ORDER
S. Rangarajan, J.
1. The petitioner Shri B. K. Parekh was the 11th accused before the Special Magistrate, Delhi (Shri N. L. Kakkar) along with several others, the prosecution having been launched Under Sections 120-B, 420, 466 read with 109, 466 read with 471 of the Indian Penal Code, and Section 5 of the Imports and Exports (Control) Act, 1947. Some of the accused were discharged but the petitioner, along with six others, had been committed for trial in the Court of Session.
2. The facts leading to the said prosecution and the committal may be noticed. The petitioner is one of the three officers of Fedco (P.) Ltd., Bombay, the other two being Shri Dyer (P.W. 39) and Shri Wagh, who was the 12th accused in the case but was discharged by the Committing Magistrate. It is stated by Shri R.K. Verma, the learned Counsel .who appeared for the prosecution, that a revision has been filed against the said discharge of Shri Wagh to the Court of Session and that the same is pending. The Managing Director of Fedco was Shri E. Wenzel and Shri Rangwalla (the 10th accused) was a Director and Chairman. It is further stated at the Bar that Shri Rangwala has died after the committal.
3. Fedco Ltd. are selling agents for a German firm known as Chemical Export Kointor (hereinafter referred to as the German firm) and were also Indenters for Indian firms who wanted to’ import goods from foreign countries.
4. The Ministry of Commerce and Industries issued through its Development Wing essentiality certificates on the basis of which three licenses were issued by the office of the Chief Controller of Imports and Exports, New Delhi under the “actual users” category in the name of (1) National Industrial Chemicals, Lucknow (2) Northern India Chemicals Industry, Faridabad (hereinafter referred to as N.I.C.I.) and (3) Agnihotri. Energy Food Products, Faridabad. It transpired that not only the essentiality certificates on the basis of which the licenses were obtained but also the treasury challans for getting the licenses were forged. The first accused is said to have been the issuing officer. The license issued to N.I.C.I. is said to have been taken delivery of by Shri Dilbagh Rai (9th accused) who has been discharged. A request had been made by the N.I.C.I. to the office of the Chief Controller of Imports and Exports, New Delhi, for the issue of letter of authority in favor of Fedco (P.) Ltd., Bombay.
5. According to the prosecution the registered envelope issued by the Chief Controller of Imports and Exports containing the letter, Exhibit P. 35 (dated 29-8-1957) and the license dated 28-8-1957 issued in favor of N.I.C.I. had been taken delivery of on 31-8-1957 by one Lai who is stated to be a fictitious person. After the receipt of the license early in November, 1957 Lai is stated to have gone to Bombay and visited the office of the Fedco; in the presence of P.W. 39 (Dyer) he is said to have had discussions with the petitioner for placing order ” for importing Chloral Hydrate against the import license obtained by N.I.C.I. In furtherance of this interview of Lai with the petitioner and others at Bombay, a letter dated 9-9-1957 (Exhibit P. 207) was received from the N.I.C.I, by Fedco recording the above-said interview of Lai with the petitioner and placing with Fedco an indent order for 16390 Kilos of Chloral Hydrate and also informing Fedco that a deposit of Rupees 5,000/- along with a letter of authority would be sent in favor of Fedco, In pursuance of this arrangement Fedco was to open a letter of credit and deliver the goods to be imported against cash payment. Exhibit P. 208 is stated to be the acknowledgment, dated 12-9-1957, by Fedco of registered letter Exhibit P. 207.
6. Fedco had been writing to the German firm for supply of Chloral Hydrate. Chloral Hydrate is available both in liquid and powder forms. What is used for preparation of drugs is known as B. P. as distinguished from the coarser variety sassed for other than manufacture of drugs, Chloral for the said use being called Chloral “technical”. The German firm had been informing Fedco from December, 1956 onwards that no additional orders could be accepted (than what had been accepted already) till the 2nd half of 1957 and that the delivery schedule could be supplied only in May or June, 1957. From the correspondence between Fedco and the German firm, which has been placed on record, it appears repeated enquiries had been made by Fedco for Chloral “technical”, all of them eliciting the reply that the situation would become clearer only by or about April or May, 1957. This continued to be the position till the end of July. By a cable dated 2nd August, 1957, the German firm informed Fedco that they could supply certain quantities of Chloral and Chloral Hydrate starting in October and asking them what quantities they required. By letter dated 3-8-1957 (Exhibit P. 187) Fedco had informed the German firm about the receipt of the said cable and promising to advise the German firm about the quantities required on hearing from their customers.
