Calcutta High Court
Bishnu Agarwala vs State Of West Bengal And Anr. on 27 September, 2006
Equivalent citations: 2006(4)CHN897
JUDGMENT S.P. Talukdar, J.
1. The petitioner, Bishnu Agarwala, by filing the instant application under Section 397/401 read with Section 482 of the Criminal Procedure Code sought for quashing of the proceeding being Case No. SLP 24/03 arising out of CBI/ACB/Kolkata Case No. RCCAA 20030043 dated 30.10.2003, now pending before the learned Court of Special Judge, Barasat, 24-Parganas (North).
2. The petitioner, thus, sought for quashing of charge-sheet No. 21/2006 dated 24.4.2006 under Section 120B/420/468/471 of the Indian Penal Code and under Section 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988.
3. The grievances of the said petitioner, as ventilated by the learned Senior Counsel, Mr. Ajit Panja, may briefly be stated as follows:
On the basis of First Information Report, dated 30.10.2003, lodged by the Superintendent, of Police, CBI, Kolkata, the aforesaid case against the petitioner and eighteen others including nine officials of the Customs Department was started.
4. It was alleged that all those accused persons as well as others, not known, entered into a criminal conspiracy among themselves and others to cheat the Government of India and in pursuance of that the nine accused persons, who are customs officials being public servants while on duty in respective capacity at Petrapole Land Customs Station on Indo-Bangladesh Border, Petropole, 24-Parganas (N), West Bengal, committed criminal misconduct by showing unque favour by way of certifying and authenticating shipping bills of FIR names accused Nos. 10 to 14 representing the firms being FIR named accused Nos. 16 to 19 containing false details of consignment not exported though the Petrapole Land Customs Station on Indo-Bangladesh Border, Petrapole to Bangladesh and in furtherance of the said conspiracy, FIR named accused Nos. 10 to 14 representing firms being accused Nos. 16 to 19 submitted through accused No. 15 the said shipping bills containing false and fabricated export documents relating to shipping bills and obtained export benefits under DEPB Scheme thereby causing wrongful loss to the extent of about Rs. 4.50 crores to the Government of India during the year 2002-2003.
5. It was alleged that during the period 2002-2003, as many as 92 false and fabricated bills were submitted through FIR named accused No. 15 to the Commissioner of Customs (Preventive Department) of Kolkata for drawing benefits under the DEPB scheme.
6. It was further alleged that in respect of 25 out of 92 shipping bills, the exporters, being FIR named accused Nos. 10 to 14 of the firm Nos. 16 to 19, in collusion with accused No. 15 submitted shipping bills containing false and fabricated entries made and authenticated by means of signatures by the FIR named accused Nos. l to 9 respectively in pursuance of criminal conspiracy to the effect as if that the consignments shown in the fabricated shipping bills were exported by lorry numbers indicated in the respective shipping bills and cleared through petrapole land customs station on Indo-Bangladesh Border, West Bengal to Bangladesh. It was also alleged that consignment other then what is mentioned in the shipping bills respectively were found actually exported in the respective lorry concerned to Bangladesh.
7. It was the further allegation in the First Information Report that the FIR named accused Nos. l to 9, thus, entered into a criminal conspiracy during the year 2002-2003 with FIR named accused Nos. 10 to 14 representing the firms, being FIR named accused Nos. 16 to 19 and accused No. 15 as well as unknown others to cheat the Government of India and in pursuance of the said conspiracy the said accused Nos. 1 to 9 fraudulently and dishonestly and by misusing and abusing their official position by illegal means knowing fully well that the details contained in each of the relevant shipping bills are false, certified and authenticated respectively in the respective shipping bills as if the same reflected the consignments actually exported through the respective lorry to Bangladesh in order to help FIR named accused Nos. 10 to 14 representing the firm Nos. 16 to 19 and in pursuance of the said conspiracy, FIR named accused Nos. 10 to 14 representing the firm Nos. 16 to 19 submitted 25 fabricated shipping bills as genuine to the Commissioner of Customs (Preventive) Kolkata, through FIR named accused No. 15 knowing fully that the said bills were forged and fabricated processed the same with Customs Department and derived benefit fraudulently and dishonestly under the DEPS Scheme. Thus, the accused persons caused wrongful loss to the tune of Rs. 1,11,93,298.00 to the Government India and corresponding wrongful gain to themselves.
