1991 ALLMR ONLINE 856
BOMBAY HIGH COURT

K. SUKUMARAN AND V.P. TIPNIS, JJ.

Godrejand Boyce Manufacturing Co. Pvt. Ltd. and another Vs. The Union of India and others

in Appeal No. 429 of 1986, in Writ Petition No. 1110 of 1983,Notice on Moti No. 1318 of 1991

29th November, 1991

Petitioner Counsel: M.I. sethna with M. K. Patwardhan, H V. Mehta and A. S. Khan, s
Respondent Counsel: Ashok Desai with K. M. Desai. Amit Desai and Dr. D. Y. Chandrachood, instructed by M/s. Gagrat and Co.,

Criminal P.C. (1973),S. 340(2) Criminal P.C. (1973),S. 340 Criminal P.C. (1973),S. 340 Criminal P.C. (1973),S. 340

Cases Cited:
1991 EPW 243 [Para 82]
1988 EPW 86 [Para 82]
AIR 1984 SC 420 : 1984 Tax LR 2436 : 1983 ELT 868 [Para 11]
1980 ELT 274 ( Bom) [Para 8]
1980 Lab IC 910 (FB) [Para 76]
1978 Cri LJ 339 : AIR 1978 SC 290 [Para 82]
1978 Tax LR (NOC) 125 : 1978 ELT 111 [Para 8]
1978 Cri LJ 821 (Rel. on) [Para 52]
AIR 1978 SC 597 [Para 75]
1978 Cri LJ 1804 : AIR 1978 SC 1753 : (Explained) [Para 77]
1970 Cri LJ 443 : AIR 1970 AP 119 : (Rel. on) [Para 65]
AIR 1967 SC 1269 [Para 75]
1966 Cri LJ 459 : AIR 1966 SC 523 [Para 81]
AIR 1962 SC 137 [Para 71]
AIR 1958 Cal 630 : 1978 ELT 552 [Para 8]
1954 Cri LJ 1019 : AIR 1954 SC 397 [Para 81]
1952 Cri LJ 61 : AIR 1951 Mad 1060 [Para 73]
AIR 1943 Bom 113 : 1980 Supp SCC 415 [Para 91]
AIR 1937 Pat 534 [Para 64]
1937 (38) Cri LJ 615 : AIR 1937 Rangoon [Para 62]
(Dissented from) [Para 77]
1930 (31) Cri LJ 1226 : AIR 1931 Cal 760 [Para 81]
(1985) 22 ELT 306 [Para 21]
(1899) ILR 23 Mad 210 (Ref.) [Para 65]
(1891) ILR 18 All 358 [Para 64]
(1886) ILR 12 Cal 128 [Para 64]
(1884) ILR 10 Mad 232 [Para 64]


JUDGMENT

SUKUMARAN, J.:-Godrej and Boyce Manufacturing Company (Pvt.) Ltd. (a long name; we shall refer it hereafter as "Godrej") had an encounter with the Excise Wing of the Central Revenue. It was somewhat exhausting and exhaustive. Every weapon in the armoury, from scud missiles to sterile spears, were employed, On the eve of the ides of March of 1990, the war was over. At least so thought Godrej. It was, however soon disillusioned. The Union of India wants to open another front. That is not part of an adversarial affront, assures the Union. Court itself could open the front, for, the crime complained of, is one against administration of justice itself. Everything is fair in love and war - it is generally said. That is not the rule within the sanctified precincts of the Courts of law. It has been declared in explicit terms in the Indian Penal Code, 1860 (abbreviated as IPC). The responsibility for overseeing the enforcement of that salutary statutory provision rests with the Court; for a sanction for such legal action is to be granted by the Court. The Court itself is the custodian of the key, and the controller of the arena. That is an indication of the seriousness attached to the action by the Legislature. That is a manifestation of the trust reposed in the Courts. That, in a sense, is the greatest check against abuse of prosecution proceedings against those who have given tainted evidence in judicial proceedings before Courts or Tribunals of the nature indicated. "Pray, consider the action appropriate, having regard to the to the startling facts and the stunning revelations which have

been placed by massive materials before the Court" - such appears to be the dispassionate posture of the Union of India in the Notice of Motion now under our consideration.

2. It is necessary to be specific and detailed in relation to material facts while considering the grave prayers in the Notice of Motion. Vague and general statements would not do, before a decision which impinges on substantial statutory provisions and which may cast possible impact of potential proceedings is taken.

3. The skeletal facts which need recapitulation may now be recalled.

3-A. Godrej manufactures refrigerators. Understandably, the consumers and customers are not confined to a great city like Bombay but are dispersed all over the country. A fridge (as refrigerator is affectionately abbreviated) is not merely a status symbol but a minimal necessity in many a home.

