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BALWANT SINGH BAWA (A1) versus THE SPECIAL POLICE ESTABLISHMENT

High Court of Madras

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Balwant Singh Bawa (A1) v. The Special Police Establishment - Crl. R.C.No.97 of 1988 and Crl. R.C.No. 98 of 1988 and Crl.R.C.No.99 of 1988 [2002] RD-TN 403 (26 June 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 26/06/2002

CORAM

THE HON'BLE MR.JUSTICE A.K.RAJAN

Crl. R.C.No.97 of 1988 and Crl. R.C.No. 98 of 1988 and Crl.R.C.No.99 of 1988 Crl.R.C.No.97/88

1.Balwant Singh Bawa (A1)

2.Prem Prakash Nangia (A17)

3. Om Prakash Nangia (A.18)

Crl.R.C.No.98/88

Sohanlal Sharma (A.10)

Crl. R.C.No.99/88

1. Geverchand Jain (A.8)

2. Sangaram Singh Mehta (A.9) .. Appellants Vs. The Special Police Establishment

Madras. .. Respondent Revision Petitions filed against the judgment of the Principal Sessions Judge dated 29.04.1987 and made in C.A.No.361 of 1979. For Appellants : Mr. R. Karunakaran

For Respondents : Mr. N. Ranganathan

Spl. P.P for CBI cases

:JUDGEMENT



These revision petitions are filed against the conviction confirmed by the lower appellate Court.

2. The brief facts are as follows: In Pondicherry and Yenam before merger with India when it was in French Territory G.Os were issued by the French Government called ` Arrete' and they were published in the official Gazette. Under French Government, Pondicherry was a free port and all goods, except the goods like gold, rocksalt, certain medicine etc could be imported freely. For some imports foreign exchange was provided by the Government itself and for others, importers had to purchase necessary foreign exchange from open market on higher rates of exchange than the official rate. Thus there was no restriction regarding open market purchase of foreign exchange. The applications for imports had to be made in the prescribed form and authorisation forms 1 and 2 were also to be filed for import from countries other than French areas. The French Government allowed import of goods under two categories namely "attestation" and "authorisation". Attestation relates to import of goods from French area. Authorisation relates to import from other countries. Such imports, in respect of which the French Government did not provide foreign exchange, were called `Open market transactions'. The authorisation forms were available with three recognised exchange banks, namely, Bank of Indo China, United Commercial Bank and Indian Overseas Bank. Any one desirous of importing goods had to apply to the Chief of Economic Affairs Department, giving details of the goods to be imported and the price and other particulars of the goods. The applications were scrutinised by the Department and if they are found to be in order, the sanction of import was allowed either in part or whole. Since the goods imported into Pondicherry were smuggled into India , restrictions were imposed on imports. Therefore, a Confidential Circular C.F. 183 dated 4.6.1953 was issued by the French Authorities. That circular provided that such imports, which were allowed earlier cannot be done throug h open market from 1.7.19 53 without a visa of the Economic Affairs Department and that the three banks shall not provide foreign exchange for imports into Pondicherry without prior permission of the Commissioner of Republic of Pondicherry. Subsequently, when this foreign exchange was not permitted, writ petitions were filed before the Punjab High Court. Thereafter the matter was settled between the Union of India and the petitioners therein with respect to all those cases; cases where foreign exchange arrangements were made prior to 1.11.1954 the imports were to be allowed freely or the goods imported from any other area into Pondicherry. Thereafter a conspiracy was hatched between the accused 1 to 33 to file affidavits to the effect that foreign exchange arrangements were made through open market prior to 1.11.1954 and on that basis Customs Clearance Permits were obtained and using such permits goods were imported into Pondicherry. Therefore, the accused 1 to 3 3 were charged for offences punishable under Sections 120B read with 420 I.P.C.

3. The trial Court acquitted some of the accused and some of the accused were convicted. When the convicted persons filed appeal, the appellate Court has also acquitted some of them; and with respect to some charges also the lower appellate Court acquitted the accused, who have preferred the present revision. The lower appellate Court convicted A1 for the offence under Sections 120B read with 420, A8 and A9 under Sections 420, A10 under Section 120B read with 420 and A17 , A18 under Section 420 IPC .

4. Learned counsel appearing for the respective petitioners contended that the conviction of the appellate Court is not sustainable. He elaborately referred to the evidence on record and contended that the conclusion of the lower appellate Court is not sustainable in law and hence these revisions have to be allowed.

5. On perusal of the records and evidence it is found that A1 and A10 form one group, A8 and A9 form another group and A17 and A18 form the third group.