8. It was then alleged that the importers and the address given the 25 number of shipping bills are either fictitious or having had no business transection with firm Nos. 16 to 19 with regard to the said shipping bills.
9. It was further alleged that the bank accounts maintained by accused Nos. 16 to 19 with Punjab and Sind bank, International Banking Division, Kolkata, with regard to remittance of export proceedings relating to the above alleged exports vice the aforementioned 25 numbers of shipping bills, do not have any remittance relating to the export proceedings out of the said 25 numbers of shipping bills. The accused Nos. 10 to 19 also submitted similar. The accused Nos. 10 to 19 also submitted similar shipping bills numbering 67 containing false and fabricated details with regard to export of consignments without actually exporting any such consignments to Bangladesh and derived benefit to the tune of Rs. 3.38 crores (approx) in connivance with various public servants of customs department on duty at Petropole Land Customs Station of Indo-Bangladesh Border. With all such allegations punishable under Section 120B read with Section 420/467/468/471/477A of the Indian Penal Code as well as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, the cases were registered against the FIR named accused Nos. l to 19 and unknown others.
10. The said matter was referred to Mr. B.B. Chakraborty, Inspector, CBI, Kolkata, for investigation.
11. After completion of investigation, chargesheet was submitted against the 15 petitioners for the offences as under Section 467/468/471/477A of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
12. On the basis of such chargesheet, the learned Court took cognizance and by order dated 19.8.2006 directed issuance of warrant of arrest.
13. Mr. Panja learned Senior Counsel for the petitioners, at the very outset invited attention of the Court to the order passed by the Additional Director General of Foreign Trade, dated 26th June, 2006. It was in connection with an appeal against the order dated 19.12.2005 passed by the Joint Director General of Foreign Trade.
14. Referring to the said order, of the appellate authority, dated 26th June, 2006, it was submitted by Mr. Panja that the findings in the order, which was appealed against, were effectively set aside.
15. From the materials on record it appears that the Commissioner of Customs (Preventive) reported that M/s. Santosh Overseas Trade Corporation, Kolkata, did not actually export any goods to Bangladesh and it obtained the DEPB licences by misrepresentation and fraudulent means. Overseas enquiry further confirmed that there was no exports from India and the consignment against the shipping bills were not cleared from Benapole LCS, Customs House. A show-cause notice dated 20.8.2003 was issued to the appellate firm asking them as to why their IEC number should not be suspended. In reply, the appellate firm stated that they had lawfully exported the goods and had received foreign remittance. The bills of export were duly signed and assessed by the customs officers and samples were taken. But still the adjudication proceedings were initiated against them and the impugned DEPBS were cancelled ab initio vide order dated 19.12.2005 on the ground that the appellate firm had not made any exports and in addition a fiscal penalty of Rs. 10 lakh was also imposed.
16. Attention of the Court was drawn to the said order dated 26th June, 2006 from where it appears that the concerned authority took into consideration the affidavit whereby it was clearly stated that consignments were received in full and payments were tendered against the said consignments. The appellate authority took into consideration the fact that the C.B.I, registered case, which was under investigation. Mr. Panja drew special attention of the Court to the finding of the said authority that "there seems no doubt that exports have taken place."
17. According to Mr. Panja, such finding of the appellate authority virtually brushes aside the entire prosecution allegations. It was the categorical assertion on behalf of the petitioners that the foundation of the criminal case, being the order dated 19.12.2005, having been effectively set aside in appeal by the order dated 26th June, 2006, there can be no justification in proceeding further with the case.
18. In response to this Mr. Ranjan Roy, appearing as learned Counsel for the opposite party/CBI, submitted that the allegations made in FIR do not have much to do with the decision of the Tribunal of the appellate forum. In response to the submission made by Mr. Panja, on behalf of the petitioners, that chargesheet having been submitted on the basis of order in adjudication proceeding, which was set aside, it cannot be allowed to survice, it was submitted by Mr. Roy that Tribunal's order or for that matter, order dated 26th June, 2006 passed by the appellate forum cannot have any binding effect on the fact CBI investigation.