4. Modern man is not satisfied by mere utility. Cosmetics and aesthetics form part of his life, even if he has to pay, sometimes too dearly, for them. Attractive painting ensured insulation against adverse rusting effect; it helps embellishing a room even if it be otherwise unromantic. Perfection of the painting may help a merger with the glamour of the atmosphere and a fusion into a colour combination. A good painting (of the less sublime nature as here) has necessarily to be protected. Insulation by polythene cover may suffice in some cases. It may be insufficient when the transport is indispensable and the distance not inconsiderable. A minor bend, a scrappy scratch, or a bad bruise, could irretrievably spoil its beauty which even a later plastic surgery may not restore to its pristine comely condition.

5. Excise duty is leviable on manufacture. It had been a vexed question, whether the various types of packing could form part of the manufacture, in excise parlance.

6. Godrej had faced some proceedings under the earlier Central Excises and Salt Act, 1944. The liability in relation to packing had been considered there. The price list did not cover the charge of the secondary packing. Godrej took the stand that the charge levied for secondary packing could not be added to the wholesale price for reckoning excise duty. The Assistant collector, to whom the price list dated 20th October 1977 had been furnished under Rule 173-C of the Central Excise Rules, did not accept that version. An appeal was then preferred on 11th April 1978. The Appellate (Asistant ?) Collector upheld the Godrej's stand, by order dated 28th October 1980. The appellate order was favourable to it. The decision, though adverse to the Department, was honoured by it by appropriate follow-up steps like refund order on duty already paid under protest. Credits were also permitted in respect of amounts ordered to be refunded. This process continued somewhere up to November 1980. The clearance of refrigerators used to be effected without adding to its value the cost of secondary packing. The Department permitted the movement of the goods that way.

7. Central Excise appears to have had second thoughts on the question, which manifested themselves in positive action of a Superintendent who issued a notice dated 23rd November, 1982. Godrej was quick to realise its implications. It knew where the shoe was likely to pinch. Remedial action was soon in its contemplation. A Business House cannot afford to be slow or sluggish. Cheaper and speedier the remedy, the better. Prevention could be better than cure. All these fit in well with the extraordinary, and very efficacious constitutional remedy provided under Art.226 of the Constitution. True, you cannot rush to the portals of the Constitutional Courts, leaving the country and of the Departmental complex. Trained legal minds can find solutions for these problems too. A jurisdictional question has to be raised. It is not all that difficult to spin about one with confusing concepts. The first impression would be the best impression. The durability

of the contention is not likely to be tested immediately. A respite from the tedium of furnishing an effective reply can itself be a great relief. The same is certainly worth the candle.

8. Invoking the provisions contained in Article 226 of the Constitution, the notice itself was challenged in the Constitution Court, raising a contention of jurisdiction. If a superior authority has by a properly considered order, explained a position, and the Department has acquiesced in it, it assumes permanency; it has to be honoured by everyone in the Department, in the absence of any change of law or of other circumstances. Such was the contention, one which had found favour with the Courts in the trading capitals of the country like Calcutta (Mercantile Express v. Assistant Collector, 1978 ELT 552 : (AIR 1958 Cal 630); Delhi (Bharat Carpet Ltd. v. Union of India, 1978 ELT 111 (1978 Tax LR (NOC) 125) and Bombay (I. B. M. World Trade Corporation v. Union of India, 1980 ELT 274). If the principle is applied, the Department has only to roll up its notices and retreat its steps. That was one aspect of the petition before this Court.

9. Even otherwise, on the basis of the law as declared by the apex Court, and binding on all persons, authorities, and instrumentalities of State, the petitioner was entitled to exemption in respect of charges for secondary packing, having regard to the materials on record. The bar of limitation was also a major contention. Sections 11 and 11-A of the Act figured prominently in that context.

10. The Union of India is not generally accused of any promptness and perseverance in protecting its interests in Courts of law. No return was filed in the present case.

11. We may digress a little, in this context, to note some developments linked with the liability of Godrej for excise duty in respect of secondary packing. Many issues connected with Central Excise had sprung up all over the country. Many of them reached the highest region of the apex Court. Some of the cases dated back even to the year 1976, it is not desirable to block up large chunks of revenue needed for a welfare State. At the same time, to worry the trading community perennially as it were, with a Democles's sword in the form of sizable excise liability is also equally undesirable. The Supreme Court dealt with the cases in 1983. The expediency of expediting the announcement of the verdict was felt by that Court. On 9th May 1983, the Supreme Court handed down the text of its decision, indicating that detailed reason would follow later. It is referred to in law reports as Union of India v. Bombay Tyre International Ltd., AIR 1984 SC 420 : (1984 Tax LR 2436) : 1983 ELT 869.

12. It is unnecessary to attempt a summary of the entire decision. Some crucial aspects emphasised in it, could, however, be carefully noted.