In response to the query about the prices the German firm had also replied 1 under Exhibit P. 188, dated 21-8-1957 the recent prices for the said products. In the context of the interview between Mr. Parekh and Lai early in September, 1957, under Exhibit P. 189 Fedco had sent a cable to the German firm informing them that they had booked an order for 16390 Kilos of Chloral Hydrate. This was followed by letter of the same date (Exhibit P. 119) stating that the order had been placed with them by N.I.C.I. and that they would be sending an official order as soon as a letter of authority was received. By this letter the German firm was informed about the shipment of the said goods required by N.I.C.I. That was merely an intimation to the German firm for making provision for those quantities and to send them in confirmation.
7. N.I.C.I. had applied on 13-9-1957 (Exhibit X-l) requesting for the issue of letter of authority in favor of Fedco. Exhibit P. 209 is letter dated 19-9-1957 said to have been received by Fedco from N.I.C.I, enclosing the import license in duplicate, a Bank draft for Rs. 5,000/-issued by the State Bank of India, Farida-bad. Under the same letter Fedco was informed about a letter of authority having been applied for and about sending the same as soon as received. Under Exhibit P. 37 dated 21-9-1957, the office of the Chief Controller of Import’s and Exports, New Delhi, dispatched to the N.I.C.I. a letter forwarding the letter of authority (Exhibit P. 38) in favor of Fedco in respect of license issued to the N.I.C.I, The N.I.C.I. was permitted as licensee to authorise Fedco as Indent/Commission Agents to import goods, to open letter of credit and to make remittance of foreign exchange to the extent of Rs. 71,000/- against’ the license issued in favor of N.I.C.I. Under Exhibit P. 10 dated 23-9-1957, Fedco wrote to the N.I.C.I. returning both the copies of the license and asking them to get the license corrected and endorsed by substituting Part V, Serial No. 22-31 instead of Part IV, serial No. 109 of the Import Trade Control Schedule.
The reason for this change was, as explained by P.W. 40 (P. V, Verghese)., an employee of Fedco, import of Technical grade of Chloral Hydrate could be made under Part V; Serial No. 22-31 of the Import Trade Control Schedule and the B.P. grade of Chloral Hydrate could be imported under Part IV, Serial No. 109. Subsequently, Fedco received Exhibit P. 211″ dated 30-9-1957 from N.I.C.I. stating that an application had been made to Chief Controller of Imports and Exports, New Delhi for such corrections and that the N.I.C.I. were enclosing the duly corrected license. It may also be noticed in this connection that the, license issued to the N.I.C.I. was shown as .Serial No. 370 on page 25 of the printed Weekly Bulletin of. the Import and Export Trade Control for the week ending 31-8-1957 to be published by Government of India, Ministry of Commerce and Industry. Fedco received Exhibit P. 191 dated 24-9-1957 from the German firm acknowledging Exhibit P. 190 dated 12-9-1957 from Fedco and asking them to send the order sheet as early as possible under Exhibit P. 192 dated 4-10-1957.
Fedco wrote to the German Firm that N.I.C.I. had sent the letter of authority; thus the final indent order was placed for 16390 Kilos of Chloral Hydrate for 4671-3-9 at 28-10 per 100 Kilos. On the same day Exhibit P. 212 was sent to the N.I.C.I. forwarding a copy of the final order. On 9-10-1957 Fedco opened in favor of the German firm a letter of credit (Exhibit P. 184) in the sum of 4671-3-0. This letter of credit was actually opened by Rangwalla (10th accused). Under Exhibit P. 193 dated 11-10-1957, the German firm acknowledged the receipt of the official indent order (Exhibit P. 206) and informed Fedco that shipment will be made during October, November, December, 1957 and January,. 1958, the first consignment alone comprising 1390 Kilos and the others 5000 Kilos each. Exhibits P. 195 and P. 197 to P. 109 are four invoices in respect of the above four consignments received from the German firm. In each of these invoices, the value of the consignment was exactly 5 per cent, less than the amount which had to be paid by N.I.C.I. and the same is stated to be the commission which was due to Fedco in respect of this transaction.
