Delhi District Court
Nehru Place Hotels Private Limited vs Cbi on 4 October, 2018
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Cr. Revision No. 433/17
In the matter of:
Nehru Place Hotels Private Limited
(formerly known as Nehru Place Hotels Limited)
Having its registered office at
S1, American Plaza,
International Trader Tower, Nehru Place,
New Delhi 100019
Through its Authorized Representative
Mr. Rajesh Kapur
......Petitioner.
Versus
CBI
Through its Standing counsel
.....Respondent.
Date of Institution : 26.09.2017
Date of Arguments : 22.09.2018
Date of Decision : 04.10.2018
AND
Cr. Revision No. 432/17
In the matter of:
Yoginder Dhawan
Son of Late Shri S.L. Dhawan,
B147/1, East of Kailash,
CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18
1 of 28
07.01.2017
New Delhi
......Petitioner.
Versus
CBI
Through its Standing counsel
.....Respondent.
Date of Institution : 26.09.2017
Date of Arguments : 22.09.2018
Date of Decision : 04.10.2018
AND
Cr. Revision No. 436/17
In the matter of:
Amit Rai Sood
Son of Shri Satish Kumar Sood
19, Golf Links,
New Delhi 110003
......Petitioner.
Versus
CBI
Through its Standing counsel
.....Respondent.
Date of Institution : 27.09.2017
Date of Arguments : 22.09.2018
Date of Decision : 04.10.2018
AND
Cr. Revision No. 552/17
In the matter of:
Rohit Kumar
CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18
2 of 28
07.01.2017
S/o Shri Amar Nath,
aged 61 years,
R/o C504, Ashiyana Apartment,
Mayur Vihar, Phase1,
New Delhi 110091
......Petitioner.
Versus
CBI
.....Respondent.
Date of Institution : 05.12.2017
Date of Arguments : 22.09.2018
Date of Decision : 04.10.2018
AND
Cr. Revision No. 05/2018
In the matter of:
1. Devender Kumar Bajaj
S/o Late Shri K.R. Bajaj,
R/o 1/33B, Moti Nagar,
New Delhi 110015
2. Sheela Ahuja
W/o S.S. Ahuja
R/o CD1 B LIG Flats,
Hari Nagar, New Delhi 110054
......Petitioners.
Versus
CBI
Through its Standing counsel for CBI
Patiala House Courts, New Delhi
CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18
3 of 28
07.01.2017
.....Respondent.
Date of Institution : 03.01.2018
Date of Arguments : 22.09.2018
Date of Decision : 04.10.2018
JUDGMENT
1. Vide this common judgment, I shall decide revision petition against the order dated 09.05.2017 passed by Ld. CMM, vide which Ld. Trial Court has taken cognizance and summoned the petitioners. CR No. 433/17 is filed by Nehru Place Hotels Private Limited, CR No. 432/17 is filed by Yoginder Dhawan, CR No. 436/17 is filed by Amit Rai Sood, CR No. 552/17 is filed by Rohit Kumar and CR No. 05/2018 is filed by Devender Kumar Bajaj and Sheela Ahuja. As all these revision petitions are arising out of same order dated 09.05.2017, so all the revision petitions are being decided together vide common judgment.
