Madras High Court
J.Vijay Kumar vs State Rep. By on 30 August, 2022
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.Nos.741 & 805 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 01.10.2020
PRONOUNCED ON : 30.08.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
CRL.A.Nos.741 & 805 of 2017
1.J.Vijay Kumar
2.C.Kamalaharan
3.T.Govindan ... Appellants / A1 to A3
in Crl.A.No.741/2017
4.K.Gunasekaran
5.C.T.Thomas ... Appellants / A4 & A5
in Crl.A.No.805/2017
Vs.
State Rep. By,
Inspector of Police,
Central Bureau of Investigation,
Chennai ... Respondent in both Appeals
Cr.No.R.C.No.08(A)/2006
COMMON PRAYER : Criminal Appeals filed under Section 374 (2)
of Cr.P.C., to call for the entire records pertaining to Judgment in
C.C.No.39 of 2008, dated 31.10.2017, passed by the learned XIII
Additional Special Judge for CBI Cases, City Civil Court, Chennai,
and set aside the same.
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Crl.A.Nos.741 & 805 of 2017
For Appellants : Mr.V.S.Venkatesh
(In CA.741/2017)
For Appellants : Mr.T.Muruganantham
(In CA.805/2017)
For Respondent : Mr.K.Srinivasan
(in both Crl.A.) Special Public Prosecutor
for CBI Cases
COMMON JUDGMENT
This Criminal Appeal arising out of the Judgment passed by the learned XIII Additional Special Judge for CBI Cases, City Civil Court, Chennai, in C.C.No.39 of 2008, dated 31.10.2017.
2. In this case, there are totally eight named accused and other unknown accused. The respondent registered RC MA1 2006 A 0008 on 20.02.2006 at 5 pm., on the basis of source information, as against (1) J. Vijay Kumar, Appraiser, Air Cargo Complex, Custom House, Chennai; (2) C. Kamalaharan, Examining Officer, Appraiser, Air Cargo Complex, Custom House, Chennai; (3) T. Govindan, Examining Officer, Air Cargo Complex, Custom House, Chennai; (4) Gunasekaran, Exporter, M/s. Poppy Leathers & Apparels; (5) Arumugam, Proprietor, M/s. Poppy Leathers & Apparels; (6) Regy Jacob, Proprietor, R.G.Impex; (7) V.Devendrudu, 2/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 Custom House Agent; (8) S. Balachander, employee of M/s. Poppy Leathers & Apparels, and unknown others.
3.The short facts of the case, for deciding the appeals, are as follows:-
(i) Between August 2005 and September 2005, the accused entered into a criminal conspiracy at Chennai, Coimbatore and Mumbai, to cheat Government of India / Customs Department, by claiming Duty Drawback, in respect of exports, which not made as per the declaration, by submission of forged documents, in pursuance of the same, A4 Gunasekar got floated a fictitious Firm, by name M/s.Poppy Leathers & Apparels, Coimbatore, got opened Current Account at UTI Bank, Coimbatore, A5 instructed Jacob, approver to start a Firm in the name of RG Impex for doing vegetable business instead. A4 and A5 submitted 60 bogus Shipping Bills through M/s.Poppy Leathers & Apparels, and RG Impex for export of quality shoe uppers, whereas, the cartons offered for export were actually filled with soiled, used and torn shoe uppers.
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(ii) The consignments were presented at the Customs House by A7/PW27 and A8/PW24, the accused officers A1 to A3, by abusing their official position, cleared the consignments covered by the Shipping Bills, knowing to be defective, not according to the declaration. The claims of duty Drawback amounting to Rs.57,55,514/- against Shipping Bill S.Nos. 1 to 41 made in the name of above Firms, against the above exporters and the same dishonestly processed and allowed by the Customs Officers. However, in respect of five Shipping Bills at Sl.No.42 to 46, the Officers of Customs Intelligence Unit intercepted the consignments, detected deficiencies in the quality of the materials offered for export.
(iii) Similarly, A5 / C.T.Thomas got floated another fictitious Firm, by name, R.G.Impex, opened Current Account at South India Bank, Mumbai, submitted 25 Shipping Bills, for export of shoe uppers, which actually contained old, soiled, torn and used shoe uppers, the same intercepted by Customs, goods seized, confiscated, FIR registered in RC 8A of 2006, on 20.02.2006 and investigation taken up. However, named accused A6 to A8 and other unnamed accused in FIR not arrayed as accused in the charge sheet filed by the respondent, excepts for the appellants, 4/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 who are arrayed as A1 to A5 in the charge sheet.
4.There were four complaints initiated, out of which, two cases ended in acquittal, including live consignment case. As regards third case, pending trial.
5. The prosecution, in order to prove its case, examined 40 witnesses, as P.W.1 to P.W.40, marked Ex.P1 to Ex.P.237 and no Material Objects marked. On the side of the accused, neither witnesses examined nor documents marked.
6. The learned XIII Additional Special Judge for CBI Cases, City Civil Court, Chennai, on consideration of oral and documentary evidences, with regard to Charge No.1, A1 to A5 found guilty for offence under Sections 120b r/w 468 r/w 471 IPC., and 511 r/w 420 IPC., and Section 13(2) r/w 13(1)(d) of PC Act, sentenced them each to undergo 2 years R.I. and to pay a fine of Rs.1,000/-, in default, 6 months S.I. Further, for Charge Nos.2, 3 and 4, A1 to A3 found guilty for the offence under Section 13(2) r/w 13(1)(d) of PC Act, 1988, sentenced them to undergo each two years rigorous imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo 6 month simple imprisonment. In respect of 5/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 Charge No.5, A4 and A5 found guilty for the offence under Section 511 r/w 420 of IPC., sentenced them to undergo each 4 years RI and to pay a fine of Rs.1000/-, in default, to undergo 6 month simple imprisonment. As far as charge No.6 is concerned, A4 and A5 found guilty, for the offence under Section 468 r/w 471 of IPC., sentenced them to undergo RI for 4 years each and to pay a fine of Rs.1,000/-, in default, 6 months SI.
