Delhi District Court
Faiz Nabi vs Unknown on 29 August, 2007
1 IN THE COURT OF SHRI YOGESH KHANNA, A.S.J: DELHI. RC No. 2/86-CIV U/s 120B/420/467/471 IPC Read with Section 5 Import & Export Act State Represented by Shri S.R. Johar, Dy. Chief Controller of Imports & Exports, Office of Jt. CCI&E, (CLA), New Delhi. ..... Complainant Versus 1. Faiz Nabi S/o Shri Gulam Nabi Prop. M/s Faiz Nabi, Faiz Ganj, Moradabad (U.P) 2. Shakir Hussain S/o Shri Abdul Kadeer R/o 30/D D.I. Bara Shaha Safa Near Major Abdullah Shah, Moradabad, (U.P) ...... Accused Persons DATE OF INSTITUTION: 23/12/87 DATE OF ORDER : 29/08/07 DATE OF RESERVE FOR ORDER :23/08/07 ORDER
I have heard the arguments on charge as addressed by both the counsels.
2. A complaint was filed against the accused person by Shri S.R. Johar, Dy. Chief Controller, Import & Export, for the offences U/s 120B IPC read with Section 420 IPC and Section 5 of Import and Export (Control) Act, 1947.
2The facts alleged are that in the year 1985 accusedNo.1 Faiz Nabi and accused No.2 Shakir Hussain with one Des Raj Gulati (Now Approver) entered into a criminal conspiracy among themselves and with other known persons at Moradabad, (U.P), with an object to cheat the office of Jt. CCI&E (CLA) New Delhi and fraudulently and dishonestly, obtained an advanced Import licence under Duty Exemption Scheme by filing forged and false documents.
In persuance of the said conspiracy, accused Faiz Nabi proprietor of M/s Faiz Nabi, Faiz Ganj, Moradabad, UP handed over to Des Raj approver and to accused Shakir Hussain 20 blank letter heads, duly signed and stamped with his firm's rubber stamp, registration certificate and other documents including Export order dt. 3/7/85 purported to have been issued by M/s Johnson and Harison Enterprises, New Delhi, for the purpose of getting advance import licence under the duty exemption scheme.
3. The complainant relying upon the forged documents as filed by accused, issued an advance Import Licence in the name of M/s Faiz Nabi, Faiz Ganj, Moradabad (U.P) under the duty exemption scheme for importing brass scrap worth Rs.6,06,800/- (41.82 M Tons) with an obligation to manufacture brass wares in its factory and export the same for F.O.B @ Rs.15,70,000/-.
The licence was duly received by the accused. The accused then executed a legal undertaking (LUT) for the conversion of 100% bank guarantee into LUT. To show exports, the accused persons even procured a bank letter head 3 of Vijaya Bank, Moradabad, UP and also got prepared from Shri Mohd. Issaq, Proprietor of Optical Man, Darya Ganj, Delhi, a stamp read as "for Vijaya Bank, Manager, Moradabad". The accused forged the aforesaid blank letter head by affixing a seal impression of the aforesaid stamp and also forged the signatures of Manager, Vijaya Bank, Moradabad, UP to make a Bank Export Certificate dt. 11/12/1985 purported to have been issued by Manager, Vijaya Bank, Moradabad.
4. Des Raj Gulati, the Approver at the instance of both the accused person; typed the purchase orders on the letter head of M/s Johanson and Harison Enterprises and signed as marketing manager of this foreign firm.
5. However, on enquiry from the foreign companies, a telex dated 31/1/1986 was received from Indian Embassy, New York that no such order has been placed to the Indian firm by this company or by other three buyers. The accused persons also submitted a forged foreign buyer purchase order dated 21/2/1986 purported to have been placed by a Brass company of Impex Corporation, New York. The said letter heads were got printed from Rani Printing Press, New Delhi. The accused persons also forged a Chartered Accountant certificate dated 25/9/1985.