2. Aggrieved by the order dated 09.05.2017, the petitioner Nehru Place Hotels Private Limited has filed revision petition on the grounds that impugned order passed by Ld. CMM is in violation of established principles of criminal procedure as well as judicial discipline. The CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 4 of 28 07.01.2017 impugned order is wholly illegal and deserves to be set aside. Ld. Trial Court did not appreciate that there is no material on record to justify taking of cognizance of offences under Section 420 read with Section 120B IPC. Ld. CMM has failed to appreciate that there is no sufficient grounds for proceeding to issue summons to the accused persons, including the petitioner. The FIR as well as chargesheet is based on conjectures and surmises, and the facts stated therein, even if accepted on face value, do not constitute the offences punishable under Sections 420 read with Section 120 B IPC. It is also mentioned that even assuming the allegations leveled by the CBI to be correct, no case under Section 420 IPC or any other section of IPC is made out as neither the DGFT nor the Customs or Transport Department have preferred any complaint qua the petitioners, the CBI on its own has stepped into the shoes of the complainant. Ld. Trial Court also did not appreciate that there is no material on record to suggest that there was any conspiracy or meeting of minds of the accused persons for any purpose whatsoever. Ld. CMM also did not appreciate that two separate governments, one being a Central Government Department (DGFT) and the other a State Government Department (Transport CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 5 of 28 07.01.2017 Department GNCTD) have declined sanction of their respective employees and this shows that there could not have been any meeting of minds, let alone conspiracy, as mentioned in the chargesheet by the CBI. No offence of conspiracy is made out as mentioned by the CBI in the chargesheet. It is also mentioned that competent authority had declined the sanction on the merits of the case and it was incumbent on the CBI and the Ld. CMM to determine whether sanction under Section 197 Cr.P.C had been granted against the public servants concerned or not. Ld. CMM even did not consider the requirement of Section 197 Cr.P.C despite the fact that alleged offences qua the public servants pertain to the discharge of their official duties. It is mentioned that Ld. CMM did not appreciate the law in judgments "P. Sirajuddin v. State of Maharashtra" (1970) 1 SCC 595, "R. Balakrishan Pillai v. State of Kerala" (1996) 1 SCC 478 and "State of MP v. Sheela Sahai & Ors." (2009) 8 SCC 617. Ld. CMM did not appreciate the final order No. C/A/5345553462/2015CU[DB] dated 17.11.2015 passed by the Principal Bench of the CESTAT. This order was upheld by the Division Bench of the Hon'ble Delhi High Court vide reasoned order dated 27.05.2016. It is also mentioned that order CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 6 of 28 07.01.2017 dated 17.11.2015 of the Principal Bench of the CESTAT was further upheld by Hon'ble Delhi High Court in Commissioner of Customs (ICD) v. Hotel Excelsior Ltd. Ld. CMM did not appreciate that no case is made out against the petitioners. It is also mentioned that office Memorandum of the CVC dated 04.09.2012 was based on a misconception of the EPCG scheme and the same is baseless and liable to be rejected. The CVC dealt with the matter in detail and correctly identified that the registration of vehicles as 'Tourist' was made compulsory only in June, 2006 and the present case is of 2005. It is also mentioned that non registration of the vehicle as taxi or tourist vehicle (which provides for a yellow number plate) would not per se amount to cheating under Section 420 IPC. The presumption that sine the vehicle is not registered as a taxi, it could not have been used for such purposes is baseless. It is mentioned that Ld. CMM did not consider that under the Exim Policy 20042009, there was no requirement for a car imported under the EPCG scheme to be registered as a 'Tourist/Commercial' vehicle. This requirement was introduced only by the notification dated 14.06.2006 and the said fact is also confirmed vide instructions dated 27.12.2006 of DGFT, CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 7 of 28 07.01.2017 wherein it was clarified that prior to the notification dated 14.06.2006, there was no mandatory requirement to register the vehicle as a 'Tourist vehicles'. It is also mentioned that circular dated 07.05.208 further reiterated that in the past cases where export obligation discharge certificate has not been obtained and vehicles are not registered as 'Tourist', the same shall be done by 31.03.2008, thereby indicating that the DGFT was aware the earlier cars imported under the EPCG Schemes were registered as private vehicles. Ld. CMM did not consider the clarification issued by the DGFT dated 17.10.2008 wherein it is mentioned that EPCG Authorization holder has 8 years to fulfill its export obligation and this can be fulfilled by alternate products of group companies/managed hotels and furthermore, that this fulfillment of the export obligation can be done prior to the installation of the goods imported under the licenses. It was not open to the CBI to question the Government notifications/circulars/ clarifications dated 14.06.2006, 27.12.2006 and 17.10.2008 as being ultra vires, nonapplicable, not issued by proper authority or against the EPCG Scheme. It is prayed that order dated 09.05.2017 be set aside.
CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 8 of 28 07.01.2017
3. In the revision petitions of petitioners Amit Rai Sood and Yoginder Dhawan, they have also taken the similar grounds. It is also mentioned that under ciminal law no vicarious liability can be imposed upon the employees of the company, unless the statute specifically provides the same and Ld. CMM did not consider this respect. The chargesheet does not contain any personal/specific allegation against the petitioners who have been arraigned as an accused only on account of being officers of the company. The only allegation against Mr. Amit Rai Sood is that he was signatory on behalf of the company to the application for issuing EPCG license as well as documents submitted before the RTO. There is only allegation against Mr. Yoginder Dhawan that he was signatory to the letter dated 18.07.2007 which was nothing but a declaration issued by the company that it has fulfilled its export obligation under the EPCG License. This declaration was given by the Company only on the basis of the records maintained by the Company and the concerned bank.
4. In the revision petition filed by petitioner Rohit Kumar it is mentioned that there are only allegation against the petitioner that a CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 9 of 28 07.01.2017 nexus certificate as per para 5.3 of the EPCG Scheme of Foreign Trade Policy 200409, in the prescribed format, certifying the proposal of the Accused Company for the import of the above mentioned cars. The petitioner is performing its professional obligations while issuing the nexus certificate as required under the EPCG Scheme clause 5.3 of the FTP 200409. Even as per the FT Policy 200409, a format has been provided as the Appendix 9 and the certificate was issued while complying to the said format only. As per allegation in the charge sheet the petitioner had issued certificate which was used by the accused Company for the purpose of deception and obtaining EPCG license. In the certificate it is mentioned that the vehicles are required for providing transport facilities to the guest in line with the international standards and thereby it will act as means for earning foreign exchange from foreign/ NRI tourists but the certificate issued by the petitioner states that the car was being used for Hotel promotion activities. It is mentioned that petitioner while issuing the certificate did not ask for registration certificate and log book of the car in question to certify that the conditions of EPCG licence were made. It is mentioned that Ld. CMM has failed to appreciate that the petitioner CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 10 of 28 07.01.2017 has only issued the certificates in discharge of its professional obligation for which it could not be prosecuted under the provisions of the charge sheet. It is mentioned that Ld. CMM has not appreciated that at the time when the Porsche car was imported in September, 2005, the revisionist was not required to see whether the vehicle was registered as a private or commercial vehicle, as there was no requirement for the said car to be registered as tourist/taxi and could have been registered as private number as well and this requirement was introduced only by the notification bearing no. 11(RE 2006)/20042009 dated 14.06.2006. It is also mentioned that the petitioner issuing Installation certificate stating that the "Car is used for Hotel Promotion Activity" is totally justified as the petitioner has verified the documents as to its import, registration etc. and at the time of physical verification, the same was found it to be parked at the hotel premises and there was no reason for the petitioner to believe that the vehicle was being used for purpose other than specified use.
5. In revision petition filed by petitioners Devender Kumar Bajaj and Sheela Ahuja, it is mentioned that Ld. CMM did not CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 11 of 28 07.01.2017 appreciate that as per the department there is no dereliction of duty on the part of both the petitioners. Ld. Trial Court did not appreciate that petitioners were not holding any position for the purpose of taking any decision with respect to the transactions. Ld. Trial Court did not consider that no sanction was taken in respect of the petitioners before filing the chargesheet and taking cognizance in the present matter. Ld. Trial Court has wrongly mentioned in the order that there was loss to the Government of India. Ld. Trial Court did not consider that non registration of the vehicle as taxi or tourist vehicle would not per se amount to cheating under Section 420 IPC. Ld. Trial Court did not consider the notification dated 14.06.2006 and circular dated 27.12.2006 and clarification dated 17.10.2008 issued by DGFT itself. It is prayed that revision petition be allowed.
6. I have heard Sh. Siddharth Luthra, Ld. Sr. counsel for petitioners Nehru Place Hotels Pvt. Ltd., Yoginder Dhawan and Amit Rai Sood, Sh. Bakul Jain, Ld. counsel for petitioners Devender Kumar Bajaj and Sheela Ahuja, Sh. Aman Sareen, Ld. counsel for petitioner Rohit Kumar and Sh. Amit Kumar, Ld. PP for CBI at length and perused the records of this court as well as of Trial Court very carefully.
CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 12 of 28 07.01.2017
7. Ld. counsels for the petitioners have argued on the lines of their respective revision petition. Ld. Sr. counsel for petitioners Nehru Place Hotels Pvt. Ltd., Yoginder Dhawan and Amit Rai Sood has placed reliance on judgments titled as "Collector of Central Excise, Patna v. Usha Martin Industries" (1997) 7 SCC 47, "S.S. Gokul Krishnan and Ors. v. State, the Food Inspector, Govt. of NCT of Delhi" 2009 (108) DRJ 669, "State, the Food Inspector, NCT of Delhi v. S.S. Gokul Krishnan and Ors.", "Pradeep Kumar Mantri and Ors. v. State, the Food Inspector" (2017) SCC Online Del 6666, "State of Punjab and Anr. v. Mohammed Iqbal Bhatti"
(2009) 17 SC 92, "State of Himachal v. Nishant Sareen" (2010) 14 SCC 527, "State of Punjab v. Labh singh" (2014) 16 SCC 807, "Mahendra Singh Dhoni v. Y. Shyamsundar and Anr." (2017) 7 SCC 760, "Maksud Sayed v.
State of Gujarat" (2008) 5 SCC 668 and "K. Sitaram v. CFSI Capital Finance Service Limited" (2017) 5 SCC 725.
On the other hand, Ld. PP for CBI has placed reliance on judgment titled as "Sandeep Sunil Kumar Loharia Vs. Sumeet Ganpatrao Bachewar & Anr."
8. Perusal of the chargesheet reveals that this case was registered by CBI, on the basis of source information, against M/s Nehru CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 13 of 28 07.01.2017 Place Hotels Ltd., its Chairman Jagdish Rai Sood, Director Amit Rai Sood, VicePresident (Finance) Yoginder Dhawan and other unknown persons u/s 120B and 420 IPC on the allegations that the accused persons entered into a criminal conspiracy amongst themselves and with unknown accused persons, to cheat Government of India. In furtherance of the said conspiracy, the accused company obtained an import licence No. 0530138362 dated 30.03.2005 under Export Promotion Capital Goods (EPCG) Scheme of Foreign Trade Policy, 200409, (Ministry of Commerce), imported 2 BMW cars and 1 Porsche Car during the period August,05 to February, 06 and got the export obligation of the licence discharged from the office of Zonal Jt. DGFT (Director General Foreign Trade) on 09.08.2007 by showing the required export earning of Rs. 8,19,33,210/ from the accused company Hotel's foreign currency income for the period January to March, 06 under the signatures of Sh. Yoginder Dhawan. As per condition of the said licence, the export obligation was to be discharged by the accused company by the use of the imported capital goods. But, as the Porsche car, one of the three cars imported under the said licence was registered in the name of accused Company on a fancy private registration number "DL 2F GP 0025", the same could not have been used for any commercial purpose including for earning foreign exchange as per condition of the EPCG licence. The accused company/persons utilized the CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 14 of 28 07.01.2017 imported car for purposes other than that stipulated in the Foreign Trade Policy as well as the EPCG licence. The accused company showed its foreign earning to clear export obligation falsely on the basis of foreign exchange earned from other source and the DGFT authorities failed to verify the actual use of the imported vehicle and issued redemption certificate to the accused company.
Investigation has revealed that if the importer wants to fulfill the requirement of EPCG licence by earning foreign exchange through other services then the use of capital goods imported by him under the scheme, as per Para 5.4 of the Policy he has to fulfill the below two conditions:
(i) The export obligation shall be fulfilled by export of goods capable of be manufactured or produced by the use of the capital goods imported under the scheme. (The importer has to seek the permission, within the obligation period of licence from DGFT). The expoert obligation under the scheme shall be, over and above, the average level of exports achieved by him in the preceding three licensing years for same and similar products except for categories mentioned in Handbook (Vol.1).