8. Fedco received at Bombay Rs. 87,200/- by various Bank drafts and finally a sum of Rs. 822.16 in cash. The four consignments were stated to be delivered to the representatives of N.I.C.I. by the Godown Keeper of Fedco (Gaja Nand not examined in the committing court) on various dates. The letters in respect of delivery of the goods emanating from N.I.C.I. required Fedco to deliver the goods to the bearer. The letter to .N.I.C.I. in respect of the delivery of the first consignment of goods is Exhibit P. 182 dated 12-12-1957 asking for a Bank draft for Rs. 7,200/- towards the approximate value of the goods and asking for instructions for delivery of goods. This was acknowledged by Exhibit P. 216 dated 18-12-1957 enclosing “two drafts issued by the State Bank of India, Faridabad, for a total sum of Rs. 7,200/-. This letter along with the drafts is stated to have been sent per bearer and the goods were asked to be delivered to the bearer. P.WV 40 (Verghese) received the said letter from the bearer or this letter; this letter Is said to contain the initials of Managing Director Mr. E. Wenzel. On 27-12-1957 Fedco issued to its godown, about three miles away from its office, a delivery order Exhibit D. Z) in favor of the representative of the N.I.C.L, the delivery order being signed by Shri Wagh and handed over by P.W. 40 to the bearer of Exhibit P. 216. On the same date (27-12-1957) Fedco wrote Exhibit P. 217 to N.I.C.I. acknowledging Exhibit P. 216 and also the two Bank drafts (Exhibits P. 227 and P. 228) and stamped receipt for Rs. 7,200/-. N.I.C.I. was informed that the delivery order had been handed over to its representative. On 30-12-1957 on behalf of NtI.C.I. one V. K. Shah signed the delivery challan (Exhibit D. Z. 4) at the godown of Fedco against the delivery of the goods, the delivery challan being in the handwriting of Gaja Nand. Under Exhibit P. 219 dated 20-1-1958 a debit note was sent by Fedco to N.I.C.I. under the signature of Kale (P.W. 36) Chief Accountant of Fedco, the letter written in this connection being dictated by P.W. 40 and signed by P.W, 39.
9. The same procedure was adopt-‘ -ed in respect of other three consignments of 5000 Kilos each. The second consignment was taken delivery of by same V. K. Shah. Regarding the third and the fourth consignments it is seen that the deliveries were made to the representative of’ N.I.C.I. Exhibit P. 243 is the ledger account in the name of N.I.C.I. maintained by the Fedco giving the complete account of the orders placed by N.I.C.I. with Fedco. Under Exhibit P. 258, dated 9-4-1958, Fedco wrote to N.I.C.I. acknowledging receipt of their drafts for Rs. 50,000/- and Rs. 822.16 in cash. Along with the letter, stamped receipt for Rs. 50,822.16 was enclosed, duplicate copies of bills of entry, both the copies of the import license and letter of authority are stated to have been handed over to the N.I.C.I. representative.
10. So far as the petitioner is concerned, he is seen to have signed letters Exhibits P. 183, P. 208, P. 189, P. 190, P. 21.0, P. 206, P. 192, P. 212, P. 213 and P. 215 (shipment advices) P. 182, P. 217 and P. 223. His initials are found in Exhibits P. 185, P. 188, P. 207, P. 209, P. 191, V. 211, P. 216, P. 218 and P. 224.
