Patna High Court - Orders
Sanjay Dalmia @ Sanjay Dalmiya vs The State Of Bihar Through C.B on 4 January, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.32327 of 2011
1. Sanjay Dalmia @ Sanjay Dalmiya S/O Sri Govind Prasad
Dalmia R/O Dalmiya House ( Near Jasidih Railway Station ),
Police Station - Jasidih, District - Deoghar ( Jharkhand )
............... Petitioner
Versus
1. The State Of Bihar Through C.B.I. ..............Opp. Party
----------------------------------
For petitioner:- Mr. Arun Kumar, Adv
For CBI:- Mr. Bipin Kumar Sinha, Adv.
O R D E R
5. 04/01/2012Heard learned counsel for the petitioner as well as learned counsel for the C.B.I.
2. Petitioner by way of filing instant petition has prayed for quashing of order dated 1.7.2011 by which the petitioner's application for discharge under Section 227 of the Cr.P.C. has been rejected in connection with Special Case No. 4/98 arising out of R.C. Case No. 3(A) 1998.
3. It has been submitted on behalf of the petitioner that whatever allegation has been alleged against the petitioner happens to be wiped out through Annexure-5, the order of Collector of Central Excise (Appeals) passed in connection with 46-50/JSR/92/DATED 29/9/92 whereby and whereunder the order passed by the Assistant Collector, 2 Central Excise, Darbhanga has been set aside.
4. In the aforesaid background, It has further been submitted that now the amount whatever remains due against the petitioner after slashing down from 1,38,73,693/-, it remained Rs. 14,28,125/-. Therefore, taking into account the Circular (Annexure-6) issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs no prosecution is warranted as the monetary limit has been enhanced from 5 Lacs to 25 Lacs with regard to non launching of the prosecution. Also submitted that petitioner is ready to deposit the aforesaid amount and so taking into account the Hon'ble Apex Court's order passed in connection with Civil Appeal No. 3301- 3312/2003, the prosecution is unjustified. Also submitted that the main accused Sri. U.N. Das, Assistant Commissioner, Central Excise, Patna against whom an allegation has been put that he along with petitioner conspired and to give undue advantage to the petitioner to seek MOD VAT relief passed the order at his level had already been exempted from the column of accused.
5. So, It has been submitted on behalf of the 3 petitioner that in the aforesaid background, the rejection of petition for discharge as prayed for on behalf of the petitioner happens to be against the factual as well as legal aspect and is accordingly fit to be set aside.
6. On the other hand, learned counsel for the State opposed the prayer and submitted that petitioner has got no leg to standby because of the fact that at earlier occasion, Superintendent of Central Excise Department who had dealt with the matter relating to the petitioner and on the basis thereof was also made an accused had filed Cr.Misc. No.11280 of 2009 and the same was rejected by this Court vide order dated 19.3.2010.
7. Then coming to the factual aspect it has been submitted that there is consistent material available on the record that petitioner on being a proprietor of M/S Gillooram Gaurishanakar as well as happens to be partner of three S.S.I Units, M/S Shankar Conductors, M/S Jasidih Wires, M/S G.P. Dalmia & Sons and the aforesaid Units having been shut down since before, by way of filing of revised return managed in getting certain relaxation over the items which have been shown to be supplied by the aforesaid three sick Units. Also submitted 4 that M/S Gillooram Gaurishanakar had never exported the manufactured items but with the connivance of the officials concerned succeeded in getting bonanza under MOD VAT scheme to a tune of Rs. 1,38,73,693/-. Even according to own admission of the petitioner, as per Annexure-5, it happens to be 14,28,125/-. It is submission of the petitioner but not verified with. The Hon'ble Apex Court quashed the criminal proceeding after taking into consideration that appellants have had already deposited the amount. Further submitted that Annexure-6 is not at all applicable because of the fact that at the time of institution of the case, the amount so involved was 1,38,73,693/-.
8. Also submitted that the amount 14,28,125/- happens to be own estimate of the petitioner and it yet not be verified by the Department. So submitted that in the peculiar facts and circumstances of the case, the prayer of the petitioner does not appear to be maintainable.
9. The prosecution case, as it appears, happens to be though at an earlier occasion the aforesaid three S.S.I. Units filed the return under NIL on account of being closed but subsequently, as permissible under law, 5 furnished revised return whereunder the item so manufactured therein was shown to be supplied to M/S M/S Gillooram Gaurishanakar and the same was shown to be subject to export and as per prevailing Government scheme covered under banner of MOD VAT, the firm M/S Gillooram Gaurishanakar managed to get refund putting the department's loss to the tune of Rs. 1,38,73,693/-.
10. It has further been alleged that petitioner was able to avail the aforesaid scheme at the instance of other accused who, violating the relevant law/rule collusively granted the same. Accordingly, the refund as allowed by accused U.N. Das was challenged before the appropriate authority who had negated the same on account of flouting departmental instructions in order to cause wrongful loss to the Department and therefore prima facie case under different heads has been alleged.
11. Neither the State nor the CBI has filed counter affidavit save and except whatever been raised during the course of argument.
12. After going through the record of Cr.Misc. No. 11280/2009, it is evident that at that very time 6 Annexure-5 was not at all passed. During course of argument, it has fairly been submitted by the learned counsel for the State that the aforesaid Annexure-5 has not been challenged before any superior court. Even having Annexure-5 at their command, that does not exonerate the petitioner at least for the present purpose because of the fact that the amount whatever been admitted by the petitioner himself is an outcome of the aforesaid fraudulent action. The offence does not identify the amount rather it identifies the process by which ultimate goal has been achieved that means to say, so far this particular case is concerned, by way of a fraudulent action there has been recession and refund of excise duly whatever was to be realized and thus keeping the Central Excise Department under wrongful loss. So far Annexure- 6 is concerned, it all depends upon wisdom of the Department concerned who after verifying the exact amount will pursue, if so desires.
13. Consequent thereupon, I do not find any merit in the petition and accordingly, the same is rejected.
( Aditya Kumar Trivedi, J.) perwez