Madras High Court
S.Suresh vs State Rep By on 28 April, 2023
Author: P.Velmurugan
Bench: P.Velmurugan
CRL.R.C.Nos.1161 and 1007 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.01.2023
PRONOUNCED ON : 28.04.2023
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.R.C.Nos.1161 and 1007 of 2018
and
Crl.M.P.No.13526 of 2018
S.Suresh .. Petitioner
in Crl.R.C.No.1161 of 2018
K.R.Ramakrishnan .. Petitioner
in Crl.R.C.No.1007 of 2018
.Vs.
State rep by
The Inspector of Police,
SPE, CBI, EOW,
Chennai,
F.I.R.No.RC.5(e)/2003 .. Respondent
in both Crl.R.Cs.
Criminal Revision Cases filed under Sections 397 r/w 401 of Code
of Criminal Procedure to call for the records pertaining to the judgment
dated 28.04.2018 in Crl.A.Nos.308 of 2008 and 312 of 2008 on the file
of the Principal Sessions Judge, Chennai confirming the judgment dated
5.11.2008 in E.O.C.C.No.435 of 2004 on the file of the Additional Chief
Judicial Magistrate, E.O.II Court, Egmore, Chennai – 600 008
and set aside the same.
https://www.mhc.tn.gov.in/judis
Page No.1/28
CRL.R.C.Nos.1161 and 1007 of 2018
For Petitioner : Mr.B.Kumar
in Crl.R.C.No.1161 of 2018 Senior Counsel for
Mr.N.Balaji
For Petitioner : Mr.K.Selvamani
in Crl.R.C.No.1007 of 2018
For Respondent : Mr.K.Srinivasan
in both Crl.R.Cs Special Public Prosecutor
for CBI Cases
COMMON ORDER
These Criminal Revision Cases have been preferred against the judgment dated 28.04.2018 passed in Crl.A.Nos.308 of 2008 and 312 of 2008 by the learned Principal Sessions Judge, Chennai, confirming the judgment dated 5.11.2008 in E.O.C.C.No.435 of 2004 by the learned Additional Chief Judicial Magistrate, E.O.II, Egmore, Chennai.
2.The petitioner in Crl.R.C.No.1161 of 2018 is arrayed as A1 and the petitioner in Crl.R.C.No.1007 of 2018 is arrayed as A5 in E.O.C.C.No.435 of 2004 on the file of the learned Additional Chief Metropolitan Magistrate Court, E.O.II, Egmore, Chennai.
3. The case of the prosecution is that A1 to A5 along with the deceased A6 during the period October 2002 to January 2003 entered into a criminal conspiracy in order to get ineligible Duty Entitlement https://www.mhc.tn.gov.in/judis Page No.2/28 CRL.R.C.Nos.1161 and 1007 of 2018 Pass Book [hereinafter referred to as 'DEPB' for the sake of convenience] in the name of various exporters by producing forged Bank Realization Certificate [hereinafter referred to as 'BRC' for the sake of convenience] of Bank of Saurashtra, G.T.Branch, Chennai and Dhanalakshmi Bank, G.T.Branch, Chennai showing realization of Foreign Exchange against export of coloured water and mis-declared the customs as high quality printing ink for refilling catridges and caused loss to the Government of India. Thus, A1 to A5 have committed the offences punishable under Sections 120B r/w 420, 467, 468, 471 IPC and Sections 132 and 135 of the Customs Act, 1962 [hereinafter referred to as 'CS Act' for the sake of convenience] and also specific offences under Sections 468, 467 r/w 471 and 420 IPC and Sections 132 and 135 of CS Act.