11. The 5th accused Babu Bhai Khakkar alias Vithaldas Madvji and his brother Bhagwan Das Khakkar are stated to have connection with the firm Vijay and Co. which was described to be in the neighborhood of Messrs. Wakefield (P.) Ltd., Bombay. Bhagwan Das Kakkar stood as guarantor for Vijay and Co. and the letter of credit was opened. In the matter of importation of goods against the license issued in favor of N.I.C.I. Lucknow it is stated that both the brothers had arranged for the imports and had sold the imported goods like tiles to the different firms in Calcutta. P.W, 41 (Shri Vincent) and V.W. 43 (Shri D. Souza) are Receptionists in the National Sports Club, Delhi. According to them, the fifth accused was a life member of this club and his staying there during this period had been spoken to by both of them. Various trunk calls were put through to Bombay and Calcutta during the periods he stayed in the Club. According to their evidence it is seen that the fifth accused was in Delhi between 23-8-1957 to 29-8-1957, 1-9-1957 to 9-9-1957 and 12-9-1957 to 19-9-1957.
He is also seen to have made various trunk calls during his stay. P.W. 41’s evidence shows that the fifth accused had spoken to his brother Bhagwan Das on 29-8-1957 and the evidence of P.W. 43 shows that he had spoken to his brother at Bombay on 25-8-1957, 19-9-1957 and 13-9-1957. Referring to the stay of the fifth accused at Delhi between 13-9-1957 to 19-9-1957, the learned Magistrate has mistakenly referred to it as the stay of the petitioner (11th accused) at Delhi during that period. The learned Magistrate has sought to connect the activities of the fifth accused at Delhi between 13-9-1957 to 17-9-1957 with the arranging of an application for letter of authority in the name of Fedco. Since it transpired that N.I.C.I. was itself a fictitious firm the learned Magistrate has drawn the inference that Messrs. Fedco had arranged for the letter of authority through they fictitious firm bearing the name N.I.C.I.
But after being taken through the entire evidence by Shri Daphtari for the petitioner and also having heard Shri Verma for the prosecution it is seen that no direct connection whatever between the fifth accused and Fedco has been established. It is further seen that there is no factual basis for the observation of the learned Magistrate in paragraph 34 of the committal order that the accused persons concerned, namely accused 10 and 11, “fully knew that the licensee was a fictitious firm arid that accused 5, Babu Bhai Khakkar, was the person dealing with these matters”.. He again observed in paragraph 36 that the said two persons “joined hands with the accused No. 5” and’ in paragraph 37 that “there is sufficient evidence on the record to show the , connections between accused Babu Bhai Khakkar who played a vital role and accused Nos. 10 and 11 of the Fedco Co. This means that there are sufficient grounds against the accused persons Nos. 10 and 11 and there is every chance of believing or disbelieving the evidence and as such the question of weighing evidence at this stage cannot arise”. After being taken through the evidence I am unable to find any factual basis for the above said observation of the Committing Magistrate that there is any connection between the fifth accused and the petitioner, there is no material on the record from which it can be so inferred.
12. It is important to bear in mind that the prosecution is not against the company (Fedco); it is not even against all the officials of the company. In fact, only some of the officers of the company have been prosecuted, it has not been even explained in any cogent manner as to how only some of the officers were prosecuted, but not the others. In these circumstances, the case against the petitioner cannot be substantiated by reference only to the acts on the part of the petitioner which he like some of those officers of the company who had not been prosecuted or who appeared as witnesses had done. When questioned by the. Committing Court, in answer to question No, 9, the petitioner stated as follows:
Whatever I had done was done by me in good faith and in the normal course of business in discharge of my duties as an officer of Fedco (P.) Ltd. My actions are similar to those of P.W. Dyer, P.W. Verghese, P.W. Kale and other employees of my company who have played part in the normal course of business.
Indents against the import license of National Industrial Chemicals, Lucknow and Agnihotri Energy Food Products, Farida-bad, were accepted by P.W. 17 Mr. Boda, P.W. 20, Mr. Doctor, P.W. 37 Mr. Yadav Ji Gopal. If these witnesses had no reason to doubt anything, it will be appreciated when I submit that I had no reason to doubt the genuineness of the firm’s license and the letter of authority.
