Gujarat High Court Case Information System
Print
CR.MA/4423/2006 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 4423 of 2006
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
==========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==========================================
APOORVA
SHANTILAL SHAH & 1 - Applicant(s)
Versus
STEEL
AUTHORITY OF INDIA A COMPANY & 2 - Respondent(s)
=========================================
Appearance :
MS
MEGHA JANI for Applicant(s) : 1 - 2.
MR BN PATEL for Respondent(s)
: 1 - 2.
MR MR MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent(s)
: 3,
==========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 06/08/2008
ORAL
JUDGMENT
The
applicants herein have moved the present application praying to take
note of the offences committed by the respondents No.1 and 2 under
Section 200 read with Section 193 read with Section 196 of the
Indian Penal Code (IPC), read with Section 195 of the Code of
Criminal Procedure, 1973 (the Code), and to direct the Registry to
file a complaint with respect to the said offences against the
respondents No.1 and 2 in the appropriate Court of Metropolitan
Magistrate.
The
facts of the case stated briefly are that the respondent No.1 herein
had lodged several complaints in the Court of the learned
Metropolitan Magistrate, at Ahmedabad against the applicants for
dishonour of certain cheques. The applicants herein had approached
this Court under Section 482 of the Code read with Articles 226 and
227 of the Constitution of India, praying to quash the said
complaints. In the said Special Criminal Applications, the
applicants had filed an affidavit in support of their application on
17th March, 1998. In reply thereto, the respondent No.2
? Branch Manager of the respondent No.1, Steel Authority of India,
had filed an affidavit in-reply. According to the applicants, in
the said affidavit in-reply filed by the respondent No.2 on behalf
of the respondent No.1, certain false statements have been made on
oath. It is the case of the applicants that the respondents No.1
and 2 had intentionally given false evidence in the pending Special
Criminal Applications before this Court and had corruptly used or
attempted to use as true declaration knowing the same to be false.
According to the applicants, if such false statements had not been
made by the respondent No.2, the applicants would have been able to
establish and demonstrate before this Court that nothing is due and
payable by the applicants to the respondent No.1, which would
probably have resulted in quashing the complaint. It is,
accordingly, the case of the applicants that the respondents have
committed an offence punishable under Section 193 read with Section
196 and 200 of the IPC, hence, the applicants have moved the present
application praying for the reliefs noted hereinabove.
Heard
Ms.Megha Jani, learned advocate for the applicants, Mr.B.N.Patel,
learned advocate for the respondents No.1 and 2 and Mr.M.R.Mengdey,
learned Additional Public Prosecutor for respondent No.3 ? State
of Gujarat.
Ms.Megha
Jani, learned advocate for the applicants has drawn the attention of
the Court to the affidavit in-reply filed by the respondent No.2 in
Special Criminal Application No.1066 of 1997. It is contended that,
in the said affidavit, the following statements are false to the
knowledge of the respondents No.1 and 2.
?S[1] Statement
on para (8) page (6) of the said affidavit :
It
is categorically stated that the Respondent No.1 has paid excise duty
whatever required under law for the materials supplied to the
Petitioner No.1.
[2] Statement
on para (8) page (6) of the said affidavit :
All
necessary particulars with necessary documents are supplied by the
Respondent No.1 to the Petitioner No.1.
[3] Statement
on para (8) page (7) of the said affidavit :
The
order as per Annexure II collectively, which appears to have been
passed by the Assistant Commissioner of Central Excise, Division VI,
Ahmedabad on 23rd January 1998 appears to have been made
for want of proper contest by the Petitioner No.1.
[4] Statement
on para (8) page (7) of the said affidavit :
It
is also stated that though the particulars regarding payment of
Excise Duty were supplied to the Petitioner No.1 company …..
[5] Statement
on para (8) page (7) of the said affidavit :
It
appears that the management of the Petitioner No.1 has intentionally
created this situation so as to create a defence. But, in fact, the
Excise Duty is paid and the respondent No.1 would supply the details
again.
Insofar
as the first statement is concerned, it is contended that the
respondent No.1 had passed on the Modvat credit to the applicants
without giving proper documents evidencing payment of Excise Duty
and have not taken proper care to see that their invoices bear
particulars regarding payment of Excise Duty. As a result, such
invoices were not defaced by the jurisdictional Range Superintendent
with the words ?SModvat credit allowed?? during the monthly
assessment of the applicants for availment of Modvat credit.
