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Sunil Wadhwani Vs. J.P. Sharma and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 1011 of 1983
Judge
Reported in1984(2)Crimes88; 26(1984)DLT104; 1984RLR646
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 482; Indian Penal Code (IPC), 1860 - Sections 120B
AppellantSunil Wadhwani
RespondentJ.P. Sharma and ors.
Advocates: Lalit Bhasin,; Vinay Bhasin,; M.L. Sachdev and;
Excerpt:
.....either in the conspiracy, or in the substantive offence, said to have been committed to obtain the import license, in question. in this view of the matter, the order of the trial court suffers from a fatal infirmity, and is liable to be quashed. - - in this state of the allegations in the complaint, and the possible material that may be produced in the court below, in the course of trial of the complaint, it would certainly be a gross abuse of the process of the court to drag a well-known business house and its executive in a wholly unjustified prosecution, which must, by all accounts, result in their vindication. however, urged that the allegations in the complaint, as indeed, the material that could be eventually placed before the court, in the course of trial, clearly make out that..........a view to fraudulently obtain, on the basis of forged documents and by misrepresentation of facts, import licenses and that they had pursuant to the said conspiracy, illegally obtained an import license, which was sold for a valuable consideration to western electronics ltd., through a broker, mool chand gupta, a case under the aforesaid sections was registered, and on the conclusion of investigation, by the central bureau) of investigation, the aforesaid complaint was filed in the court of addl. chief metropolitan magistrate, delhi. one mukesh kumar verma was granted pardon, in the course of investigation. in the course of the complaint, it is alleged that after ashok kumar gupta and certain others had obtained the import license, by the commission of the aforesaid offences, on the.....
Judgment:

H.L. Anand, J.

(1) This petition, under Section 482 of the Code of Criminal Procedure, by Sunil Wadhwani, Manager (Purchase and Imports), Western Electronics Limited, respondent no. 5, is directed against the complaint filed by the Deputy Chief Controller of Imports and Exports, against the petitioner, the said respondent and 4 others, for offences under Section 120-B read with Sections 420/465/467/468/471 I.P.C., and Section 5 of the Imports and Exports (Control) Act, 1947, and Sections 420/465/467/468/471 Indian Penal Code and Section 5 of the Imports and Exports (Control) Act, 1947, and the order of the trial court summoning the petitioner ?a the complaint, as an accused person, to stand his trial for the aforesaid offences.

(2) On the basis of information that Ashok Kumar Gupta, respondent no. 2, in the petition, and certain others, were parties to a conspiracy, to commit offences of cheating and forgery, and of use of forged documents as genuine, with a view to fraudulently obtain, on the basis of forged documents and by misrepresentation of facts, import licenses and that they had pursuant to the said conspiracy, illegally obtained an import license, which was sold for a valuable consideration to Western Electronics Ltd., through a broker, Mool Chand Gupta, a case under the aforesaid Sections was registered, and on the conclusion of investigation, by the Central Bureau) of Investigation, the aforesaid complaint was filed in the court of Addl. Chief Metropolitan Magistrate, Delhi. One Mukesh Kumar Verma was granted pardon, in the course of investigation. In the course of the complaint, it is alleged that after Ashok Kumar Gupta and certain others had obtained the import license, by the commission of the aforesaid offences, on the basis of fraud and forged documents, Ashok Kumar Gupta approached Western Electronics Ltd., a joint stock company, dealing in the manufacture and sale of consumer electronics, through Mool Chand Gupta, a broker, for the sale of the license to the company, and that the license was eventually purchased by the company for a sum of Rs 30,0001-, which was paid by two cheques of Rs. 25,0001 and Rs. 50001- each. It further appears from the complaint that in the course of investigation the purchase of the aforesaid license, and the payment of the consideration, were found duly reflected in the records of the company. It further appears that pursuant to the aforesaid license, a letter of credit was opened by a bank, at the instance of western Electronics Ltd., but meanwhile, Mool Chand Gupta, having become suspicious about the validity of the license, because of an exposure in another case, in winch the license had been transferred by Ashok Kumar Gupta to another firm, Mool Chand Gupta contacted the petitioner and suggested that the letter of credit be cancelled, if opened, on which the transaction with regard to the license was treated as cancelled, and Moot Chand Gupta obtained from Ashok Kumar Gupta the amount af Rs. 30,0001- which had been paid earlier by the company. Para 21 of the complaint runs thus :-