The decision covered cases where the sale takes place at the factory gate, as also cases when it is effected through the sales organisation at place or places outside the factory gate. It was declared that the wholesale cash price is the sole basis for the determination of excise duty. There is a significance in the sentence which stated that "no deduction from such wholesale cash price is permissible except in respect of trade discount and the amount of excise duty......" Certain amounts were proclaimed to be impermissible in all circumstances : cost of advertisement or publicity; expenses incurred in connection with storage; expenses of the sales organisation; and "any other expense incurred by the assessee after the date of delivery." In the case of goods sold at the place outside the factory gate, a further deduction was allowed. But that was confined to "only the cost of transportation from the factory to the place where it is sold."

14. Packing was considered as an important topic deserving a separate treatment. Both sides had to swear by the pertinent passage. Union was understandably more fanatic in the propitiation of that passage. We shall chant it in its near entirety :

"So far as the cost of packing is concerned, no deduction is permissible in respect of such cost from the wholesale cash price of the excisable article at the factory gate, whether the packing be primary packing or secondary packing and whether its cost is shown separately or as included in the wholesale cash price. Whatever packing is necessary for the purpose of putting the excisable article in a condition in which it is generally sold in the wholesale market at the factory gate, the cost of such packing cannot be deducted from the wholesale cash price of the excisable article at the factory gate. If, however, any special secondary packing is provided by the assessee at the instance of a wholesale buyer which is not generally provided as a normal feature of wholesale trade, the cost of such packing shall be deducted from the wholesale cash price."

15. In this case, we are particularly concerned with what is termed as secondary packing. The passage extracted above would emphasise its character by referring to it as special secondary packing (Emphasis supplied). The conditions for earning exemption as regards its cost are :

(1) Such special secondary packing is provided by assessee;

(2) They are so provided at the instance of a wholesale buyer;

(3)They are not generally provided as a normal feature of the wholesale trade.

Needless to add, the moment a secondary packing is spotted, the Revenue would be justified in including its cost in wholesale cash price. That need not necessarily be the first impact on the assessee. It is open to the assessee to plead and prove that it satisfies all the conditions to earn the exemption.

16. After the understandable delay, the case was heard in 1984. The Union of India presumably proceeded to the Court-hall with some confidence. It had cited the decision in the Bombay Tyre case. It ultimately, and unfortunately for the Union, turned out to be a matter of over-confidence.

17. The learned Judge held that the validity of the notice had to be adjudged on the basis of law as it obtained as on the date of issue of the notice. Looked that way the change in law was brought about only by the pronouncement of the judgment of the Supreme Court dated 9th May 1983. The altered law is not retrospective. Consequently that would not be the touchstone on which the worth and validity of the notice would have been tested. The Union of India, having acquiesced in the appellate order passed by the Collector in 1980, had allowed itself to lie in a Procrustean bed. It had to suffer eternally its inconvenience -- so proceeded the Judgment. Polythene packing was the only packing for the refrigerators sold at the factory gate. No price list with special secondary packing could be ordinarily thought of, as in that event, in the facts of the case, there would be a multiplicity of price-lists dependent upon the demand of wholesale dealers. That was not in tune with the statutory scheme of excise law. Bombay Tyre case was thus inapplicable; even if applicable, it was distinguishable was the further finding of the learned Judge.

18. The writ petition was allowed. The greater importance, for the purpose of the present proceeding, is in another passage in the judgment. They were read and re-read by either side. Having regard to the significance and importance of the passage, it could be extracted in its entirety :

"26. Mr. Sethna for the respondents relied upon the following observations of the Supreme Court. The Supreme Court in paragraph 52 has stated :

"If any special secondary packing is provided by the assessee at the instance of a wholesale buyer which is not generally provided as a normal feature of the wholesale the cost of such packing shall be deducted from the wholesale cash price."

He submitted that unless a special packing is provided at the instance of the wholesale buyer the cost of such packing cannot be deducted from the wholesale cash price. He submitted that the petitioners had not referred

to anymaterial in their petitionto establish that the secondary packing in question was provided at the instance of wholesale buyers. In this connection it must be remembered that the petition was filed long prior to the decision of the Supreme Court. The petitioners cannot be expected to refer in their petition to the material which would be required in anticipation of the Supreme Court decision. The petitioners did producein the course of hearing several letters written to them in 1978 and 1979 by their wholesale dealers outside Bombaycomplaining of the damage caused to the refrigerators in the course of transport because of the packing provided by the petitioners and asking for a special packing to protect the refrigerators in transport. Mr. Sethna objected to any notice being taken of these letters. In view of this objection, I am not relying upon these letters."(Emphasis supplied)

19. The adverse judgment did not hasten the pace of Governmental machinery. It is sufficient to note that against the judgment rendered in August 1984, the appeal was filed only in April 1985.

20. All the alphabets in the English language were not sufficient to cover the numerous grounds paraded in the appeal by the Union. That accounts for grounds Zl and Z14. Ground Z6 is of noticeable interest in the present context. It reads:

"Z-6.The learned Judge erred in permitting the petitioners to refer to some letters purportedly written to the petitioners in 1978-79 by their wholesale dealers outside Bombay for enabling the petitioners to establish that the packing in question was a special packing as envisaged by the Hon'ble Supreme Court. The learned Judge ought not to have ordered (sic) the petitionersto refer to such letters straightway at the time of hearing when respondents were not shown these letters any time earlierand, therefore, had no opportunity to deal with the contents of the said purported letters."

