Telangana High Court
J. V. Mohan vs The State Of Telangana on 6 April, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL PETITION No.2398 OF 2021
ORDER:
This petition is filed by the petitioner-A1 under Section 482 Cr.P.C. to quash the proceedings in CC No.57 of 2016 on the file of XII Additional Chief Metropolitan Magistrate, Hyderabad.
2. The case of the petitioner was that he was the elder brother of respondent No.2 and also one of the founder Directors of M/s. Flytech Aviation Limited and resigned from the company on 6-6-2007. The respondent No.2 lodged a complaint against him alleging that since January 2007, the petitioner was indulging in immoral activities. The petitioner submitted that on appeal by his wife Smt. Sunitha Shakelli, his family members intervened on her behalf and estranged him. As such in June 2007, he cut himself off from his siblings as well as his own marital family and resigned as director of Flytech Aviation Limited.
3. He further submitted that Flytech Aviation Limited (FAL) was engaged in providing Commercial Pilot Training and Aircraft Maintenance Engineering to the students. The respondent No.2 owns 69% of the shares in M/s FAL, their sister Smt. Mamatha Kota owns 2 Dr.GRR,J Crl.P. No.2398 of 2021 26% of the shares in the M/s. FAL and the rest 5% was owned by the others shareholders. M/s.FAL owns 4 training Cessna Aircrafts and for the maintenance of the aircrafts, M/s FAL imports aircraft spares from M/s.Sigma Resource Group Inc, USA. At the time of import, they would avail exemption from customs duty. Incidentally, M/s Sigma was a company solely owned by respondent No.2. The respondent No.2 was also the sole owner of M/s.Ariel Technologies and M/s.One LLC and all the companies were based in USA. In the year 2006, M/s.FAL bagged the contract from MCH for installation and running of 15 LED Boards at various traffic junctions at Hyderabad. Pursuant to the above, M/s FAL imported 180 Video Display Panels for the purpose of erecting 5 LED Boards from M/s Sigma in the month of August and October 2006. Sigma in turn purchased the same from M/s Benson International and Strong Base Investment, Hong Kong. M/s Sigma issued 2 invoices in favor of M/s FAL for 180 LED Panels indicating a total value of US $ 81,000. M/s FAL also imported one huge Aerophile Helium Balloon from UK in January 2007.
4. The petitioner was not aware of the searches conducted by DRI in December 2007 and that a case was registered by them against M/s FAL, till he received summons for appearance before 3 Dr.GRR,J Crl.P. No.2398 of 2021 DRI in connection with the LED Boards imported by M/s FAL from Hong Kong through M/s Sigma. He appeared before the DRI as and when he was summoned by them and tendered oral and documentary evidence which was available with him. In the month of Feb./March of 2009, the petitioner received show cause notice dated 11-2-2009 issued by Addl. Director General, DRI Zonal Unit, Chennai alleging that M/s FAL evaded customs duty to a tune of Rs.3,50,26,732/- (Rs.2,09,27,386/- on LED Panels imported from Hong Kong through M/s.Sigma and Rs.1,40,99,346/- on the Helium Balloon imported from UK). The petitioner was also arrayed as an accused along with respondent No.2 herein and other directors in the said show cause notice. In the month of March/April 2011, the petitioner received another show cause notice dated 25-3-2011 issued by ADG, DRI, Chennai alleging that M/s.FAL imported parts of aircrafts retrieved from damaged aircrafts, in violation of the provisions Aircraft Act 1938 and the Rules made there under, the EXIM policy and grossly over-valued the said parts and siphoned huge amount of foreign exchange illegally out of the country in contravention of the provisions of Customs Act, FEMA 2000 and EXIM Policy. The petitioner was also arrayed as an accused along with respondent No.2 herein and other directors in the said show cause notice. 4