4. On the complaint given by the de-facto complainant the respondent/Police registered a case against A1 to A5 in F.I.R.No.RC. 5(e)/2003. After investigation, they laid a charge sheet before the Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai for the offences punishable under Sections 120B r/w 420, 467, 468, 471 IPC and Sections 132 and 135 of CS Act as against A1 to A5; and substantive offences under Sections 420, 467, 468, 471, 420 r/w 511 of IPC and https://www.mhc.tn.gov.in/judis Page No.3/28 CRL.R.C.Nos.1161 and 1007 of 2018 Sections 132 and 135 of CS Act as against A1; under Sections 420, 471 IPC and Sections 132 and 135 of CS Act as against A2; under Sections 420 and 471 IPC and Sections 132 and 135 of CS Act as against A3; under Sections 420, 467, 468, 471, 420 r/w 511 IPC and Sections 132 and 135 of CS Act as against A4 ; and under Section 468 IPC as against A5. The learned Magistrate taken the charge sheet on file in E.O.C.C.No.435 of 2004.
5. The trial Court framed charges under Section 239 Cr.P.C against A1 to A5 for the offences under Sections 120B r/w 420, 467, 468 and 471 IPC and Sections 132 and 135 of CS Act; as against A4 under Section 468 IPC; as against A1 to A5 under Section 467 IPC; as against A1 to A4 under Section 467 r/w 471 IPC; as against A1 to A4 under Section 420 IPC; as against A1 to A4 under Section 420 IPC; and as against A1 to A4 under Sections 132 and 135 of CS Act. They were questioned and they denied all the charges as false.
6. In order to prove its case before the trial Court, on the side of the prosecution, as many as 52 witnesses were examined as P.W.1 to P.W.52 and 251 documents were marked as Exs.P1 to P251, besides 17 material objects were marked as M.O.1 to M.O.17.
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7. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the accused and they were questioned under Section 313 Cr.P.C., wherein they denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, 4 witnesses were examined as D.W.1 to D.W.4 and 5 documents were marked as Ex.D1 to Ex.D5.
8.1 The trial Court, after hearing the arguments advanced on either side and also considering the materials available on record, found the accused A1 to A5 guilty for the offences under Sections 120B r/w 420, 467, 468 and 471 IPC and Sections 132 and 135 of CS Act; as against A4 under Section 468 IPC and Section 468 r/w 471; as against A1 to A5 under Section 467 IPC; as against A1 to A4 under Section 467 r/w 471 IPC; as against A1 to A4 under Section 420 IPC; as against A1 to A4 under Section 420 IPC; and as against A1 to A4 under Sections 132 and 135 of CS Act.
https://www.mhc.tn.gov.in/judis Page No.5/28 CRL.R.C.Nos.1161 and 1007 of 2018 8.2 The petitioner/A1 in Crl.R.C.No.1161 of 2018 was convicted and sentenced as under :
Offence Sentence Sections 120B r/w 420, to undergo rigorous imprisonment 467, 468 and 471 IPC for a period of three years and to pay and Sections 132 and a fine of Rs.1000/-, in default, to 135 of CS Act undergo further period of two months rigorous imprisonment.
Section 467 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment.
Section 467 r/w 471 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment.
Section 420 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment.
Section 420 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment.
Section 132 of CS Act to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment.
https://www.mhc.tn.gov.in/judis Page No.6/28 CRL.R.C.Nos.1161 and 1007 of 2018 Offence Sentence Section 135 of CS Act to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment.
The said sentences were ordered to run concurrently and the period of detention already undergone by the accused was directed to be set off under Section 428 Cr.P.C.
8.3 The petitioner/A5 in Crl.R.C.No.1007 of 2018 was convicted and sentenced as under :
Offence Sentence Sections 120B r/w 420, to undergo rigorous imprisonment 467, 468 and 471 IPC for a period of three years and to pay and Sections 132 and a fine of Rs.1000/-, in default, to 135 of CS Act undergo further period of two months rigorous imprisonment.
Section 467 IPC to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1000/-, in default, to undergo further period of two months rigorous imprisonment.
The said sentences were ordered to run concurrently and the period of detention already undergone by the accused was directed to be set off under Section 428 Cr.P.C.