13. The learned Magistrate has referred to the central part the fifth accused played in securing the three licenses in question, including the one with which we are concerned in the name of N.I.C.I. So far as the petitioner is concerned, he was only an official of Fedco; he was not a Director of Fedco as the learned Magistrate erroneously observed in paragraph 26 of the order. The positions which some of the persons had in Fedco had been spoken to by P.W. 36. According to him, the petitioner was only one of the officers of the company and he became a Director only subsequently in 1958. It has to be remembered that the licenses in question were obtained in 1957. Even Mr. Wagh was only one of the company’s officers then; he was not the General Manager as the learned Magistrate thought. The various documents which were either signed or initialled by the petitioner had been listed already, and no inference of guilt is possible against the petitioner merely from the fact of his having signed the letter to the German firm (Exhibit P. 190) or the cable (Exhibit P. 189) concerning the order placed by N.I.C. I. with Fedco for 16930 Kilos of Chloral Hydrate.
Nor could any further inference be drawn against him by his having signed Exhibit P. 210, dated 23-9-1957, asking N.I.C.I. to get the license corrected from Part IV Serial No. 109 to Part V, Serial No. 31. Mr. Verma stressed the fact that the interval between this letter and the receipt of the correct license along with Exhibit P. 211 dated 30-9-1957 was too short and that this itself is suspicious. No inference of guilt can be drawn from the fact of the license having been sent back after correction as required within – about a week. Reliance was also placed on the fact that N.I.C.I. did not mention in its letter-head the actual place where the office was situated in Faridabad and that it had not even mentioned the telephone number. This argument fails to take note of the fact that Faridabad in 1957 could not have been and was not the same Faridabad that it is-today and there is nothing even to show that there was telephone service available in Faridabad in 1957. Letters from the office of the Chief Controller of Exports and Imports were reaching N. I. C.I, Faridabad. The case for the prosecution did not improve materially by the examination of the postman (P, W. 42) because he referred to two persons having come over to the post office to receive a letter addressed to N, I, C. I. which he delivered on being identified by one Ram Keshap Kapur, an employee in the power house, the latter being ‘ identified by Ram Narain, a time keeper in the power house (P.W. . 47). Ram; Keshap Kapur himself was not examined,’ the examination of P.W. 47, who was unable to identify the person to whom the letter was delivered, does not improve matters.
14. The short question for consideration So far as the petitioner is concerned is whether there is any thing to suggest that he knew, as the Committing Magistrate was willing to infer, that a license had been fictitiously obtained in the name of the N. I. C. I., for without laying the basis in-any tangible manner for making such an inference the committal of the petitioner could’ not be justified. It is now well settled (vide; Pandu Dhondu Gole v. State of Maharashtra, Criminal Appeal No. 31 of 1968 decided on 26-7-1968 (SC)) that where the evidence is of a circumstantial nature, the circumstances from which a’ conclusion of guilt is to be drawn should, in the first instance, be fully established, all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be proved. In other words, there must be a chain of evidence so far complete as not to-leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. But the principle that inculpatory facts must be inconsistent with the innocence of the accused and incapable of explanation on any other hypothesis than that of his guilt does not mean that any extravagant or fanciful hypothesis would be sufficient to sustain the principle, but that the hypothesis suggested must be reasonable.
15. In a very recent decision of the Supreme Court in Awadhi Yadav v. State of Bihar, Cr. Appeal No. 128 of 1967, D/-17-8-70, (since ) Hegde J. observed as follows:
Before a person can be convicted on the strength of circumstantial evidence, the circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence, imaginary possibilities have no place. What is to be considered are ordinary human probabilities.
16. The above analysis of the entire evidence against the petitioner shows that there is no legal evidence at all in support of the charges in respect of which he has been committed; per contra such evidence as there is only is inconsistent with the accusations made against him.
17. In addition to what has been noticed earlier, there is also the evidence of Mr. Oswyn Dyer (P W. 39) who stated, when he was questioned about the pencil writing on Ex. P. 227, that the portion marked A as well as initials at B were that of the petitioner and he was sure about it since there was a conversation relating to the contents of the writing between Lai and the petitioner in his presence; he did not however, know Lai previously. In the face of this evidence it could not be said that the petitioner was himself a party to inventing the name of Lai as a person dealing with Fed-co or even that he was aware of Fedco dealing with a “fictitious” person concerning the impugned transaction. It was brought out in the cross-examination of P, W. 40 (Shri P. V. Verghese) that there was a receptionist in Fedco who would direct any per-son going to Fedco concerning indent business to either P.W. 39 or the petitioner. Persons from all over the country. came to Fedco which accepted indent orders for imports, of the value of some crores. of rupees annually.’
