Delhi District Court
Sh. Sohan Kumar Bothra vs Central Bureau Of Investigation (Cbi) on 17 December, 2016
IN THE COURT OF SURINDER KUMAR SHARMA
SPECIAL JUDGE, P.C. ACT (CBI09), CENTRAL DISTRICT
TIS HAZARI: DELHI
C.A No. 04/14
1. Sh. Sohan Kumar Bothra
S/o Late Shri B.C. Bothra
R/o A24, Vivek Vihar
Delhi - 95.
2. Ms. Leela Bothra
R/o F185A, Laxmi Nagar
Near Mangal Bazar
Delhi.
........Appellants
VERSUS
Central Bureau of Investigation (CBI)
Through its Director
Central District
Delhi.
........Respondent
Date of Institution : 20.08.2014
Date of Arguments : 17.12.2016
Date of Judgment : 17.12.2016
JUDGMENT
1. This is an appeal u/s 374(3) Cr.P.C. filed by the appellants C.A. No. 04/14 1 of 8 (accused persons before the Ld. Trial Court), challenging the impugned Judgment of Conviction dated 11.07.2014 and Order on Sentence dated 23.07.2014 passed by the Court of Sh. Pooran Chand, CMM, Central District, Tis Hazari Courts, Delhi. Vide the impugned Judgment and Order on Sentence, both the Appellants were convicted for the offences punishable under Section 120B IPC and Section 5 of the Import & Export (Control) Act 1947. The appellants were sentenced to undergo Rigorous Imprinsonment for one year each with fine of Rs. 25000/ and in default of payment of fine, Simple Imprinsonment for two months. Vide the said impugned Judgment and Order on Sentence, the Company i.e. M/s. Bothra Rugs Pvt. Ltd. was also convicted for the offences punishable Section 120B IPC and Section 5 of Imprts & Exports (Control) Act, 1947, and a fine of Rs. 50000/ was imposed upon it.
Briefly stated the facts of the case as revealed from the Trial Court Record are as under:
2. A case was registered against M/s. Bothra Rugs Pvt. Ltd. and its three Directors Hanuman Mal Bothra, Sohan Kumar Bothra and Ms. Leela Bothra (appellants herein) on the complaint filled by Sh. L.M. Lakhra Deputy Chief Controller of C.A. No. 04/14 2 of 8 Import & Exports in respect to offences punishable u/s 5 of Imports & Exports (Control) Act, 1947. It was alleged that the accused persons by entering into a conspiracy had obtained an advance license on 07.01.1985 from the office of Joint Controller of Import & Export, CLA, Indra Prashta Bhawan, New Delhi. The said license was issued for importing 20000 kgs. of brass scrap to India with the condition of exemption of custom duty on the said import. The advance license was issued under an exemption scheme that the company shall export 20000 kgs of brass handicraft for an FOB value of Rs. Nine Lacs within a period of six months from the date of clearance/import of first consignment.
3. Though the accused company imported the scrap, but it failed to fulfill the condition of the license i.e. it did not export 20000 kgs. of brass handicraft for an FOB value of Rs. Nine Lacs within a period of six months from the date of clearance/import of consignment nor it informed the Licensing Authority about the nonfulfillment of export obligation nor seek any extension.
4. On 09.07.1986, the Joint Chief Controller of Import & Export, New Delhi, issued a show cause notice to the accused C.A. No. 04/14 3 of 8 Company as the Company did not produce any export documents before the Licensing Authority. It was alleged that the main object of the accused persons was to obtain advance Import License and to misuse the same. It was further alleged that all the Directors of the Company have conspired to sell the imported material in the open market, thereby earned substantial monetary gains.
5. On 18.12.1989, a complaint was lodged before the concerned Court. After taking cognizance of the offences, appellants were summoned on 07.03.1990 u/s 120 B IPC and Section 5 of The Import Act. Thereafter, presummoning evidence of the complainant was recorded. The trial Court framed the charges against the accused persons/appellants to which they did not plead guilty and claimed trial.