6. So far as the accused 1 and 10 are concerned, the lower appellate court has given a finding as follows:

In this case PW2 was examined as an approver. He is the person speaks about and connecting all the accused. He is responsible to a great extent for the commission of offence by the accused and since he has been taken as approver, he gives evidence with respect to each and every accused. According to his evidence, A1 told him that the permits which were considered dead have got life again in view of the decision of the Supreme Court and since the petitioners approached the Supreme Court and succeeded in getting the permits revalidated; that some other parties had also filed writ petitions in Punjab High Court and that his permits could also be revalidated. When PW2 expressed his inability to conduct his case due to financial constraints, A1 told him that he would bear the entire expenditure and by way of consideration he wanted 50 of the profit after the permit was granted. This was agreed to by PW2 and therefore A1 proceeded further. PW2 also visited Pondicherry frequently, where he met other accused, who were in turn contacting A1 at Delhi. During his visit to Pondicherry, PW2 came into contact with A10 also. When PW2 and A10 visited Delhi, they used to visit the house of A1. Further PW2 has stated that A1 brought out a proforma affidavit and wanted him to execute an affidavit in that form. Ex.P.288 is the affidavit in which Para 4 of the affidavit refers to the arrangement to finance the imports against C.C.Ps in question. It is stated in that para foreign exchange has been obtained through open market. When PW2 told him that he did not make any arrangement A1 insisted that only if such affidavits are filed, permits can be revalidated and CCP can be obtained. Further he consoled PW2 not to worry about these aspects and he would look after it and on the strength of A1's assurance PW2 signed the affidavits and handed it over to A1. Further PW2 in his evidence stated that A1 and A10 took him to the office of A31 and A32 for making financial arrangements and he has stated that PW2 sought for amendments of CCPs only at the instance of A1 and A10. Subsequently as per another agreement dated 8.4.1966, PW2 had made over his rights to A1 and A10.

7. From this evidence, the lower appellate Court got satisfied that the prosecution has proved beyond reasonable doubt that A1, A10 along with PW2, the approver have entered into an agreement to obtain CCPs on false representations as if PW2 has made arrangements to finance the imports against CCPs even during the pre-merger period (1.11 .1954). Therefore, the lower appellate Court has held that the offences under Section 120B read with 420 is proved against A1 and A10. This finding of the first appellate Court cannot be considered to be perverse or based on no evidence. There is no justifiable legal ground is available to alter this finding. In the absence of any such reasoning, namely any perversity in the conclusion, or in the absence of any conclusion that it is based on no evidence, in the revision against conviction, this Court cannot interfere with the order of the lower appellate Court. Learned counsel for the appellant contended that on perusal of the evidence against A7 and A10 they are identical. When the trial Court convicted A7, the lower appellate Court acquitted A7. But on the similar evidence A10 was convicted. Therefore, the conviction of A10 should also be set aside. It is true that the Court shall not decide differently when the evidence is similar against two accused. But this is a revision against conviction. In this revision, this Court cannot consider this aspect. If proper appeal had been filed against acquittal against A7, this Court would have definitely interfered. Merely because A7 was acquitted, this Court cannot, on that basis, acquit A10 also, when there is acceptable evidence against him. Therefore, the conviction on A1 and A10 under Section 120B is confirmed.

8. So far as A8 and A9 are concerned, the first appellate Court has convicted only under Section 420 but with respect to charges under Section 120B these accused were acquitted. The first appellate Court has held that Ex.P1664 is the undertaking filed by A8 on 7.6.1965. Ex.P.1674 is the undertaking filed by A9 and in both the undertakings, in Clause 6, it is stated that the arrangements to finance imports against the CCPs in question had already been made through open market transactions in terms of the law and practice followed in Pondicherry prior to the de facto merger. Ex.P.1661 is the letter sent by A8 to the Chief Controller of Imports and Exports, New Delhi on 23.12.19 64 requesting him to issue import licences. In this letter A8 has not stated about the arrangement to finance imports made prior to the date of merger.

9. The letter Ex.P1662 was sent by the Advocate for A8 to the Chief Controller of Imports and Exports, New Delhi to grant licences at 7 5 of the total claim under the authorisations. In this letter also no reference is made with respect to any prior finance arrangements for imports. Ex.P 1663 another letter sent by A8 to the 'Chief Controller of Imports and Exports. This letter also does not help A8 to prove that any financial arrangements had been made prior to merger. Therefore, the CCPs were issued to A8 on 23.6.1965 relying upon the false representation made by A8. Therefore, on the basis of this evidence, the lower appellate Court confirmed the conviction of A8.

10. So far as A9, who has also been convicted under Section 420, the lower appellate court has held that Ex.P2038 is the letter sent on behalf of A9 to the Assistant Controller of Reserve Bank of India, Madras on 21.12.1965 stating that they have made foreign exchange arrangements. This letter does not refer to any pre-merger arrangement for finance; Ex.2039 is the letter sent by A31 mentioning about the proposal for borrowing. The trial Court has found that A8 and A9 have not made any arrangements to finance imports prior to the date of merger. The contention that these affidavits were filed at the instance of the officials of the department were not accepted. The lower appellate Court has held that A8 and A9 have filed false affidavit which contain untrue averments and on the basis of these false affidavits they have obtained CCPs. Therefore, the conviction of A8 and A9 was held to be valid by the lower appellate court.