7. The appellants / accused, being aggrieved by the judgment and order of conviction and sentence passed by the learned XIII Additional Special Judge for CBI Cases, City Civil Court, Chennai, preferred the present appeals.
8. The learned counsel appearing for the appellants submitted that the trial Court, after having acquitted the sole public servant in C.C.No.40 of 2008, which is the case pertaining to live consignments, ought not have convicted the appellants in C.C.No.39 of 2008, which are past exports. C.C.No.40 of 2008, proceed on the basis of presumption that similar type of transactions done for past exports. The accused convicted on the basis of the chief examination of the witnesses, especially PW.9 and PW.39, without considering a single line of the cross 6/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 examination of the witnesses in the entire case. It was not the duty of the accused public servants to value the goods, since there is no mention about valuation in Ex.P6. There is no Customs Law, Public Notice/Circular that mandates the valuation of the goods are to be valued independently by the public servants viz. examiners /appraisers. The only statutory documents that are available are the invoice, which is the rate arrived, between the exporter and importer and the value cannot be ascertained by following Ex.P6.
9. The learned counsel further submitted that the Learned Judge failed to note that the only documents to be considered at the time of examination of goods and Let Export Order are the Purchase Orders, Invoices, Packing Lists, Form SDF, Appendix 3 with 4A declaration and non-availment of CENVAT credit, and no other documents needs to be considered, as per the Examination Reports of the Shipping Bills available in the EDI System found in Ex.P17 to P.76 in this case. Apart from the above mentioned documents, no other details could be recorded in the EDI System and will not appear in the systems of the Examiners and Appraisers. There is no provision of recording any comments in the system, since the system is loaded at Customs EDI at New Delhi and the module cannot be changed by any officials, except the 7/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 system's administrator at New Delhi.
10. In the instant case, there is no splitting up of consignments for exports and the FOB value in all the 60 Shipping Bills is above Rs.5 lakh, and the duty Drawback claim is above Rs.1 lakh for each of 60 Shipping Bills, and the Drawback claims not processed/recommended by A1 to A3. In the entire case, no Master Airway Bill produced before the Court, the House Airway Bills produced came into existence after examination of the goods and that event, the copies of Airway Bills mentioned in the impugned judgment are Xerox copies marked in this case subject to the objections raised and the same not considered by the Learned Trial Judge.
11. It is further submitted that Section 20 of the PC Act cannot be invoked for a charges formed against the accused. The prosecution not proved the case beyond reasonable doubt. The Investigation Officer, who registered the FIR, not examined before the Court. The accused convicted based on conjectures and surmises, and not based on any legally sustainable evidences. None of the witnesses in this case spoken anything about any overt act or involvement of the appellants in this case, which includes 8/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 the approvers.
12. It is further submitted that the Court below taken into consideration the evidence of P.W.1 to P.W.7, P.W.9, P.W.13, P.W.15, P.W.19, P.W.20 and P.W.39, who are all Customs officers, for convicting the appellants. P.W.9 categorically states that Ex.P5 and Ex.P6 strictly followed and there is no irregularity in the examination and Let Export Order given by the appellants pertaining to Ex.P17 to Ex.P.76 Shipping Bills, and that all the other witnesses are connected only to C.C. No.40 of 2008, which ended in acquittal. All the witnesses in this case, except PW9, speak about the specific intelligence received by Customs on 08.09.2005, in pursuance of the intelligence, seizure and confiscation, recording of 108 statements which relate only to C.C.No.40/2008. P.W.21 to P.W27 and P.W.18 spoken about the procuring of 3000-4000 old and soiled shoe uppers, in C.C.No.40 of 2008 the total quantity of shoe uppers exported is around 31,750 pairs, as detailed in the checklist of the 10 export consignments in C.C.No.40/2008, and that by no stretch of imagination, the same quantity can be considered for 60 Shipping Bills in C.C.No.39 of 2008.
13. Further, the Court below primarily relied upon the chief 9/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 examination of P.W.9 and P.W.39 who deposed about examination procedure for sensitive countries like Singapore, Dubai, Sharjah etc, as per Ex.P6, and chief examination of PW39, that as per Ex.P.231, the same exporter, exported to the same buyer and examination not taken place as per Circular 06/2002. Likewise, in the case of Ex.P232 Circular No.06/2002 not followed. According to the prosecution, when the exporter exported more than one consignment on the same day, the goods should be completely examined, which procedure not followed by A1 to A3. A1 to A3 examined the goods in question, but only objection is that they were not subjected to 100% examination, which is not warranted as per Ex.P6, in normal course, and only to be resorted to on receipt of specific intelligence, as per the said Circular.
14. As per Circular No.06/2002, the officers carefully consider the quantum of incentive, value of export goods and the country of destination. These particulars which are furnished by the exporter/CHA, entered in the Service Centre, and are meant for the EDI system to consider for selecting the scale of examination. These functions are not at all mandated with respect to Examiner/ Appraiser, as per Ex.P6. The Learned Judge failed to consider the fact that despite the non-issue of alert, they examined 10/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 consignments other than system selected packages, but could not be fed in the system as there is no provision for the same as per the existing EDI system. The system will issue an alert, when the same exporter attempts to export on the same day consignments involving export incentive of Rs.1 lakh or less. The learned counsel for the appellants would submit that FIR in this case registered in RC 8A of 2006 on 20.02.2006 by LW-42 Mr.Ram Mohan Rao, Deputy Superintendent of Police, not examined by the prosecution.