6. In pre charge evidence, the prosecution examined 10 witnesses.
Crux of the statements made by witnesses is :-
PW1 Des Raj Gulati, the approver disclosed about the conspiracy among them in procuring advance import licence on the basis of forged purchase orders, certificates and other 4 documents. The said documents have been proved in his statement.
PW3 Rakesh Kumar Aggarwal, a Chartered Accountant deposed that the certificate Mark A attached for procuring the import order is forged and he never signed the same.
PW5 Rakesh Chander Sharma, deposed that letter of M/s Brasco Impex Corporation was got printed at his press by PW1 Des Raj Gulati PW8 Shri Shankar Dayal, proved the delivery slip Ex.CW8/A regarding delivery of registered letter to accused Faiz Nabi accused.
PW10 Mohd. Ishaq, prepared a forged stamp of Vijaya Bank, Moradabad, UP in the year 1986 at the instance of accused Shakir Hussain.
PWs Shri T.R. Bhader, Shri Mukesh Bhatnagar and Shri R.K. Dhawan are all official witnesses who were associated for grant of the import and export licence.
PW9 Shri P.N. Verma proved the SSI registration in favour of the firm of M/s Faiz Nabi
7. I have also gone through the written arguments filed on behalf of accused.
The accused Faiz Nabi have alleged conspiracy only amongst accused Shakir Hussain; the approver; the licencing assistant Mr. Malpana and one Mr. Khandelwal and submitted that the entire forgery was committed by the approver PW1 Desh Raj Gulati and his associates, as alleged. These submissions are all matter of evidence and cannot be appreciated at this stage.
5The only relevant submission raised before me is that the import licence was cancelled and no brass scrap was imported, so the accused could not avail the benefit of exemption of custom duty and as such he did not contravene the condition of Section 5 of the Imports and Exports (Control) Act, 1947.
I dis-agree with this contention. As per Section 5 of the Act, "if any person contravences 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 licence granted under any such order, or any authority under which imported goods were received from or through a recognised agency, he shall without prejudice in any confiscation or penalty to which he may be liable under the provisions of the Customs Act, 1962 (52 of 1962) be punishable:-
(a) where the value of the goods, in relation to which such contravention 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 the 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.
Sections 5 above speaks about even an attempt to contravene any order or even the condition of licence under the Act.
The conditions of licence are provided in Imports (Control) 6 Order 1955 as follows:
Conditions of Licences:- (1) The licensing authority issuing a licence under this Order may issue the same subject to one or more of the conditions stated below:
(i) that the goods covered by the licence 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 any person duly authorised by it;
(ii) that the goods covered by the license on importation shall not be sold or distributed at a price exceeding that which may be specified in any direction attached to the licence;
(iii) that the applicant for a licence shall execute a bond for complying with the terms subject to which a licence may be granted.
Though it is contended by the Ld. defence counsel that since no goods were imported so there could not be any contravention of conditions of licence; but however, the facts prima facie show that since inception the accused had an intention to cheat the complainant and that he obtained import licence only by submitting the false and forged papers and hence he surely attempted to contravene the conditions of licence and hence the act of accused is covered u/s 5 of the Imports and Exports (Control) Act. The contention raised is of no avail to the accused at this stage.
8. A perusal of the complaint; statement of witnesses of pre-charge evidence, all prima facie show a conspiracy of both the accused persons with PW1 Approver, to obtain an Advance Import Licence under duty exemption scheme to 7 import goods & misuse them and that they freely used forged documents, purchase orders and even forged the seal of manager, Vijaya Bank, Moradabad, UP and got prepared a forged Bank Export Certificate.
Thus, Prima facie offences u/s 120B read with Section 420 IPC for cheating and also U/s 120B read with Section 467 and 468 IPC and Section 5 of Imports Exports (Control) Act are made out against both the accused persons namely Faiz Nabi and Shakir Hussain. The case be now listed for framing of charge against them on 7/9/07.
Announced in open court ( YOGESH KHANNA )
on 29/08.07 ADDL. SESSIONS JUDGE
DELHI
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