(ii) The importer has to earn additional foreign exchange equal to export obligation over and above their average foreign exchange earning in preceding 3 years. The export obligation under the scheme shall be, in addition to any other export obligation undertaken by the importer, except CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 15 of 28 07.01.2017 the export obligation for the same product under Advance Licence, DFRC, DEPB or Drawback scheme.
Investigation has revealed that Amit Rai Sood (A2), Whole Time Director of M/s Nehru Place Hotel Ltd., New Delhi during the period 2005 to 2007 entered into a criminal conspiracy with Yoginder Dhawan (A
3), Vice President (Finance) of M/s Nehru Place Hotel Ltd. (A1), Rohit Kumar, Chartered Engineer (A4), Devender Kumar Bajaj (A5), Dealing Asstt., Smt. Sheela Ahuja (A6), both of Office of DGFT and Ashok Kumar (A7), MVI to fraudulently cheat the Govt. of India by obtaining the import licence under Export Promotion Capital Goods Scheme, misutilized the same and obtained huge pecuniary benefits.
In furtherance to the said Criminal Conspiracy, Amit Rai Sood (A2), Whole Time Director of Company M/s Nehru Place Hotels Ltd., New Delhi (Unit Park Royal Intercontinental) under his signatures submitted an application dated 24.03.2005 in the prescribed proforma annexureIX for the issue of import licence under EPCG Scheme for service providers. In Col. No. 6 of the application declared the product to be manufactured out of the proposed Capital Goods and product to be exported as "Services to be provided to the foreign guests". This application was for licence to import 2 cars BMW740Li RHD LIMOUSINE (CIF value EURO. 102,306), 1 car BMW 750 Li RHD LIMOUSINE (CIF value EURO. 57,063) and 1 car CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 16 of 28 07.01.2017 PORSCHE 9 PAAE1 2005 CAYENNE S V8 TIP incl. C46 (CIF Value US $ 58,480), as Capital goods. The declaration/ undertaking is signed by the applicant A2 Amit Rai Sood to the effect that the goods to be imported were actually required for providing the services indicated in the application for fulfillment of export obligation. The applicant has undertaken to refund the customs duty as applicable with 15% interest on the goods imported if found having no nexus with export product as per policy provision of Para 5.4 of Exim Policy, at any stage.
Investigation has revealed that a certificate of Chartered Engineer of Rohit Kumar (A4) was enclosed with the application giving justification of proposed import of vehicles that the same are required for providing transport facilities to the guest in the line with the international standards and thereby it will act as means for earning foreign exchange from foreign / NRI tourists.
Investigation has revealed that on the strength of the said application licence No. 0530138362 dated 30.03.2005 with duty saved value of Rs. 1,19,09,816.00 was issued under the signatures of Sh. M.K. Kaushal, FTDO along with the condition sheet attached to the licence for import of 3 BMW cars and 1 Porsche Car.
Investigation has revealed that a letter dated 20.07.2007 addressed to the joint DGFT (CLA) (Export Obligation Cell) was submitted CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 17 of 28 07.01.2017 under the signatures of Yoginder Dhawan (A3), Vice President (Finance) M/s Nehru Place Hotel, intimating therein that the export obligation required for the import of one Porsche car and two BMW cars under the said EPCG import Licence was Rs. 7,25,16,224 and the same was fulfilled to the extent of Rs. 8,19,33,210/ from the export income of the accused Hotel for the period of January 2006 to March 2006, as certified in the form ANF 5B by their bankers HDFC Bank, Deer Park, New Delhi and Chartered Accountant. Amongst papers attached to this letter, include : Statement of Export/ Redemption of EPCG authorization in form ANF 5B signed by HDFC Bank officer, Chartered Accountant J.C. Bhalla and Yoginder Dhawan (A3) of Nehru Place Hotels, Original License with details of its utilization. Copy of the Bill of entry for import and copy of a certificate issued by Chartered Engineer Rohit Kumar (A4) showing that the Porsche Car was imported vide bill of lading dated 13.07.05 and bill of entry dated 09.08.05 and was registered with transport authorities in the name of "Nehru Place Hotels Ltd" vide private registration no. DL2FGP0025. In para 6 of this certificate against the column "Installation Status", it is stated, "the car was being used for hotel promotion activities". Yoginder Dhawan (A3) and Chartered Engineer Rohit Kumar (A4) intentionally failed to point out that the vehicle in question could not have been used for transporting hotel guests, as it was registered as a private vehicle.
CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 18 of 28 07.01.2017 Investigation has revealed that in note dated 30.07.2007 for redemption of the licence accused Devender Kumar Bajaj intentionally did not point out that the Porsche Car bearing Regn. No. DL 2F GP 0025 imported under the said licence, was registered as noncommercial vehicle and as such could not have been used for declared purposes of transporting hotel guests for earning foreign exchange. Shri Devender Kumar Bajaj (A
5) overlooked violation of other provisions of Foreign Trade Policy also, as installation certificate of Chartered Engineer was not submitted in stipulated 6 months time, no exercise of fixation of nexus was conducted and yearly progress of export obligation fulfilled in first year was not submitted. The installation certificate of Chartered Engineer was not in conformity with the certificate issued by him at the time of application for licence. Even permission for fulfilling export obligation through alternate services, as envisaged in Para 5.4 of Policy, was neither applied for nor granted by DGFT office. This fact was also knowingly overlooked by Sh. Devender Kumar Bajaj, while recommending redemption. He also intentionally ignored the fact the 2 BMW cars imported under the licence in question were registered with RTO on 31.10.2006, whereas the export obligation of the licence was shown to have been fulfilled from the foreign exchange earnings for the period from January, 2006 to March, 2006. Similarly, accused Smt. Sheela Ahuja, the then FTDO in connivance with accused CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 19 of 28 07.01.2017 Devender Kumar Bajaj, Dealing Assistant, DGFT, New Delhi, endorsed his recommendation by over looking the above glaring violations of accused hotel.
Investigation has revealed that the duty saved on Porsche Car was Rs. 26,84,365/. Besides this duty saved amount on two BMW cars imported under the same licence was Rs. 38,03,068/ and Rs. 25,77,095/ and as such undue loss of Rs. 90,64,528/ was caused to the Government on account of illegal saving of custom duty on import of three cars and corresponding gain to M/s Nehru Place Hotel Ltd. (A1) by way of above EPCG licence obtained by deception.
Investigation has further revealed that the dishonest intention of the licence holder is clearly apparent from the time they have intentionally gone for registration of the Porsche Car as a Non Commercial vehicle and such vehicles cannot be used for transporting their Hotel guests, and thus cannot be used for fulfilling the condition of the licence. The accused Chartered Engineer Rohit Kumar (A4) was in hand and glove with the Amit Rai Sood (A2), supported the deception of licence holder by issuing a suitable certificate, later conveniently changed the language of his installation Certificate without any proof declaring that the car was being used for Hotel promotion activities and without describing the documents inspected by him before issuing the installation certificate. He did not ask CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 20 of 28 07.01.2017 for the Registration Certificate and Log books of the car in question, to certify that the conditions of EPCG licence has been met or not.
9. In the present case, it is to be seen whether there is enough material on the record to summon the petitioners and there is enough material on record to take cognizance of the offence by Ld. CMM. In the present case, it is admitted fact that Ld. Spl. Judge (PC Act) has passed a detailed order dated 12.03.2013 whereby the Ld. Spl. Judge has remanded back the matter to the Ld. CMM and thereafter, Ld. CMM has taken cognizance of the offence vide order dated 09.04.2013. This order of the Ld. Trial Court was set aside by the Hon'ble High Court of Delhi and the CMM was directed by the Hon'ble High Court to pass the order after due application of mind independently without being influenced by the order dated 12.03.2013 of the Ld. Spl. Judge, CBI and shall pass the order afresh for taking cognizance and issuance of the summons to the accused persons, as per the observations made above. However, vide same order the Hon'ble High Court has upheld the order dated 12.03.2013 passed by Ld. Special Judge, CBI.