15. Absolutely, no reasons forthcoming in the charge sheet as to how and under what circumstances some of the accused treated as approvers and no reason given in the charge sheet as to why all in the FIR, not proceeded with, and how some exonerated. The above facts are vital to the prosecution case, which is the subject matter of the appeals. It is submitted that none of the approvers or the public servants examined in this case as prosecution witnesses speak about any overt act of the appellants. Even the 108 statement recorded by the customs and 164 statements given by the approvers does not disclose about the role of the appellants. PW-9, the superior officer of A1 to A3, viz., Assistant Commissioner categorically state that he did not find any irregularity or illegality at the time of the transaction in the Air 11/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 Cargo complex vide Ex. P17 – P76. Further, the exports vide Ex.P.17-P.76 are past consignments / past exports and no samples were drawn to prove that any inferior quality of goods exported.
16. Further, the mandatory documents that have to be looked into by the examiner is only 5 documents, as per the details found in the shipping bills vide Exs.P.17-P.76 and those documents are only Invoices, Packing list, SDF Declaration, Appendix III with 4A Declaration and Non availailment of Cenvat Certificate, which is in accordance to Circular No.34/2005/Cus, dated 05.08.2005. In this case, no duty drawback paid to A4 & A5 Companies and there is no loss to the Government, even as per the charge sheet A4 & A5 attempted to cheat the Government of India in conspiracy with the A1 to A3. In Exs.P.17-P.76 the Freight on Board (FOB) Value for each consignment is above Rs.5 lakhs, the duty draw back is Rs.1 lakh and hence, there was no splitting up of consignments and hence, there is no question of any alert in the system. As per Ex.P6, the system would only alert, if there is splitting up of consignment and if the value of the FOB and Drawback is less than Rs.5 lakhs & Rs.1 lakh respectively. In the present case, no such event has taken place.
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17. It is contended that Master Air Way Bills (MAWB) would come into existence only after the LET export order is given and AWB will not come into existence at the time of registration of goods in the EDI system by the data entry operators and at the time of registration by the examiners in the examination report. In the instant case, all the mandatory documents required for the purpose of assessment, examination and LET export order does not specify the MAWB is a mandatory document that has to be considered by the examiner appraiser at the time of examination of the goods and at the time of giving LET export order, even as per Ex.P.17 to P.76 port of destination only shows as 'United Kingdom' and not 'Dubai'. Further, at the time of registration of the goods, the Exporter himself would register with the Airliner and obtain a number in the House Air Way Bill (HAWB). There is no provision in the EDI system for the examiner to verify the MAWB and give his examination report as seen in the examination reports found in Ex.P17-P.76.
18. Further, the appellants convicted based on Photostat copies produced by the prosecution witnesses, the prosecution not let in evidence to show what steps taken to obtain the originals and for what reason, beyond their control. Exs.P.17 to P.76 originals 13/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 could not be obtained. Exs.P.228 to P.232 are all Photo Copies / Xerox Copies and some of these documents retrieved from the system and not contained the mandatory certification, as required under Section 65B of the Indian Evidence Act 1872. As far as the value of the goods are concerned, the same is governed by Section 14 of The Customs Act, 1962 and the same is based on the value declared in the Invoices and the Contract entered into by the Importer and Exporter, as per the declarations made in Annexure
-C, the standard international procedure. There is no tariff heading or chapter under the Customs Act, for the valuation of good for the purpose of exports. The customs officials followed the circulars and instructions, as required under the law and there is no other provision to find out the value of the goods. There is no duty levied by the customs for export of goods and especially, in this case, for export of shoe uppers.
19.Further, the appellants are no way concerned with the duty drawback, the duty drawback is calculated by a separate duty drawback section, following the duty drawback rules. Even at the time of registration of the goods, the eligibility of duty drawback would be reflected at the time of registration of the goods by the data entry operator and the system equipped in such a way. None 14/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 of the alleged alerts found in the system finds a place in any Exs.P1 to P.237 and the system which contains such alerts as alleged by the prosecution not seized and produced before the Trial Court. After the introduction of EDI system in the Custom House, the system would only select the packages for the purpose of examination, in this case, the system selected only Exs.P19, 34, 47, 56, 60 & 69 for the purpose of examination and in all other shipping bills found in Exs.P17-76 the system not selected any packages for examination, which would clearly indicate that there was system failure and the entire prosecution case is based on conjecture and surmises. The sanction order in this case is a mere reproduction of the charge sheet nothing to infer application of mind and the complainant not followed the dictum of the Apex Court as well as the CBI manual. Further, the sanctioning authority in this case turned hostile in C.C.No.16/2009.
20. Per contra, the learned Special Public Prosecutor appearing for the respondent would submit that A-1 to A-8 and others entered into criminal conspiracy at Chennai and other places during the period August to September, 2005 to cheat Government of India / Customs Department by claiming duty drawback in respect of exports, which were not made as per 15/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 declaration and by submission of forged documents. In pursuance of the same, A-4 Shri Gunasekhar got floated a fictitious Firm, by name, M/s. Poppy Leather and Apparel, No.146/154, Arumuga Gounder Thottam, Nethaji Street, S.N. Palayam, Coimbatore, by his employee, Approver Arumugam who opened Current Account No.1000078366 at UTI Bank, Coimbatore, 46 bogus shipping bills were submitted by M/s.Poppy Leather and Apparel for export of quality shoe uppers whereas the cartons, offered for export, actually filled with soiled, torn and used shoe uppers.
