IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30/07/2002
CORAM
THE HONOURABLE MR. JUSTICE A.K.RAJAN
CRIMINAL O.P.No.23137 of 2000 and CRIMINAL O.P.No. 23138 of 2000
and Criminal O.P.No. 23139 OF 2000
and
CRL.M.P.NOS. 8862 TO 8864 OF 2000 AND 965 OF 2001
M/s B.V.Leathers
147,Vepery High Road
Periamet
Chennai 600 003
rep. by its K.Vinitha ..Petitioner in Crl.O.P.23137/2000
M/s Vijayalakshmi Leathers
represented by its Partner
R.M.Sethuraman
4, Narayana Chetty Street
Periamet
Chennai 600 003 ..Petitioner in Crl.O.P.23138/2000
M/s Ribi Leathers
represented by its
Proprietor
K.Kamal Badusha
Periamet
Chennai 600 003 ..Petitioner in Crl.O.P.23139/2000
vs
Superintendent of Police
CBI : EOW
Chennai ..Respondent in Crl.O.P.Nos.23137 to 23139/2000
Criminal Original Petition No.23137/2000 filed to call for the records
in C.C.No.2 of 1999, on the file of the Principal Special Judge, CBI Cases,
City Civil Court Building, Chennai 104 and quash the proceedings therein.
Crl.O.P.No.23138/2000 filed to call for the proceedings in C.C.No.23
1/1998 on the file of the Additional Chief Metropolitan Magistrate, Economic
Offences I, Chennai, and quash the same.
Crl.O.P.No.23139/2000 filed to call for the proceedings in C.C.No. 2
29/1998 on the file of the Additional Chief Metropolitan Magistrate, Economic
Offences I, Chennai, and quash the same.
For petitioners : Mr. V.Ramachandran
Senior Counsel for
M/s Anitha Sumanth
For respondent : Mr.N.Ranganathan
Special Public prosecutor
for C.B.I. Cases
:ORDER
These three Crl.O.Ps are filed by the manufacturers and exporters of
finished leather. According to the manufacturers, the production of finished
leather involves 25 operations and mainly they are technical in nature. Part
of the operations are manual. Exports are made through Customs House. When
the goods were tried to be exported, the Assistant Collector took samples and
found that they did not satisfy the test of finished leather; when they were
sent to the Central Leather Research Institute, it found that the same were
not “finished leather” according to the standards fixed by them. Therefore,
the containers containing leathers were seized. W.P.No.18356/97 was filed by
the manufacturers and the goods were taken delivery of on deposit of 5 % of
the value of the goods. Thereafter, the Collector, Customs levied the penalty
and fine which was equivalent to the value of the goods. The Commissioner of
Customs also came to the conclusion based upon the opinion of the Central
Leather Research Institute that the goods were not finished leather. Against
that, the manufacturers filed an appeal to Custom, Excise and Gold
(Control)Appellate Tribunal.( CEGAT). CEGAT accepted the plea of the accused
and set aside the order passed by the Commissioner of Customs, Chennai.
2.In the mean while the Criminal prosecution was launched in C.C.
Nos.2/1999, 231/1998 and 229/1999 and witnesses were examined.
3.At this stage, the petitions have been filed to quash the
complaints.
4.The learned Senior Counsel Mr.V. Ramachandran for M/s Anitha
Sumanth appearing on behalf of the petitioners relied on two decisions. In
the first decision in MOHAMED I. UNJAWALA AND OTHERS V. ASSISTANT
COMMISSIONER OF INCOME-TAX (VOL.213 ITR 190) it has been held that,
“The findings of the Tribunal on the facts are final and the High Court has no
jurisdiction to go behind the statements of fact made by the Tribunal.
Therefore, the criminal court is bound to accept the findings of the Tribunal,
on questions of fact.”…..”But the facts found by the Tribunal in favour of
the assessee cannot be disturbed by the High Court as the Tribunal is the
fact-finding authority.”
Another decision in H.T.L.LIMITED V. UNION OF INDIA ( 1999 (113)
E.L.T.30(Mad.)it has been held that continuation of proceedings misplaced once
adjudicating authority and Tribunal have held that there was no wilful default
or intention to evade Central Excise duty on assessee’s part.
5.Relying upon these two decisions, the learned Senior counsel submits
that the Tribunal has given a finding on fact that it was not an unfinished
leather, but it is only a finished leather and therefore, set aside the order
of confiscation imposed by the Commissioner of Customs. Hence, this finding
that the goods were not unfinished has to be accepted by the Trial Court and
it is binding upon the Criminal Court. Therefore, there is no need for the
petitioners herein to face the prosecution even after the decision rendered by
the Tribunal. Therefore, the petitioners have a right to approach this Court
under 48 2 Cr.P.C.