9. Challenging the said conviction and sentences, the revision petitioners/A1 and A5 filed Crl.A.Nos.308 and 312 of 2008. The learned https://www.mhc.tn.gov.in/judis Page No.7/28 CRL.R.C.Nos.1161 and 1007 of 2018 Principal Sessions Judge, Chennai by judgment dated 28.04.2018 confirmed the conviction and sentence passed by the trial Court and dismissed the appeals. Aggrieved by the same, the petitioners/A1 and A5 have come up with the present Criminal Revision Cases.
10.1 Mr.B.Kumar, learned Senior Counsel representing Mr.N.Balaji, counsel on record for the petitioner/A1 submitted that the issuance of DEPB is concerned, the firm which has got Import Export Code (IEC) alone is entitled to undertake export or import, such licence is issued by the Director General of Foreign Trade [hereinafter referred to as 'DGFT' for the sake of convenience]. To motivate such exports, the Government give benefits proportionate to the value of exports, by way of a scheme viz., DEPB in the form of DEPB credit, which can be used by the exporter as against the payment of customs duty either by himself or it can be transferred to others, who can avail such credit.
10.2 The learned Senior Counsel further submitted that as per the prosecution, the revision petitioner/A1, who is the proprietor of M/s.Asian Shipping Services availed DEPB credits from the office of the Director General of Foreign Trade in the name of various exporters viz., i) Prime https://www.mhc.tn.gov.in/judis Page No.8/28 CRL.R.C.Nos.1161 and 1007 of 2018 Stone and Monuments (Proprietor Mr.Kenneth Welsley); ii) Sri Mahalakshmi Iron and Steel (Proprietor Mr.D.Purushothaman/A3); iii) Sevenstar Global Logistics (Proprietor Mr.R.G.Khader/A2); iv) Trans Ind Impex (Proprietor Mr.Shahul Iqbal) and v) Exim Engineering Services (Proprietor Mr.Sampu Rawther) by producing forged BRC's, which were issued by A5 and exported inferior quality printing ink. Further, DEPB licence of i) Prime Stone and Monuments; ii) Sri Mahalakshmi Iron and Steel; and iii) Sevenstar Global Logistics totalling to the tune of Rs.33,49,718/- were sold to one Vikram Jain (P.W.29) of Padmavathi Enterprise and received the monetary benefits to the tune of Rs.25,93,167/-. However, DEPB licence issued to Seven Star Global Logistics to the tune of Rs.6,79,350/- was not sold and the DEPB credit not utilised. As such no wrongful loss has been caused to the exchequer and the signature of the petitioner/A1 is not found in the said transaction.
10.3 According to the prosecution, based on the information received from the DRI officials attached to Customs Department on 30.1.2003, the Central Bureau of Investigation (CBI) conducted search in the office and godown premises of A1 and A2 and seized Bank seals and documents. From the office and the godown premises of A1 they https://www.mhc.tn.gov.in/judis Page No.9/28 CRL.R.C.Nos.1161 and 1007 of 2018 seized 10,000 litres of printing ink kept ready for export vide Exs.P76 to P81 shipping bills Nos.1546401, 1546402, 1546403,1546404, 1546405 and 1546406 dated 29.1.2003 in the name of M/s.Exim Engineering Services and also seized packets of black coloured powder. In continuation of the search consignment of printing ink were said to have seized from Bharathi Docks, Chennai Harbour, which were kept ready for shipment in the name of M/s.Seven Star Global Logistics. Further, alleged that the samples, which were drawn from the seized consignment were sent for chemical examination and it was opined that the seized consignment is not high quality printing ink, but water mixed with carbonaceous matter, colorant and inorganic salt. However, the details furnished by the DRI with respect to the outcome of the chemical examination was a verbatim replica report. Further, the prosecution alleged that the revision petitioner/A1 gave Ex.P1 and Ex.P.17 confession statements under Section 108 of CS Act before the DRI officials admitting that by mixing locally purchased ink powder with water he prepared the seized consignments. By making false declaration to the Custom Department as Computer Cartridge Printing Ink and also prepared shipping bills for the said consignment with the help of A4 and also packed the same in pet bottles with the labels of ''BEST Brand Printing https://www.mhc.tn.gov.in/judis Page No.10/28 CRL.R.C.Nos.1161 and 1007 of 2018 Ink'' with fake address. The investigating officer found that Bangalore address of the BEST Brand Printing Ink Company was found to be fictitious. Further, A1 also admitted that he exported the same materials in the name of M/s.Prime Stones and Monuments, M/s.Sri Mahalakshmi Iron and Steel and M/s.Seven Star Global Logistics and M/s.Trans Ind Impex, but no proceeds were realized against the exports and the respective BRC's were forged by him. The investigation conducted by the DRI was taken up by the CBI and the charge sheet was filed before the trial Court by invoking both IPC and Customs Act offences against the accused persons.
