Bangalore District Court
Unknown vs No.1: M/S. Printex Exports India Pvt. ... on 10 December, 2015
IN THE COURT OF XVII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BANGALORE.
(Spl.COURT FOR CBI CASES)
-: Present :-
SABAPPA.,B.COM., LL.B (SPL.)
XVII ADDL.CHIEF METROPOLITAN MAGISTRATE, BANGALORE.
C.C.No. 1475/2015
DATED : 10TH DAY OF DECEMBER, 2015
COMPLAINANT :
State by Inspector of Police,
Central Bureau of Investigation,
Economic Offences Wing,
Chennai.
[By learned Addl. Public Prosecutor, Bangalore.]
/ Versus /
ACCUSED NO.1: M/s. Printex Exports India Pvt. Ltd,
1st Cross, Dream Chambers,
Near Bus Stand, Yellapur,
Uttara Kannada - 581359.
Rptd. By Vivek S. Hebbar,
Managing Director.
ACCUSED NO.2: Vivek S. Hebbar,
Aged about 33 years,
S/o Shivaram Mahabaleshwar
Hebbar, R/o Post Arbail, Taluk
Yellapur, Dist. Uttara Kannada.
[By learned Counsel Sri M.D.N.
Advocate)
2 C.C.No.1475/2015
JUDGMENT
This charge sheet submitted by Inspector of Police, C.B.I., E.O.W., Chennai, against the accused for the offence punishable under Sections under Section 120 B r/w 411 and 420 of Indian Penal code.
2. Brief fact of the prosecution case is that, accused No.1 Company was incorporated in 2007 under Companies Act. Its registered office situated at Yellapur, Uttara Kannada. The company has changed its registered office to Sampige Road, Malleshwaram, Bangalore. Accused No.1 company is registered with department of Commercial Taxes, under Karnataka Value Added Tax Act. Accused No.1 company is also maintained accounts with SBI, Yellapur as well as IDBI Bank Bangalore. Accused No.2 is Managing Director of accused No.1 Company and he is the authorized signatory for said accounts as per Board Resolution.
3. Accused No.1 company has exported 207091 MT of iron ore i.e. 137955 MT (fines) of iron ore and 69136 MT of iron ore (lumps) of different grades from Belekeri Port during 01.01.2009 to 31.05.2010. Accused No.1 company has exported such quantity of iron ore under six shipments vide 3 C.C.No.1475/2015 shipping bill No.14/09, dated 13.02.2009 for 18755 MT of iron ore (fines) of 63.5% Grade Fe, shipping bill No.18/09 dated 09.03.2009 for 47420 MT of iron ore (lumps) in bulk of 60% Grade Fe, shipping bill No.80/09 dated 11.11.2009 for 40950 MT of iron ore (fines) of 62% Grade Fe, shipping bill No.17/10 dated 12.01.2010 for 53750 MT of iron ore (fines) of 56% Grade Fe, shipping bill No.96/10 dated 15.03.2010 for 21716 MT of iron ore (lumps) of 63.5% Grade Fe for a total FOB value of RS.60,22,67.002/-.
4. Out of total export of 207091 MT of iron ore, accused No.1 procured (I) 149400 MT of iron ore from its own sister concern M/s Dream Logistic Company India Pvt. Ltd. on ex-plot basis at Belekeri. Out of the said quantity 90582.380 MT of iron ore is without valid permit. (II)12808 MT of iron ore from M/s J.S.R. Logistics on FOR basis, (III) 8334.680 MT of iron ore on ex-plot basis at Belekeri from M/s S.B. Logistics and (IV) 36542.950 MT of iron ore from M/s. Oriental Logistic Company on FOR basis at Belekeri.
5. During the course of investigation, it reveals that, M/s Oriental Logistic Company from which accused No.1 has procured iron ore declared in the monthly returns for March 4 C.C.No.1475/2015 2009 filed before the Department of Commercial Taxes, Hospet about the sale of 36542.950 MT of iron ore to accused No.1 against Form H. The said quantity was exported by accused No.1 from Karwar and Mangalore vide two shipments. It is also revealed that, M/s Oriental Logistics Company, purchased the said quantity of iron ore from M/s Vyshnavi Minerals under DMG Permit Nos.6294 and 6485 issued to M/s S.B. Minerals (ML.No.2515), M/s S.A. Minerals under DMG Permits No.1336 & 1381 issued to M/s Lakshminarasimha Mining Company Pvt. Ltd. (ML No.2566) and M/s Aditya Logistics under DMG permit No.1423 issued to Sri R. Praveen Chandra (E. Ramamurthy - ML No.2294). Hence, accused No.1 company did not have valid permit for 36542.950 MT of iron ore exported from Belekeri Port during 01.01.2009 to 31.05.2010. Thereby, accused No.1 company has received the above 36542.950 MT of iron ore fines which was stolen from the areas owned by Government of Karnataka.
6. During the period from 01.01.2009 to 31.05.2009 accused No.1 engaged M/s Shree Mallikarjuna Shipping Pvt. Ltd., a registered Stevedore Agent at Belekeri Port, to receive the iron ore at Belekeri Port and made arrangements for 5 C.C.No.1475/2015 export on behalf of accused No.1. During the course of preliminary enquiry conducted by CBI, ACB, Bangalore as per the order of Hon'ble Apex Court, declared that, accused No.2 purchased the iron ore from the above mentioned suppliers.
7. During the course of investigation it reveals that, the payment for the supply of 36542.950 MT of iron ore to M/s Oriental Logistics Company was made through C.A.No.618010200000222, Axis Bank Ltd., by M/s Dream Logistics Company India Pvt. Ltd, on behalf of accused No.1 company, accused No.2 was the Managing Director of both the companies. Procurement of 12808 MT iron ore from M/s J.S.R. Logistics, was transported to plot of M/s Dream Logistics Company India Pvt. Ltd, wherein the permit was meant for Karwar. Hence, the above procurement by accused No.1 attracts violation of destination from the permit and the same is being referred to the Department of Mines and Geology for appropriate action under MMDR Act.
8. Accused No.2 in the capacity of Managing Director of accused No.1 company entered into criminal conspiracy, dishonestly received/procured stolen iron ore 6 C.C.No.1475/2015 fines to the extent of 36542.950 MT illegally without any valid permit issued by Department of Mines and Geology and Forest Department. In furtherance of said criminal conspiracy accused No.2 cheated the department of Mines and Geology and Forest Department by evading the payment of royalty and Forest Development Tax for the illegally procured quantity of 36542.950 MT of iron ore Fines, thereby caused loss to the Government to the tune of Rs. 94,29,631.01. During the course of investigation, it is ascertained that, CBI, ACB, Bangalore registered a case in R.C.No.13/A/2012 on 13.09.2012 against M/s Dream Logistics Company India Pvt. Ltd., represented by its Directors, public servants and others alleging that, the accused persons entered into criminal conspiracy, procured/excavated iron ore illegally from various mines/forest areas, in Bellary and illegally transported the said iron ore to Belekeri Port for export purpose. After investigation, charge sheets were filed against M/s Dreams Logistics Company Pvt. Ltd., represented by its Managing Director Vivek S. Hebbar, Prakash Hegde, public Servants and Department of Mines and Geology and Forest Department and others, before CCH 47 for the offences 7 C.C.No.1475/2015 punishable under Section 120 B r/w 409, 420, 434, 447, 468, 471 of IPC and Sections 13 (2) r/w 13(1)(d) of P.C. Act. Hence accused No.1 and 2 has committed the offence punishable under Section 120 B r/w 411 and 420 of IPC.
