Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 949 (PNJ)

M. L. Wadhwa v. M. M. Rehani

2005-09-06

SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. This petition under Section 482 Cr.P.C. has been filed by one of the accused, M.L. Wadhwa, for quashing of the charge-sheet dated 8.12.1997 (Annexure P-4) in case RC No. 9/E/85-Delhi dated 8.8.1995 registered under Section 120-B read with Sections 420, 467, 468 and 471 IPC and Section 5 of Imports and Exports (Control) Act, 1947, Police Station CBI, New Delhi, framed by Special Judicial Magistrate, Ambala, for setting aside the order dated 8.12.1997 (Annexure P-5) incorporating the reasons for framing the charge; and the order dated 12.12.1998 passed in revision affirming for framing the charge; and the order dated 12.12.1998 passed in revision affirming the order of charge-sheet. 2. In this case, the petitioner along with eight other accused was arrayed as an accused in a complaint (Annexure P-1) filed by the Deputy Chief Controller of Imports and Exports under Section 120-B read with Sections 420, 468 and 471 IPC and Section 5 of Imports and Exports (Control) Act, 1947 (hereinafter referred to as `the Act). In the complaint, it has been alleged that one M/s. G.K. Ralhan & Company Private Limited obtained import licenses under actual user by submitting forged documents. It has been alleged that the consignments received through three import licenses of M/s. G.K. Ralhan & Company were not utilized for the prescribed purpose by the importer and were unlawfully diverted to sale in the open market. Accused Nos. 3 and 4, namely, M/s. Vajani Steel Traders and Ashok K. Shah, respectively, as per the sequence in the complaint, were alleged to have received imported goods on the authority of licenses (M/s. G.K. Ralhan & Company) and then disposed of the same in an unlawful manner. The allegations against the present petitioner and three others, namely, Ajit P. Toprani (accused No. 7), G.S. Rai (accused No. 8) and Heera Lal (accused No. 9) are that they all were concerned with M/s. Vishwa Niryat Private Limited (accused No. 5) and had unlawfully imported part of the goods in respect of licenses dated 11.6.1980 and 28.12.1979. The said import licenses were debited in the account of some other import licensees for which letters of credit were opened originally. No. L.C. was opened for import licenses in question. The said import licenses were debited in the account of some other import licensees for which letters of credit were opened originally. No. L.C. was opened for import licenses in question. M/s. Vishwa Niryat Private Limited through its Director M.L. Wadhwa (petitioner) procured the import licenses unlawfully and imported the goods without a letter of authority from the licensees. The import declarations were signed by Ajit P. Toprani, Heera Lal and G.S. Rai on behalf of M/s. Vishwa Niryat Private Limited. The goods were not delivered to M/s. G.K. Ralhan & Company rather disposed of at Bombay in conspiracy with some unknown persons. Thus, all the accused in conspiracy with each other cheated the government and obtained import licenses on the basis of forged documents. 3. The aforesaid complaint was entertained by the Special Judicial Magistrate and summoning orders were issued without recording any preliminary evidence as the complaint was filed by a government official. Thereafter, the complainant examined 19 witnesses in pre-charge evidence. 4. At the time of framing of the charge, the petitioner argued that from the pre-charge evidence led by the prosecution, if goes unrebutted, no case against the petitioner has been made out, which would warrant his conviction. Therefore, no charge could have been framed against the petitioner, and he is entitled to be discharged. It was submitted that from the reading of the statements of all the 19 witnesses and other material available on the record, no prima facie case is made out against the petitioner. It was pointed out that PW-1 to PW-15 are not in any manner concerned with the alleged role of the petitioner or that of accused M/s. Vishwa Niryat Private Limited or other accused connected with the said concern. Only PW-16 and PW-17 deposed about the consignments through which the petitioner is sought to be implicated, but perusal of the statements of these two witnesses reveals that they have stated nothing against the petitioner. It was argued that the petitioner has been implicated in the case merely on the basis of some ambiguity in the documents and because of the dubious role of the concerned authorities in collusion with the actual importer. However, the prosecution miserably failed to place on record any evidence which connects the petitioner with the alleged offence. 5. It was argued that the petitioner has been implicated in the case merely on the basis of some ambiguity in the documents and because of the dubious role of the concerned authorities in collusion with the actual importer. However, the prosecution miserably failed to place on record any evidence which connects the petitioner with the alleged offence. 