10.4 The learned Senior Counsel further submitted that the revision petitioner/A1 was not involved in any criminal conspiracy with regard to manufacturing or preparation of seized printing ink and obtaining DEPB credits by using forged BRC. The entire case of the prosecution wholly rests on the statements of A1/Ex.P1 and Ex.P17 dated 30.01.2003 and 01.02.2003. Subsequently the said statements were retracted by the petitioner/A1 on 06.02.2003, when he was in prison. On 30.01.2003, the DRI officials took custody of the revision petitioner/A1 and he was not allowed to sleep or leave their office until his remand on 01.02.2003 and https://www.mhc.tn.gov.in/judis Page No.11/28 CRL.R.C.Nos.1161 and 1007 of 2018 they harassed him to the core and forcibly obtained his statement and also resisted the petitioner from telling the truth before the Magistrate. Further, the petitioner/A1 has not benefited out of the alleged criminal acts as projected by the prosecution and the prosecution has not proved that he has gained out of such transaction. Hence, the confession statement recorded by the DRI officials is not admissible in evidence. As per the latest decisions of the Hon'ble Supreme Court that any statement recorded from the accused by the investigating agency is not admissible in evidence and conviction cannot be recorded solely based on the confession statement. Therefore, the prosecution has not proved its case beyond reasonable doubt that the revision petitioner only prepared the alleged printing ink, hence, the benefit of doubt should be extended in favour of the petitioner/A1. He has further submitted that the retracted confession statement, which was taken from the petitioner under coercion cannot be used against A1 as a corroborative evidence. He further submitted that none of the exporters have implicated the revision petitioner/A1. For instance, Mr.Kenneth Wesley, who is the proprietor of M/s.Prime Stone Monuments was not at all examined either by DRI or by CBI and the original documents bearing the signature of Keneth Wesley in the IEC applications, Bank documents etc are not disputed with the https://www.mhc.tn.gov.in/judis Page No.12/28 CRL.R.C.Nos.1161 and 1007 of 2018 signature found on the DEPB and BRC. The trial Court only relied on the evidence of P.W.2, who has stated that she obtained incriminating materials in the presence of independent witnesses, convicted the petitioner/A1. However, no independent witness was examined to substantiate the evidence of P.W.2 and seizure was also not proved in the manner known to law. The trial Court not sending the materials to experts opinion for comparing the seal and signatures invoking Section 73 of Indian Evidence Act, is against law. It is the bounden duty of the prosecution to prove its case beyond reasonable doubt. If there is any iota of doubt in the mind of the Court, then the benefit of doubt should be extended in favour of the accused. He further submitted that the evidence of P.W.11 shows that the application for issuance of DEPB credit licence and receipt of the same can be made ready and received only by the concerned exporters. Therefore, implications of the petitioner/A1 with the availment and sale of DEPB licence is contrary to the evidence of P.W.11. The trial Court wrongly relying on the report of chemical examination came to the conclusion that the petitioner alone prepared the alleged printing ink and exported the same by making false declaration to the Custom Department as Computer Cartridge Printing Ink. However, there is no material evidence available to prove the said allegation. Further, the https://www.mhc.tn.gov.in/judis Page No.13/28 CRL.R.C.Nos.1161 and 1007 of 2018 trial Court failed to appreciate the evidence of P.W.34, who transported the goods from the godown of A1 to the Harbour and wrongly believed the evidence of P.Ws.35, 39 and 48. He further submitted that while conducting search and seizure none of the independent witnesses were examined by the DRI officials. The non-examination of independent witnesses to the alleged search is fatal to the case of the prosecution. He further submitted that the materials seized from the premises of A1 were not marked as M.Os before the trial Court. Further, the alleged seizure of seals M.O.1 to M.O.15 were not sent to expert opinion for comparing the same with original seals of the concerned Bank. He further submitted that the appellant has no necessity to cheat the customs authority as he has only acted as Customs House Agent.