9. After receipt of the charge sheet, this court gone through the documents and materials available on record and come to the conclusion that, there are sufficient materials to proceed against accused, hence this Court took cognizance against the accused for the alleged offences as stated in the charge sheet and registered the case in 3rd register and issued summons to the accused. After receipt of the summons accused appeared before the court through his counsels and filed the bail application under Sec.437 of Cr.P.C. It is objected by the prosecution, the Court has gone through both sides contentions of the bail application and objection, and passed necessary orders, accused enlarged on bail by executing self bond as well as surety, it is compiled by the accused. Copy of charge sheet served on accused under Section 207 of Cr.P.C. Thereafter, accused filed application under Section 239 of Cr.P.C. and seeking discharge him from this case. It is opposed by the prosecution by filing objection statement. After hearing on both sides, this Court passed 8 C.C.No.1475/2015 necessary orders, as the application filed by the accused person under Section 239 of Cr.P.C. is dismissed by this Court. Thereafter, this court framed the charge against the accused. The charges were read over and explained to the accused in the language known to him. He has pleaded not guilty and claims to be tried. Hence, the case posted for prosecution evidence.
10. In order to prove the case against the accused the prosecution examined PWs.1 to 23 and got marked documents at Ex.P.1 to Ex.P.89 and Ex.D.1. After closure of prosecution evidence, this Court recorded the statement of accused under Section 313 Cr.P.C, accused denied some portion of evidence and some portion he do not know the version of the prosecution witnesses and submitted no defence evidence. Therefore, the case is posted for arguments.
11. Heard the arguments on both sides.
12. Now, the points that arise for my consideration are as under -
1. Whether the prosecution proves beyond all reasonable doubt that, accused No.2 being Managing Director and authorized 9 C.C.No.1475/2015 signatory of accused No.1 Company, had procured sum quantity of 36,542.950 MT from M/s. Oriental Logistic Company on Ex-plot basis from Belekeri. The same was declared by the M/s. Oriental Logistic company in its monthly returns for the year March 2009 filed before Commercial Tax Dept. Hospet about the sale of the said iron ore to accused No.2 and accused No.2 has exported 36,542.950 MT of iron ore from Karwar and Mangalore port vide 2 shipments. Accused No.2 exported the same quantity of iron ore from Belekeri port during 01.01.09 to 31.05.10 without valid permits issued by the Dept. of Mines and Geology and Forest Dept. for exporting the said quantity of iron ore. Accused No2 has received the above qty of iron ore which was stolen one and procured by him illegally and accused No.2 cheated the Dept. of Mines and Geology by evading the payment of royalty and Forest Development Tax and caused wrongful loss to a tune of Rs.94,29,631.01/- to Government of Karnataka and gained wrongfully for himself and thereby accused has committed the offences punishable under Section 411 and 420 of IPC, within my cognizance.
2. What order?
13. My answers to the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per final order, for
the following reasons :
10 C.C.No.1475/2015
:REASONS:
14. POINT NO.1 : The Learned APP vehemently argued and submitted that, the accused No.2 has exported the iron ore about 36.542.95 MT in the name of accused No.1 Company from Belekeri Port to foreign country without any valid permit and he has not paid royalty to the Government. Same quantity of iron ore has exported from Karwar and Mangalore Port to the foreign country. He has caused wrongful loss to the Government. This fact has been stated by the prosecution witnesses P.W.2 to 9 as well as documents marked at Ex.P.1 to 89. All the customs officials deposed about the documents as well as quantity of the iron ore exported by the accused. The evidence of Port officials are also supported the case of the prosecution.
15. He further submits that, the star witness in this case is P.W.13. He has deposed about Form No.H marked at Ex.P.43. It is attested by the Assistant Commissioner of Commercial Tax, signature of Assistant Commissioner is identified and marked at Ex.P.43(a). The evidence of this witness as well as documents clearly noticed that, the accused has exported the iron ore about 36.542.95 MT from Belekeri Port to China without any valid permit and he has 11 C.C.No.1475/2015 not paid any royalty to the Government. The same quantity of iron ore has exported by the accused from Karwar and Mangalore Port vide two shipments. The evidence of this witness as well as documents corroborate with each other.
16. The customs officials are already deposed about export of iron ore by the accused as per Ex.P.4 to 9. The remaining witnesses i.e. Department of Mines and Geology as well as Bank officials and I.O. deposed about the export of iron ore as well as transactions made by the accused with the bank. The materials placed by the prosecution as well as oral testimony of prosecution witnesses are sufficient to hold that, the accused has committed the offence punishable under Section 411 and 420 of IPC.
17. The witness examined in this case as P.W.14 - General Manager of Dream Logistic Company is only supported the case of the accused as he was worked in the accused No.1 company.
18. The evidence of P.W.3 speaks about export of iron ore by the accused from Karwar, Mangalore and Belekeri Port to foreign country without any valid permit and he has not paid royalty to the Government. The accused contended that, 12 C.C.No.1475/2015 the evidence of P.W.13 is not supported the case of the prosecution. However, he has not examined proper person who has dealt with Form No.H. As such, the contention urged by the accused is not possible to believe by this Court. The ingredient of Section 411 and 420 of IPC proved by the prosecution beyond all reasonable doubt. Hence, accused may be convicted in the interest of justice and equity.
19. The learned counsel for the accused vehemently argued and submitted that, the prosecution has filed charge sheet against the accused for the offence punishable under Section 120 B, 411 and 420 of IPC. However, during the course of filing draft charge, the prosecution has left out the charge for the offence 120 B of IPC. He further submits that, the witnesses of prosecution P.W.1 to 23 are not supported the case of the prosecution. The prosecution witnesses during the course of cross-examination, they have admitted the contents of the documents as well this accused has not responsible to pay any royalty to the Government. The accused No.2 being trader of the iron ore, he has registered the accused No.1 company under the Companies Act. He has purchased the iron ore through lease holders, then he has exported the same through Ports. As such he is not 13 C.C.No.1475/2015 responsible to pay any royalty or other charges to the Government. He is liable to pay only customs charge, other port expenses etc. This fact is admitted by the prosecution witnesses during the course of evidence.
20. The star witness of the prosecution P.W.13 deposed that, he has worked as FDA in Commercials Tax Department. He has deposed about document marked at Ex.P.43. He has identified the contents of the documents as well as signature of the Assistant Commissioner. At the same time he was testified by the accused counsel. At that point of time, he deposed that, he has no personal knowledge about Ex.P.43. Annexed document at Ex.P.43 speaks that, OLC has supplied 36,542.950 in total on 2 dates i.e. 28.03.2009 and 30.03.2009. He further deposed that, he has not handled over the documents of OLC pertaining to Ex.P.40. CBI called VAT officer for investigation. He deputed him to go to the CBI office and submitted the documents. As such, the evidence of this witness is not possible to believe that, this accused person has exported the alleged materials without valid permit and not paid royalty to the Government as stated by the prosecution witnesses.
14 C.C.No.1475/2015
21. The other witnesses examined by the prosecution have also not deposed about the illegal act as well as accused has committed the offence as stated by the prosecution. The I.O. who has conducted the investigation and submitted the charge sheet in this case, categorically admitted that, though he has recorded the statement of witnesses as well as obtained the documents. However, he is not able to clarify the contents of the documents marked through prosecution witnesses at Ex.P.43. He further submits that, though this accused person was arrested in R.C. No.13/A/2012, the I.O. secured this accused person through body warrant. He has interrogated the accused, but he is not able to ask clarification about the contents of the documents marked at Ex.P.43. He further submits that, merely the P.W.22 filed the charge sheet against the accused, itself does not mean that, the accused has committed the offence as stated by the prosecution. The admission of the I.O. during the course of cross-examination itself noticed that, there was no fair investigation conducted by the I.O. The I.O. has submitted the alleged charge sheet against the accused on the say of higher officers. The entire charge sheet allegation as well as evidence of prosecution witness are clearly noticed that, this 15 C.C.No.1475/2015 accused is not responsible to pay any royalty to the Government. Inspite of it, in order to protect the CBI Officials, they have filed false charge sheet against the accused. Moreover, the accused person already arrayed as accused in R.C.No.13/A/2012. Inspite of it, again the CBI officials have filed another charge sheet against the accused. The entire evidence of prosecution witnesses and other documents are not made out the ingredient of Section 411 and 420 of IPC. Hence, accused may be acquitted in the interest of justice and equity. The learned counsel for accused has relied upon the decision reported in (2014) 7 SCC 716.