P.W. 40 also explained the manner in which customers took delivery of goods from the godown they took delivery orders from Fedco and went to the godown with the letter giving authority to take delivery of goods during the period he was working as an Assistant. If a customer sent any person with a letter to take delivery of goods that person would be directed to appear as P.W. 40; if it related to imported goods under a letter of authority, P.W. 40 would direct him to P.W. 39 for getting permission for issue of delivery order. After being directed by P.W. 39, P.W. 40 would go to, the Head Clerk of the section (Mr. SJiankar) who would prepare the delivery orders, initial the same and get the signatures of the 12th accused discharged by the Committing Magistrate who was in charge of this department; the delivery order would-go back to P.W. 40 duly signed by the 12th accused. Gajanand, who wrote the delivery challans, was not arrayed as the accused; he was not even examined as a witness. Concerning the deliveries, the learned committing Magistrate himself did not find that the deliveries were not made. On the other hand, there is no evidence that Fedco effected no delivery at all to any one and that the goods in question were sold or otherwise disposed of either directly or indirectly by Fedco.
18. In the grounds of revision, the respective parts played by the various officials of the Fedco in relation to the impugned transaction has been analysed and set out at great length. Paragraph 13 of the revision petition sets out the parts played by each .of them in considerable detail and there is no need to refer to them once over because the learned Counsel for the State was not able to point out any error or inaccuracy in the way in which the’ said evidence given by all the concerned officials of the Fedco, who were examined as prosecution witnesses but “not arrayed as .accused, has been set out therein, not even the part played by Dr. Wenzel, who was not examined as a witness or arrayed as accused.
19. The answer of the petitioner to question 9, when he was examined Under Section 342, Cr.PC, set out verbatim earlier, is a hypothesis which has in the above circumstances to be regarded as only reasonable; he must, therefore, be given the benefit of that hypothesis. In so giving effect to that hypothesis possibilities which are only imaginary do not have to be pressed into service; ordinary human probabilities are that the petitioner could well have acted innocently in doing what has been attributed to him, especially when he has squarely admitted all of them and denied nothing. In any case, he does not appear to have done anything more than what even some of the prosecution’ witnesses themselves like P.W. 36, P.W. 39 and P.W. 40, or even Dr. Wenzel, did.
20. There was some argument at the bar concerning the scope of a preliminary enquiry by a Committing Magistrate. This is hardly a case, in the light of the aforesaid discussion, for defining the scope of such an enquiry for the above discussion shows that the committal of the petitioner in this case was not warranted. Even otherwise, the scope of preliminary enquiry has been laid by the Supreme Court. in several cases. The committing Magistrate has to apply his judicial mind to the materials on which he has to form a judgment vide R. P. Kapur v. State of Punjab, ; Pramatha Nath Talukdar v. Saroj Hanjan Sar-kar, . He has come to a conclusion that the case is a fit one for committing the accused to the Court of Session, vide K. P. Raghavan v. M; H. Abbas, . The following observations of Shah I, (as he then was) in Alamohan Dass v. State of West Bengal, are instructive and may usefully be set out:-
A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is his duty to discharge the accused: if there is some evidence on which a conviction may reasonably be based, lie must commit the case. The Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused. The question before the Magistrate at that stage is whether there is some credible evidence which would sustain a conviction.
21. In the same case, reference was also made as to when the High Court would interfere in a revision petition filed against the order of commitment. Ordinarily the High Court does not enter upon ‘reappraisal of the evidence, but interference is justified where a specific question of law arises on which the correctness of the order of commitment may be effectively challenged, i.e. when there is no evidence on which the order of commitment could be made. The present case appears to me to be one of that description.
22. In the result, the order committing the petitioner for trial by the Court -of Session is quashed.