19. Mr. Panja relied upon the decision in the case of Uttam Chand and Ors. v. Income Tax Officer Central Circle . The said case was over cancellation of registration of a firm on the ground that the firm was not genuine and the prosecution initiated for filing false return. The Tribunal, however, found the firm to be genuine and the Apex Court on the basis of such finding held that the prosecution was liable to be quashed.
20. Mr. Panja referring to the decision in the case of State of Karnataka v. L. Muniswamy , submitted that "the saving of the High Court's inherent powers, both on civil and criminal matters is designed to achieve salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution."
21. Mr. Ranjan Roy, learned Counsel, appearing on behalf of the opposite party/CBI quickly responded to the challenge by referring to the decision in the case of the Assistant Collector of the Customs, Bombay and Anr. v. L.R. Melwani and Anr. . In the said case the Apex Court observed that adjudication before a Collector of Customs is not a prosecution nor the Collector of Customs a 'Court'.
22. It cannot be denied that the result of the earlier proceedings in the circumstances as stated hereinbelow, cannot stand in the way of either investigation by the CBI or of trial by the learned Court. It was stated that even though the accused was given benefit of doubt in earlier proceedings, the decision of the Collector of Customs does not amount to a verdict of acquittal in favour of accused so as to attract the rule of issue estoppel.
23. Considering the facts and circumstances of the present case in the backdrop of the legal position, as referred to earlier, I am inclined to hold that the order, passed in the adjudication proceeding or the order passed in the appeal dated 26th June, 2006, cannot by itself be a ground for quashing the instant proceeding. In fact, the materials for consideration as well as the areas of operation are separate and distinct. There is no reason for allowing the two to intermingle. In the present case the CBI has proceeded with investigation of the case with alleged serious offences like criminal conspiracy for the purpose of cheating, using forged documents as genuine and abuse of official position. Much of such allegations were not under active consideration of the adjudicating authority or was matter of concern for its appellate authority. In the circumstances, I am not in a position to appreciate the grievances of the petitioners in the present application.
24. It is, perhaps, necessary to mention that as at the time of hearing of the present application, similar other application, which are also directed against the impugned order, were taken up for consideration. Those matters were also heard along with the present application. A point was raised in connection with such hearing that the learned Court by the impugned order while acknowledging the receipt of three chargesheets, directed issuance of warrant of arrest against the petitioners after taking cognizance. According to the petitioners in such cases, there could be no scope for taking cognizance on the basis of three chargesheets.
25. It appears from the order 19th August, 2006, which was sought to be assailed, the learned Court refers to three chargesheets against as many as 15 accused persons. For the sake of convenience, the relevant order is reproduced hereinbelow:
Or. No. 4/19.8.06.
Received three chargesheets against the accused persons 1. Sri Ronjit Das, 2. Sri Aurobinda Das, 3. Sri Subhashis Banerjee, 4. Sri Bishnu Agarwala, 5. Sri Biswanath Chakraborty, 6. Sri Arun Chakraborty, 7. Sri Arun Kr. Brahma, 8. Sri Koushik Bondhopadhyay, 9. Sri Suman Sarkar, 10. Sri Sushil Kr. Agarwal, 11. Smt. Meena Agarwal, 12. Sri Gobinda Haider, 13. Sri Partha Pratim Boral, 14. Sri Vijoy Kr. Poddar, 15. Sri Sambilash Agarwal, under Section 120B read with Sections 467, 468, 471, 477A IPC and Section 13(2) read with Section 13(1)(d) P.C. Act from the Superintendent of Police, CBI; SPE ACB; Kolkata.
Seen cognizance taken.
Issue W/A upon the accused persons.
Fix 28.8.06 for E/R & appearance.
26. Question naturally arises as to how could there be cognizance referring to three chargesheets, which are not in the nature of one chargesheet followed up supplementary chargesheets.