Vide impugned order dated 09.05.2017, Ld. CMM has taken the cognizance of the offence and summoned the petitioners and one Ashok Kumar. In the impugned order Ld. Trial Court has held that "in my opinion, CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 21 of 28 07.01.2017 there exists incriminating material to summon the accused persons namely M/s Nehru Place Hotels Ltd (A1), Amit Rai Sood (A2), Yoginder Dhawan (A3), Rohit Kumar (A4), Devender Kumar Bajaj (A5), Sheela Ahuja (A
6) and Ashok Kumar (A7) for the offence u/s 420 r/w Sec. 120B IPC in evasion of custom duty under Export Promotion Capital Goods (EPCG) scheme covered under foreign trade policy 20042009 of the Government of India by deceiving the Directorate General of Foreign Trade (DGFT) and furnishing false declaration of export earnings whereas the car in question Porsche car was registered as a noncommercial vehicle and could not have been used for any commercial purpose and in fact none of the imported car were used for the purpose as specified in the license". Ld. Trial Court has also held that "I may note that the present order has been passed qua taking cognizance of the offences against the accused persons and this order shall not in no way be construed as passing the orders qua the charge or the final adjudication of the case".
10. As per the chargesheet, it is clear that accused Amit Rai Sood is whole Time Director of Company M/s Nehru Place Hotels Ltd. and submitted an application dated 24.03.2005 for the issuance of import licence under EPCG Scheme and in column no. 6 of the application declared the product to be manufactured out of the proposed Capital Goods and product CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 22 of 28 07.01.2017 to be exported as "Services to be provided to the foreign guests". This application was for licence to import 2 cars BMW740Li RHD LIMOUSINE (CIF value EURO. 102,306), 1 car BMW 750 Li RHD LIMOUSINE (CIF value EURO. 57,063) and 1 car PORSCHE 9 PAAE1 2005 CAYENNE S V8 TIP incl. C46 (CIF Value US $ 58,480), as Capital goods. The declaration/ undertaking is signed by the applicant A2 Amit Rai Sood to the effect that the goods to be imported were actually required for providing the services indicated in the application for fulfillment of export obligation. The petitioner Rohit Kumar (A4) has also given certificate enclosed with the application giving justification of proposed import of vehicles that the same are required for providing transport facilities to the guest in line with international standards and thereby it will act as means for earning foreign exchange from foreign/ NRI tourists. Thus, petitioner Rohit Kumar has given the certificate that the vehicles which are imported to be used for providing transport facilities to the foreign guests.
The petitioner Yoginder Dhawan has sent a letter dated 20.07.2007 addressed to the Joint DGFT (CLA) (Export Obligation Cell) as Vice President (Finance) M/s Nehru Place Hotel that the export obligation required for the import of one Porsche car and two BMW cars under the CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 23 of 28 07.01.2017 said EPCG import Licence was Rs. 7,25,16,224/ and the same was fulfilled to the extent of Rs. 8,19,33,210/ from the export income of the accused Hotel for the period of January 2006 to March 2006. In the present case the Porsche car was given private registration no. DL 2F GP 0025 and this vehicle was registered as a private vehicle. The petitioner Rohit Kumar in column no. 6 of the certificate has mentioned that car was being used for hotel promotion activities. No reason has been explained by the petitioners as to why the Porsche car bearing registration no. DL 2F GP 0025 was registered in a private fancy number. In the note the petitioner D.K. Bajaj did not point out that the Porsche car was registered as non commercial vehicle and as such could not have been used for declared purposes of transporting hotel guests for earning foreign exchange and overlooked violation of other provisions of Foreign Trade policy and as per charge sheet the installation certificate of Chartered Engineer was not submitted in six months time. As per the charge sheet the permission for fulfilling export obligation through alternate services, as envisaged in Para 5.4 of policy, was neither applied for nor granted by DGFT office and this fact was overlooked by petitioner Devender Kumar Bajaj, while recommending redemption. In the chargesheet, it is also clearly mentioned that the 2 BMW cars imported under the licence in question were registered with RTO CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 24 of 28 07.01.2017 on 31.10.2006, whereas the export obligation of the licence was shown to have been fulfilled from the foreign exchange earnings for the period from January, 2006 to March, 2006. As per the chargesheet petitioner Sheela Ahuja, the then FTDO in connivance with Devender Kumar Bajaj endorsed her recommendation by over looking the above glaring violations of accused hotel. It is also mentioned in the chargesheet that DGFT and FTDO officials Devender Kumar Bajaj and Sheela Ahuja has given undue favour to the accused Hotel while scrutinizing the redemption papers, knowingly overlooked that the registration certificate of 2 BMWs showing their registration as deluxe tourist taxi registration numbers and the registration certificate of Porsche car as a private vehicle. The only vehicles registered as commercial vehicles can provide transport facility to the passengers for hire or reward. It is also result of the chargesheet that two BMW cars were registered as commercial vehicles on 23.10.2006 whereas the export obligation against these cars was shown to have been redeemed by the earnings fro the period January, 2006 to March, 2006. As per the chargesheet petitioner Devender Kumar Bajaj and Sheela Ahuja failed to point out that the actual purpose of import of this car was to provide transport facilities to the guests as a means of earning foreign exchange from foreign/ NRI tourists and also failed to submit periodical reports of foreign exchange earnings from the imported cars and they do not CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 25 of 28 07.01.2017 mentioned above mentioned facts in their noting and recommended for approval of EODC.