6.The learned Senior Counsel also pointed out that the charges that
are framed against the petitioners are under Section 420 read 511, 46 8, 471
I.P.C. and 132, 114 of the Customs Act. The learned Senior Counsel submits
that I.P.C. offences are only consequential of offences under Customs Act.
Once the offences under Customs Act goes the prosecution under I.P.C. cannot
stand. Therefore, the entire proceedings are liable to be quashed. The
learned Senior counsel pointed out that the Tribunal in its order has stated
that,
‘The whole dispute has arisen only because of variations, inaccuracies in
mechanical operations or the difference between experts and traders with
regard to grades. There was no effort to export prohibited goods.’
Therefore, this finding that there was no effort to export prohibited goods is
a finding of fact and it is binding on the parties including the criminal
court. Therefore, I.P.C. offences which is germane from the offences under
Customs Act also cannot stand. Therefore, in the interests of justice, the
petitioners have a right to approach this Court under Section 482 I.P.C. and
the complaints pending against them are liable to be quashed.
7.Mr.N.Renganathan, Special Public Prosecutor for C.B.I cases submits
that in Criminal cases connected to Crl.O.P.No.23137/2000 all the prosecution
witnesses except the Investigating Officer has been examined; in so far as
Crl.O.P.No.23138/2000 and 23139 of 2000 are concerned all the prosecution
witnesses have been examined and questions under Section 313 Cr.P.C. also
over. On the side of the defence witnesses, one of the witnesses has been
examined. Therefore, at this stage, the petitions under Section 482 does not
lie and therefore, these petitions are liable to be dismissed. In support of
this contention, the learned Special Public Prosecutor pointed out a decision
in AMAR CHAND AGARWALA V. SHANTI BOSE AND ANOTHER (1973 Crl.L.J. 577)
wherein it has been held as follows:
“Where the accused moved the High Court at the time when the trial was almost
committing to a close and what remained to be done was the examination of two
prosecution and one Court witnesses and the High Court quashed the charge and
the entire proceedings on the grounds that the complainant suppressed material
facts and that the evidence on record did not establish the alleged offence,
the order was liable to be set aside. The proper course at that stage to be
adopted by the High Court was to allow the proceedings to go on and to come to
its logical conclusion, one way or the other, and decline to interfere with
those proceedings.”
8.The learned Special Public Prosecutor also pointed out that the
Tribunal has passed this order mainly for the reason that,
“the appellants are only seeking permission to take the goods back to the
units and to make good the deficiencies.”
The Tribunal was influenced only on the request made by the petitioners to
take back the goods for the purpose of rectification of the deficiencies.
Therefore, this is not the reason for allowing the appeal.
It has no bearing on the complaints before the Criminal Court. In the
complaints before the Criminal Courts they have attempted to export these
goods. Once goods were found to have crossed the customs barriers into the
port for the purpose of export, attempt to export is complete. Therefore,
when the goods were found to be deficient with the standard prescribed, the
attempt to export deficient goods is also complete. Therefore, the judgment
of the Tribunal has no bearing on the complaints pending before the Criminal
Court.
9.Further, the learned Special Public Prosecutor pointed out that in
this case complaints are filed on a police report. Once charges have been
framed it can end either in acquittal or in conviction. Therefore, the
petitions to discharge cannot be filed. The petitions to discharge can be
filed only at the earliest point of time before framing of charges. Once
charges are framed, the only end is acquittal or conviction. Further, when
there is a specific provision under Section 239 Cr.P.C., resort to Section 482
Cr.P.C. is not permissible. Section 482 Cr.P.C. will apply only when there
is no specific provision. For this reason, the petitions filed herein are
liable to be dismissed and they have no merits.
10.This Court, at this stage, does not want to go into the merits of
this case. Any opinion expressed by this Court may cause prejudice to either
of the parties before Criminal Court. As held by the Supreme Court in the
decision 1973 Crl.L.J. 577 when the proceedings before the Criminal Court
have also reached final stage, it is not proper for the this Court to
interfere under Section 482 Cr.P.C. and quash the complaints. Therefore, the
Crl.O.P.Nos.23137 to 23139 of 2000 are dismissed. Consequently, all the
connected pending Crl.M.Ps. are also dismissed.
11.The petitioners are entitled to raise all these points before the
Trial Court. On considering the same, the Trial Court shall pass orders on
merits.
30-07-2002
index:yes
internet:yes
sal
To
1. Principal Special Judge
CBI cases
City Civil Court
Madras 104
2.The Superintendent of Police
CBI, E.O.W, Chennai
3.Additional Chief Metropolitan
Magistrate, E.O.I.
Chennai
A.K.RAJAN,J.
Criminal Original Petition NOs. 23137 to 23139 of 2000 and Crl.M.P. Nos.
8862 to 8864
of 2000 and 965 of 2001