21. Further, the consignments were presented at Customs by A-7 / P.W.27, V.Devendrudu, A-8 / P.W.24, Balachandran, an employee of A-4, acting as clerk of P.W.27. In pursuance of the criminal conspiracy, accused public servants A-1 to A-3, by abusing their official position, cleared the consignments covered by the above shipping bills knowing them defective and not according to the declarations. The claims of duty draw back amounting to Rs.57,55,514/- against shipping bills at Sl. Nos. 1 to 41 made in the name of the said Firm, dishonestly processed and allowed by the customs officers. However in respect of the five shipping bills at Sl. Nos. 42 to 46, the officers of Customs Intelligence intercepted the consignments cleared by the accused officers, detected the 16/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 deficiencies in the quality of the materials offered to export. Hence, no export in respect of shipping Bills at Sl.No.42 to 46. Similarly, A5 / C.T. Thomas got floated another fictitious Firm, by name, M/s.R.G.Impex, First Floor, Plot No.65, Section 1, CIDCO Service Industrial Area, Nerul Shirwani, Navi Mumbai, through approver Regi Jacob. A Current Account No.1000077205 at South Indian bank, Powai, Mumbai also opened in the name of this Firm. 25 bogus shipping bills submitted by R.G.Impex for export of quality shoe uppers whereas the cartons for export were actually filled with soiled, torn and used ones.
22. It is further submitted that the consignments presented at Customs by approvers. V.Devendrudu, Balachandran, an employee of A4, in pursuance of the criminal conspiracy, accused public servants A-1 to A-3, by abusing their official position, cleared the consignments covered by the above shipping bills knowing them defective and not according to the declarations. The claims of duty drawback amounting to Rs. 27,35,056/- against shipping bills at SI. Nos. 1 to 20 made in the name of the above Firm, dishonestly processed and allowed by the customs officers. However, in respect of the five shipping bills at Sl. Nos. 21 to 25, the officers of Customs Intelligence intercepted the consignments cleared by the 17/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 accused officers and detected the deficiencies in the quality of the materials offered for export. Hence, no export in respect of these shipping bills ie., at Sl.Nos. 21 to 25, was allowed. The corresponding duty draw back claims were not processed. After the interception of the consignments by the officers of Air Customs Intelligence, the sanctioned amounts of duty draw back in respect of all shipping bills were held back.
23. The above facts prima facie disclose commission of offences punishable under section 120-B, 511r/w 420 IPC, 468, 471 IPC and Section 13(2) r/w 13(1)(d) of P.C. Act. 1988 by A1 J. Vijayakumar, Appraiser, A2 / C. Kamalaharan, Examiner; A3 / T.Govindan, Examiner; A4 / Gunasekhar, A5 / Arumugam, Prop. M/s. Poppy Leathers and Apparels; A6 / Regi Jacob, Prop. M/s. R.G. Impex; A7 / Devendrudu; A8 / Balachandran. Hence a Regular Case registered as per the orders of the SP, CBI, ACB Chennai and taken up for investigation. On completion of investigation, charge sheet filed against A1 to A5, which taken on file in C.C.No.39 of 2009, by the learned XIII Additional Special Judge for CBI Cases, City Civil Court, Chennai. The learned trial Judge, after analysing the entire records and evidence, by its well reasoned Judgment coming to the correct conclusion, which need not be interfered with and hence, 18/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 prayed for dismissal of the appeal.
24. I have heard the learned counsels appearing on either side and perused the materials on record.
25. Considering the submissions and on perusal of the materials this Court finds that in this case, according to the prosecution, A-1 to A-5 and others entered into criminal conspiracy at Chennai and other places between the period August and September, 2005 for claiming duty drawback fraudulently. A- 4 / Gunasekhar got floated a fictitious Firm, by name, M/s. Poppy Leather and Apparel, Coimbatore. PW.23, an employee of A4, opened Current Account No.1000078366 at UTI Bank, Coimbatore. Bogus shipping bills, numbering 46, submitted by M/s.Poppy Leather and Apparel for export of quality shoe uppers whereas, the cartons, offered for export, actually filled with soiled, torn and used shoe uppers. The consignments presented at Customs by PW.27 / V. Devendrudu, PW.24 / Balachandran, an employee of A- 4, acting as clerk of PW.27. Accused public servants A-1 to A-3, by abusing their official position, cleared the consignments, knowing them defective, not according to the declarations. The claims of duty draw back amounting to Rs.57,55,514/- against 19/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 shipping bills at SL. Nos. 1 to 41 made in the name of the Poppy Leather and Apparel, dishonestly processed, allowed by the customs officers.
26. Further, A5/ C.T. Thomas got floated another fictitious Firm, by name, M/s.R.G.Impex, Mumbai, by PW.26, A-6 Regi Jacob. A Current Account No.1000077205 at South Indian Bank, , Mumbai opened in the name of the Firm. Bogus shipping bills, numbering 25, submitted by R.G.Impex for export of quality shoe uppers whereas, the cartons for export were actually filled with soiled, torn and used ones. When the consignments presented at Customs by PW.27. V.Devendrudu, PW.24 Balachandran approvers, A-1 to A-3, by abusing their official position, cleared the consignments, knowing them defective, not according to the declarations. The claims of duty draw back amounting to Rs. 27,35,056/- against shipping bills at SI. Nos. 1 to 20 made in the name of the above Firm against the above exports. However, in respect of the few shipping bills, the officers of Customs Intelligence intercepted the consignments cleared by the accused officers, detected the deficiencies in the quality of the materials offered for export. Hence, no export in respect of few shipping bills. After the interception of the consignments by the officers of 20/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 Air Customs Intelligence, the sanction of duty draw back in respect of all shipping bills were held back.