22. Now, I would like to discuss the evidence and documents as relied by the prosecution in this case. P.W.1- Geologist deposed that, CBI officers have enquired him and recorded his statement. They have shown some documents to him and examined him and marked, those documents are certified copies of mining lease deed No.2566 in the name of M. Chennakeshava Reddy. It is issued by the Director of Mines and Geology. It is issued to extract the iron ore in the survey No.64 and 109 of Kenkere and Lakkihalli village of Hosadurga Taluk, Chitradurga District. Thereafter, the said 16 C.C.No.1475/2015 mining lease transferred to M/s LakshmiNarasimha Mining Company. The lease holder has to pay royalty to the Government. He further deposed about the procedure of issuance of MDP. He further deposed that, as per Ex.P.1 lease holder has to pay royalty to the Government. He has also identified the permit No.1423/08-09 issued in favour of E. Ramamurthy and it is marked at Ex.P.2.
23. The evidence of this witness as well as documents Ex.P.1 and 2 clearly discloses that, at the initial stage one M.Chennakeshava Reddy has obtained lease deed from the Government for the period of 20 years w.e.f. 19.11.2007. Thereafter, it is transferred in the name of M/s LakshmiNarasima Mining Company. These 2 documents clearly noticed that, the M/s LakshmiNarasimha Mining Company is having lease holder license as well as obtained the MDP for extract the iron ore and export the same. The evidence of this witness as well as documents never speaks about the involvement of the accused in the present case. As such, I have made it clear here itself that, the evidence of this witness is not helped to the prosecution to prove the case against the accused.
17 C.C.No.1475/2015
24. Now, I would like to refer the evidence of P.W.2. He deposed that, he is working as Superintendent of Customs as well as incharge of Belikere port. He knows the procedure of export of the goods. The CBI Offices asked him to produce some documents pertaining to accused No.1 company. Accordingly he handed over documents as per receipt marked at Ex.P.3. The shipping bills submitted by the accused No.1 as well as other relevant documents are identified by this witness, those are marked at Ex.P.4 to 9. It is noticed that, on different date the accused No.1 company has exported the iron ore materials on different places and on different quantity. It is not disputed by the accused also.
25. This witness is testified by the accused counsel, at that point of time, he deposed that, as per Ex.P.4 to 9 it is true that, country of destination is China. As per Ex.P.4 to 9 consignee is different as shown in the shipping bills and destination is also different. The role of exporter is confined to filing of shipping bills through himself or CHA. Accused No.1 company is exporter, his role is very limited and he has no other responsibilities.
18 C.C.No.1475/2015
26. This evidence indicates that, though the accused No.1 Company has exported the iron ore materials as per shipping bills marked at Ex.P.4 to 9 through CHA, itself does not mean that, the accused has violated the Rules and Regulations of the Customs department. The customs department has scrutinized all the shipping bills as well as other relevant documents, after satisfying the payment of customs duty as well as other relevant charges, they have issued LET export order. As such, on the basis of this evidence, it is not possible to hold that, this accused has violated the procedure laid down by the customs department and he has exported the iron ore materials to the foreign country. As per documents Ex.P.4 to 9 - shipping bills, invoices, exchange control clearance, draught survey report, mate's receipt, port clearance certificate, port clearance of the customs, short shipment notice, test memo, note sheets etc. reveals that, accused No.1 company has exported the iron ore from Belikere port to China on different dates and on different quantity by following procedure laid down by the customs department. These documents clearly reveals that, the customs officials have gone through the documents submitted by the CHA on behalf of accused No.1 company 19 C.C.No.1475/2015 and they have verified the relevant documents and after satisfaction, they have issued LET export order. As such, in my opinion, all these documents and oral testimony of P.W.2 is not possible to believe that, accused has exported the iron ore by violating Rules and Regulations of Customs department. As such, the evidence of this witness is also not helpful to the prosecution to prove the case against the accused.
27. Now, I would like to refer the evidence of P.W.3. He deposed that, he is working as superintendent of central excise department at Belekere. He deposed the same set of facts as stated by the P.W.2. He has identified his signatures on all the relevant documents marked at Ex.P.4(a) to Ex.P.9(a). He further deposed that, after examination of the shipping bills, he has given LET export order. He further deposed about the quantity of the export materials as well as other relevant documents annexed along with shipping bills.
28. This witness is testified by the accused counsel, at that point of time, he deposed that, accused No.1 has paid export duty and export cess as per shipping bills. It is true that, whatever an exporter has to pay to the customs 20 C.C.No.1475/2015 department, he has paid. LET export order will not be passed if there is any infirmity or violation from the exporters. It is true that, a ship or vessel can sail only after the clearance of the LET export and also port clearance. In all the shipping bills, bills are in order. Therefore, they have issued LET export order.
29. The cross-examination of P.W.3 clearly indicates that, accused No.1 Company has complied the requisite provisions as contemplated under Customs Act and Port Rules. As such, in my opinion, the evidence of this witness is also not helpful to the prosecution to prove the case against the accused.
30. Now, I would like to refer the evidence of P.W.4. He deposed that, he is working as superintendent of Customs. As per request of CBI officers, he has submitted the documents as per Ex.P.12 and 13. He further deposed about the notifications issued by Government of India on different date and year. These notifications are marked at Ex.P.14 to 24. He further deposed about the shipping bill No.139/09 marked at Ex.P.25. He is also identified other relevant documents along with the shipping bills. These 21 C.C.No.1475/2015 documents are submitted by the CHA on behalf of accused No.1 company for export of 45,736 MT, but actual exported is 26,994 MT iron ore from Karwar port to China. He has assessed the said shipping bills and it is examined by Dinesh Revankar inspector. After payment of duty, they have given LET export order.
31. During the course of cross-examination by the accused counsel, he deposed that, accused No.1 has exported the iron ore through their port. The duty of the exporter is to submit the shipping bills. Thereafter, they checked the documents and issued LET export order. If the iron ore material grade is more than 64% they have to submit declaration certificate. Otherwise they will confiscate the goods. He further deposed that, as per export policy the contents of iron ore upto 64% is freely exportable materials. Before issuance of LET export order, goods have to come to customs notified area. Date of export is 14.02.2009 as per reverse side of Ex.P.25. It is not possible to export the cargo it is received in March 2009.
32. This evidence clearly noticed that, the accused has submitted the necessary documents, after going through 22 C.C.No.1475/2015 the said documents as well as payments of the duty, the customs superintendents has issued LET export order. Another point to be noted here is that, it is not possible to export the materials in the month of February which was received in March. As such, in my opinion, the oral testimony of this witness as well as documents marked at Ex.P.12 to 25, never reflected that, this accused has violated the Rules and Regulations of the Customs Act as well as Port Rules. He has exported the iron ore materials as per procedure. As such, the evidence of this witness is also not helpful to the prosecution.
33. Now, I would like to refer the evidence of P.W.5 to
9. These witnesses are the official witnesses of central excise and customs department. They have deposed about the duty as well as examining the shipping bills and they have identified the documents marked at Ex.P.4 to 25 as well as their respective signatures on all these documents.