21. The appeal was, however, unsuccessful. The Division Bench dismissed the appeal by its judgment dated 24th June 1986, which reads:

"P.C. We agree with the view taken by the learned single Judge that the packing in question is made for purposes of transport and protection in transmit and cannot be included in the wholesale cash price of the petitioners' refrigerators. The learned single Judge has correctly applied the law laid down by the Supreme Court. Mr. Hidayatullah also relies on the decision of the Supreme Court in Union of India v. Godrej Philips (1985) 22 ELT 306 which has considered the earlier decision of the Supreme Court in Union of India v. Bombay Tyre International Ltd. This decision also Supports. The respondents' appeal dismissed."

22. The Union pursued its further remedies. A Special Leave Petition was filed before the Supreme Court in September 1987. The delay generally noticed in the presentation of the appeals of the Union was there in the present case too. It was much more the prescribed limit prescribed by law. Apparently, the Union could not get a certified copy of the Judgment till 23rd June 1987. It speaks volumes. It is not inconsistent with the hypothesis of intolerable indolence and indifference on the part of the Union's defence equipment in legal torts. Suffice it to say that the delay was condoned by the Supreme Court. By judgment dated 8th September 1989, the matter was disposed of. The decision of the Supreme Court could he usefully extracted in full:

"Order - Special leave granted. We have heard Counsel for the parties. Our attention has been drawn to certain letters (appearing at pages 102 to 122 of the present S.L.P. Paper Book). The said letters were indisputably not before the High Court or the authorities below at any relevant time. We are of the opinion that the questions herein should be considered in the light of these letters. The judgment and order of the High Court in that light require to be set aside. We accordingly set aside the judgment and order of the High Court and remand the matter to the High

Court for consideration of the question afresh involved herein in the light of these letters.

The High Court will consider the question of admissibility, relevancy and the value of these letters and then come to a conclusion about the assessable value of the refrigerators and the consequence of that determination.

The appeal is disposed of accordingly without any order as to costs."

23. The records then returned to Bombay. The appeal was placed before a Bench. The Bench felt that the decision could be better had a single Judge. It ultimately came up before the very same learned Judge who disposed of the writ petition initially.

24. The Union was now more active in its role. An affidavit was filed on 8th January 1990, and surrejoinder on 9th March 1990. It brought on record some information which it had come by in the meanwhile as a result of raids conducted and an intelligent collection and co-ordination on the materials and data.

25. Godrej, presumably foresaw the adverse winds. It was prepared to concede that it had a weak wicket. It had a run to Delhi. An attempt for a draw. A consummate penmanship on the part of its new solicitors, M/s. Gagrat and Co. and calculated moves and interviews are unusually sophisticated. Defendant's defence was presented by the Chairman of the Central Board of Revenue. The two letters of the Solicitors and the reply of the Chairman had been much commented upon particularly by Counsel. It is sufficient to note that no assurance of immunity from action under S. 340 was given by the Central Board of Revenue.

26. In the month of March 1990, the matter came up for the final disposal. The scene presented a picture of something like that of a surrender by Godrej. Minutes were prepared -- not consent terms. Minutes only for the purpose of identification. The learned Judge passed order thereafter. The order reads:

"3. Affidavit in reply dated 8th January 1990 filed by the Respondents on 10th

January 1990. Affidavit in rejoinder dated 28th February 1990 to the aforesaid affidavit handed over by the Petitioner to the Respondents and affidavit in surrejoinder dated 9-3-1990 on behalf of the respondents are all taken on file of the Court and form part of the record of these proceedings."

27. It would appear that the curtain did not finally fall.

28. The apprehension came to be true. The Union of India had filed the present Notice of Motion for initiating against Godrej, action under S. 340 of the Code of Criminal Procedure, for offences u/ S. 192 of the Indian Penal Code.

The affidavit in support of Notice of Motion chronicles material events, and even catalogues relevant legal provisions. The ultimate prayer is "to record a finding to the effect that it is expedient in the interest of justice to file a complaint and for punishing the defendants......"