27. P.W.1 / C. Rajan, Additional Director General of Revenue Intelligence, Chennai, speaks about Ex.P1, Sanction Order, dated 24.06.2008, to prosecute A1/ Vijayakumar, Appraiser; P.W.2 / Venkat, who is the Additional Commissioner, Central Excise, Chennai, speaks about Ex.P2 and Ex.P3, Sanction Orders, dated 24.06.2008, to prosecute the Inspectors/Examiners, viz., C.Kamalaharan(A2), and Govindan(A3); P.W.3 / Pandaram, Superintendent, ACIU, speak about Ex.P4; P.W.4 / Niaz Saleh, Appraiser, Drawback Section, speaks about the procedure for sanctioning drawback by the Drawback Section; P.W.5 / P.R.Srinivasan, Appraiser, Directorate of Revenue Intelligence, speaks about Ex.P.6, assisting the Joint Commissioner, EDI in the allotment of user Ids and Password and the changes in the EDI system to incorporate the examination norms as per Circular No.06/2002, dated 2301.2002; P.W.6, Pasumpon, Superintendent, Air Customs Superintendent at International Airport, Chennai, speaks about Ex.P7 to Ex.P.13, recording the statements of S.Balachander; P.W.7 / K.G.Sivam, Assistant Commissioner, Drawback Section, speaks about Ex.P14, letter dated 11.07.2008 to 21/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 CBI explaining Export Outstanding Statement (XOS); P.W.9, C.Srivasalu, Then Assistant Commissioner, Export Examination, ACC, speaks about Ex.P17 to P.76, particulars of 60 shipping bills, procedures to be followed as per Ex.P5, Public Notice No.51/97, dated 27.11.1997 and Ex.P6, Circular No.06/2002, dated 23.01.2002; P.W.10 / Premachandran Nair, then Foreign Trade Development Office, Mumbai, speaks about Ex.P.77 to Ex.P.88;
28. P.W.11 / Jose Manuel, Then Branch Manager, South Indian Bank, Mumbai, speaks about Ex.P.89 to Ex.P.96; P.W.12 / G.Sathiyamurthy, then Manager, SBI, Meenambakkam, speaks about Ex.P97 to Ex.P114; P.W.13, M.Kalyanaraman, Cargo Supervisor, Thai Airways International, speaks about Ex.115 to Ex.P118; P.W.14 / P.L.Mahesh, Branch Manager, Axis Bank, Coimbatore speaks about Ex.P119, Current Account opening form and account statement signed by UTI Bank Manager, Sridharan on 04.04.2007; P.W.15 / Muruganandam, Senior Intelligence Inspector, DRI, Chennai, Ex.120, letter sent by Baleshkumar from Dubai to DRI, Chennai and the covering letter to CBI; P.W.16 / K.Shoba, Working in M/s.Devendrudu, as Customs House Agent, speaks about signing Shipping Bills / Bills of Entry on behalf of the Exporters / Importers and submit the same to Customs Department. 22/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 P.W.17/P.R./Arumugam, Proprietor of Sawani Textile Process, Tirupur, speaks about some persons impersonated him in opening Bank account in the name of M/s.Poppy Leathers & Apparels at SBI, Meenambakkam, Chennai; P.W.18/Nandha Gopal, Leather Broker, speaks about how Gunasekaran approached and asked for shoe upper samples, later on the request of Sunil, procured and suppled 3000 to 4000 shoe uppers; P.W.19/Roy Verghese, Superintendent, Air Cargo Intelligence, Chennai, speaks about Ex.P.121 and P.122, statements of Balachandran, dated 08.09.2005 and 13.01.2006; P.W.20 / Ram Prasad Reddy, Superintendent, Air Cargo Intelligence, Chennai, speaks about Ex.P123 to Ex.P127;
29. P.W.21/ Santhosh, Working in Gunasekaran's Compnay, speaks about Ex.P.128 to Ex.P.131; P.W.22/ Sunil Kumar, Working in Kiran Knit Industries, speaks about how Gunasekaran asked him to be his Commission Agent, procure and supply shoe uppers, how Gunasekaran introduced him to Agent Nandha Gopal, how he received the money from Gunasekaran or his employee Jaya Prakash and handed it over to Nandha Gopal; P.W.23./ Arumugam, Employee of Gunasekaran, speaks about Ex.P.132 and Ex.P.133, voluntary statement given before the Egmore Court, summons issued by 14th Metropolitan Magistrate, Chennai, served by CBI; 23/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 P.W.24./ Balachandran, Working as Clerk in Gunasekaran's Yoham Exports, speaks Ex.P.135 & 136, Voluntary statement given before the Saidapet Court and general pardon given in the George Town Court; P.W.25./ Vasumathi, Employee in Appu Apparels, speaks about Ex.P.137 to ExP. 198; P.W.26/ Regi Jacob, working as Bill Collector in Gokulam Chit and Finance, speaks about ExP.199 Summons dated 22.07.2008 issued to him, Ex.P.200 proceeding before the Magistrate on 30.07.2008 and 31.07.2008, ExP. 208 pardon proceedings. P.W.27/ Devenrudu, Custom's House Agent, speaks about Ex.P.199, 200 and 208; P.W.28/ Sujatha, 16th Metropolitan Magistrate, Chennai, speaks about Ex.P.203 to 205; P.W.29 / Arunachalam, 17th Metropolitan Magistrate, Saidapet, Chennai, speaks about recording 164(i) statement of Regi Jacob; P.W.30 / Kanchana, 14th Metropolitan Magistrate, Chennai, speaks about recording 164(1) statement of Mr. Arumugam;
30. P.W.31 / Kalaiponni, 18th Metropolitan Magistrate, Chennai, speaks about recording of 164(1) statement of Arumugam, Balachandran, and the application given by the CBI Inspector, the CMM and summons issued to Balachander; P.W.32/ Ramachandran, 3rd Metropolitan Magistrate, George Town, Chennai, speaks about Ex.P.208 to P211; P.W.33 / Maragatham, 24/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 10th Metropolitan Magistrate, Chennai, speaks about Ex.P.212 to P215; P.W.34/ R.Killivalavan, 2nd Metropolitan Magistrate, Egmore, Chennai, speaks about Exp.216, order, dated 13.08.2008 for granting pardon to Vasumathi issued by Chief Metropolitan Magistrate, Egmore, petition, copies of documents and ExP.217 covering letter, dated 04.09.2008 forwarding pardon proceedings to Principle Special Judge, CBI Cases; P.W.35./ Paramaraj, 15th Metropolitan Magistrate, George Town, Chennai, speaks about ExP.218, order 09.07.2008 issued by Chief Metropolitan Magistrate, for recording the statement of Vasumathi and ExP.219 covering letter forwarding the statement of Vasumathi; P.W.36 / SelvaKumar, 4th Metropolitan Magistrate, Chennai, speaks about Ex.P.220 to P.224; P.W.37 / Sarojini Devi, Additional Chief Metropolitan Magistrate, speaks about Ex.P.225 to 227; P.W.38./ Balaji, Working as Cargo Manager at Gulf Air Ways, speaks about Ex.P.228 to Ex.P.230; P.W.39./ Sreenivasan, Working as Assistant Commissioner Air Cargo Complex, Meenambakkam, speaks about Ex.P.231 and P.232 and P.W.40./ Venkatesan, Inspector, Anti Corruption Bureau, CBI, speaks about Ex.P.234 to 237. 25/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017