10.5. The learned Senior counsel further submitted that as per the Customs Act, the DRI officials alone can conduct investigation and proceed the case and the CBI officials have no jurisdiction and authority to investigate and register the case. In the instant case, without jurisdiction CBI entered into the investigation and filed the charge sheet before the trial Court. Therefore, the statement recorded under Section 108 of CS Act cannot be taken in the case where the investigation was https://www.mhc.tn.gov.in/judis Page No.14/28 CRL.R.C.Nos.1161 and 1007 of 2018 conducted by CBI. Both the Courts below have wrongly appreciated the entire oral and documentary evidence and convicted and sentenced the petitioner/A1, which warrants interference of this Court and therefore, the revision may be allowed.
11. Mr.K.Selvamani, learned counsel for the petitioner/A5 submitted that according to the prosecution, while, A5 was working as an Assistant Manager in the Dhanalakshmi Bank, George Town, Chennai during the period 2002 and 2003, he affixed fabricated rubber stamp and seals of the Bank. After signing the same, he gave false BRC's to A1 in order to get DEPB credit, as if A1 had exported goods to Singapore. However, the fabricated seals were seized from the premises of A1. He further submitted that there are several infirmities in the judgment of the trial Court as well as the Appellate Court. Further, the statement recorded from A1 under the Customs Act has been marked as Ex.P17, wherein, he has specifically admitted his guilt. It is in the form of a questionnaire, wherein, for answer to question No.6, A1 had admitted that he had forged the signature of the petitioner/A5 in 3 BRC forms. He has also admitted that the rubber stamp (seal) were actually made with the local seal maker and affixed in the said BRC forms. When such being the case, the Courts https://www.mhc.tn.gov.in/judis Page No.15/28 CRL.R.C.Nos.1161 and 1007 of 2018 below have erred in relying on the evidence of P.W.20 and P.W.21 and identified the signature of the petitioner. The learned counsel further submitted that P.W.20 and P.W.21 have not worked with the revision petitioner/A5 in the Bank at the relevant point of time and their statements cannot be believed. Further, when there is a categorical admission of A1 with regard to the forgery, at the earliest point of time, the evidence of P.W.51 the handwriting expert cannot be taken into consideration. He further submitted that the Custom House Agent (CHA) and the revision petitioner/A5 were not aware of the activities of A1 and they were not involved in any offence of forgery and fabrication. The appellate Court acquitted A3 and A4 on the ground that A1 in Ex.P17 admitted his guilt with regard to the forgery. There is no evidence against the petitioner/A5 and no recovery was made from the premises of A5 and none of the witnesses had identified A5 during trial. Both the Courts below have wrongly appreciated the entire oral and documentary evidence and convicted and sentenced the petitioner/A5. Hence, he prays to allow the revision.