11. It is vehemently contended by Ld. counsel for petitioners Devender Kumar Bajaj and Sheela that prior permission is required as per provisions 197 Cr.P.C before taking cognizance of the offence against Devender Kumar Bajaj and Sheela Ahuja.
I am of the view that no sanction is required for taking cognizance u/s 420 IPC against any of the accused persons and no sanction is required even under Section 197 Cr.P.C as laid down in the case of "Prakash Singh Badal and Anr. Vs. State of Punjab and Ors." (2007) 1 SCC
1. In this judgment, it is held that "the offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B, Penal Code, 1860 can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence". The act of the accused persons of entering into a criminal conspiracy for committing act of cheating cannot be constructed to be part of their official duties, therefore, Sanction u/s 197 Cr.P.C is not required.
CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 26 of 28 07.01.2017 Moreover, it cannot be said that this act was committed by both the petitioners i.e. Devender Kumar Bajaj and Sheela Ahuja in discharge of their official duties.
12. It is admitted fact that no foreign exchange has been oriented from the 2 BMWs and one Porsche car. As discussed above, the BMW car was not even registered with the registration authorities, therefore, no earning can be made by the use of BMW cars and even Porsche car was registered as a private car.
I am of the view that there is enough material on record to summon the petitioners. Ld. Trial Court has passed a detailed order on the point of cognizance and has given reasons to summon the petitioners. Ld. CMM has also clarified in the order that "I may note that the present order has been passed qua taking cognizance of the offences against the accused persons and this order shall not in no way be construed as passing the orders qua the charge or the final adjudication of the case".
Moreover, I am guided by the judgment titled as "Bhushan Kumar and Anr. Vs. State (NCT of Delhi) and Anr." (2012) 5 SCC 424 wherein, it is held that "Magistrate is not bound to give reason for issuing an order of summons under S. 204". Perusal of Trial Court Record reveals that Ld. CMM has applied his mind at the time of cognizance stage and CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 27 of 28 07.01.2017 rightly summoned the petitioners. Ld. Sr. counsel for the petitioner has heavily placed reliance on judgment titled as "Mahendra Singh Dhoni v. Y. Shyamsundar and Anr." (2017) 7 SCC 760. I have perused the judgment with utmost regard but this judgment is not applicable to the facts of present case.
13. In view of the above discussions, I am of the view that there is no illegality or infirmity in the order dated 09.05.2017. Ld. Trial Court has passed a reasoned order and rightly summoned the petitioners. The revision petitions filed by the petitioners are without any merits and same are hereby dismissed.
Trial Court record be sent back along with copy of judgment. Revision files be consigned to Record Room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 04.10.2018. Spl. Judge, CBI02,
New Delhi District, PHC.
Digitally
signed by
NARESH
NARESH KUMAR
KUMAR MALHOTRA
MALHOTRA Date:
2018.10.04
16:24:11
CR Nos. 432/17, 433/17, 436/17, 552/17 & 5/18 +0530
28 of 28
07.01.2017