31. The charge as against A1 is that he misused his power as a Government servant, gave let export orders, for sixty shipping bills, knowing that the said goods were of inferior quality, overcharged and fraudulently entered the duty drawback amount in the shipping bills. Further, A1 ignored the warning given by the computer system. The procedure is that, when an exporter submits more than two shipping bills on a same day, the said consignments should be examined. But he did not consider it; Similarly, A1 did not take into account the fact that the price was set at a very high rate without checking the nature of the goods considering the quality, A2 and A3 did not take into account the actions of A1 and thereby, committed the offence under Sections 120-B r/w 511 IPC., r/w 420 IPC., and Section 13 (2) r/w 13(1) (d) of PC Act, 1988;
32. The second accused Kamalaharan, misused his official powers, knowing the fact that the goods, bearing Shipping Bill Nos. 3016352, 3016308, 3016316, 3016323, 3016341 and 3016789 are of substandard quality and A4 and A5 selling the goods at the highest price, favouring the accused, thereby, committed the offenses under U/s 120-B r/w. 511 IPC r/w 420 1PC and Section 13(2) r/w 13(1)(d) of PC Act. 1988 26/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017
33. A3 / Govindan, as a Government servant, misused his official powers, knowing the fact that the goods, were of substandard quality and unfit for use of human being, authorized the export of goods, valuing the goods at higher price, by signing 54 Bills of Lading, ignoring the warning given by the computer system. The procedure is that, when an exporter submits more than two shipping bills on the same day, the above consignments should be examined. But, he has not followed. Similarly giving wrong report about the consignment, without checking the same, favouring the exporters to receive Duty Drawback. Thereby, A3 committed the offence under under Section 120 B r/w 511 IPC r/w 420 IPC and Section 13(2) r/w 13(1) (d) of PC Act. 1988.
34. A4 / Gunasekar entered into a criminal conspiracy with the other accused, formed a fake Company, viz., M/s.Poppy Leathers and Apparels, submitted bogus Shipping Bills through M/s.Poppy Leathers & Apparels, for export of quality shoe uppers, whereas, the cartons offered for export were actually filled with soiled, used and torn shoe uppers, thereby A4 committed the offence, under Sections 120-B IPC., r/w 511 IPC r/w 420 IPC, 468 r/w 471 IPC., and 511 r/w 420 IPC.
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35. A5 / C.T.Thomas entered into a criminal conspiracy with other accused, started a bogus company named M/s.RG Impex, through Approver Regi Jacob, along with A4 / Gunasekar, for exporting the goods, for arranging Invoice, SDF, Declaration Form SDF, Purchase Order and thereby, fraudulently tried to get Duty Drawback from the Central Government, thereby all the accused together joined and tried to cause a loss of Rs.83,45,719/- to the Central Government. Thereby, A5 committed the offence under Sections 120B IPC r/w 511 IPC r/w 420 IPC, 468 r/w 471 IPC and 511 r/w 420 IPC.
36. The primary contention of the prosecution is that the accused in this case entered into a criminal conspiracy at Chennai, Coimbatore and Mumbai to cheat the Government of India / Customs Department, by claiming Duty Drawback, in respect of exports. A4 and A5 floated two fictitious Companies, submitted 60 bogus Shipping Bills through M/s.Poppy Leathers & Apparels, and RG Impex for export of quality shoe uppers, whereas, the cartons offered for export filled with soiled, used and torn shoe uppers, thereby, all the accused together joined and tried to cause a loss of Rs.83,45,719/- to the Government.
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37. It is seen from the records that Ex.P.233 is the FIR registered in RC 8A of 2006 on 20.02.2006 by L.W.42 / Deputy Superintendent of Police, who collected several documents, participated in the investigation, but not examined as witness during trial. Further, some of the accused treated approvers, however, there was no reasons forthcoming to show how and under what circumstances, they are treated as approvers in this case and the same cannot be simply brushed aside. None of the approvers or the public servants, who examined as prosecution witnesses, spoken about any overt act of the appellants /A1 to A3. Even, 108 statements recorded by the Customs and 164 statements of the does not approvers disclose any role of the appellants. The approvers evidence to be considered with caution, to be corroborated with material particulars, further to be seen, whether the statements are inculpatory or exculpatory disclosing vital facts.
38. P.W.9, the superior officer of A1 to A3 viz., the Assistant Commissioner, in his cross-examination, deposed that he did not find any irregularity or illegality at the time of transaction in the Air Cargo Complex, vide Exs.P17 to P76. Thus, from the deposition of the Assistant Commissioner, it is clear that there is no irregularity or illegality at the time of the transaction. Even as per 29/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 the charge sheet A4 and A5 attempted to cheat the Government of India in conspiracy with the A1 to A3. No materials produced, nothing to infer any meeting of mind and furtherance to the same the offence committed.