12.1 Per contra, Mr.K.Srinivasan, learned Special Public Prosecutor appearing for the respondent submitted that A1 to A5 along https://www.mhc.tn.gov.in/judis Page No.16/28 CRL.R.C.Nos.1161 and 1007 of 2018 with A6 entered into criminal conspiracy and availed ineligible DEPB credits by producing forged BRC's which were given by A5. Further, A1 and A2 confessed their illegal act under Section 108 of CS Act and the material objects recovered from the premises of A1 were corroborated with the confession statement of A1. Based on the information, the DRI officials conducted a search in the premises of the revision petitioner/A1 and seized the alleged materials and recorded the statement of A1 under Section 108 of CS Act on 30.01.2003. In his statement, A1 admitted the allegations made against him. On completion of the investigation, A1 was remanded to judicial custody and he was produced before the Magistrate. At that time of remand, A1 not complained to the Magistrate, as he was surrounded by the DRI officials, but later in the jail as per the advice of his counsel, he sent a retraction letter Ex.D3 and retracted his confession. The prosecution proved that the petitioner/A1 manufactured coloured water and packed the same in pet bottles with the label of ''BEST Brand Printing Ink'' with fake address and made false declaration that the same are high quality printing ink and got DEPB licence. He further submitted that search was made in the presence of independent witnesses and team of the officers and all the material objects seized from the premises of the petitioner/A1 were proved from the evidence of P.W.2. After seizure, the https://www.mhc.tn.gov.in/judis Page No.17/28 CRL.R.C.Nos.1161 and 1007 of 2018 same were sent to the forensic laboratory and the said report clearly shows that the said consignment does not contain any characteristic printing ink and the samples contains mixed blackish colour powder with plain water.
12.2 From the evidence of the prosecution witnesses 35, 39, 47, 48 the prosecution has proved its case beyond reasonable doubt that the petitioner/A1, is the one who forged the documents with the connivance of the other accused, entered into a conspiracy and availed DEPB credits and caused loss to the Government. He further submitted that the revision petitioner/A5 was working as an Assistant Manager in the Dhanalakshmi Bank, George Town, Chennai. From the evidence of P.W.20 and P.W.21 it is evident that A5 is not authorised to issue BRC certificate and the branch in which A5 was working during the year 2002 is also not empowered to issue the said certificate, since it comes under C-category. A5 fraudulently issued BRC certificates Ex.P91 to P93, in pursuance of the conspiracy with other accused persons and thereby, he has committed the charged offence. Further, as per the evidence of P.W.18, P.W.20 and P.W.21, it is evident that Exs.P83 to P93 BRC's enclosed by the accused persons were forged and the same were used as https://www.mhc.tn.gov.in/judis Page No.18/28 CRL.R.C.Nos.1161 and 1007 of 2018 genuine by the accused persons, which is evident from the evidence of P.W.11. Therefore, from the evidence of the prosecution witnesses and materials seized from the premises of A1, the prosecution proved its case beyond reasonable doubt.
12.3 The learned Special Public Prosecutor further submitted that the defence taken by the learned counsel for the petitioner is that CBI has no jurisdiction to register and investigate the present case, as the allegations levelled against the petitioners are comes under the Customs Act and the power is only given to officers of Customs. However, vide Letter.No.SC/23a5-4/91 Home (SC) Department, dated 22.07.1992 the CBI has got jurisdiction to register and investigate the cases involving financial or other interests of the Central Government or Public Sector undertaking under the Central Government. The trial Court as well as the appellate Court rightly appreciated the entire oral and documentary evidence and convicted and sentenced the petitioners/A1 and A5. There is no merit in the revision and the same is liable to be dismissed.
13. Heard the learned counsel on either side and perused the materials available on record.
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14. The sum and substance of the case of the prosecution is that the accused fabricated the BRC's in the name of M/s.Prime Stones and Monuments, M/s.Sri Mahalakshmi Iron and Steel and M/s.Seven Star Global Logistics as if the same were issued by the Bank of Saurashtra, George Town, Chennai and Dhanalakshmi Bank, George Town, Chennai and also involved in affixing the fabricated rubber stamp of the Bank. By using the said BRC's they have submitted shipping bills by way of getting ineligible DEPB licence. The further allegation is that the accused have exported coloured water and made a false declaration that they exported high quality ''PRINTING INK FOR REFILLING CARTRIDGES''. Further, A1 to A3 have sold the said licence to various persons for monetary consideration and thereby, enable the bonafide purchaser to use the fraudulent DEPB licence and cause wrongful loss to tune of Rs.33,49,718/- to the Government.