34. During the course of cross-examination by the accused counsel, P.W.5 deposed that, during his tenure accused No.1 company has carried out major exports through their port. As per his knowledge accused No.1 23 C.C.No.1475/2015 company has carried out export business as per procedure prescribed under Law. P.W.6 is also deposed the same set of facts. He further deposed that, a cargo that is purchased on 28.03.2009 and 30.03.2009 can be exported subsequently only and not prior. This evidence indicates that, whenever cargo reached to the Port yard then only the customs and port officials are verifying the documents and after satisfaction of the payment of customs duty and other charge, they have issued LET export order. As such, it is not proper to say that, without receiving the cargo, the customs or port officers have issued any LET export order.
35. P.W.9 is the retired Assistant Commissioner of customs department. He identified the documents marked through P.W.2 as well as signature. During the course of cross-examination, he deposed that, after satisfaction he has given the approval. AS per Ex.P.4, 6 to 8 are finally assessed by him and Ex.P.9 was approved by him.
36. The evidence of P.W.8 and 9 discloses the similar facts as stated by the P.W.5 to 7. On the basis of evidence of these witnesses, one thing is clear that, all the official witnesses deposed about the export of the iron ore by the 24 C.C.No.1475/2015 accused No.1 company as well as accused No.1 company has paid customs duty and other charges as imposed by the customs department. As such, in my opinion, the evidence of these witnesses clearly indicates that, the accused has never tried to violate any Rules as contemplated under Law. As per the oral testimony of these witnesses as well as documents, one thing is clear that, the prosecution is not able to elicit any thing to believe the case of the prosecution.
37. Now, I would like to refer the evidence of P.W.10. He deposed that, he was working as Deputy Port Conservator at Belekere Port. He collected all the revenues pertaining to vessels and other port related charges. CBI officers asked him to submit some documents, accordingly, he submitted the notification marked at Ex.P.26. It speaks about the revenues to be imposed upon export goods including iron ores. The document which is marked through this witness is not visible to read, hence the Court directed to produce another legible copy. However, it is not produced by the prosecution. Another notification marked through this witness marked as Ex.P.27, receipt memo marked as Ex.P.28.
25 C.C.No.1475/2015
38. This witness is testified by the accused counsel, at that point of time, he deposed that, they have checked all the relevant documents submitted by the exporter and recover the dues, then they will issue clearance certificate which is known as No Due Certificate.
39. P.W.11 - Deputy Port Conservator is also deposed the same set of facts as stated by P.W.10 and some other export applications submitted by M/s Mallikarjuna Shipping Pvt. Ltd. along with relevant documents marked at Ex.P.29 to
34. This evidence indicates that, it is not possible to connect to the accused in this case. He has deposed about the documents submitted by M/s Mallikarjuna Shipping Pvt. Ltd. The same is not connected to the present case. As such, the evidence of this witness is not proper to discuss in detail.
40. Now, I would like to refer the evidence of P.W.12. She deposed that, as per the request of CBI officers, she has submitted some documents pertaining to accused No.1 company, which was certificate of incorporation of accused No.1 company, MOA and AOA, Form No.18 and 32 marked at Ex.P.35 to 38. The oral testimony of this witness as well as documents reveals that, accused No.1 company has 26 C.C.No.1475/2015 registered under Companies Act. Except this, nothing has been stated by this witness. Moreover, it is not disputed by the accused. Hence, evidence of this witness is not proper to discuss in detail.
41. Now, I would like to refer the evidence of P.W.13. He deposed that, he has handed over the document to CBI as per covering letter, it is marked as Ex.P.39. He has identified the signature of Assistant Commissioner of Commercial tax, it is marked as Ex.P.39(a). He is also identified VAT Form No.1 and the signature of the Assistant Commissioner of Commercial tax. He is also identified the monthly returns i.e. January 2009 to March 2009 submitted by the Oriental Logistic Company. It is attested by the Assistant Commissioner of Commercial tax. He is also identified the covering letter submitted by C.W.16, it is attested by the Assistant Commissioner of Commercial tax, Form No.H along with enclosures, it is attested by the Assistant Commissioner of Commercial tax, covering letter submitted by C.W.16 along with form No.H and other enclosures, it is attested by the Assistant Commissioner of Commercial tax marked at Ex.P.40 to 44. He is also identified the documents of Oriental Logistic Company, local turn over and inter state turn over in 27 C.C.No.1475/2015 the month of January 2009 to March 2009. As per Oriental Logistic Company's documents, the said company has supplied 36,542.950 MT of iron ore to accused No.1 company. On the basis of the said document is not possible to say from which port Oriental Logistic Company has supplied the materials to accused No.1 company. Later he deposed that, he do not have any idea from which port, Oriental Logistic Company has supplied the materials to accused No.1 Company. He does not know who submitted the bill of lading form in their office.
42. This witness is testified by the accused counsel. At that point of time, he deposed that, he is not having any personal knowledge about Ex.P.43. Annexed document at Ex.P.43 speaks that, Oriental Logistic Company has supplied 36,542.950 in total on 2 dates i.e. 28.03.2009 and 30.03.2009. Assistant Commissioner Veerendra Kumar is in service, even today also he is in the said post at Hospet. LVO means local vat office. He is not having any personal knowledge about other annexed documents. He do not have any idea about the dates and quantity mentioned in Sl.No.5 and 6 of Form No.H marked at Ex.P.43. Their higher officers have directed to submit the documents to CBI, accordingly 28 C.C.No.1475/2015 he submitted the same. He has not handled over the documents of Oriental Logistic Company pertaining to Ex.P.40. He was deputed to go to the CBI office and accordingly he went to the CBI Office.
43. The oral testimony of this witness as well as documents reveals that, he has deposed on the basis of the documents. Moreover, he is not author of the documents. As per instructions of Assistant Commissioner of Commercial tax, he has submitted all these documents before the CBI. The Assistant Commissioner of Commercial tax, is the best person to say about the contents of the documents marked through this witness at Ex.P.39 to 43. Once this person is not able to speak about the contents of the documents as well as he was not dealt with the documents, he is not possible to say about the correctness of the documents. As per the document Ex.P.43, it is noticed that, the Oriental Logistic Company has supplied materials about 36,542.950 MT to the accused No.1 company on 28.03.2009 and 30.03.2009. It is also admitted by the accused during the course of trial.
44. The case of the prosecution is that, this accused with an intention to cheat the Government, he has exported 29 C.C.No.1475/2015 the iron ore about 36.542.950 MT from Karwar and Mangalore Port as well as he has exported the same quantity through Belekere port without payment of royalty and other taxes to the Government. It is also case of the prosecution is that, the contents of the documents marked at Ex.P.43 reveals that, the Oriental Logistic Company has submitted monthly returns in the month of January 2009 to March 2009, he has supplied the said materials to accused No.1 company as per Form No.H submitted by the accused No.1.
45. Now, I would like to gone through the documents marked through this witness Ex.P.39 to 43. As per the case of the prosecution Ex.P.43 is the material documents. This document reflected that, the accused No.1 company has submitted Form No.H to the Assistant Commissioner of LOV- 370, Sirsi. Wherein, it is mentioned details about iron ore fine exported from Karwar and Mangalore Port dated 24.02.2009 and 31.01.2009. The quantity of the iron ore is mentioned as 36,542.950 MT. It is no doubt, as per this document as well as annexed along with Ex.P.43, noticed that, as per bill No.40, 43 and 44 dated 28.03.2009 and 30.03.2009 the Oriental Logistic Company has supplied the materials to accused No.1 Company about 36,542.950 MT. It 30 C.C.No.1475/2015 is rightly pointed out by the accused counsel that, this format is submitted by the staff of the accused No.1 Company. Accused No.2 being the Managing Director, he has put the signature on the documents. Therefore, it is not possible to hold that, the material which was exported by the accused from Belekere port subsequent to the date as mentioned in the annexure Ex.P.43.