39. Further, it is seen from the records that P.Ws.1 to P.W.40 neither made any allegations nor produced any documents against A1 to A3. There are contradictions in the deposition of witnesses about the charge. Even the approvers do not raise any allegations against the accused. No Airway Bill produced before the Court. P.Ws.3, 5, 6, 19 and 20, who all are Customs Officers of Air Cargo Intelligence Unit at Meenambakkam, Air Cargo Complex, Chennai and they speak about the “Live Consignments” which upon receipt of credible intelligence / information, intercepted the goods meant for exports in C.C.No.40 of 2008. They also recorded Section 108 statement under Customs act. The prosecution witnesses speak about only A4 and A5. Thus, neither any oral evidence nor documentary evidence available in respect of A1 to A3 to show they entered into a criminal conspiracy with the other accused.
40. Further it is seen that in Ex.P.17 to Ex.P.76, the Freight 30/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 on Board (FOB) Value for each consignment is above Rs.5 lakhs, the duty drawback is Rs.1 lakh and hence, there was no splitting up of consignments and hence, there is no question of any alert in the system. As per Ex.P6, the system would only alert, if there is splitting up of consignment and if the value of the FOB and Drawback is less than Rs.5 lakhs & Rs.1 lakh respectively. In the present case, no such event taken place, as rightly contended by the learned counsel for the appellants.
41. In the instant case, all the mandatory documents required for the purpose of assessment, examination and LET export order not specify the MAWB is a mandatory documents that has to be considered by the examiner appraiser at the time of examination of the goods and at the time of giving LET export order, even as per Ex.P.17-P.76 port of destination shows United Kingdom and not Dubai. Further, at the time of registration of the goods, the Exporter himself would register with the Airliner and obtain a number in the House Air Way Bill (HAWB). There is no provision in the EDI system for the examiner to verify the MAWB and give his examination report as seen in the examination reports found in Ex.P17-P.76.
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42. It is seen that the Air Customs Intelligence Unit Officers viz., P.W.3, 6, 9, 19 and 20 have only stated about intercepting the export consignments of A4 & A5 and found sub standard shoe apparels, attempted to be exported and thereafter detaining the same which pertains to live consignment in C.C.No.40 of 2008. P.W.4 and P.W.7 are the Duty Drawback Officers, who clearly state that in this case no Duty Drawback paid and the procedures contemplated for Duty Drawback is an independent procedure wherein some other Appraiser and Assistant Commissioner would verify the documents depending upon the value and thereafter, pass appropriate orders.
43. P.W.5 and P.W.39 of EDI Section state about the documents to be submitted in the EDI Section and the number allotted for examination of consignments. Further, P.W.39 produced printouts taken from EDI system pertaining to A4 and A5 Company. Ex.P.231 and Ex.P.232, are without 65-B certificate. From the documents produced it is seen that Shipping Bill, Consignment Name, Name of the Officers, who conducted the inspection, Name of the Examiner and FOB Free on Board Value, Drawback amounts would be recorded. It is clearly stated that there is no Airway Bill. As stated above, in this case, when the 32/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 consignments were produced, Appellants / A1 to A3 master airway bill not produced and the particulars given in Ex.P17 & Ex.P.76 show that the port of destination was United Kingdom. As per Ex.P6, the scale of examination and the particulars given, wherein, the sensitive place like Dubai, Sharja, Singapore, Hong Kong and Colombo, consignments are to be examined 25% and for other cases, only for 2%. This 25% or 2% is generated by the Computer. The appellants have got no choice of examination other than what the system assigned, unless they have specific information about any clandestine removal. In this case, all the witnesses of Customs admit that there was no system warning given in any manner. When that being the case, the appellants cannot be scraped with any liability, more so, criminal liability.
44. Further, the approvers in this case viz., P.W.21 to P.W.25 have stated about the live consignment. C.C.No.40 of 2008, none of the witnesses either from the Customs officials or from the approvers spoken about the appellants A1 to A3. The only allegation against them is that they have not followed Ex.P5 and Ex.P6 Circulars. From the reading of Ex.P5 Circular it is seen that the date of Notification to be notified separately, witnesses admitted, the date not sofar notified. The appellants / A1 to A3 33/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 followed Ex.P6 Notification, which is admitted by the witnesses. In this case, P.W.40, the Investigating Officer admit that he had not given any reasons for exonerating P.W.17, P.W.21, P.W.23 to P.W.27 in this case and for what reasons they treated as approvers, there is no answer. He admits that he had not collected any documents from EDI and also confirms that Ex.P17 to Ex.P76 are computer generated documents without 65B Certificate. He admits that Ex.P5 not come into force.
45. From the evidence of the approvers, he confirmed that they have not approached any of the Customs Officials and they acted on the instructions of A4. He further confirms that Ex.P17 to Ex.P.76 Shipping Bills destined to United Kingdom, London and following Ex.P6 Circular, consignment processed. He reaffirms that system generates the number for examination of consignments and there is no human intervention. P.W.9 admits that he was enquired only with regard to Ex.P5 and Ex.P6 Circulars and not the Shipping Bills. He further admits that Ex.P17 to Ex.P66 Shipping Bills not to the same importers. He admits that Ex.P.229 and Ex.P.230 are photostat copies. He further reaffirms that no duty drawback paid to the exporters in this case, hence, there is no loss of revenue. He further reaffirms that in 108 Statements recorded 34/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 by the Customs Officials or in 164 statements given by approvers and other witnesses none stated anything against the appellants.
46. Thus, looking the case from any angle, there is nothing to show that the appellants had any knowledge about the other accused manipulating the documents, while opening the Bank Account or getting I.D Proof and also after examination and getting let export order, thereafter changing the destination by obtaining the master airway bill. There is difference between house airway bill and master airway bill. In this case, the master airway bill obtained after clearance, after the goods examined by the appellants and thereafter. it is for the duty drawback section to verify the documents, scrutinise the documents find it is in order to approve duty drawback or in the event of documents improper to reject duty drawback claim. In this case, duty drawback not paid and there is no loss of revenue. In view of the same, looking the case from any angle, the prosecution has miserably failed to prove the case against the appellants A1 to A3. It is to be seen that even in the live consignment case in C.C.No.40 of 2008, the trial Court already acquitted public servants / custom officials. This Court pertains to past consignments. There is no materials to show that the exported goods were substandard.
