Telangana High Court
Sri Kishan Nair, vs The State Of Ap Rep By Its Pp Hyd., on 23 March, 2022
Author: G.Sri Devi
Bench: G.Sri Devi
HONOURABLE JUSTICE G.SRI DEVI
CRL.R.C.Nos.1614 and 1723 of 2007
COMMON ORDER:
Both the Criminal Revision Cases are being disposed of by this common order since they are directed against the common order, dated 03.10.2007, passed in Crl.M.P.No.231 of 2005 and Crl.M.P.No.528 of 2005 in C.C.No.23 of 2004 on the file of the Special Judge for C.B.I. Cases, Hyderabad, whereby the learned Special Judge dismissed both the petitions filed by the revision petitioners/A-1 and A-6, under Section 239 of Cr.P.C., seeking to discharge them for the offences punishable under Sections 120-B, 420, 468 and 471 of I.P.C. and Sections 13 (2) and 13 (1) (d) of the P.C. Act, 1988.
The revision petitioner in Crl.R.C.No.1723 of 2007 is A-1 and the revision petitioner in Crl.R.C.No.1614 of 2007 is A-6. For the sake of convenience, they are referred to as A-1 and A6 respectively.
The case of the prosecution is that A-1 was working as Assistant Director General of Foreign Trade, Hyderabad. A-6 2 was working as Deputy Director General of Foreign Trade, Chennai. It is stated that A-2, A-3, A-4 and A-5 entered into criminal conspiracy during 1993-1994 to cheat Director General (Foreign Trade) in the issue of Value Based Advance Licence in favour of M/s. Rajaji Associates, represented by A-2 and in pursuance of the said conspiracy A-2 submitted an application to the Joint Director General of Foreign Trade along with false and forged documents with the help of A-3 to A-5 and used the same as genuine documents and also in pursuance of the said conspiracy, A-1, A-6, A-7 and A-8 without verifying the genuineness of the certificate submitted by A-2 issued Value Based Advance Licence by misusing or abusing their official position and thereby committed wrongful loss to Government of India to an amount of Rs.5,20,84,464/- and thereby committed the aforesaid offences. After completion of investigation, the C.B.I. filed a charge sheet against A-1 to A-8 for the aforesaid offences, which was taken cognizance as C.C.No.23 of 2004. When the case was posted for framing of charges, A-1 and A-6 filed two separate petitions seeking to discharge them from the offences alleged 3 against them. By its common order, dated 03.10.2007, the learned Special Judge dismissed the said petitions. Aggrieved by the same, the present Criminal Revision Cases have been filed by A-1 and A-6.
Heard both sides and perused the material available on record.
Learned Senior Counsel appearing for A-1 submits that there is no allegation in the entire chargesheet that A-1 has wrongfully gained or caused monetary loss to the department by accepting the legal undertaking instead of bank guarantee; that there is no allegation that there was any collusion or conspiracy between A-1 and any of the other accused; that A-1 has pure discretionary power to accept the legal undertaking or bank guarantee as per O & M Instruction No.16/89 and there is no requirement to refer the case to the Joint Director of Foreign Trade. It is further submitted that as per the check list and File Notings, the domestic turnover of A-2's firm for the three preceding years is found to be Rs.40,22,00,000/- and as such they were entitled to furnish a legal undertaking. It is further 4 submitted that A-1 cannot be responsible for the fake documents and fake domestic turnover, if any, submitted by A-2's firm in collusion with A-3, Chartered Accountant. It is further stated that though L.W.1 states that she put up a note stating that the bank guarantee may be taken instead of legal undertaking, she admits that the bank guarantee conditions can be amended at a later date if the applicant produces further documents. It is further submitted that in the present case, the Chartered Accountant's certificate of the previous domestic turnover was produced at a later date and the same was verified by the dealing hand and a note was put up to A-1 to accept the legal undertaking and as such A-1 has accepted the legal undertaking as per the rules prevalent at that time.
It is further submitted that the role of A-6 is only to implement and execute the orders passed by the higher authorities. It is further submitted that the Central Vigilance Cell has absolved A-6 from all charges and when the record does not stand the scrutiny of Central Vigilance Cell, which is a domestic enquiry, cannot be taken as a basis for criminal prosecution. 5
Learned Special Public Prosecutor for C.B.I. Cases appearing for the respondent/complainant submits that A-1 without verifying the genuineness of the turn over certificate submitted by A-2 accepted the Letter of Undertaking instead of bank guarantee as directed by the competent authority. It is further submitted that the Investigating Agency collected statements of 38 witnesses and 80 documents to show conspiracy and the involvement of the revision petitioners/A-1 and A-6, who caused loss to a tune of Rs.5,20,84,464/-. It is further submitted that there is a prima facie material to frame charges against the revision petitioners/A-1 and A-6.
A perusal of the contents of the Charge Sheet would disclose that A-2, proprietor of M/s Rajaji Associates, Hyderabad, applied for issue of a Value Based Advance Licence with the Joint Director of Foreign Trade, Hyderabad, for export of dyed printed fabrics polyester yarn, and sought for customs duty exemption of Rs.6,52,01,817/-. It is alleged that the revision petitioners/A-1 and A-6, who are the then Assistant Director General of Foreign Traders and Controller of Imports and Exports respectively, 6 along with other accused, without verifying the genuineness of the documents submitted by A-2, issued Value Based Advanced Licence by misusing or abusing their official position and thereby committed wrongful loss to an amount of Rs.5,20,84,464/-. It is further alleged that A-6 did not insist the firm for showing the original export order in spite of having issued a letter for showing the original export order, which is a vital document and simply ordered for issuance of licence. It is further alleged that A-2 made a request for accepting a legal undertaking instead of a bank guarantee by submitting a fake domestic turn over certificate issued by A-3. It is further alleged that A-1 without referring to A-7, accepted the legal undertaking instead of bank guarantee despite specific instructions by the competent authority for obtaining bank guarantee only. Thus, the revision petitioners/A-1 and A-6 along with other accused conspired together in obtaining Value Based Advance License on the basis of false and forged documents submitted by A-2 for issuance of license. Further, the Investigating Agency recorded the statements of 38 witnesses and also collected number of 7 documents to establish conspiracy and the involvement of the revision petitioners/A-1 and A-6 in the commission of offence. Thus, there is a prima facie material to frame charges against the revision petitioners.
For the aforesaid reasons, this Court is of the view that the common order passed by the trial Court is justified and that there is no valid ground to interfere with the impugned order.
Accordingly, both the Criminal Revision Cases are dismissed.
Miscellaneous petitions, if any, pending shall stand closed.
____________________ JUSTICE G.SRI DEVI 23.03.2022 Gsn.