46. Another witness P.W.15 - examined by the prosecution clearly stated that, any mistakes crept in the Form No.H, commercial department has asked the proprietor of the company to clarify the same. But in the present case, as per material documents as well as oral testimony of this witness, it is noticed that, the material which was exported by the accused date mentioned in Ex.P.43, it is not possible to export the same. Because as per other available documents on record Ex.P.42 noticed that, P.W.15 submitted the letter as per Ex.P.42 along with Ex.P.43. He is working as one of the proprietor of the Oriental Logistic Company and he was looking after the account section of the company. He has stated about the quantity of iron ore supplied to the accused No.1 company. Those materials was purchased by Oriental Logistic Company from Vaishnavi Minerals Company as well 31 C.C.No.1475/2015 as S.A. Minerals company and supplied to the Accused No.1 Company. He further stated that, they had valid permits to supply the same to the accused No.1. They have supplied the materials from the Belekerei port.
47. In the cross-examination, he deposed that, the material has to be exported after March 2009. It is not possible to export through some other port prior to March 2009. It is true that, the there can be some typographical or writing errors in the Form No.H. If the department comes to know the mistakes in the Form, they asked to rectify the same, accordingly accused No.1 company has correct it.
48. The evidence of P.W.15 falsifies the documents as well as oral testimony of P.W.13. Though, the P.W.13 is not direct witness as well as he was not author of the document to depose about the correctness of the document. He has deposed as a commercial inspector on the say of the Assist Commissioner. It seems that, the P.W.13 is a hear say witness. He is not proper person to depose about the correctness of the documents. Further more, he has admitted during course of the evidence that, Ex.P.43 speaks that, Oriental Logistic Company has supplied 36,542.950 MT on 32 C.C.No.1475/2015 two dates i.e. 28.03.2009 and 30.03.2009. In view of the evidence of P.W.13 and 15, I would like to make it clear that, the materials which was covered under Ex.P.43 is not possible to export the iron ore prior to the date mentioned in the shipping bills. It is also admitted by the I.O. during the course of evidence that, the P.W.15 is the author of Ex.P42 deposed about the contents of the documents as well as valid permit etc. As such, in my opinion, though the prosecution relied upon the evidence of P.W.13 as well as he is star witness of the prosecution. However, the oral testimony of the P.W.13 noticed that, he is not proper person to clarify the contents of the documents as well as he is not competent person to depose about the Form No.H. On the say of hear say witness it is not possible to attach any value to the evidence of P.W.13 as well as Ex.P.43.
49. On the other hand, the prosecution is not able to furnish any documents to show that, in two shipments accused has exported same quantity of iron ore from Karwar and Mangalore Port. Merely any mistake crept in the Form No.H itself does not mean that, the accused has exported the same quantity of iron ore from Karwar, Mangalore and Belekere Port. As per the say of the prosecution witnesses, 33 C.C.No.1475/2015 one thing is clear that, the quantity of material which was disputed by the prosecution to export foreign country by the accused is merely about 36,542.950 MT. However, the remaining total quantity of iron ore has supplied by the sister concerns of the accused No.1 company was exported by accused No.1 through Belekere port. It is not disputed by the prosecution in the charge sheet as well as evidence. Thus, I come to the conclusion that, the entire evidence of P.W.13 is not possible to hold that, the accused has intentionally in order to cheat the Government, he has exported the iron ore without paying any customs duty or other charges to the Government. Moreover, as per MMDR Act, the lease holder who has extracted the iron ore from the mining area has to obtain MDP from the Government and supplied the materials to the traders. In the present case, accused No.2 being the trader of the iron ore, he has purchased the same from other mines owners. As per Ex.P.43, Oriental Logistic Company has supplied these materials through shipments dated 28.03.2009 and 30.03.2009. Such being the case, it is not possible to export the said materials prior to 28.03.2009 and 30.03.2009. This fact is also admitted by the prosecution 34 C.C.No.1475/2015 witnesses. Thus, the evidence of P.W.13 is not helpful to the prosecution in order to prove the offence against the accused.
50. P.W.14 deposed that, he was working as General Manager of Dream Logistics Company. As per Ex.P.45 Dream Logistic Company has supplied 1,49,400 MT of iron ore to accused No.1 Company at Belekere Port. Dream Logistics Company has obtained DMG permit for the supply of iron ore 58,817.74 MT and remaining quantity of iron ore is already covered in R.C.No.13(A)/2012. He has also identified the letters correspondence with MDP at Ex.P.45 and 46 and identified the signature of the concern persons.
51. During the course of cross-examination, he deposed that, Dream Logistics Company has supplied iron ore quantity of 36,542.950 to accused No.1 company as per 3 invoices dated 28.03.2009 and 30.03.2009. There were valid permits issued by Oriental Logistic Company which were inturn given to them by their respective suppliers. After 30.03.2009 only the quantity of 36,542.950 purchased from Oriental Logistic Company has been exported from Belekere port. It is not possible to export the same quantity of iron ore in the month of January and February 2009 from Mangalore 35 C.C.No.1475/2015 and Karwar Port respectively. There are instances any mistakes crept in Form No.H, it is noticed by the department and instructed them to correct the same and they have done it.
52. The evidence of this witness is also supported the case of the accused. As I have already discussed the evidence of P.W.12, 13 and 15 and come to the conclusion that, prior to 28.03.2009 and 30.03.2009, it is not possible for the accused to export the above said quantity of materials to the foreign countries.
53. P.W.16 - deposed that, he has worked as clerk in Vysnavi Minerals at Hospet. He identified the covering letter addressed to the CBI as well as receipt memo, DGM permit, taxes, invoices, form, etc. from Ex.P.51 to 52. As per Ex.P.52 Vyshnavi Minerals has purchased iron ore from Ram Gopal Minerals and supplied to Dream Logistics Company, Vysnavi Minerals has supplied total quantity 1,40,734.16 MT. Entire quantity of iron ore was purchased from Ram Gopal Minerals at Hospet.
54. This witness is also testified by the accused counsel. At that point of time, he deposed that, it is true that, 36 C.C.No.1475/2015 what ever quantity of iron ore was supplied to Oriental Logistic Company by them was having valid permits. There are valid permits in respect of materials supplied by them to Oriental Logistic Company. They have supplied iron ore to Dream Logistics Company which also had valid permits.
55. The evidence of this witness also noticed that, they have supplied iron ore to the Dream Logistics Company as per valid permits. Hence, the evidence of this witness is also not helpful to the prosecution to prove the case against the accused.
56. P.W.17 is one of the chief executive officer of LakshmiNarasimha Mining Company. He deposed that, at the request of CBI officials, he has submitted covering letter, authorization letter, receipt memo etc. marked at Ex.P.53 to
55. As per the evidence of this witness, it is noticed that, LakshmiNarasimha company has obtained the lease holder license from the Government. As per lease hold license, he has extracted the iron ore and supplied and transported the same to the traders. This evidence is also not helpful to the prosecution to prove the case against the accused. 37 C.C.No.1475/2015
57. P.W.18 deposed that, he was proprietor of S.A. Minerals. As per request of the CBI Officers, he has submitted some documents marked at Ex.P.56 and 59. These documents noticed that, they have purchased iron ore from Trans India Shipping Services Pvt. Ltd and sold to Oriental Logistic Company marked at Ex.P.57. Cash bills of S.A. Minerals for selling iron ore to Oriental Logistic Company marked at Ex.P.58. Tax invoices for purchase of materials from Trans India Shipping Services Pvt. Ltd. marked at Ex.P.59. Bank Statement of account of S.A. Minerals marked at Ex.P.60. Letter dated 21.07.2014 marked at Ex.P.61. VAT details and connected document marked at Ex.P.62.