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47. Further, the value of the goods are concerned, the same is governed by Section 14 of the Customs Act, 1962 and the same is based on the value declared in the Invoices and the Contract entered into by the Importer and Exporter, as per the declarations made in Annexure-C, which is the standard international procedure. There is no tariff heading or chapter under the Customs Act, for the valuation of good for the purpose of exports. The customs officials followed the circulars and instructions, as required under the law and there is no other provision to find out the value of the goods. There is no duty levied by the customs for export of goods and especially, in this case, for export of shoe uppers.
48. Insofar as the charge under Section 120-B is concerned, agreement between two or more persons is the requirement. It needs meeting of minds of the conspirators. In order to prove the criminal conspiracy, there must be a direct or circumstantial evidence to show or infer that there was an agreement between two or more persons joined together to commit the offence. In the present case, neither direct nor circumstantial evidence available to prove the offence of criminal conspiracy, as against the accused and nothing is available on record even to remotely infer or to 36/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 connect A1 to A3 to the offence of criminal conspiracy with the other accused. The prosecution miserably failed to prove that A1 to A5 conspired together with each other to commit the offence, none of the prosecution witnesses spoken about the conspiracy no documents produced to prove conspiracy with regard to the involvement of the appellants, hence, all accused acquitted from the charge of conspiracy under Section 120-B IPC. The charge itself is wholly misconceived, as against A1 to A3 for the above said reasons, the first charge under Section 120B r/w 13(1)(d) of the Prevention of Corruption Act 1988, Section 468 r/w 471 and 511 r/w 420 IPC., not proved. Hence, A1 to A5 are acquitted from first charge.
49. With regard to the Charge under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, demand of bribe by abusing their position as public servants, obtain for himself or for any person any valuable thing or pecuniary advantage. In this case there is nothing to show A1 to A3 made any attempt to receive any pecuniary advantage by abusing their official position, in view of the same accused A1 to A3 acquitted for the offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, from second, third and forth charges respectively. 37/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017
50. Insofar the Criminal Appeal filed by Appellants / A1 to A3 in Crl.A.No.741 of 2017, is concerned, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellants / A1 to A3 by the learned XIII Additional Special Judge for CBI Cases, City Civil Court, Chennai in C.C.No.39 of 2009, are set aside from all the charges. Bail bonds executed by the appellants
- A1 to A3 shall stand terminated. Fine amount, if any, paid is ordered to be refunded.
51. As regards A4 and A5 it is reported that A5 is no more. Hence, the charge against A5 abates. As regards A4, for the first charge of conspiracy, he is acquitted. With regard to the other charges, under Section 511 r/w 420 IPC., and for chargers under Section 468 r/w 471 IPC., it is seen that P.W.17 states that he is not the owner of M/s.Poppy Leathers and Apparels and his address has been misused. Further, P.W.19 / Nandagopal states about appellant / A4 approached in purchase of shoe apparels. P.W.21 to P.W.25 are the approvers, employees, who are associated with A4, who all on the instructions of A4 prepared the documents, submitted to the Customs Officials. P.W.16 and P.W.27 are the Custom House Agents, who clearly state that signed blank shipping bills were handed over to A4 or to his representatives, 38/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 who thereafter, filled up the same, as per convenience produced the documents before the Customs Authorities, which is an independent act of A4 along with approvers and others.
52. The Bank witnesses viz., P.W.12 and P.W.14 state about the false particulars provided for opening the account and transacting the Bank account. P.W.28 to P.W.31 and P.W.35 are the Magistrates, who recorded 164 statement of P.W.21 to P.W.25. P.W.32 to P.W.34, P.W.36 and P.W.37 are the Magistrates, who accorded tender of pardon. Thus, the accused given statement, turned approvers are by following the procedure. The approvers clearly spoken about the role played by A4. It is again reiterated that as regards A1 to A3 / customs officials, there is no whisper against them by any of these witnesses.
53. P.W.8 and P.W.10 are from the Joint Director of General of Foreign Trade Office state about A4 and A5 registering and obtaining I.E Code. P.W.13 and P.W.38 state that they have given screen shot copy from the system, which is not authenticated and proved in the manner known to law. 65B Certificate not produced. In any event, the witnesses spoken about A4 and A5 being the reason for presenting 60 number of shipping bills for the 39/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 consignments. In this case, no duty drawback paid and it is only an attempt.
54. In view of the forgoing reasons, the Criminal Appeal filed by the appellant / A4 is partly allowed, confirming the conviction modifying the sentence imposed by the trial Court with regard to Charge No.5, for offence under Section 511 r/w 420 IPC., and Charge No.6, for the offence under Section 468 r/w 471 IPC. Hence, this Court is inclined to modify the sentence of imprisonment alone. It is seen that the appellant / A4 had already served incarceration for more than two years during trial, and pending appeal. The period of sentence, already undergone by A4 is ordered to be set off, as provided under Section 428 of Cr.P.C.
55. Thus, Appellants / A1 to A3 acquitted from all charges. A4 acquitted from Charge No.1 and for Charge Nos.5 and 6, he is convicted with the above modification 30.08.2022 Index: Yes/No Internet: Yes/No MPK / vv2 40/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 To
1. The XIII Additional Special Judge for CBI Cases, City Civil Court, Chennai.
2. The Inspector of Police, Central Bureau of Investigation, Chennai
3.The Public Prosecutor, High Court, Madras.
M.NIRMAL KUMAR, J.
41/42 https://www.mhc.tn.gov.in/judis Crl.A.Nos.741 & 805 of 2017 VV2 Pre-Delivery Judgment made in CRL.A.Nos.741 & 805 of 2017 30.08.2022 42/42 https://www.mhc.tn.gov.in/judis