5. The learned Special Judicial Magistrate vide his order dated 8.12.1997 while rejecting the contentions of the petitioner ordered for framing the charge, and the charges have been framed against the petitioner and other accused while observing that from the statements of the prosecution witnesses and documents on the file, a strong prima-facie case is made out against all the accused for commission of the offence punishable under Section 120-B read with Sections 420, 467, 468 and 471 IPC and Section 5 of the Act. 6. While passing the order of framing the charge, the Special Judicial Magistrate observed as under :- ".... It is true that there is no direct evidence on the file to prove agreement between Sh. G.K. Ralhan & Co. and these three accused. It is also true that there is no evidence on the file to prove that the material imported was misappropriated by any of these three accused. But I am of the view that in such like cases there cant be any direct evidence to prove criminal conspiracy. Criminal conspiracy in such an offence is to be inferred from the circumstances of the case. It is not the case of the prosecution that any of the accused has misappropriated the material imported. Therefore, the arguments of the learned defence counsel representing these accused are devoid of any force. The case of the prosecution is that Mr. G.K. Ralhan procured three import licences on the basis of forged documents and in connivance with the remaining accused imported the material against those licences and instead of using the same in his factory premises, he sold the same in the open market. All the accused were aware of the fact that the licences were issued under actual users category and Shri G.K. Ralhan had no right to sell the goods so imported in the open market. Knowing it well remaining accused helped Shri G.K. Ralhan in importing the goods and selling the same in the open market. Thus they are also responsible for the offence committed by Sh. Knowing it well remaining accused helped Shri G.K. Ralhan in importing the goods and selling the same in the open market. Thus they are also responsible for the offence committed by Sh. G.K. Ralhan, by virtue of Section 120-B IPC. Moreover, prosecution is to examine more witnesses to prove the case against the accused. At this stage the Court is only to see whether a triable issue arises from the pre-charge evidence led by the prosecution or not." 7. The revision preferred by the petitioner against the aforesaid order has been dismissed by the Sessions Judge, Ambala vide order dated 12.12.1998, Hence this petition. 8. I have heard the arguments of the learned counsel for the parties and perused the record of the case. 9. Learned counsel for the petitioner submitted that inspite of the fact that the learned Special Judicial Magistrate has specifically noticed that there was no direct evidence against the petitioner to prove any agreement between M/s. G.K. Ralhan & Company and the petitioner or his firm M/s. Vishwa Niryat Private Limited, Bombay, the charge has been framed against the petitioner. The learned counsel submitted that there is not an iota of evidence on the file from which the accusation against the petitioner can be proved, if the same goes unrebutted, and it would warrant the conviction of the petitioner. The learned counsel for the petitioner referred to the statements of all the prosecution witnesses and then submitted that from none of the statements, the petitioner can be implicated for the alleged offence. There is not a remote evidence on the file which can connect the petitioner with the alleged offence. The learned counsel further submitted that the learned Special Judicial Magistrate has committed a legal error while observing that "moreover, prosecution is to examine more witnesses to prove the case against the accused. At this stage the Court is only to see whether a triable issue arises from the pre-charge evidence led by the prosecution or not." This approach according to the learned counsel for the petitioner is not correct. At the stage of framing of the pre-charge evidence, the Court is required to see whether a prima facie case is made out against the accused on the basis of the evidence brought on record by the complainant. At the stage of framing of the pre-charge evidence, the Court is required to see whether a prima facie case is made out against the accused on the basis of the evidence brought on record by the complainant. A charge simply cannot be framed on the basis of the likelihood of the prosecution to lead better evidence at a subsequent stage. Learned counsel submitted that as per the finding recorded by the Special Judicial Magistrate, there is no evidence on the file to prove that the material imported was misappropriated by the petitioner. There is no evidence on the record that the petitioner has forged any document or utilised the imported material at all. The only allegation against the petitioner is of conspiracy but there is no evidence direct or indirect which establishes any such conspiracy between the petitioner and his concern M/s. G.K. Ralhan & Company. Learned counsel submitted that there is also no evidence to show that the petitioner has made any forgery or fabrication of any document or to establish delivery of the material or utilisation or sale of the same by him. Learned counsel for the petitioner, therefore, submitted that there is no material/evidence available on the record on the basis of which the petitioner can be convicted if the same goes unrebutted, would warrant his conviction. In such situation, the Magistrate is duty bound to discharge the accused. 10. Learned counsel for the petitioner while referring to the judgment of the Honble Apex Court in Century Spinning and Manufacturing Co. Ltd. v. The State of Maharashtra, AIR 1972 SC 545, judgments of this Court in Anil Kapoor v. Finance-cum-Health Secretary, Chandigarh Administration, Chandigarh, 1974 PLR 71 and Surinder Kumar @ Palu and others v. Jagdish Lal, 1984(1) C.L.R. 709, has submitted that under Section 245 Cr.P.C., the Magistrate is bound to discharge the accused if no case is made out against the latter, if unrebutted, would warrant his conviction. In other words, if the evidence produced, as stands, is not sifficient for the conviction, the Magistrate is duty bound to discharge the accused. 