'21. That the accused persons Ashok Kumar Gupta (A-1) K. B. Singh Duggal (A-2) Manmohan Lal (A-3) Mukesh Kumar Verma Approver Sunil Wadhwani (A-4) Dayal Singh (A-6) and M/s Western Electronics Ltd. (A-5) entered into criminal conspiracy during 1980-81 at Delhi to commit offences of cheating conspiracy etc. and u/s 5 of the Imports and Exports (Control) Art 1947 by adopting to illegal means and in pursuance of the same a bogus firm under the name M/s. Jagdambay Book Depot was fluted and an Import license in question was obtained fraudulently on the basis of forged documents and by misrepresentation of facts. The Import license so wrongly obtained was thereafter sold to M/s. Western Electronics Ltd. New Delhi illegally and unauthorisedly in contravention of the provisions of Import Trade Control Order, 1965 and thereby committed offences punishable u/s. 120-B Indian Penal Code r/w Section 420, 465, 467, 468, 471 and section 5 of the Imports and Exports (Control) Act, 1947, arid also substantive offences under Sees. 420, 465, 467, 468, 471 Indian Penal Code and Section 5 of the Imports and Exports Act.'

(3) On taking cognizance of the complaint, the Court below made a cryptic order that there are 'grounds to proceed against all the accused' under all the provisions, alleged in the complaint, and directed that the accused persons be summoned to stand their trial for the aforesaid offences. No witness was examined before the trial court, nor does it appear from the summoning older that the trial court examined any material apart from the complaint.

(4) The petition ex fane proceeds on the basis as if the complaint was of an offence u/s 120-B, read with Section 420/465/467/468/471 Ipo and Section 5 of the Imports and Exports (Control) Act, 1947 and as if there are no allegations of the commission of substantive offences u/s 420/465/467/468/ 471 Indian Penal Code and Section 5 of the Imports and Exports (Control) Act, 1947 in the complaint. This assumption was apparently based on the copy of the complaint, enclosed with the petition, which in turn had been allegedly received from the Court with the summons. Para 21 of the complaint, according to this copy, did not mention the substantive offences under these Sections, even though I find from the title of the complaint that the substantive offences are mentioned in addition to the offences of conspiracy. At the hearing of the petition, counsel for the C.B.I., who was himself puzzled, because he had also been working on the basis of the copy of the complaint, supplied by the petitioner, and was thereforee, at his wit's end in defending the complaint, and in justifying the order proceeding against the petitioner, without any allegations in the complaint of commission of substantive offences, since he was unable to point to any allegation in the complaint, or in any material with which it was sought to be supported, which may possibly justify the allegation of complicity of the petitioner, and the company, in the conspiracy or in the process leading to the issue of the import license. Learned consel, however, pointed out, after verification from the records of the CBI. that the petitioner had not supplied a correct copy of the petition, and on the complaint, as laid in the court below, there was clear allegation of the commission of substantive offences in addition to the offence of conspiracy.

(5) I have heard learned counsel for the parties and after giving the matter my earnest consideration I am of the view that while it would be a gross abuse of the process of the criminal court to allow the complaint to proceed against the petitioner, as indeed, the company, either on charges of conspiracy or on charges of commission of substantive offences, other than Section 5 of the Impoits and Exports (Control) Act, 1947, the same could not be said of the allegation of the commission of offence u/s 5 of the Imports and Export (Control) Act. even though the order of the trial court, summoning the petitioner and the company, for all the offences in an omnibus manner, without application o judicial mind, must be struck down, leaving the trial court free to consider, on the present material, or any other material that may be placed before it, by the complainant, if there was ground to proceed against the petitioner, and the company, for an offence u!s 5 of the Imports and Exports (Control) Act, 1947 in that the transaction entered into between the company and Ashok Kumar Gupta and others was tantamount in law to an 'illegal transfer of the license' attracting the penal provisions of Section 5 of the Act.