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5. He further submitted that the ED was investigating into the illegal transfer of money by over valuing the aircraft parts. In another case registered against M/s.FAL, CBI filed a charge sheet and presently the same was under trial before the CBI Court. The Income Tax Authorities had investigated and assessed short payment of tax to a tune of Rs.8.00 Crores by the company and the same was pending before Income Tax Appellate Tribunal. The petitioner submitted that respondent No.2 instead of following the legally available remedy resorted to making frivolous complaints against the petitioner as well as the officers, who investigated the case. The respondent No.2 filed a criminal complaint before the XII Additional Chief Metropolitan Magistrate, Hyderabad consequent to which an FIR was registered by the CCS, Hyderabad on 12-1-2009 i.e. after an year after the arrest of the respondent No.2 herein by the DRI in the case of Customs Duty Evasion. The charge sheet was filed by the police alleging that the petitioner herein had given Rs.15,000/- by way of cheque to Sri K. S. Subba Rao, who was arrayed as A2 in the present case. The petitioner submitted that the signature on the cheque was forged and the said fact of forgery was certified by the Truth Labs, who vide their report confirmed that the signature on the cheque was not that of the petitioner herein. The signatures of the petitioner herein on the bills 5 Dr.GRR,J Crl.P. No.2398 of 2021 of entry and other related import documents were forged. When the petitioner was summoned by A3, the Senior Intelligence Officer, DRI, Hyderabad and his statement was recorded, the petitioner denied the signatures on the documents, as such, the petitioner disputed signatures that were forwarded by DRI to the GEQD for analysis. The GEQD confirmed that the signatures were forged and they did not belong to the petitioner herein. In fact, even the signature of the petitioner on the resignation letter to the company was forged and the same was confirmed by Truth Labs, which was a forensic expert. All the above facts, the family disputes, property disputes had been brought to the notice of the Assistant Commissioner of Police, DCP, CCS and Investigating Officer of the present case by submission of representations and connected documents, but they turned a blind eye and played into the hands of the respondent, who was influential in the police circles.
6. He further contended that earlier also the respondent No.2 filed a complaint against him vide CC No.1248 of 2008 on the file of I-Additional Chief Metropolitan Magistrate, Hyderabad and the said case ended in acquittal on 23-5-2019. The petitioner herein filed two suits bearing OS No.10 of 2008 and OS No.11 of 2008 before the XII Additional Chief Judge, CCC Hyderabad for declaration of title and 6 Dr.GRR,J Crl.P. No.2398 of 2021 the said suits were decreed in favor of the plaintiff/petitioner herein on 29-8-2017. There were several property disputes between him and the respondent No.2 herein and submitted that the respondent No.2 deliberately filed the criminal complaint against him with a malafide intention only to harass him and prayed to quash the proceedings against him.
7. Heard the learned Senior Counsel for the petitioner and the learned Senior Counsel for the respondent No.2 and the learned Public Prosecutor for the respondent No.1.
8. The learned Senior Counsel for the petitioner submitted that the tax evasion and money laundering involved in import of LED Boards, Helium Balloon and Aircraft spares was evidenced by the banking transactions made by the respondent No.2. The two disputed invoices and disputed emails were not the sole evidence. The damaged and discarded spares imported by the respondent No.2 and sold in the domestic market, was borne out by record. The allegation of meetings of the petitioners in hotels etc., were all created for the purpose of this case. The statements of panch witnesses mentioned in the charge sheet were manufactured by the respondent No.2 and the police. Under the Customs Act, it was not the directorship that 7 Dr.GRR,J Crl.P. No.2398 of 2021 makes a person amenable to action for violation of the Act, but the actual persons involved in the evasions and the respondent No.2 was solely responsible for the huge evasion. The issue of deposit of Rs.15,000/- on 08.02.2009 by the petitioner in the joint bank account of the A2 was a mischief created by the respondent No.2 to harass the petitioner herein and moreover done after the complaint was made by the respondent No.2 on 12-01-2009 and prayed to quash the proceedings against the petitioner herein.