27. Mr. Roy, learned Counsel for the opposite party/CBI, submitted that the First Information Report relates to conspiracy amongst the public servants attached with the Central Excise and the Clearing Agent in processing of false and fabricated papers and documents to obtain benefit under the DEPB scheme to the various exporters. It is his submission that the three police reports, being 21 of 2006, 22 of 2006 and 23 of 2006 virtually relate to the same set of public servants as well as others like clearing agent. He submitted that only the beneficiaries, viz. the commercial houses are separate but transactions were through the same clearing agent and the same set of public servants. He further contended that the public servants in one way or the other are same in all chargesheets, viz. Ronjit Das is involved in chargesheet Nos. 21 and 22 of 2006. Arabindo Das is involved in the chargesheet Nos. 21 and 23 of 2006, Subhasish Banerjee in the chargesheet Nos. 21 and 22 of 2006. Arun Brahma in the chargesheet Nos. 22 and 23 of 2006, Kaushik Bandyopadhyay in the chargesheet Nos. 22 and 23 of 2006. Suman Sarkar in the chargesheet No. 22 of 2006, Gobinda Haider, and Partha Pratim Baral in the chargesheet No. 23 of 2006, Mr. Roy submitted that all the said public servants were posted at LCS, Petrapole, wherefrom the conspiracy was generated. According to him, the conspiracy being one, the clearing agent being common and the public servants being all posted and present at LCS Petrapole, the place where the conspiracy was hatched was also the same. He then added that the conspirary being common, there is no impediment in those separate chargesheets being filed on one special case on which cognizance was taken and process issued. In this context, Mr. Roy referred to the decision in the case of P.V. Narasimha Rao v. State (CBI/SPE) 1997 SCC (Cri)1108.
28. The facts and circumstances of the said case are separate and distinct. The decision in the said case does not seem to have much relevance so far the technical point raised in this case is concerned.
29. Section 173 of the Code of Criminal Procedure deals with report of police officer on completion of investigation. Sub-section (1) of Section 173 lays down that every investigation under this Chapter shall be completed without unnecessary delay. Sub-section (2) of the said section lays down that as soon as investigation is completed, the Officer-in-Charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report. Thus, the 'police report' is a conclusion that any Investigating Officer draws on the basis of materials collected during investigation and such conclusion can only from the basis of a competent Court to take cognizance thereupon under Section 190(1)(b) of the Code of Criminal Procedure and to proceed with the case for trial.
30. Section 173(5) of the Criminal Procedure Code reads as follows:
When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report:
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) The statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
31. What is important to note is that the investigating authority is required to submit a report after completion of investigation and documents as well as relevant extracts thereof on which the prosecution proposes to rely upon along with the said report. The prosecution also is required to place the statements recorded under Section 161 of the Criminal Procedure Code.
32. Learned Magistrate, thereafter, is to consider the said report and then to decide the future course of section. Taking of cognizance is one of such option left to the learned Magistrate under the statute. The word 'cognizance' means application of mind for the purpose of proceeding future. In the present case, learned Magistrate by order dated 19th August, 2006 took cognizance on receipt of such police report which appears to have been strangely described and dressed in three chargesheets.
33. On behalf of the petitioner it was further submitted that the learned Court could have had no justification for directing issuance of warrant of arrest straightaway. Mr. Roy sought to respond to the challenge mentioning that the alleged offences being serious and certainly being triable by warrant procedure, it was within the competence of the learned Court to direct issuance of warrant of arrest. No doubt, Mr. Roy, is technically right but in the facts and circumstances of the present case, there was perhaps no justification for directly issuing warrant of arrest. But grievance in this regard cannot by any stretch of imagination lead this Court to quash the proceeding.
34. Considering all such facts and circumstances and having regard to the materials on record I find it difficult, if not impossible, to appreciate the grievances, as ventilated on behalf of the petitioner.
35. The present application being C.R.R. No. 2969 of 2006 stands dismissed. Interim order, if any, vacated.
36. It is perhaps needless to mention that this does not take away the the right of the petitioner to raise all the grievances before the learned Trial Court at the appropriate stage.
37. In absence of any material or suggestion that there is any possibility of abusing of the process of law by the petitioner, I think, in the best interest of justice, execution of warrant of arrest issued against the petitioner by the impugned order be stayed for a period of four weeks from this date and the petitioner is directed to appear before the learned Court within a period of three weeks. Upon such appearance, he will be at liberty to file an application for bail and if such application is filed, it is for the learned Trial Court to consider the same and pass necessary order in accordance with law.
38. Criminal department is directed to supply urgent certified copy in compliance with due formalities.