6. During the trial of the case one of the accused H.M. Bothra expired and as such the proceedings against him stood abated. After the trial of the case, the accused persons namely, Sohan Kumar Bothra and Ms. Leela Bothra and the Company M/s. Bothra Rugs Pvt. Ltd. were convicted for the offences punishable u/s 5 of Imports & Exports (Control) Act and Section 120 B IPC vide the impugned Judgment dated 11.07.2015 and the Order on Sentence against them was C.A. No. 04/14 4 of 8 passed on 23.07.2015.
7. Being aggrieved with the impugned Judgment and the Order on Sentence, the appellants have filed the present appeal on various grounds.
8. I have heard Ashish Kumar Bhagat Advocate for the appellants and Sh. A.K. Kushwaha Ld. P.P. for the CBI. I have also perused the file and the Trial Court Record.
9. Ld. Counsel for the appellants has submitted that the impugned Judgment of conviction and the Order on Sentence passed by the Ld. Trial Court are bad in law and contrary to law. It was submitted that the complaint filed by the complainant was time barred and consequent to the same, the impugned orders are liable to be set aside.
10. It was contended that the trial Court has erred in not dealing with the issue of limitation raised by the appellants. The trial Court failed to appreciate the fact that complainant was not authorized to file the said complaint as no document has been placed on record showing his authority to file the complaint. It was contended that the trial Court failed to appreciate that there is no evidence on record by which it C.A. No. 04/14 5 of 8 could be established that appellants in any manner participated in the day to day affairs and management of the company. The trial Court failed to appreciate the fact that vague allegations were made in the complaint against the appellants. The trial Court committed gross error by holding that a resolution dated 21.09.1984 existed. It was contended that the prosecution has failed to prove its case beyond reasonable doubt and the impugned Judgment is based on conjectures and surmises. The trial Court failed to appreciate the evidence in right perspective. The trial Court failed to appreciate that the conspiracy has not been proved against the appellants by any of the witnesses or material available on the record.
11.It was submitted by the Ld. Counsel for the appellants that the impugned judgment is not legally sustainable for the reason that the accused in this case is M/s. Bothra Rugs Pvt. Ltd. and this Company has been convicted by the trial Court, whereas, no Charge has been framed against the said Company. It was submitted that the main accused is Company against whom no Charge has been framed and hence, the impugned Judgment cannot be sustained.
12. On the other hand, Ld. P.P. for CBI contended that the C.A. No. 04/14 6 of 8 impugned Judgment and the Order on Sentence do not suffer from any infirmity or illegality. It was submitted that the impugned Judgment and the Order on Sentence have been passed on the basis of the evidence led by the parties and the same do not require any interference by this Court. It was submitted that no prejudice has been caused to the appellants on account of nonframing of Charge against the Company i.e. M/s. Bothra Rugs Pvt. Ltd.
13.The perusal of the Trial Court Record shows that the accused in this case is Company M/s. Bothra Rugs Pvt. Ltd. It is revealed from the Trial Court Record that Charge in this case was framed on 11.02.2003 and thereafter, on 23.02.2004 Charge was amended. The perusal of the amended Charge shows that no Charge has been framed against the Company namely M/s. Bothra Rugs Pvt. Ltd. It is further revealed from the impugned Judgment that the Company namely M/s. Bothra Rugs Pvt. Ltd. has been convicted despite the fact that no Charge has been framed against the Company which is the accused. The perusal of Trial Court Record shows that FIR in this case was registered against M/s. Bothra Rugs Pvt. Ltd. Therefore, under these circumstances, the impugned Judgment and Order on Sentence cannot be sustained and the same are hereby set C.A. No. 04/14 7 of 8 aside. Matter is remanded back to the Ld. Trial Court for fresh decision in accordance with law.
14.Parties shall appear before the Ld. Trial Court on 22.12.2016.
15.The copy of this Judgment be sent to the Ld. Trial Court along with Trial Court Record.
16. The appeal file be consigned to Record Room.
Announced in the Open Court (Surinder Kumar Sharma)
on 17.12.2016 Special Judge, P.C. Act
(CBI09), Central District,
Delhi.
C.A. No. 04/14 8 of 8