Chief Controller of Import and Export and, also contravened the conditions of the license, and, therefore, both the accused M/s. Ashu Exports and R.K. Malhotra are thus, convicted for the offence u/s 420/468/471 IPC and section 5 of Imports and Exports Act, 1947 in main case.
59. In view of the above discussions, both the accused M/s. Ashu Exports and R.K. Malhotra are convicted for the offence u/s section 5 of Imports and Exports Act, 1947 in respect of second case.
60. Copy of judgment be placed in both the files, i.e, the main case and the second case.
61. Put up for arguments on point of sentence on 20.03.2012. Announced in the open court today i.e. 12.03.2012 (KIRAN BANSAL) ADDL.CHIEF METROPOLITAN MAGISTRATEI KARKARDOOMA COURTS, DELHI.
IN THE COURT OF MS.KIRAN BANSAL ADDITIONAL CHIEF METROPOLITAN MAGISTRATEI/EAST/KARKARDOOMA COURTS, DELHI.
RC 2(S)/1994/SIUIX & RC 2(S)/1994/SIUX
CBI Vs Ashu Exports
05.05.2012
Pr: Sh. K.C. Dubey, Ld. SPP for CBI.
Sh. Sanjay Gupta Ld. counsel for convict alongwith Sh. A.S. Popli. Convict R.K. Malhotra in person.
Arguments heard on the point of sentence. Records perused. It is submitted by Ld. SPP for CBI that no lenient view could be taken in the present case since the convict has secured advance licenses on the basis of forged documents and is guilty of economic offence/white collor crime. He has also prayed that separate sentences be passed and the sentences should run one after the other. It is also argued that the value of the imported goods was much in the year 1988 as now the value of rupee/money has depreciated with time and, thus, convict had obtained wrongful gain for a considerable amount. He has further argued that the act of the convict has affected the exchequer of the Government of India.
On the other hand, Ld. Counsel for convict have argued that the convict is an old man of 73 years of age and suffering from various ailments. It is further submitted by Ld. counsel for convict that he has faced trial in the present case for 18 years. Even he is not a previous convict, so lenient view be taken. It is also stated that he has an old wife also who is also suffering from various ailments. Ld. Counsel for the CBI has argued that if the accused has faced trial for 18 years then this fact also should not be ignored that the State machinery and judicial system has also been working on the matter since last more than 20 years due to the fault of the convict.
I have gone through the rival contentions. No doubt that convict is a married man and his conduct/cooperative attitude during trial be not overlooked but on the other side, it can not be ignored that the advance import licenses secured by him is on the basis of a not genuine but forged documents and by using the same, he has obtained wrongful gain.
1. In "Sevaka Perumal Vs. State of TN,"1991 Crl. L.J 1854 (SC), the Hon'ble Supreme Court of India has observed that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence.
2. In "Dhananjoy Chatterjee Vs. State of W.B." 1994 SCC (Crl.) 358, the Hon'ble Supreme Court of India has observed that large number of criminals go unpunished thereby, increasing, encouraging the criminals and in the ultimate making justice suffer by weakening the system's credibility. The imposition of appropriate punishment is the manner in which the court responds to the society's crime for the justice against the criminal. Justice demands that court should impose punishment befitting the crime so that the courts reflect abhorrence of the crime. The court must not only keep in view the rights of the criminal but the rights of the victims of the crime and society at large while considering the imposition of the appropriate punishment.
3. In "State of Karnataka Vs. Sharanappa Basugonda Aregonda," 2002 Crl. L.J 2020 (SC) & in "State of Karnataka Vs. Krishna @ Raju," 1987 Crl. L.J. 776 (SC), the Hon'ble Supreme Court of India has observed that the sentence imposed by the courts should have deterrent effect on the potential wrong doers, and it should commensurate with the seriousness of the offence.
4. In "State of MP Vs. Saleem," 2000 Crl. L.J. 3435 (SC), the Hon'ble Supreme Court of India has observed that sentence imposed should respond to the society's crime for justice against criminals. Liberal attitude by imposing meager sentence will be counter productive.