15. P.W.20 clearly deposed that he was working as Chief Manager of Dhanalakshmi Bank, George Town, Chennai from October 2002 to 2004. At that time, A5 was working as an Assistant Manager in the said Bank. A5 was working under him for about nine months and he was well https://www.mhc.tn.gov.in/judis Page No.20/28 CRL.R.C.Nos.1161 and 1007 of 2018 versed with his handwriting, signatures and initials that the current account opening Form of M/s.Sevenstar Global Logistics which is introduced by A1. He further deposed that either the said branch or A5 is not empowered to issue BRC. Therefore, the BRC's issued by A5 to the accused are forged and fabricated one.
16. P.W.21 has deposed that B.R.C's in Ex.P91 at sheet No.17, Ex.P92 at sheet No.17 and Ex.P93 at sheet No.17 were shown to be issued by the Dhanalakshmi Bank, George Town Branch, Chennai, but the said branch is not empowered to issue B.R.C's. Therefore, the evidence of P.Ws.20 and 21 clearly show that B.R.C's produced by the petitioner/A1 are not genuine, but with the connivance of A5, A1 had produced the said B.R.C's before the Customs Department and availed DEPB credits.
17. P.W.35 has deposed that he works under A1 and used to carry out the instructions of A1. He collected various documents and filled up various forms in the name of the exporters on the instructions of A1 and he does not know any of the exporters. The evidence of P.W.35 is corroborated with his statement recorded under Section 164 Cr.P.C. https://www.mhc.tn.gov.in/judis Page No.21/28 CRL.R.C.Nos.1161 and 1007 of 2018 P.W.35 had identified the challans which were filled by him and payment made to Central Bank of India, Mount Road Branch. On the basis of the information furnished and the amount given by A1, it is seen that the said challans were related to M/s.Prime Stone Monuments. The evidence of P.W.35 connects A1 with the alleged crime.
18. P.W.39 has deposed that he works under A1 and used to carry out the instructions of A1. As such he had withdrawn the amount from Standard Chartered Bank by way of depositing the cheques Exs.P165 and P166, which were issued by the Padmavathy Enterprises to A1. In the said cheques, his name was written by A1 and after receipt of the amount he handed over the amount to Suresh. He has deposed that when the godown of A1 was searched by DRI officials they seized materials objects.
19. P.W.47 deposed that A1 approached him and sought for IEC Certificate and he introduced P.W.50 Baskar. The said Baskar arranged licence for A1 in the name of M/s.Sri Mahalakshmi Iron and Steel, for which, A1 paid Rs.30,000/- to Baskar through him by cheques vide Exs.P185 to 195 and he also identified the same during his deposition. https://www.mhc.tn.gov.in/judis Page No.22/28 CRL.R.C.Nos.1161 and 1007 of 2018
20. P.W.48 has clearly deposed that he was working as Beat Postman for Beat No.9 Long Ford Road, Bangalore and during 2003- 2004 he received Ex.196 registered post containing address of Proprietor/ Manager, M/s.Best Printing Ink, 35/38, Langford Road, Shanti Nagar, Bangalore-52 which was handed over to him for delivery. On enquiry, no such address was found in that door number. From the evidence of P.W.48 the prosecution proved that the address mentioned in the pet bottles containing the address of Best Company, Bangalore is not at all existing in Bangalore.
21. P.W.23 who was working as Chemical Examiner Grade-I, Customs House Laboratory at Vizag has clearly deposed about Ex.P19 chemical analysis report dated 03.02.2003. In his report he has stated that the alleged samples which were examined are in the form of Dark aqueous liquid and it is predominately composed of water with very small amount of carbonaceous matter, colorant and inorganic salts and the samples does not contain the characteristic of printing ink. Therefore, the evidence of P.W.23 and Ex.P19 corroborated with the confession statement of A1.