30. The Notice of Motion was served on M/s. Gagrat and Company who, by then, were the solicitors appearing for the two writ petitioners, Godrej and its Director. The affidavit was accompanied, among other things, by the first Judgment of Mrs. Sujata Manohar, J. rendered on 30/ 31-8-1984 in Writ Petition No. 1110 of 1983, the appellate judgment rendered on- 24-6-1986, and the order of the Supreme Court in Special Leave Petition No. 1456 of 1987 passed on 4-9-1989. Besides those public records, reference was made to materials and documents which the Union of India had obtained subsequent to the appellate Order of the High Court and order of the Supreme Court in the Special Leave Petition. According to the deponent, certain raids were conducted against Godrej, in 1987. They brought to light specific and tangible materials which according to the Union, conclusively establishes that those documents were fabricated in an attempt to adduce false evidence in the pending proceedings in the Court. The documents recovered during the raids include a letter written on

1-6-1983 by Dr. K. R. Hathi, the then Chief of the Marketing Division of the Godrej. It is eloquent in every respect. The full text of the letter is extracted later in a more live context. In essence, and in plain language, it was a thesis on fabrication of documents. The files seized from the various branch offices and wholesale dealers of Godrej prima facie indicate that in accordance with the desire expressed and instruction given in Dr. Hathi's letter, brisk follow-up action was taken. The result was, according to the Department, letters written in 1983, with false dates picked up from a period ranging between 1976 and 1978, the terminal dates indicated in Dr. Hathi's letter. The Departmental officials did not rest on their cars even after they reached a surprising shore. Pertinacious follow-up action was pursued. Statements were taken by the Departmental officials from Dr. Hathi himself, as also from the Branch Manager, Madras, Mr. Murthi, and some of the prominent wholesale dealers. Copies of those statements are appended to the Notice of Motion. They had been referred to in the course of the arguments.

31. The basic mould of the wholesalers' letters, it is pointed out, fit in well with Dr. Hathi's design. Additional touches, no doubt, are to be seen, and in different hues and views. That too in tune with the instruction of Dr. Hathi, who had prepared the pattern and had even devised the cast of camouflage. The location of the copies of the letters in the files of the wholesale dealers, and other anachronistic references were also indicative of the skeletons on the cupboards. If letters had been really written between 1976 to 1978, the copies would have been kept ordinarily at the appropriate places in the years 1976-1978. They would not normally find their place in the files of papers filed in 1983.

32. The history of criminal proceeding is replete with instances where a single indiscretion led to the exposure of evil design. Even a spelling mistake could uncover the plot as in Parnell's case.

33. The affidavit asserts that design for fabricating the false evidence happened to be made sometime after the judgment of the Supreme Court in Bombay Tyre in 1983. That statement is correct. Dr. Hathi's letter, in express terms, has referred to the judgment rendered on 9-5-1983. The letter is dated 1-6l983 in close proximity to the aforesaid decision of the Supreme Court. The contents of the letter would not leave any doubt that the writer had the evil intention of creating documents to fit in with the observations of the Supreme Court. It particularly made reference to the manner in which the fictitious amount purporting to be the cost of special secondary packing has to be claimed as deduction.

34. In paragraph 9 of the affidavit by the Union before the Supreme Court, there is an express reference to these facts. It states :

"........ the fabricated documents were produced before the Hon'ble Court in support of their case by the Petitioners at the time of the hearing of this case. "

35. According to the deponent, "incriminating documents were not with the Department........... at the time of final hearing and the determination of the Petition by the learned Judge as well the appellate Bench of this Hon'ble Court in 1984." As noted earlier, the raids had been conducted in the year 1987. The Union of India had referred to the production of the documents and the subsequent revelation of their fabricated character, in the affidavit filed before the Supreme Court in the Special Leave Petition proceedings. The reference was repeated in the affidavit of 18-1-1990 and 9-3-1990. The judgment of the Supreme Court specifically referred to those documents. Some of those documents are available in the paper book prepared in connection with the Special Leave Petition filed before the Supreme Court.

36. Though there was some haziness initially, there is now the solid certainty about the production of the documents before this Court by Godrej. The records were traced in

the original records relating to the writ petition and the appeal therefrom. They were scrutinised by Counsel for the Union of India and by those who appeared on behalf of Godrej. We have, with a view to stave off possible factual disputes, made a contemporaneous record about the availability of those documents among the records of the case and directed the safe-custody of those documents. The production of the documents before the Court is, thus, now a fact and a matter beyond the controversy.

37. One of the first questions which we have to seriously consider is about the existence of a prima facie case of fabrication of documents. A recording of a definite finding is indispensable. It is impermissible to have only a wooly head or a wobbling heart. We think so, is not the appropriate phraseology; it is so, is the wording necessary, its prima facie character notwithstanding. Not that the finding should inhibit the Court which would try the case. The accused will have the plenitude of advantages afforded in our criminal system.

38. We are of the view, that a prima facie case of fabrication of documents referred to in S.192 of the Indian Penal Code has been made out. An elaborate discussion is unnecessary and undesirable. We have borne in mind the caution administered by the Supreme Court in Karunakaran's case, supra, particularly those in paragraph 29 thereof. We clarify as was done in that case, that any views felt as having expressed on merits shall not inhibit the trial Court to come to its own conclusion when all matters are thrashed out in the trial itself.

39. Counsel for the Godrej submitted that the case was not decided on the tendered document. The writ petition, according to him, was only highlighting a contention about lower officers being bound by decisions of their superior, although of earlier years. According to him, the documents did not figure at all either in the decision rendered ultimately nor men in the direction of the discussion leading to the decision. We shall now analyse the various documents for reaching the prima facie conclusion needed in this case.