As
regards the second statement, it is submitted that the said
statement is far from the truth because, as stated by the Assistant
Commissioner of Central Excise, Division VI, Ahmedabad, in paragraph
No.2 on page 5 of the order dated 23rd January, 1998,
?SNow I am of the view that if the goods were cleared on payment
of Excise Duty by SAIL Bokaro, it was required to be established by
the assessee. Till date, the party could not furnish any details
duly certified by the Central Excise office having jurisdiction of
Bokaro Steel Plant confirming the details of duty payment.??
It
is pointed out that though the respondent No.1 has been given 7 days
time to determine duty and debit the account on day-to-day basis, it
has not been exempted to show the debit particulars on the invoices
raised by them at a later stage. In actual fact, no such documents
as required by law have been supplied by respondent No.1 inspite of
repeated efforts made by the applicants in this regard by writing
letters to the Branch Manager at Ahmedabad on 21st
December, 1995, 2nd January 1996, 8th January
1996, 6th June, 1996, 12th June 1996 and 8th
May 1997. It is accordingly submitted that the aforesaid
statements, whereby it is stated that all necessary particulars and
documents are supplied to the applicant No.1 are false.
As
regards the third statement, it is submitted that the said statement
is false because there could not have been an appropriate contest in
absence of appropriate duty paying documents with authenticity
regarding the payment of Central Excise Duty on goods covered under
the invoices in dispute.
As
regards the fourth statement, it is submitted that the said
statement is false because though the respondent No.1 had supplied
data regarding debit entry numbers and dates, the same was found to
be irrelevant as part of it related to materials not purchased by
the applicants.
As
regards the fifth statement, it is submitted that the said statement
is false because the root cause for the Excise Department to raise
demand and then confirm the same was due to failure on the part of
the respondent No.1 to provide the applicants with duplicate copies
of the invoices on which the appropriate payment of Excise Duty was
indicated. It is submitted that the averment that the respondent
No.1 would supply the details again is false as when they have not
supplied the details in the first instance, there is no question of
supplying the same again.
It
is submitted that the respondent No.2 who has filed the affidavit
was responsible as Branch Manager at the relevant time and being
aware of the facts of the case, he has irresponsibly filed an
affidavit making false statements on oath, hence, the complaint
should also be filed against him. It is submitted that the
affidavits in which the false statements were made were filed in
Special Criminal Applications No.1066 of 1997 to 1077 of 1997 and
No.1167 of 1997.
The
learned advocate for the applicants has, accordingly, submitted that
in view of the false statements made on oath by the respondent No.2
on behalf of respondent No.1, both the respondents are required to
be prosecuted for the offences under Sections 200 read with Section
193 read with Section 196 of the Indian Penal Code read with Section
195 of the Code, and has urged that this Court may direct the
Registry to file a complaint in respect of the said offences against
the respondents No.1 and 2.
The
learned advocate for the applicants has, on the question of
limitation, submitted that no limitation is provided for the Court
to initiate the proceedings under Section 195 of the Code. It is
submitted that the provisions of Section 468 of the Code would not
be applicable to the facts of the present case.
On
the other hand, Mr.B.N.Patel, learned advocate for the respondents
No.1 and 2 has vehemently opposed the application. It is denied
that the statements made in the affidavit filed by the respondent
No.2 on behalf of respondent No.1 are in any manner false, as
alleged. It is submitted that the application is not maintainable at
law because the Company in question namely, Gujarat Steel Tubes Ltd.
which is now being wound up, had filed Criminal Miscellaneous
Application No.1310 of 2000 before the winding up in respect of the
same cause of action based on the same facts and praying for the
same relief, which is still pending. That, it is only because the
applicants who have lost control over the affairs of the said
Company, being under the impression that the Official Liquidator may
not prosecute the said application any further, have filed the
present application in the name of the Company, as a counter-blast
to create a defence in the criminal prosecution faced by them in
Criminal Cases No.3090 to 3101 of 1997 and 4140 of 1997 pending in
the Court of the learned Metropolitan Magistrate, Ahmedabad (Court
No.9) under Section 138 of the Negotiable Instruments Act.