11. The lower appellate Court has found that A8 and A9 are guilty of offence under Section 420 because they have filed false affidavit and made use of foreign exchange otherwise it would not be possible for them to obtain CCPs and import goods. The finding of the lower appellate Court does not suffer from any illegality or any infirmity. This finding cannot be said to be perverse or based on no evidence. Hence the finding is legally sustainable and therefore, it cannot be set aside. The argument of the counsel for the appellant that these accused A8 and A9 neither gained any monetary benefit nor the Government incurred any loss is not acceptable from the fact that foreign exchange were purchased from the open market. It was also not permissible during the relevant period. Hence it was a loss incurred by the Government. Therefore, the argument that the Government did not sustain any loss is not acceptable. Therefore, the conviction on A8 and A9 is confirmed.

12. So far as A17 and A18 are concerned, they were convicted under Section 420 IPC. In so far as A18 is concerned, the lower appellate Court has held that Ex.P905 is the application form sent by A18 for established importers. Exs. 906 and P907 are the two chalans. Ex.P.9 41 is the affidavit filed by A18 for issue of a duplicate C.C.P on the ground that one C.C.P already issued has been lost. Ex.P.1776 is the undertaking filed by A 18. Clause 6 of the undertaking contains the averments to the effect that arrangements to finance the imports against CCPs had already been made through open market transactions in terms of the law and practice followed in Pondicherry prior to the defacto merger. This representation was false as there was no evidence to prove such arrangements were made prior to the merger. There is no evidence on record to hold that A18 has made any financial arrangement with A31 or with any one prior to the de-facto merger. Therefore, Clause 6 in the affidavit is false. Hence the lower appellate Court found that the conviction of A18 under Section 420 is correct.

13. So far as A17 is concerned Ex.P2016 and P.2017 are two authorisations issued by the French Government in favour of A17. Ex.P1760 is a letter written by A.17 to the Chief Controller of Imports and Exports referring to the writ petitions filed by him in Punjab High Court and also requesting him to issue CCPs. Ex.P1761 is the notice issued by the Punjab High Court with regard to the writ petition . Ex. P.1762 is the letter sent by Advocate for A17 to the Chief Controller of Imports and Exports informing that in pursuance of the discussion had between them, A17 was willing to withdraw the writ petition and requesting him to issue CCPs. On 3.4.1965, A17 sent another letter to the Chief Controller requesting him to issue import licences, stating that the writ petition had been withdrawn by him. Ex.P1765 is another letter sent by A17 to the Chief Controller for issue of CCPs. Ex.P1766 is the undertaking filed by A17. Clause 6 of the undertaking refers to the arranegment made to finance the import against the CCPs stating that such arrangements had already been made through open market transactions . A17 also sent two other letters namely Ex.P.8 91 and 893 along with two affidavits Exs.P.892 and P.894 informing him about the loss of two CCPs and requesting him to issue two new CCPs. Thereafter new CCPs were issued. There is no evidence to hold that A17 had made arrangement to imports prior to the de-facto merger. Therefore, Clasue 6 of the undertaking that arrangements were made to finance the imports even before the defacto merger is false. Therefore, the conviction by the trial Court on A17 was upheld by the lower appellate Court. This finding cannot be said to be based on no evidence. Therefore, there is no reason to interfere with the conviction of accused A17.

14. Learned counsel for the appellant finally submitted that there is a discrepancy in imposing the fine. A8 was imposed Rs.40,000 as fine and A9 was imposed fine of Rs.20000. From the evidence it is seen that A8 signed two affidavits and obtained 2 CCPS . Hence he was imposed fine of Rs.40,000 at the rate of Rs. 20,000 per CCP. Whereas A9 has obtained one CCP and therefore he was imposed Rs.20000. The lower appellate court has imposed the fine depending on the number of CCPs, which were obtained fraudulently. Therefore, the fine amount also cannot be reduced. The request of the learned counsel for the appellant to reduce the fine amount cannot be accepted.

15. Mr. R.Karunakaran, learned counsel appearing for the petitioners had done a commandable job in analysing the evidence and argued his case to the extent possible.

This Court can only appreciate his work and record the same.

16. In the result for the foregoing reasons, all the Revisions are dismissed. No costs.

26.6.2002 Index:Yes

Website:Yes

krr

To

1. The Additional Chief

Metropolitan Magistrate, Madras

2. The Principal Sessions Judge, Madras

3. The Special Public Prosecutor

C.B.I Cases, Madras.

A.K.RAJAN,J.

Crl. R.C.Nos. 97, 98 and 99 of 1988




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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