40. Dr. Hathi, the author of the letter dated 1-6-1983 set the ball in motion. The letter has the caption of 'strictly confidential' in close paralel following the American style, the date is given as 1983 06 01. In the normal practice, it is to be read as of 1st June, 1983. The letter was prepared within about a week from the date of the Judgment in Bombay Tyre case. That case has been expressly referred to in the subject indicated in the letter. The letter is addressed to all Branch Managers of Godrej.

41. The first paragraph of the letter expresses a disappointment in the decision of the Supreme Court disallowing, 'host of expenses which were hitherto being deducted to various companies to arrive at the assessable value of their production.' Paragraph 2 specifically refers to the packing charges and the specific disallowance of packing charges prior to primary, or secondary for deductible expenses from the assessable value. It then points out to an 'oasis' observed in the decision of the Supreme Court. The crucial portion of the judgment of the Supreme Court is recapitulated. The letter proceeds :

"However, the order states that, if the product is provided with "special packing" of a returnable and reusable nature, then the cost of special packing may be allowed to be deducted for arriving at the assessable value."

The practice that had been earlier followed by the Company is thereafter indicated.

42. The prima facto shady nature of the letter is gatherable from the "secret" character of the operation as directed by Dr. Hathi. Only a few trusted wholesale dealers in a region had to be taken into confidence. The Branch Managers had to ask wholesalers verbally to write letters to Godrej. The letters, it is emphasised, have to be pre-dated. Even the period of the pre-dating is indicated - between May 1976 and February 1979. In order to conceal the family of the step, an abundant caution is counselled; write the letters with relevant reference number of that period. Even the contents of the letters are

clearly indicated. They are intended to satisfy the requirements of the tests laid down by the Supreme Court in the Bombay Tyre case for claiming deduction. The meticulous manner in which the fictitious letter has to be prepared is elaborated with due emphasis on the different facets. It was counselled that the letter of the wholesale dealer should make reference to the inadequate packing material and insufficient protection against transit damage, the scratched or dented condition of the refrigerators arising from such inadequate packing, the steady flow of complaints from the consumers to the dealers, which obliged the wholesalers to effect dent beating and touch up painting to make the refrigerators marketable, the impossibility of achieving earlier beauty and perfection in the appearance of the refrigerators even after such touching ups and paintings, and a demand to Godrej to develop further method of packing the refrigerators and an assurance that the dealer willing to pay for the better packing to be provided. The letter winds up by enumerating under heads (a) to (e) the final points that should be taken care of. In (a), it is suggested that apart from indicating the period already noted above, Counsels precaution that the date should be a working day. A subtle idea is thereafter given touse old unusedletter heads if available. Care has to be taken that the person who addresses the letter is more than an ordinary dealer; should be a wholesale dealer, on the date that the letter purports to he sent. It would not matter if the dealer writes to the Branch or directly to the head-quarters to Godrej. In the former case, take care that the branch was in existence in 1978. (Otherwise, the cat may be out of the bag). Clause (e) suggests that each incoming letter 'must look to have been acknowledged' by the branch; there must be an endorsement in the copy of the letters sent to the headquarters to improve the packing. Then comes what prima facie is a craftiness and cunningness in its extreme nudity : "Of course,the original of the reply need not be sentto the wholesale dealer". Ancillary instructions are that the head-quarters should have its carbon copy and the branch should file a carbon copy. Yet another advice consists in the instruction : "communication to the dealer on this matter from your end should be strictly verbal, nothing in writing". The final word of caution is "the letter to retain in the branch managers' confidential file only".

43. Without anything wore, the background of a crime of fabrication of false document is prima facie disclosed in the above letter. To comment further on the contents and character of the letter would be as superfluous as adding carbon black to a tar decoction.

44. A sample of the letter obligingly prepared by the wholesale dealer is that of M/s. M.H. Wadia which came from Porbander (where Mahatma Gandhi was born). All imagination and close attention of the business brain is seen in that short but simulated communication. It is understandable that this and the other six letters follow the same basic pattern. They were all made to order, with minor frills here or added knots there. They are all prima facie, unadulterated falsifications cast in different dyes. Each one of them prima facie has all the components of the offence defined in S.192 of the Indian Penal Code.

