JUDGMENT
D.G. Deshpande, J.
1. Heard advocates for the petitioners and the respondent No. 1.
2. This Revision is filed against the Order of the Metropolitan Magistrate, 16th Court Ballard Pier, Mumbai, dated 12.3.1997 rejecting the application of the accused – petitioners for discharge. I heard advocate for the petitioners and the APP at length. Before appreciating their respective contentions, it is necessary to give facts of the case in brief. The petitioners are the employees of M/s. Videocon International Ltd., (hereinafter referred to as the “company”) and FIR came to be lodged against these petitioners and two employees of the Bombay Port Trust (BPT) namely, Mr. R.N. Ninave and Mr. S.S. Lakhwani. The offences under Sections 420, 379, 511 read with 34 of the IPC were registered against the accused. In short the allegations in the FIR are that the company used to import certain articles and goods for their manufacturing unit at Mumbai. In respect of these imported goods they were required to pay customs duty depending on the valuation of the goods and demurrage charges depending on the size and weight of the goods. For this purpose an account was opened by the complainant with the BPT. Employee of the company used to go to the BPT office, fill in the prescribed forms giving weight and value of the articles imported. One of these forms was called Chappa. These forms were scrutinised by the officers of the BPT with reference to the record available with them and thereafter they would charge the customs duty payable and the demurrage. The employees of the company would give cheque in respect of that amount and thereafter used to go to the godown of the BPT, produce the receipt regarding the payment of the charges and get the delivery of the goods.
3. It is the case of the BPT – complainant that on 1.3.1993 the employee of the BPT submitted forms i.e. chappa in respect of certain consignment which was imported. The valuation of the said consignment was properly shown at Rs. 73,48,860/-. However, weight of the consignment was shown as 19832 kgs. instead of 198324 kgs. thereby causing a difference of about 1 lac kgs. in the actual weight of the consignment and weight given in the chappa. As per the case in the FIR, two employees of the BPT Mr. Ninave and Lakhwani in collusion with the present petitioners – accused attempted to cheat the BPT and prepared false and forged documents. Further, in collusion of the two employees, accused succeeded in getting delivery order in their favour in respect of the said consignment and when they went to the godown for taking delivery, the BPT employee who was already alert in this regard, refused to deliver the consignment to the petitioners. Thereafter, an enquiry was made and FIR was lodged and on completion of investigation the charge-sheet was filed.
4. Counsel for the petitioners made submissions on different points in support of his contention for discharge of the present petitioners and also against the impugned order of the rejection of their application of the petitioners for discharge. Firstly, he contended that in the chappa the valuation of the consignment was properly given and the bona fide mistake occurred while giving the weight as a result of which instead of putting the actual weight of 198324 kgs. the weight that was given was 19832 kgs. Secondly, according to him once the chappa along with the other documents are given by the company through its representative, it was for the BPT officials to verify whether the valuation and weight along with the other particulars tallied according to the record of the BPT. Thirdly, he contended that there was nothing in the charge-sheet to show that the present petitioners had joined hands with the employees of the BPT in commission of this offence of forgery and cheating. He further contended that even if the prosecution case was accepted as it is there was nothing to point the accused any finger as there was nothing with the prosecution to show that all these petitioners were responsible for misdescription of weight in the chappa. He further pointed out that when the company or the representative of the company realised that a mistake had occurred in the chappa regarding the weight of the consignment, the said mistake was immediately rectified by submitting other form along with the chappa and the customs duty as well as the demurrage which was due and payable after calculating the correct weight i. e. 198324 kgs. was offered and paid by the company to the BPT by cheque. Therefore, for all these reasons according to him the accused were entitled for discharge. He further contented that prosecution case was based on circumstantial evidence which did not fulfil requirements as laid down by the Supreme Court in different judgments. He also contended that mere motive was not sufficient to make out a prima facie case against the accused or to bring home the guilt of the accused.