9. The learned Senior Counsel for the respondent No.2 contended that the police, after a detailed investigation and also after sending the letters of Request and letters of Rogatory by which the officials of Benson International were examined before the Criminal Courts in Hong Kong and their statements were recorded and forwarded to the Court, came to know that the two invoices recovered from the office premises of FAL, Hyderabad were not genuine and were not issued by them. The petitioner being the own brother of the respondent No.2 committed all the misdeeds. He engineered and in connivance with A2 and A3 placed the forged documents and got the respondent no 2 arrested, the charge sheet would reveal a prima facie case against the petitioner herein for the offences alleged against him and prayed to dismiss the petition. 8
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10. Perused the record. The record would disclose that the respondent No.2 who was an accused in the case filed by the DRI officials for evasion of Customs Duty and was arrested on 17-1-2008 and produced before Special Judge for Economic Offences, Hyderabad aggrieved by the fact of his arrest and publication of the news in the news papers that he was indulged in importing spurious aircraft spares and over invoicing, lodged a private complaint before the XII Additional Chief Metropolitan Magistrate, on 7-1-2009 alleging that his elder brother, A1 i.e. the petitioner herein conspired with the DRI officials, the Senior Intelligence Officer and the Intelligence Officer (A2 and A3) and fabricated false evidence and framed him in a false charge of evasion of customs duty to damage his reputation and the reputation of FAL. The said case was referred to the police for investigation by the court u/s 156(3) Cr.P.C. The CCS police after investigation filed charge sheet against the petitioner herein as well as A2 and A3 for the offences under Sections 468, 469, 471, 341, 343 read with Sections 34, 109, 120B IPC and Section 7(1) of Criminal Law Amendment Act, 1932. The court had taken cognizance of the above offences against A1 to A3 and issued summons to them. Aggrieved by the issuance of summons to him, the petitioner filed this petition challenging the same. 9
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11. The above case on the charge of customs evasion by the respondent No.2 herein was pending investigation/enquiry. The charge sheet filed by the CCS, Police amounts to running a parallel case to the proceedings pending against the respondent No.2, which was not permissible under law. If such parallel proceedings were allowed to proceed they would strangulate the very functioning of all the law enforcement officials. The allegations against the petitioner herein and the DRI officials about tampering the evidence during search operation should be agitated by the respondent no 2 before the adjudicatory authority provided under the Act. The petition filed by the DRI officials, the A2 and A3 for quashing the proceedings in CC No.57 of 2016 vide Crl.P. No.3978 of 2016 is also allowed as no sanction was obtained by the police before filing the charge sheet against the said officials under Section 197 Cr.P.C. and the customs officials were also entitled for protection under Section 155 of the Customs Act 1962.
12. The petition filed by the petitioner also would disclose that several cases were pending between the brothers due to family disputes between them. It was alleged in the charge sheet that the petitioner had given Rs.15,000/- by way of cheque to one of the 10 Dr.GRR,J Crl.P. No.2398 of 2021 customs officials arrayed as A2 towards bribe for implicating the respondent No.2 in the said case. Giving amount by way of cheque as bribe was unheard of. The said bribe was also alleged to be given one year after the seizure, which prima facie does not appear to be believable. The learned counsel for the petitioner also submitted that the Truth Labs also confirmed vide their report that the signature on the cheque do not belong to the petitioner herein. The truth or otherwise of the allegations of tampering of evidence shall be taken by the respondent No.2 in the case filed against him. Allowing a parallel prosecution to continue is nothing but an abuse of process of law. Hence, it is considered fit to quash the proceedings against the petitioner herein.
13. In the result, the petition is allowed quashing the proceedings in CC No.57 of 2016 on the file of XII Additional Chief Metropolitan Magistrate, Hyderabad.
Miscellaneous Petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J April 06, 2022 KTL