58. The evidence of this witness is not connected to the case. Moreover, it is not proper to discuss in detail. On evidence of this witness, one thing is noticed that, they have supplied iron ore to Oriental Logistic Company, he had valid permit. This fact was made it clear by the I.O. at the time of investigation. As such, in my opinion, the evidence of this witness is also not helpful to the case of the prosecution.
59. P.W.19 - Retire DDMG deposed about procedural aspects and issuance of mining lease etc. After clearance of 38 C.C.No.1475/2015 the documents, they have issued mining lease to concerned person. Then they have issued grant notification in the DMG with the prior permission from the Ministry of Mines under Section 5 of MMDR Act. On the evidence of this witness, this Court feels that, it is not proper to discuss in detail as he has deposed about procedural law, obtaining lease holder license by the private person from Government. He never speaks any allegation against the accused as well as the permit which was already marked at Ex.P.1 and 2 are not obtained as per Rules and procedures.
60. P.W.20 - Assistant General Manger, IDBI Bank, deposed that, he has handed over some documents pertaining to accused No.1 company, i.e. account extract certified copy of statement of account and certificate issued under Section 2(A) of Banker Act etc marked at Ex.P.63 to
76. This witness is testified by the accused counsel. At that point of time, he deposed that, it is true that, no certificate is issued regarding screen shot document under Section 65 (b) of Evidence Act. Merely submitting the documents on the say of CBI officers, itself does not mean that, these documents are genuine documents as well as it is proved the prosecution case in accordance with law.
39 C.C.No.1475/2015
61. Now, I would like to refer Section 65(b) of Evidence Act. Wherein it is clearly mentioned that -
"When the existence, condition or contents of the original have been proved to be admitted in writing by the person against who it is proved or by his representative in interest".
The essential ingredients are not fulfilled by the prosecution. As such, the evidence of this witness is also not supported the case of the prosecution.
62. Now, I would like to refer the evidence of P.W.21. He was working as Senior Manager in Axis Bank. He deposed that, as per the request of CBI, he has submitted some documents i.e. account extract of Dream Logistic Company, certified copy of statement of account of Dream Logistic Company, certificate issued under Section 2(A) of Banker Act etc. which are marked at Ex.P.77 to 80.
63. This witness is testified by the accused counsel. At that point of time, he deposed about the transactions of Dream Logistic Company with the Axis Bank. There are so many transactions made by Dream Logistic Company with the Axis Bank as well as transferred the amount to other accounts as well as received the amount from other 40 C.C.No.1475/2015 customers etc. This is not disputed by the accused. Moreover, the documents which are marked through this witness are not issued certificate under Section 65(b) of Evidence Act. As such, in my opinion, the documents as well as oral testimony of this witness is not proper to discuss in detail, as this witness deposed about transactions of Dream Logistic Company. It is nowhere connected to this case. Hence, the evidence of this witness is also not helpful to the prosecution.
64. Now, I would like to refer the evidence of P.W.22. He was working as P.I. CBI. He took up the investigation. As per the instructions of higher officer, he has collected the documents and recorded the statements of witnesses which are marked as exhibits in this case. After completion of investigation, he has filed charge sheet against the accused. FIR and some of the documents pertaining to this case are marked as Ex.P.81 to 84.
65. This witness is testified by the accused counsel. At that point of time, he deposed that, the final report was signed by the Addl. S.P. on 14.01.2015. He has used the seal of S.P., marked as Ex.D.1. He has made further admission 41 C.C.No.1475/2015 that, he has not cited Addl.S.P. S.B. Shankar as witness who is put signature on the charge sheet. On the date of filing final report C.W.25 who was the S.P. might be on leave, therefore he obtained signature of Addl.S.P. He further deposed that, it is not possible to file the same charge sheet in 2 Courts. He has not cited the Assistant Commissioner of Commercial tax LVO-500 as witness in this case. Investigation includes interrogation of the accused also. It is true that, as per CBI manual, if there is any doubt about the document, it can be clarified from the accused. He has not made any clarification regarding Ex.P.43 from the accused. Remaining suggestions were denied by this witness.
66. Now, I would like to refer the evidence of P.W.23 who is owner of M/s Aditya Logistic Company. He deposed about the documents submitted to the CBI as well as which are marked through this witness as Ex.P.85 to 89. The evidence of this witness is not proper to discuss in detail, as he was trader of iron ore, he has purchased the iron ore from the different traders and supplied the same to the other traders. He has also maintained the account in the Axis Bank. The evidence of this witness is also not helpful to the prosecution to prove the guilt of the accused. 42 C.C.No.1475/2015
67. I have gone through the entire evidence of prosecution witnesses as well as documents. The case of the prosecution is that, the accused has obtained stolen property as well as with an intention to cheat the Government, he has exported the iron ore materials about 36,542.590 MT without paying the royalty and other charges etc. It is further case of the prosecution is that, the accused has exported the said iron ore materials through Karwar and Mangalore port as well as Belekere port without paying the royalty and other charges. It is specifically alleged in the charge sheet that, the accused has obtained stolen property as well as with an intention to cheat the Government, he has exported the iron ore material. In order to substantiate the said allegation, the prosecution has examined P.W.1 to 23 as well as got marked documents at Ex.P.1 to 89.
68. On going through the entire materials, one thing is clear that, the accused is exporter of iron ore materials, he has purchased the iron ore materials from other lease holders. Therefore he has submitted the shipping bills and exported the said materials by paying the necessary charges as prescribed by the customs and port department. On the evidence of prosecution, it is not possible to make out any 43 C.C.No.1475/2015 case that, the accused has procured stolen property with an intention to cheat the Government. None of the prosecution witnesses deposed about the intention of the accused as well as he has obtained stolen property from other mines owners.
69. The prosecution has relied upon the material documents in this case marked at Ex.P.4 to 9 as well as Ex.P.43. I have gone through those material documents as well as oral testimony of the official witnesses. The official witnesses have categorically speaks about shipping bills and other relevant documents annexed by the accused at the time of submitting necessary documents for the export of iron ore material. The officials of customs department have scrutinized all the documents submitted by the accused. After satisfaction, they have issued LET export order. It seems that, the accused has never tried to export the iron ore without payment of any duty imposed by the customs and port department. At the same time, the document marked at Ex.P.4 to 9 - shipping bills and relevant documents discloses that, the accused has exported so many quantities of iron ore to the foreign country by paying necessary requisite customs duty as well as port charges etc. The documents which are submitted by the accused at the time of exporting iron ore 44 C.C.No.1475/2015 materials, the same is checked and satisfied by the customs and port department. Then they have issued LET export order. It seems that, the accused has never tried to escape any liability for payment of customs duty or other port charges etc.
70. At the same time, the prosecution made another allegation that, the accused himself has submitted Form No.H before the commercial department and mentioned quantity of iron ore material which was exported from Karwar and Mangalore port about 36.542.950 MT. The same quantity of iron ore material was exported by the accused from the Belekere port also without payment of royalty and other cess duty etc. In order to find out the said illegal export of iron ore from the accused, the prosecution has relied upon the document marked at Ex.P.43. Though it is submitted by the accused, it is mentioned as the iron ore material was exported from Karwar and Mangalore port. However, as per the evidence of prosecution witnesses, one thing is clear that, the material which was exported by the accused from the Belekere port, it is purchased by the accused from the Oriental Logistic Company on 28.03.2009 and 30.03.2009. As such, it is not possible to believe that, the same quantity 45 C.C.No.1475/2015 of iron ore is exported by the accused in the month of February as stated by the prosecution as per Ex.P.43.