5. On the other hand, the learned prosecutor for the State contended that there was more than sufficient evidence to make out a strong prima facie case against the accused and that the authorities relied upon by the counsel for the accused-petitioners could not be considered in this present case because those decisions were given by the Apex Court while deciding the appeals against conviction and the ratio laid down for appreciating evidence at the time of conclusion of the trial could not be made applicable while considering the case of the prosecution at the time of deciding the application for discharge. He also contented that a mistake in putting weight resulting in showing the weight of the consignment by less than one lac kgs. could not be considered as a bona fide mistake. Similarly, even though the company had an account with the BPT, on the date of the offence when the liability of the company was more than Rs. 14 lacs there was a balance of Rs. 5 lacs only in the account of the company and as such issuance of cheque for Rs. 14 lacs was not a bona fide act on the part of the petitioners or the company. He further contended that there was direct evidence showing involvement of the present accused and lastly according to him the Magistrate has considered all aspects of the case at length and had given sound reasonings, for which no intereference was called for.
6. Counsel for the petitioners relied upon the following judgments, in supports of his contentions:
1. R.P. Kanpur v. State of Punjab .
2. Ganesh Bhavan Patel and Anr. v. State of Maharashtra .
3. Madkami Baja v. The State 1986 Cri. L.J. 433.
4. Ramji Surjya and Anr. v. State of Maharashtra .
5. State of U.P. through CBI v. Dr. Sanjay Singh and Anr. 1994 Supp. (2) SCC 707.
6. S.P. Bhatnagar and Anr. v. The State of Maharashtra .
7. Chandmal and Anr. v. State of Rqjasthan .
None of these judgments excepting the first one requires any consideration. Firstly, because they are in respect of matters decided by the Supreme Court or the concerned High Court while appreciating the evidence after conclusion of the trial and while considering the legality of the conviction. Admittedly at the time of discharge a Court has not to make any thread bear scrutiny of the evidence but has to find out whether a prima facie case exists to proceed against the accused for the offences made out in the complaint. Secondly, some of the judgments are regarding circumstantial evidence and on the point of motive. Both these are irrelevant at this juncture because the test laid down while appreciating the circumstantial evidence, namely that all chains in the prosecution case based on circumstantial evidence must be of a conclusive nature and should be of such a nature as to exclude other hypothesis but the one regarding the guilt of the accused, are not attracted at the time of finding out a prima facie case. Secondly, suspicion, the observation of the Supreme Court that mere suspicion of motive is not sufficient ground for framing of charge does not apply in the instant case because there is much more in the prosecution case than the suspicion. There is a direct act of the accused – petitioners in showing the weight of their consignment less by 1 lac kgs. I have already observed that at this stage it cannot be said that this was a bona fide mistake.
7. Further, there is a statement on record of the BPT officer posted at the godown where the accused had gone for taking the delivery. He is witness Shantaram, Shed Superintendent and he has stated that on 2.3.1993 at about 5 p. m. Assistant Manager of BPT had informed him that there was some mal practice committed by the officials of the Videocon International Company in respect of a particular consignment and he was instructed not to deliver the goods. The witness further stated that on receiving this message he became alert and as soon as the accused -petitioners Sambhus, Sawant and Nimkar came to him for getting the delivery of the consignment and they were insisting on getting the delivery hurriedly, he informed the accused about the phone call received. There is therefore direct evidence against the accused and not a case of suspicion. This witness Shantaram clearly implicates all the petitioners and state that they were trying to get the delivery of the consignment even after putting the weight of the consignment in chappa and other documents less by 1 lac kgs.
8. Counsel for the petitioners further contended that so far as Section 120-B was concerned, there was no direct evidence with the prosecution and in most of the case there cannot be any direct evidence under Section 120-B. Conspiracy never takes place in public nor the different stages of conspiracy are known. Conspiracy is to be inferred from the circumstances and in the instant case the fact that two officers of the BPT have been arrayed with the accused coupled with the fact the weight of the consignment was shown less by 1 lac kgs. in chappa and that there were attempts to get delivery on the basis of misrepresentation, are prima facie circumstances to proceed against the accused – petitioners. Therefore, for all these reasons the revision is required to be rejected. Hence the order :
ORDER
Revision Application dismissed. Rule discharged. Stay, if any, vacated.