The
learned advocate for the respondents No.1 and 2 has strongly urged
that the present application is not maintainable as being
time-barred and also as having been made on the same facts and cause
of action, and for the same relief as in the pending Criminal
Miscellaneous Application No.1310 of 2000. It is pointed out that
the present application is filed after a period of eight years,
which is much beyond the statutory period of limitation, and as
such, is not maintainable as being time barred. The learned
advocate for the respondents No.1 and 2 has drawn the attention of
the Court to Article 137 of the Schedule to the Limitation Act, to
point out that where no limitation is provided for making an
application, the period of limitation prescribed is three years. It
is, accordingly, submitted that the present application which is
filed after eight years is hopelessly time-barred. It is submitted
that, the right to apply for prosecuting the present application
would have accrued as soon as the affidavit in-reply was filed.
That even from the date of the affidavit in-reply, a period of eight
years has elapsed. Hence, the application being hopelessly
time-barred, is required to be rejected on that count alone.
On
merits of the case, it is submitted that the respondent No.2 herein
has not made any false statements on oath in the affidavit in-reply.
Referring to the statements on oath in the affidavit in-reply, it
is submitted that, in fact, the excise duty in question was fully
paid by the respondent No.1 Company and the details of the same were
supplied to the buyer i.e. Gujarat Steel Tubes Ltd., and that, no
false statement had been made by the respondent No.2 in the
affidavit in-reply filed in 1998 in the earlier proceedings.
Attention of the Court is drawn to the order in original dated 23rd
January, 1998 passed by the Assistant Commissioner, Central Excise,
Division VI, Ahmedabad against M/s Gujarat Steel Tubes Ltd., and
more particularly, to the contents of page 8 thereof, to point out
that it is recorded therein that the assessee had given a written
submission along with xerox copy of the permission whereby Bokaro
Steel Plant is exempted from making debit entries within 7 days of
the removal of the goods and also submitted invoice-wise debit entry
numbers duly certified by SAIL, Bokaro Steel plant. It is submitted
that without supply of the documents and details, the representative
of Gujarat Steel Tubes Ltd. could not have produced invoice-wise
debit entry numbers duly certified by SAIL, Bokaro Steel Plant. It
is, accordingly, urged that, no false statement has been made as
alleged in the application. It is further pointed out that the
letter dated 5th March, 1998, Annexure ?SJ?? to the
application, written by the respondent No.1 to the Superintendent,
Central Excise, Range IX, Division VI, Ahmedabad, clearly shows that
the payment of excise duty and details were duly verified by the
Plant Excise Superintendent. The learned advocate for the
respondents No.1 and 2 has, accordingly, submitted that none of the
statements made in the affidavits filed by the respondent No.2 were
false to the knowledge of the respondents. Hence, the application
being devoid of merit deserves to be rejected.
This
Court has considered the rival submissions advanced by the learned
advocates for the parties and has perused the record of the case.
In
the background of the facts noted hereinabove, it is apparent that
the main grievance raised in the application is to the effect that
certain statements made in the affidavit in-reply filed by the
respondent No.2 on behalf of respondent No.1 in the Special Criminal
Applications filed by the applicants, were false to the knowledge of
the respondents No.1 and 2. The statements which are alleged to be
false have been re-produced hereinabove.
At
the outset it may be pertinent to examine each of the aforesaid
statements independently.
The
first statement is to the effect that the respondent No.1 has paid
excise duty whatever required under law for the materials supplied
to the petitioner No.1. In this context it would be relevant to
refer to order of the adjudicating authority and more particularly
to the following part of the defence of Gujarat Steel Tubes Ltd. to
the show cause notice issued against it :
?SThe
invoices issued under Rule 52 A by Bokaro Steel Plant or SAIL
contain the particulars regarding the amount of Central Excise duty
paid on the goods supplied under the respective invoices. The
assessee takes Modvat credit of C.Ex. duty based on such duty paying
documents issued by the SAIL which is GOI undertaking.
The
invoices issued under Rule 57 GG issued by the SAIL?”s stockyard at
Kaligam give cross reference of the invoices issued under Rule 52 A
received by the stockyard from the SAIL?”s steel plant and also
give the particulars of the amount of C.Ex. duty paid by the Steel
plant of SAIL on the goods supplied by the stockyard. Thus the
invoices under rule 52A or 57GG received from SAIL?”s Steel Plant
at Bokaro and stockyard at Kaligam respectively do show that the
goods supplied under them were clearly Central Excise duty paid
goods and therefore the assessee was and is entitled to take Modvat
Credit on the basis of such documents evidencing payment of Central
Excise duty.??
