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18. Thus, all the accused have cheated the Government of India to the tune of Rs.2 crores, which is a legitimate duty leviable on the goods imported and thus the accused have committed the offences under Sections 120B, 420, 471, I.P.C. and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act and Section 136 of the Customs Act, 1962.

19. Crl.O.P.No. 20698 of 2003 was filed to quash C.C.No. 34 of 1999 and Crl.O.P.No. 20699 of 2003 was filed to quash C.C.No. 35 of 1999 on the file of the learned X Additional Special Judge for C.B.I. Cases, City Civil Court, Chennai. The contention of the petitioner Bharath Bushan Goyal @ Bharat Goyal in both these cases are as follows:

56. The trial Court failed to see that where in the adjudication proceedings there is no imposition of penalty on the same set of facts, there cannot be a prosecution in a criminal Court appears to be well settled. None of the offences, viz., 120-B, 420, 471, I.P.C. and 13(2) read with 13(1)(d) of the Prevention of Corruption Act read with Section 136 of the Customs Act can be attributed to the petitioner, as the petitioner even according to this statement and materials on record, the charging Section 471, I.P.C. is not attracted. The petitioner is not shown to have made any pecuniary benefit on the imports made Hence, the offence under Section 120-B or 420, I.P.C. cannot arise.

86. In Criminal O.P.Nos.20698 and 20699 of 2003, the respondent has filed counter affidavits dated 5.8.2003 and 16.10.2003 and 23.3.2004. One of the contentions raised by the respondent is that the F.I.R. in this case was registered on 2.3.1995 and the investigation was going on. It is further stated that the offence alleged against the accused, which included public servants, viz., the officials of the Customs Department were under Sections 120-B, 420, 468, 471, I.P.C. and Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 132 and 136 of the Customs Act. That public servants are also tried along with the private persons and therefore, it is submitted that the prosecution is exempted from the application of K.V.S. Scheme as per Section 95(iii). In paragraph 4 of the counter affidavit in Crl.O.P.No. 20699 of 2003, it is stated that "in cases involving an offence of criminal misconduct by a public servant, abusing his official position as such, public servant criminal proceedings are instituted by filing of complaint and registering of F.I.R. It is investigated and the charge sheet is filed." "In this case, the investigation was in progress and the authorities under K.V.S. Scheme ought to have awaited for the result of the investigation before passing any order under the K.V.S. Scheme." From the above it is clear that the authorities have totally misread the provisions of Section 95(iii) of the K.V.S. Scheme. Firstly, as per Section 95(iii) of the K.V.S. Scheme, it is clear that the K.V.S. Scheme will not be applicable, only in a case where prosecution has been instituted on or before filing of the declaration. It is an admitted fact that the prosecution in this case was instituted on 12.4.1999 long after the K.V.S. Declarations were filed. Secondly, the charge of evasion of duty will not be available as the duty claim has been settled by the Designated Authority under the K.V.S. Scheme. Thirdly, the Designated Authority has granted immunity after accepting the declaration.

97. According to the petitioner he has a limited duty to do cursory check of the Bill of Entry and the connected documents which has been thoroughly scrutinised by his appraiser. The petitioner is not the proper officer to allow clearance of goods in question out of Customs control. Therefore it is not correct to state that the petitioner had allowed the dutiable goods without Customs Duty.

98. Out of the Nine charges, charges 1, 8 and 9 are against the petitioner. The first charge is for the alleged offence of conspiracy, the 8th charge is for the alleged criminal misconduct under the Prevention of Corruption Act 1988 and the 9th charge is for the alleged connivance punishable under Section 136 of the Customs Act, 1962. There is no specific charge for alleged offences under Section 420, 467, 468, 471 r/w. 468 of IPC against this petitioner. Under these circumstances the offence U/2.120B of IPC 13(2) r/w 13(1) (d) of Prevention of Corruption Act and Section 136 of Customs Act would not come into play as simplicitor because the entire alleged episode has taken place by producing forged documents. The alleged conspiracy cannot be inferred from the solitary instance of mere countersignature. There is no material to show that where the conspiracy has been hatched. A perusal of the records would show that at the time of countersigning done by the petitioner, the descriptions of invoice and declarations on the Bill of Entry tallied with those descriptions stated in the Licence and Duty Exemption Certificate. If any fabrication or manipulations of documents which had been done in the documents after the same had left from the petitioner's table, he cannot beheld responsible and liable.