11. In other words, if the evidence produced, as stands, is not sifficient for the conviction, the Magistrate is duty bound to discharge the accused. 11. On the other hand, learned counsel for the C.B.I. submitted that the petitioner along with other accused had entered into a criminal conspiracy amongst themselves to misutilise the imported material released against the actual users import license obtained on the basis of bogus consumption records issued in favour of M/s. G.K. Ralhan & Company through accused G.K. Ralhan and procured three import licenses on the basis of forged documents and in connivance with the remaining accused imported the material against those licenses and instead of using the same in his factory premises, sold the same in the open market. The learned counsel submitted that all the accused were having knowledge of the fact that the licenses were issued under actual users category. It has been further submitted that M/s. Vishwa Niryat Private Limited, Bombay imported the goods in respect of two licenses without any letter of authority from the licensee. The import declarations were signed by accused Ajit Toprani, Heera Lal and G.S. Rai on behalf of M/s. Vishwa Niryat Private Limited and goods were received by their accountant G.S. Rai as well as Heera Lal. The learned counsel further submitted that the petitioner is equally liable and responsible. More so, LC transactions with the bank were done by the petitioner and Ajit Toprani. 12. The learned counsel for the CBI further submitted that there is sufficient material on the file which established a criminal conspiracy between the petitioner and other accused, therefore, the charge has rightly been framed by the Courts below and the aforesaid orders are not liable to be interfered in the jurisdiction of this Court under Section 482 Cr.P.C. 13. While referring to a decision of State of M.P. v. Mohan Lal Soni, 2000(3) RCR(Crl.) 452 (SC) : (2000)6 SCC 338, learned counsel for the CBI submitted that at the stage of framing of the charge, the Court has to be only prima- facie satisfied about the existence of sufficient grounds for proceeding against the accused and the High Court should not interfere in the order of framing of the charge. 14. In this case, the main allegations are against M/s. G.K. Ralhan & Company Private Limited and its Managing Director G.K. Ralhan. 14. In this case, the main allegations are against M/s. G.K. Ralhan & Company Private Limited and its Managing Director G.K. Ralhan. As per the allegations in the complaint, during the years 1978-81, the said company was given three import dated 30.8.1979, 28.12.1979 and 11.6.1980 under actual users scheme by CCI, New Delhi for import of steel. It is the allegation of the complainant that accused Ashok K. Shah, partner of M/s. Vajani Steel Traders imported the goods in respect of licence dated 30.9.1979 and in respect of licence dated 28.12.1979. The goods imported under the two licenses were not received by G.K. Ralhan for actual consumption but were sold in the open market through M/s. Vajani Steel Traders. 15. It is the case the prosecution that M/s. Vishwa Niryat Private Limited, Bombay imported the goods in respect of licenses dated 11.6.1980 and 28.12.1979, and no L.C. was opened for import licenses in question. It has been alleged that M/s. Vishwa Niryat Private Limited through its Director M.L. Wadhwa (petitioner) procured the import licenses unlawfully and imported the goods without a letter of authority from the licensees. The import declarations were signed by Ajit P. Toprani, Heera Lal and G.S. Rai and the goods so imported were received by Heera Lal. These goods were not delivered to M/s. G.K. Ralhan & Company rather disposed of at Bombay in conspiracy with some unknown persons. So in nutshell, the allegations against the petitioner and concern M/s. Vishwa Niryat Private Limited, Bombay are that they had unlawfully imported part of the material of two licenses issued in favour of M/s. G.K. Ralhan & Company and sold the same in open market in contravention of the policy under which those licenses were issued. 16. The prosecution has examined 19 witnesses in pre-charge evidence. None of the witnesses has deposed against the petitioner. PW-1 to PW-15 are not in any manner concerned with the alleged role of the petitioner or that of M/s. Vishwa Niryat Private Limited or other accused connected with the said concern. Only two witnesses i.e. PW-16 Virender Kumar Handa and PW-17 Niranjan S. Shah deposed about the consignments through the petitioner is sought to be implicated. PW-16 did not state a word against the present petitioner or accused Nos. 5, 7 and 9. 17. Only two witnesses i.e. PW-16 Virender Kumar Handa and PW-17 Niranjan S. Shah deposed about the consignments through the petitioner is sought to be implicated. PW-16 did not state a word against the present petitioner or accused Nos. 5, 7 and 9. 17. During the course of arguments, learned counsel for the CBI was asked to refer statement of any witnesses who implicated the petitioner in the charge of conspiracy, but nothing incriminating from any statement of the prosecution witnesses has been pointed out. The trial Court while considering the matter itself has observed that : ".... It is true that there is no direct evidence on the file to prove any agreement between Sh. G.K. Ralhan & Co. and these three accused. It is also true that there is no evidence on the file to prove that the material imported was misappropriated by any of these three accused. xxx xxx xxx It is not the case of the prosecution that any of the accused has misappropriated the material." 