45. The Departmental officials in their mopping up operations following the raids conducted in the offices of Godrej and others had occasion to take statements from Dr. Hathi, the Branch Managers and the wholesale dealers. We have gone through these statements. They do confirm our impression about the prima facie commission of offence under S, 192 of the Indian Penal Code by Dr. Hathi, the Branch Managers and the wholesale dealers. The circumstances confirming fabrication of the documents are contained in the statements so made by them. Even if witnesses lie, as has been said long ago, circumstances do not. The illustrative circumstance is the location of the copy of the letter (as admitted by some of those who gave the statements), in between the correspondence of 1983. If the letter had been really written 1979 ordinarily it should have

found its way in the file relative to the year 1979. It is unnecessary to load this order with many such and similar instances of such circumstances gatherable from the statements. We exercise restraint in the narration of exhaustive, details from the materials, noticing that our limited role at this juncture is only to enter a finding, a definite finding about the existence of a prima facie case involving the offence under S.192 of the Indian penal Code. Much more than is necessary, is already there on the records. We are definitely of the view that Dr. Hathi is prima facie answerable for an offence as defined in S. 192 of the Indian Penal Code.

46. The wholesale dealers who obliged Godrej by preparing letters in 1983, but deliberately antedated, had also, prima facie, made fabricated documents and made false statements. Prima facie, they were conscious of the fact that the letters would appear in evidence in pending legal proceedings and that such evidence would influence the Court to entertain an erroneous opinion touching an important point of levy of excise duty recoverable from Godrej. Business connection by itself would not extricate them from an offence, if one has been committed. There are well delineated limits for the members of the trading community, in pleasing and placating the manufacturers suppliers from whom the steady flow of goods (and with it the integral part of the profits) would flow to them. Tricks of the trade may be played in fields expressly permitted in that behalf. They have no justification whatever to enter an area when a prohibitory notice is prominently displayed. Even otherwise, ignorance of law would be an insufficient shield to protect them from punishments given by Courts for flagrant violation of law particularly when the law forms the very foundation of a democratic polity, and the Rule of Law.

47. The fact that they were produced in the Court, referred to and relied on, strongly and pronouncedly, are, as already held above, clearly established. The act of producing the documents, was with a well defined object. What that object is, can be inferred from the course of conduct. It was not a case of mere shoving in of some papers in the Court records. In the light of the above discussions, we are of the definite view that prima facie the documents were produced with the intention of influencing the mind of the Court on an aspect material for the decision. The authors and the gatherers of the documents, prima facie, did cause circumstances to exist intending that such circumstances may appear in evidence in the judicial proceedings and that the circumstances so appearing in evidence, would cause the Judge to entertain an erroneous opinion touching an important point material to the result of the proceedings. Similarly, they have made documents containing false statement, intending that such documents would appear in evidence in the writ proceedings and that such false statement, so appearing in evidence would influence the judge in forming an opinion upon those fabricated documents to entertain an erroneous opinion touching a material point in the proceedings.

Jurisdiction of the Bench

48. We shall now deal with a question of jurisdiction of this bench in dealing with the present Notice of Motion. It was submitted that the alleged offence if any has been committed in relation in proceedings before a single Judge of this Court hearing Writ Petitions on the Original Side of the High Court and that as such only the Court of learned single judge hearing the Writ Petitions can deal with the present Notice of motion. It was further submitted that as per the amended High Court Original Side Rules, the Writ Petitions filed on the Original Side of the High Court arising out of the Central Excise matters are to be heard by the Division Bench hearing Writ Petitions on the Original Side and therefore the successor Court would be the Division Bench hearing Writ Petitions on the Original Side of the High Court. It was further contended that in view of this amendment in the Rules, the Appellate court for the purposes of S. 340(2) of the Code of Criminal Procedure would be the Supreme

Court of India as the Division Bench of this Court would be subordinate only to the Supreme Court of India.

49. In this connection it may be relevant to notice the provision, of S. 195 and Section 340 of the Code of Criminal Procedure which are as under:--

"Section 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to document, given in evidence. (1) No Court shall take cognizance -

(a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt to commit such offence, or

(iii) of any criminal conspiracy to commit such offence,

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate :

(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Ss.193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court or

(ii) of any offence described in S. 463, or punishable under S. 471, S. 475 or S. 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or subclause (ii),

except on the complaint in writing of that Court or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of sub-sec. (1) any authority to which he is adminisiratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court, and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-sec. (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a Court for the purposes of this Section.

(4) For the purposes of clause (b) of subsection (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:

Provided that -

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

"Section 340. Procedure in cases mentioned in S. 195. - (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-sec. (1) of S. 195, which appears to have been committed in or in relation to a

proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction:

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks, it necessary so to do, send the accused in custody to such Magistrate: and

(c) bind over any person to appear and give evidence before such Magistrate.

(2)The power conferred on a Court by subsec. (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-sec.(1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-sec.(4) of S.195.

(3) A complaint made under this Section shall be signed--

(a) where the Court making the complaint is a High Court, by such officer of the Court is the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this Section. "Court" has the same meaning as in S. 195".