71. In order to substantiate the said allegation, the prosecution is not able to find out the material documents as two shipments accused tried to export the iron ore from Karwar and Mangalore port. Though, there is a specific allegation made by the prosecution against the accused that, as he was committed the offence under Section 411 and 420 of IPC. In order to substantiate the said allegation, it is duty of the prosecution to furnish relevant documents as well as evidence to show that, the accused in order to cheat the Government, he has exported the iron ore materials without payment of royalty and other charges. At this stage itself, I made it clear that, the prosecution is admitted that, the accused being trader of the iron ore business. Such being the case, he has to be purchased the iron ore from some other mines owners. Thereafter, he has exported the same to the foreign country.
72. As per the MMDR Act as well as recent decision of our own Hon'ble High Court of Karnataka, "the person who has extract the iron ore from the mining, he has to pay the 46 C.C.No.1475/2015 royalty to the Government as well as he has obtained MDP. The trader who is purchaser of the iron ore from the other mines owner, he has no responsibility to pay any royalty or other charges, but he has to pay the customs charges as well as port charges in accordance with law". It is complied by the present accused as per the evidence of prosecution witnesses.
73. It is further noticed that, in the charge sheet allegation, the prosecution has made allegation that, the accused has exported the iron ore sum of quantity 36,542.950 MT of iron ore was procured from Oriental Logistic Company on explot basis from Belekere port, Form No.H was duly submitted to the Commercial Department. The same quantity of iron ore was exported by the accused in two shipments. Again, he has exported the same quantity of iron ore from Belekere port from 01.01.2009 to 31.05.2010. In fact, he has no valid permit issued by the department of Mines and Geology and Forest Department for exporting the said quantity of iron ore. This fact never deposed by the prosecution witnesses during the course of evidence. None of the prosecution witnesses deposed that, the said quantity of iron ore material was exported by the accused without 47 C.C.No.1475/2015 payment of customs duty or port charges etc. It is pertinent to note that, without valid permits by department of Mines and Geology and Forest department, it is never permitted to export the iron ore materials from the lease holders. In the present case, the accused being the trader of iron ore business, he has procured the iron ore material from Oriental Logistic Company and he has exported the same to the foreign country. The allegations which are emerged in the charge sheet as well as evidence of prosecution witnesses are not connected with each other.
74. In every criminal case, it is duty of the prosecution to prove the allegation beyond all reasonable doubt. In the present case, the allegation made by the prosecution is that, this accused was exported the quantity of iron ore materials about 36.542.950 MT from Karwar and Mangalore port as well as Belekere Port without paying the royalty and other charges. On this point, the official witnesses are the best persons to depose about the payment of customs and port duty and other royalty etc. None of the official witnesses or independent witnesses deposed that, this accused has procured the stolen property and tried to cheat the Government. The prosecution has examined so many 48 C.C.No.1475/2015 witnesses and got marked so many documents to prove the guilt of the accused. However, these documents as well as oral testimony of the prosecution witnesses, never disclosed that, the accused with an intention to cheat the Government, he has obtained stolen property from the Oriental Logistic Company and tried to export the same.
75. The person who has supplied the iron ore materials to accused No.1 company, examined in this case, as P.W.15. He deposed that, Oriental Logistic Company has supplied the iron ore materials to the accused No.1 company by obtaining valid permits as well as Oriental Logistic Company has purchased the said materials from Vaishnavi Minerals. The prosecution has never tried to say that, the Oriental Logistic Company has not having any valid permit or license to supply the iron ore materials to accused No.1 company. As such, in my opinion, the accused has purchased the said quantity of iron ore materials from the Oriental Logistic Company. Later on, he exported the same by paying customs and other charges. Then, the question does not arise to pay royalty or other charges to the Government,. It is duty of the person who has excavated the iron ore from the Government land as well as he has 49 C.C.No.1475/2015 obtained MDP to supply the materials to the other traders. In this case, the Oriental Logistic Company as well as Vaishnavi Minerals are having valid permits to supply the above said quantity of iron ore materials to accused No.1 company. As such, in my opinion, the entire evidence of the prosecution witnesses as well as materials available on record, does not discloses that, this accused person at the inception stage itself, having intention to cheat the Government, he has procured the stolen property and tried to export the same.
76. Moreover, the I.O., who has conducted the investigation and submitted the charge sheet, deposed about the statements of the witnesses as well as collecting documents. At the time of cross-examination by the accused counsel, he deposed about the ignorance of shipping bills as well as he has not able to cite the Assistant Commissioner of Commercial Tax, as witness to the prosecution case. He further admitted that, investigation includes interrogation of the accused also. The material document marked at Ex.P.43 is the important document on the side of the prosecution. There was some mistakes in the said document. It is elicited by the accused counsel at the time of cross-examination of prosecution witnesses. The prosecution witnesses are 50 C.C.No.1475/2015 categorically admitted that, there might be some mistakes in the Form No.H submitted by the accused to the commercial department. It come to the knowledge of department, they directed the person who has submitted Form No.H to clarify it. In the present case, I.O., has not made any clarification about Ex.P.43 from the accused. Though accused is available with the I.O. for interrogation, he never asked the accused. The contents of the documents as mentioned in Ex.P.43. As such, I come to the conclusion that, the admission given by the I.O. clearly noticed that, he has not tried to made fair investigation as well as he is not able to speak any clarification regarding Ex.P.43 from the accused.
77. Moreover, the prosecution examined some other witnesses in order to support the case of the prosecution. However, the evidence of said witnesses is not material to discuss in detail. The evidence of those persons is also not helpful to the prosecution to prove the guilt of the accused beyond all reasonable doubt. There are so many lacunas as well as improvements in the evidence of prosecution witnesses. At the same time, in order to prove the charge sheet allegation against the accused, the prosecution has examined so many witnesses and got marked Ex.P.1 to 89. 51 C.C.No.1475/2015 However, the material witnesses examined by the prosecution, has given admissions during the course of evidence. It indicates that, this accused person has made the payment of customs duty, port charges etc. Thereafter, the customs and port department has issued LET export order. As per the documents as well oral testimony of the prosecution witnesses, one thing is clear that, the ingredient of Section 411 and 420 of IPC is not made out by the prosecution from the mouth of prosecution witnesses. None of the prosecution witnesses are able to depose before this Court that, this accused person has procured stolen property from other mines owners as well as he has tried to export the same by cheating the Government. The I.O. who has conducted the investigation in this case is not able to make any efforts to collect the relevant materials as well as evidence, as this accused has committed the alleged offence. In view of admissions of prosecution witnesses as well material available on record, I come to the conclusion that, the materials which are placed by the prosecution are not sufficient to prove the guilt of the accused beyond all reasonable doubt.
52 C.C.No.1475/2015
78. The learned counsel for the accused draw the attention of this Court as the CBI has filed one more charge sheet against this accused in R.C.No.13(A)/2012 before Hon'ble District and Sessions Court on the same ground. It is admitted by the P.W.22 that, it is not proper to submit two charge sheets against the same accused in different Courts. It is not in dispute that, accused No.2 is in the judicial custody in R.C.No.13(A)/2012 more than 60 days. Later on accused released by Hon'ble District and Sessions Court u/Section 167 (a) (ii) of Cr.P.C. It is not disputed by the prosecution.
79. Now, I would like to refer the decisions relied by the accused counsel. I have gone through the said decision. The facts which are discussed in the above respected judgments as well as the facts and circumstances of the present case, are one and the same. As such, the decision relied by the accused counsel is not applicable to the facts and circumstances of the present case on hand.
80. On going through the entire evidence and documents, I come to the conclusion that, the materials placed by the prosecution are not made out any case against 53 C.C.No.1475/2015 the accused to prove the ingredient of Section 411 and 420 of IPC. As such, I answer the above point No.1 in the Negative.
81. Point No.3 : In view of the foregoing reasons and in the result, I proceed to pass the following order.
ORDER Acting under Section 248(1) Cr.P.C accused No.1 and 2 found not guilty for the offence punishable under Sections 411 and 420 of Indian Penal Code and accused No.1 and 2 are acquitted for the above offence.