18 Inspite of that finding, the trial Court has framed the charge while observing that G.K. Ralhan procured three import licenses on the basis of forged documents and in connivance with the remaining accused imported the material against those licenses and instead of using the same in his factory premises, he sold the same in open market. All the accused were aware of the fact that licenses were issued under actual users category and G.K. Ralhan had no right to sell the goods so imported in the open market. Knowing it well remaining accused helped G.K. Ralhan in importing the goods and selling the same in the open market. Thus, they are also responsible for the offence committed by G.K. Ralhan by virtue of Section 120-B IPC. 19. In my opinion, only on this basis, the charge could not have been framed against the petitioner under Section 120-B IPC. There is no material/evidence on the record which establishes that the petitioner or his concern has forged any document or they have imported the goods under the aforesaid licence. There is also no evidence that they were having any knowledge or they have actually received any material under the aforesaid two licenses. There is no evidence that they have signed any letter of authorities or that they have received the imported goods under any letter of authority. There is also no evidence that they were having any knowledge or they have actually received any material under the aforesaid two licenses. There is no evidence that they have signed any letter of authorities or that they have received the imported goods under any letter of authority. In absence of any such material, it cannot be presumed that they have committed the offence of conspiracy. The Magistrate, in my opinion, has proceeded on wrong presumption regarding commission of offence. Once from the evidence or material placed by the prosecution, no case is made out against the petitioner, in the sense, that if the said evidence or material goes unrebutted, it would warrant his conviction, in such situation, if there is no such material or evidence on the record then the Judicial Magistrate is bound to discharge the accused. Once the Judicial Magistrate came to the conclusion that there was no direct evidence to prove any agreement between G.K. Ralhan and the present accused or any evidence that the petitioner has misappropriated the imported goods or has received the imported goods, then the charge could not be framed merely on the ground that the prosecution will examine more witnesses to prove the case against the accused. At that stage, the Court is only to see whether a triable issue arises from the pre-charge evidence led by the prosecution or not. In my opinion, the Judicial Magistrate in this case has not examined the matter in correct legal frame-work. The question before the Court at that stage was to see whether a prima facie case is made out against the accused on the basis of the evidence brought by the complainant or not. In my opinion, charge simply cannot be framed on the basis of the likelihood of the prosecution to lead better evidence at a subsequent stage. 20. The revisional Court has also not properly appreciated the factual and legal position. The learned Sessions Judge after refering all the prosecution witnesses has observed that their statements go a long way to show that the petitioner and other accused had forged documents to get the import/export licenses. This was not the prosecution case at all. The basic question was as to whether the petitioner had any concern at all with M/s. G.K. Ralhan & Company to attract a charge under Section 120-B IPC. This was not the prosecution case at all. The basic question was as to whether the petitioner had any concern at all with M/s. G.K. Ralhan & Company to attract a charge under Section 120-B IPC. When from the statements of all the prosecution witnesses, who have been examined in pre-charge evidence, nothing has been pointed out to constitute the alleged offence of conspiracy, then the question of framing of the charge against the petitioner does not arise. Rather, in that situation, it was the duty of the Magistrate to discharge the petitioner. In this case, the actual users licence was issued on the condition of actual consumption of the imported material by the importer, then any other utilization by sale in the open market or otherwise, was inherently barred. As per the guide-lines issued by the authorities in the Handbook of Import and Export Procedures 1977-80, the importer could receive the material directly or through an agent. In the present case, M/s Vishwa Niryat Private Limited was neither appointed as the authorized agent at any stage nor it opened any letter of credit against the import licence issued to M/s. Ralhan & Company. There is not a shred of material that either M/s. Vishwa Niryat Private Limited or the petitioner said to be connected therewith had any contract or agreement with M/s. Ralhan & Company. No evidence in this regard has been led by the prosecution. In nutshell, there is no legal evidence available on the record against the petitioner on the basis of which it can be said that there is a prima facie case against the petitioner. Thus, in my opinion, there is no material/evidence on record on the basis of which the charge of conspiracy can be framed against the petitioner. 21. In view of the aforesaid discussion, this petition is allowed and the orders dated 8.12.1997 (Annexures P-4 and P-5) as also the order dated 12.12.1998 passed in revision, are set aside.