(6) Learned counsel for the C. B. I. took me through the complaint, as also placed on record a copy of the statement of Mool Chand Gupta, the broker, recorded u/s 161 of the Code of Criminal Procedure. He frankly conceded that neither the Approver, nor Mool Chand Gupta, made any direct or indirect allegation of the complicity of either the petitioner, or the company, in the process by which tli3 import license was obtained, or that the petitioner or the company had, at any time prior to the alleged sale. any connection with any of the other accused persons. It was also not disputed that the transaction with regard to the license was duly reflected in the records of the company. It was also not disputed that certain other firms had also purchased licenses earlier from some of the accuser persons and it was not disputed that when Mool Chand Gupta, the broker, came to know of the fraud, allegedly committed by the accused persons, he alerted the company, advised it to cancel the letter of cerdit. if it had already been issued, and eventually got the transaction cancelled, and obtained the refund of the amount, paid by the company for the license. In this state of the allegations in the complaint, and the possible material that may be produced in the court below, in the course of trial of the complaint, it would certainly be a gross abuse of the process of the court to drag a well-known business house and its executive in a wholly unjustified prosecution, which must, by all accounts, result in their vindication.

(7) It follows, thereforee, that when the trial court mechanically summoned the petitioner, and the company, for all offences, on the basis that there were grounds to proceed against all of them, the court was merely doing lip-service to a salutary provision of law regarding issue of process and had not applied its judicial mind to the material before it and took no pains to satisfy itself if the petitioner, and the company, could ex facie be said to be involved, either in the conspiracy, or in the substantive offences, said to have been committed to obtain the import license in question. In this view of the matter, the order of the trial court, summoning the petitioner, as indeed, the company, suffers from a fatal infirmity, and is liable to be quashed. Mr. Sachadeva. counsel for the CBI. however, urged that the allegations in the complaint, as indeed, the material that could be eventually placed before the Court, in the course of trial, clearly make out that the petitioner and the company entered into a transaction for the purchase of the license, paid for it, and took steps pursuant to it by opening a letter of credit and there was, thereforee, sufficient ground to proceed against both of them for the substantive offence u/s 5 of the Act in that they abetted the offence of transfer of license in contravention of provision of Section 5 of the Act. He, no doubt conceded that the imports have been and arc being made, pursuant to import licenses, by prospective buyers of goods, under a letter of authority from the importer, but he urged that in those cases there is no transfer of property in the license, and the importation is made by the prospective buyer on behalf of the importer, pursuant to the letter of authority, but in the present case, there is a clear allegation in the complaint, for whatever it may be worth, that the import license had been 'illegally transferred in contravention of the provisions of Section 5 of the Imports and Exports (Control) Act', and that the complaint, in so far as it alleges a contravention by the petitioner, and the company, of the provisions of Section 5 Of the Imports and Exports (Control) Act. was theferore, not liable to be quashed. On the other hand, Mr. Bhasin, who appeared for the petitioner, as indeed, the counsel, who appeared for the company, strenuously urged that the importation of goods by the prospective buyers in the name of and on behalf of the importer, which was in consonance with the import procedures, sanctified by law, would not be a contravention of Section 5 of the Imports and Exports (Control) Act. It was further contended that in view of the procedure commonly followed in that behalf it could not be said that there was any transfer of property in the license to attract the penal provision of Section 5 of the Act.

(8) It is no doubt true that goods may be imported, pursuant to an import license, by a person other than the holder of the license, under a letter of authority, without attracting the penal provisions of Section 5 of the Art, but if specific a Hegatioas of 'unauthorised and illegal' sale of an import license, and the Consequential contravention of Section 5 of the Imports and Exports (Control) Act, sr' made to a complaint) it would not be open to this court in the present proceedings to analyze the nature of the transaction to rule one way, or the other. It would be for the trial court to consider afresh, on the existing material, or on the farther material, that may be brought before it, by the complainant, if, notwithstanding the accepted procedure 05 importation, pursuant to a letter of authority there would be ground to proceed against the petitioner, and the company, for an offence ujs 5 of the Imports and Escorts (Control) Act, 1947 on the basis that there had been an illegal sale of an import license in. favor of the company by the transfer of property in the license or otherwise.

(9) In the result, the petition succeeds in part, and I quash the complaint, as against the petitioner, and the company, in so far as it relates to offences, other than an offence u/s 5 of the Imports & Exports (Control) Act, 1947. I further' quash the summoning order, in so far as the petitioner, and the company, have been summoned for all the offences. In so far as the complaint, as against the petitioner, and the company, survives, in relation to an offence u/s 5 of the Imports and Exports ( Control) Act, 1947, on the allegations of an alleged illegal purchase of an import license, it would be open to the trial court to consider, on the existing material or/and any Further material that may be placed before it, on behalf of the complainant, if there are grounds to proceed against the petitioner, or the company or both of them, for an offence u[s 5 of the Imports and Exports (Control) Act, 1947, in relation to the alleged purchase of the Import license in question.


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