The bail bond of the accused No.1 and 2 and surety bond stands cancelled.
[Dictated to the Stenographer, transcribed by her, transcript corrected, signed and pronounced by me in the open Court, this the 10th day of December, 2015] [SABAPPA] XVII Addl.Chief Metropolitan Magistrate, Bangalore.
-: ANNEXURE :-
I. List of witnesses examined for the prosecution :-
P.W.1 : Yuvaraj D. P.W.2 : Rajesh G. Pawar 54 C.C.No.1475/2015 P.W.3 : Chandrashekar Bhat P.W.4 : Ravi Shankar G. Gonkar P.W.5 : A.L.Indurkar P.W.6 : S.A. D'souza P.W.7 : S.B.Samant P.W.8 : T.S.Tendulkar P.W.9 : A. Nagamohan P.W.10: Arun A. Pawar P.W.11: Mahesh Jaiwant Biliya P.W.12: R. Komala P.W.13: Md. Faridali P.W.14: M.G. Hegde P.W.15: Prabhakar Devadiga P.W.16: B. Vishwanath P.W.17: Venkata Ram Reddy P.W.18 : Md. Suhail P.W.19 : N.M.Udaya Shankar P.W.20 : C. Pradeep P.W.21 : Indu Shekar N.G. P.W.22 : D. Chandrashekaran P.W.23 : Ganesh Hanumanth Rao Kulkarni 55 C.C.No.1475/2015 II. List of witnesses examined for the defence :- -NIL-
III. Documents exhibited on behalf of the prosecution:
Ex.P.1 : Certified copy of Mining Lease Deed Ex.P.1(a) : Proceedings of Forest Department Ex.P.1(b) : Proceeding of Govt. of Karnataka Ex.P.1(c) : Statement of minerals dispatch permit Ex.P.1(d) & (e) : Permits Ex.P.2 : Permit bearing No.1423 Ex.P.3 to 9 : Shipping Bills Ex.P.3(a) to 9(a) : Signature of P.W.3 Ex.P.10 : Memo Ex.P.10(a) : Signature of P.W.2 Ex.P.11 : Cargo declaration forms Ex.P.12 : Receipt memo dated 18.12.2013 Ex.P.12(a) : Signature of P.W.4 Ex.P.13 : Extract copy of customs manual Ex.P.14 to 24 : Notifications Ex.P.25 : Shipping bill Ex.P.25(a) : Signature of P.W.4 Ex.P.26 & 27 : Notifications Ex.P.28 : Receipt memo Ex.P.28(a) : Signature of P.W.10 Ex.P.29 to 32 : Export applications filed by Mallikarjuna Shipping Pvt. Ltd.
Ex.P.29(a) to 32 (a) Signature of P.W.11 56 C.C.No.1475/2015 Ex.P.33 : Statement of A1 exporting iron ore Ex.P.34 : Covering Letter Ex.P.35 : Covering Letter dated 31.07.2014 Ex.P.35(a) : Signature of Registrar of Companies Ex.P.36 : Certificate of Incorporation of A1 Ex.P.37 : Form No.1 with MOA & AoA Ex.P.38 : Form No.18 & 32 Ex.P.39 : Covering Letter Ex.P.39(a) : Signature of Asst. Commnr of Commercial Tax Ex.P.40 : Form Vat No.1 Ex.p.40(a) : Signature of Asst. Commnr. of Commercial Tax Ex.P.41 : Monthly Returns submitted by OLC Ex.P.41(a) : Signature of Asst. Commnr. of Commercial Tax Ex.P.42 : Covering letters Ex.P.42(a) : Signature of Asst. Commnr. of Commercial Tax Ex.P.43 : Form No.H Ex.P.43(a) : Signature of Asst. Commnr. of Commercial Tax Ex.P.43(b) to (d) : 3 Tax invoices of OLC Ex.P.44 : Covering Letter Ex.P.44(a) : Signature of Asst. Commnr. of Commercial Tax Ex.P.45 : Letter dated 14.04.2014 Ex.P.45(a) : Signature of P.W.14 Ex.P.46 : Letter dated 03.08.2014 Ex.P.46(a) : Signature of P.W.14 Ex.P.46(b) : Index Ex.P.46(c) : Shipping Bills Along enclosures Ex.P.46(d) : Details of iron ore along enclosures 57 C.C.No.1475/2015 Ex.P.47 : Covering Letter dated 05.12.2014 Ex.P.47(a) : Signature of P.W.15
Ex.P.48 & 49 : Mining Permit of SB Minerals Ex.P.50 : Covering Letter dated 19.05.2014 Ex.P.50(a) : Signature of P.W.16 Ex.P.51 : Receipt memo Ex.P.51(a) : Signature of P.W.16 Ex.P.52 : Details of DMG Permits Ex.P.53 : Covering letter dated 17.07.2014 Ex.P.53(a) : Signature of P.W.17 Ex.P.54 : Authorization letter dated 19.07.2014 Ex.P.54(a) : Signature of Director Ex.P.55 : Receipt memo Ex.P.55(a) : Signature of P.W.17 Ex.P.56 : Covering letter dated 20.05.2014 Ex.P.56(a) : Signature of P.W.18 Ex.P.57 : Statement of purchasing iron ore from TISS Ltd.
Ex.P.58 : Cash bills of SA Minerals
Ex.P.59 : Tax Invoices
Ex.P.60 : Bank Statement of a/c of SA Minerals
Ex.P.61 : Letter dated 21.07.2014
Ex.P.61(a) : Signature of P.W.18
Ex.P.62 : VAT details
Ex.P.63 : Covering letter dated 17.09.2014
Ex.P.63(a) : Signature of DGM Sheshadri
Ex.P.64 : Receipt memo
Ex.P.64(a) : Signature of P.W.20
58 C.C.No.1475/2015
Ex.P.65 : Current a/c opening form of A1
Ex.P.66 : Certified copy of Statement of a/c of A1
Ex.P.67 : Certificate issued u/S.2(A) of Banker Act
Ex.P.67(a) : Signature of DGM Sheshadri
Ex.P.68 : Statement of a/c of A1
Ex.P.69 : Certificate issued u/S.2(A) of Banker Act
Ex.P.69(a) : Signature of DGM Sheshadri
Ex.P.70 : RTGS request form of A1
Ex.P.71 : Foreign bill transaction advice of A1
Ex.P.72 : Foreign Bill Realization advice of A1
Ex.P.73 to 76 : Foreign bills transaction advice of A1 Ex.P.77 : Covering Letter dated 11.08.2014 Ex.P.77(a) : Signature of P.W.21 Ex.P.78 : Current a/c opening for of DLC Ex.P.79 : Certified copy of Statement of a/c of DLC Ex.P.79(a) : Rs.8crores is credited to a/c of DLC from A1.
Ex.P.80 : Certificate issued u/S.2(A) of Banker Act
Ex.P.80(a) : Signature of P.W.21
Ex.P.81 : FIR
Ex.P.82 : Files collected from A1
Ex.P.83 : bunch of documents received from PW14
Ex.P.84 : Letter dated 14.04.2014
Ex.P.85 : Letter dated 17.07.2014
Ex.P.85(a) : Signature of P.W.23
Ex.P.86 : True copy of purchase order
59 C.C.No.1475/2015
Ex.P.87 : Offer letter dated 04.02.2009
Ex.P.88 : True copy of cheque for Rs.23 lakhs
Ex.P.89 : Statement of a/c of Aditya Logistic Co.,
IV. List of documents exhibited for defence :-
- NIL -
V. List of material objects marked for the prosecution:
- NIL -
VI. List of material objects marked for the defence:--
- NIL-
XVII Addl. A.C.M.M., Bangalore.