22. The learned Senior Counsel appearing for the revision https://www.mhc.tn.gov.in/judis Page No.23/28 CRL.R.C.Nos.1161 and 1007 of 2018 petitioner/A1 contended that CBI has no authority to register and investigate the case, whereas, to investigate into the contraventions under the customs Act power is given only to the officers of Customs. However, the learned Special Public Prosecutor produced a Letter.No.SC/23a5-4/91 Home (SC) Department, dated 22.07.1992, in which, it is stated that CBI has got jurisdiction to register and investigate the cases involving financial or other interests of the Central Government or Public Sector undertaking under the Central Government. In the case on hand, the prosecution proved that the accused entered into a conspiracy with the other accused and in pursuance of the conspiracy they availed illeligible DEPB by producing the forged BRC and causing loss to the Government. Therefore, the contention raised by the petitioner that Customs Authority can only proceed with the offence under the Customs Act is not acceptable.
23. The learned Senior Counsel for the petitioner/A1 further contended that the statement of A1 recorded under Section 108 of CS Act is not involuntary and has been taken under harassment and coercion by the DRI officials, which has been subsequently retracted from prison. However, the petitioner/A1 was produced before the learned Magistrate, https://www.mhc.tn.gov.in/judis Page No.24/28 CRL.R.C.Nos.1161 and 1007 of 2018 after remand, at that time the petitioner did not complain to the Magistrate that the alleged statement were obtained by using force and torture by the DRI officials.
24. The scope of revision is very limited. The Trial Court and the Appellate Court had already appreciated and re-appreciated the entire evidence and also given findings and while exercising the revisional jurisdiction, this Court cannot sit in the arm chair of the Appellate Court and re-appreciate the evidence. However, while deciding the revision, this Court has to see whether there is any perversity in appreciation of evidence by the Courts below.
25. On a perusal of the entire records this Court finds that from the evidence of 23, 35, 39, 47, 48 the prosecution proved its case beyond reasonable doubt that the petitioner/A1 has committed the charged offences. Further, it is not in dispute that A5 was working as Assistant Manager in the Dhanalakshmi Bank, George Town, Chennai and from the evidence of P.Ws.20 and 21 the prosecution proved that BRC issued by A5 are not genuine one and he was not authorised to issue such BRC and that too in the name of the Branch which is not empowered to issue https://www.mhc.tn.gov.in/judis Page No.25/28 CRL.R.C.Nos.1161 and 1007 of 2018 such BRC and he has issued for the sole reason to get illegal benefits along with A1 and A2. The trial Court rightly found that A1 and A5 has committed the charged offences and convicted and sentenced them, which was confirmed by the lower Appellate Court.
26. Considering the facts and circumstances, this Court does not find any merit in the revision and there is no perversity in appreciation of evidence by the both Courts below. Hence, these revision cases are liable to be dismissed.
27. Accordingly, CRL.R.C.Nos.1161 and 1007 of 2018 are dismissed. The conviction and sentences passed by the Courts below as against A1 and A5 are confirmed. The trial Court is directed to take steps to secure the custody of the accused persons to undergo the remaining period of sentence, if any, and the same shall be set-off under Section 428 Cr.P.C. Consequently, connected miscellaneous petition is closed.
28.04.2023 Index: Yes/No https://www.mhc.tn.gov.in/judis Page No.26/28 CRL.R.C.Nos.1161 and 1007 of 2018 Speaking Order/Non-Speaking Order Neutral Citation Case : Yes/No ms To
1.The Principal Sessions Judge, Chennai.
2.The Additional Chief Judicial Magistrate, E.O.II Court, Egmore, Chennai – 600 008.
3.The Inspector of Police, SPE, CBI, EOW, Chennai.
4.The Public Prosecutor, High Court, Madras.
5.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
https://www.mhc.tn.gov.in/judis
Page No.27/28
CRL.R.C.Nos.1161 and 1007 of 2018
P.VELMURUGAN, J.
ms
Pre-delivery order in
CRL.R.C.Nos.1161 and 1007 of 2018
28.04.2023
https://www.mhc.tn.gov.in/judis
Page No.28/28