5. In "Oswal Vanaspati and Allied Industries Vs. State of U.P, MANU/UP/0367/1985, it has been held that in case of conviction of a Company imposition of fine alone would be permissible.
6. In "Standard Chartered Bank and others etc. Vs. Directorate of Enforcement and others, AIR 2005 SC 2622, also it has been held that no immunity to companies from Prosecution in respect of offence in which punishment of imprisonment is mandatory and in such cases only fine can be imposed on the corporate body.
I do not want to proceed u/s 361 Cr.P.C in the present matter considering the public policy as this offence is not considered to be against one person but to society at large.
Considering this, I take moderate view.
As far as case bearing no. RC 2(S)/1994/SIUIX (i.e main case) U/s 420/468/471 and section 5 of Imports and Exports Act, 1957 is concerned:
(a). Convict no. 1 M/s. Ashu Exports is directed for, the offence u/s 420 IPC, to pay fine of Rs. 50,000/.
(b).Convict no. 1 M/s. Ashu Exports is directed for , the offence u/s 471 IPC as the forgery is equivalent u/s 468 IPC to pay fine of Rs. 50,000/.
(c). Convict no. 1 M/s. Ashu Exports is directed for, the offence u/s 5 of Imports and Exports Act, 1947 , to pay fine of Rs.50,000/.
(d).Convict no.2 R.K. Malhotra is directed for, the offence u/s 420 IPC, to undergo simple imprisonment for a period of 3 years. He is also directed to pay fine of Rs. 5,000/. In default of payment of fine SI of 2 month.
(e). Convict no.2 R.K. Malhotra is directed for, the offence u/s 471 IPC, to undergo simple imprisonment for a period of 3 years as the forgery is equivalent u/s 468 IPC. He is also directed to pay fine of Rs. 5,000/. In default of payment of fine SI of 2 months.
(f).Convict no.2 R.K. Malhotra is directed for, the offence u/s 5 of Imports and Exports Act, 1947, to undergo simple imprisonment for a period of 3 years. He is also directed to pay fine of Rs. 5,000/. In default of payment of fine SI of 2 months.
As far as case bearing no. RC 2(S)/1994/SIUX (i.e, the second case) u/s 5 of Imports and Exports Act, 1957 is concerned.
(a). Convict no. 1 M/s. Ashu Exports is directed for, the offence u/s 5 of Imports and Exports Act, 1947 , to pay fine of Rs.50,000/.
(b).Convict no.2 R.K. Malhotra is directed for, the offence u/s 5 of Imports and Exports Act, 1947, to undergo simple imprisonment for a period of 3 years. He is also directed to pay fine of Rs. 5,000/. In default of payment of fine SI of 2 months.
Benefit of section 428 Cr.P.C, if any, be granted.
All the sentences shall run concurrently in respect of main case, i.e, RC 2(S)/1994/SIUIX but separately from the second case, i.e RC 2(S)/1994/SIUX, i.e the sentence in second case should run after the sentence in main case.
Copy of order be placed in both the files, i.e, RC 2(S)/1994/SIUIX and RC 2(S)/1994/SIUX. Fine partly paid.
An application u/s 389(3) Cr.P.C moved on behalf of accused on the ground that he wants to prefer an appeal against the judgment and order on sentence. Copy given.
Considering the fact that accused was on bail during the period of trial, he is admitted to bail subject to furnishing of PB and SB of Rs. 20,000/ each. PB and SB furnished. Accepted till 04.06.2012 and subject to the order of Superior courts, if any.
Copy of this order and judgment be given to the accused free of cost. Put up for payment of remaining fine on 08.05.2012.
ANNOUNCE IN THE OPEN COURT TODAY ON 05.05.2012 (KIRAN BANSAL) ADDL. CHIEF METROPOLITAN MAGISTRATEI EAST/KARKARDOOMA CORTS DELHI