From
the aforesaid defence raised by Gujarat Steel Tubes Ltd. before the
adjudicating authority, it is apparent that it was the case of
Gujarat Steel Tubes Ltd. itself that the goods supplied to Gujarat
Steel Tubes Ltd. were Central Excise duty paid goods. In the
circumstances, there is no reason to disbelieve the statement that
the respondent No.1 has paid excise duty as required under law in
respect of the materials supplied to the Gujarat Steel Tubes Ltd.
The
second statement is to the effect that all necessary particulars
with necessary documents are supplied by the respondent No.1 to the
petitioner No.1 i.e. Gujarat Steel Tubes Ltd. In this context also
it would be pertinent to refer to the end of the defence version
recorded by the adjudicating authority, which reads as follows:
?SShri
M.N. Shah appeared and gave written submission along with Xerox
copies of the permission whereby Bokaro Steel Plant is exempted from
making entry within 7 days of the removal of the goods and also
submitted invoice-wise debit entry nos. duly certified by SAIL,
Bokaro Steel Plant.??
It
is evident that without supply of documents and details the
representative of Gujarat Steel Tubes could not have produced
invoice-wise debit entry nos. duly certified by SAIL Bokaro Steel
Plant. It is the specific case of the respondents that the
requirement was to mention details of the debit entries etc. on the
invoice which were supplied later, in view of permissions granted in
their favour by the Central Excise authorities whereby the
respondents were permitted not to mention debit entry no. at the time
of issuing invoices, but to determine duty and debit the account
current on day to day basis within 7 days of actual removal of goods.
In the light of the aforesaid facts, it is not possible to hold that
the aforesaid statement made by the respondents is false to their
knowledge as alleged.
Insofar
as the third and fifth statements are concerned, the same are only
expressions of opinion, and can in no manner be said to amount to an
offence under sections 193 read with sections 196 and 200 of the
Indian Penal Code.
The
fourth statement whereby it has been stated that ?Sthough the
particulars regarding payment of Excise Duty were supplied to the
petitioner No.1 company??? is interconnected with the first
and second statements, hence, as a necessary corollary the said
statement also cannot be said to be false to the knowledge of the
respondents.
In
view of the above discussion as well as considering the submissions
advanced by the learned advocate for the respondents No.1 and 2,
whereby the learned advocate has successfully pointed out that the
said statements are based upon the documents on record, none of the
statements made in the affidavit can be said to be in any manner
false. It may be that the said statements have been read by the
applicants in a different manner, however, that by itself, would not
make the said statements false, as alleged. In such an application
whereby the applicants seek a direction against the Registry of the
High Court to prosecute the respondents No.1 and 2 for the offences
under Sections 200, 193 read with Section 196 of the IPC, the
falsity of all the statements should be apparent on the face of the
record. Considering the allegations made in the application in the
light of the explanation tendered by the respondent, it is not
possible to state that any false statement has been made as alleged,
as the same would fall within the realm of disputed questions of
fact. The relief claimed in the application can be granted only if
on the basis of the record of the case, the Court finds that a false
statement has been made which to the knowledge of the deponent was
false. In the facts and circumstances of the present case, it is not
possible to state that any of the statements that are alleged to be
false, are borne out to be false from the record. Hence, no case is
made out to initiate any criminal proceedings against the
respondents as prayed for in the application.
Besides,
the learned advocate for the respondents No.1 and 2 is justified in
contending that the present application, which is filed after a
delay of eight years from the date of the said affidavit in-reply,
is also hopelessly time-barred. Any application other than those
for which a specific period has been prescribed under the Limitation
Act, would be governed by the provisions of Article 137 of the
Schedule to the Limitation Act, which prescribes that in case where
no period of limitation is prescribed, the period of limitation
would be three years. Hence, apart from the merits of the case, the
application is also time barred.
For
the foregoing reasons, the application being devoid of any merit or
substance, does not merit acceptance, and is, accordingly, rejected.
Notice is discharged.
[HARSHA
DEVANI, J.]
parmar*
Top