50. Now, the Court proceedings in relation to which the documents were produced, was the Court of the learned single Judge hearing the Writ Petitions on the Original Side of this Court. At the relevant time, all the Writ Petitions filed on the Original Side of this Court were heard either for admission or for final hearing by the single Judge. The High Court Original Side Rules were amended and that under the amended Rules, the Writ Petitions arising out of the Central Excise Act are heard either for admission or for final hearing by the Division Bench. The amended Rules in that behalf were implemented from the month of October, 1990. As per the assignment of judicial work relating to the Original Side of this Court as from 19th August, 1991, the First Court presided over by the learned Chief Justice was assigned the work of admission of Original Side Appeals including the Letters Patent Appeals and Application for Interlocutory Orders therein....... ...and Division Bench Writ Petitions. It may be mentioned here that as a matter of fact, the present Notice of Motion was on the Board for hearing before the Division Bench presided over by the learned Chief Justice. By order dated 5th October, 1991 passed by the learned Chief Justice, this Bench was constituted and the Original Side work which was assigned to the Division Bench presided over by the learned Chief Justice in the First Court was assigned to this Bench. By a separate order passed by the learned Chief Justice on the very date, the Original Side Appeals for admission also were directed to be placed before this Bench. Therefore this Bench would clearly be the successor Court of "that Court", in the light of the assignment of work made by the learned Chief Justice as indicated above.

51. Viewed from the state of affairs as from the date of the production of the document, no doubt, the learned single Judge could have taken action in such a matter. But then the learned single Judge has neither made a complaint under sub-sec.(1) of S. 340, nor rejected any, application for making such complaint this Bench will have the jurisdiction to consider action under that Section. No one had made any application under S. 340. The power conferred on a Court by sub-sec. (l) in respect of an offence may, in any case where that Court has neither made a complaint under sub-sec. (l) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-sec. (4) of

S. 195. The court of the learned single Judge on the Original Side dealing with Writ Petitions would clearly be a Court subordinate to the Division Bench hearing Appeals on Original Side of this Court and in view of the assignment of this Court as indicated above, this Court would have the jurisdiction to entertain and decide the present Notice of Motion.

52. A Bench of this Court, Deshmukh and Aggarwal, JJ. had occasion to consider the very same question, in Balshiram v. State of Maharashtra, 1978 Cri LJ 821. Paragraph 7 of the Judgment contains the conclusion (at page 823):

"We ascertained from Shri Deshmane, Counsel for the Appellant, that the Trial Court has neither filed a complaint nor has it rejected any application in that behalf, as none seems to have been made to it. It is lawful for us to act under sub-sec. (2) of S. 340 Cr. P.C----------"

Thus, viewed from any angle, the contention about the lack of jurisdiction for this Bench of this Court, is liable to be rejected. We do so.

The Procedure to be Adopted by the Magistrate - Effect of Section 343 Cr. P.C.

53. Much time and the attention was devoted for a contention based on the amended S. 343 of the Cr. P.C. There was an easy way of disposal of that contention; by suggesting that such a contention is relevant only at the stage when the matter is before the Magistrate on a complaint. We have, however, heard arguments elaborately. We shall express our views on the matter in the light of the arguments advanced to us in generous profusion.

54. The gist of the contention is that this Court has to conduct an elaborate enquiry before even taking a decision to file a complaint. According to Counsel for Godrej, there is a marked departure in the procedure in relation to the processing of a complaint made under S. 340. This is demonstrated by a comparison between the old Section and the new one. Under the old Code with its corresponding provision S.476 (2), the Magistrate to whom the complaint is filed had to deal with the case, as if upon a complaint made under S. 200. This had its implication in the light of the provisions contained in Chapter XV. The Magistrate could direct an investigation into the complaint. He could hold an enquiry. The accused and the Prosecution would have an opportunity to propound their respective contentions either for a discharge of the complaint or framing of the charge. A charge will have to be framed thereafter. The accused, has a valuable right to seek a remedy against the framing of the charge. When by a conscious change, the procedural groove of Chapter XV has been replaced and a mandatory direction is given to deal with the case as if it were instituted on a police report, a detailed preliminary enquiry by the Court directing the filing of the complaint is indispensible, according to counsel. In the absence of such materials gathered during such a detailed enquiry, how could the accused be furnished with the entirety of the materials on the basis of which he could undertake a defence in relation to this serious charge? Queried Counsel.

Counsel submitted that this is possibly the first case of importance where implication of the amended provisions have come up for serious examination. That heightens our responsibility, in undertaking an evaluation of the contentions. Considerable materials in the form of the Report of the Law Commission, and the steps leading to the ultimate enactment, have however, somewhat lightened our work.

55. We may start by adverting to the Forty-First Report of the Law Commission which had ultimately led to the amended S.343.

56. Chapter XXXV of the Report, deals with the conspectus of the provisions dealing with administration of justice. Dispersed over 21 paragraphs, that Chapter deals with 'Analysis of the Chapter', Ss.476, 476(2), 476(3),476A, Ss. 476B 'right of appeal should remain' , S. 476B and appeals to the Supreme

Court, S.476 and revision. S. 476A and 476B recast, Procedure in cases mentioned in S.195, Appeal, Procedure of Magistrate taking cognizance, power to order costs. 'Ss.478 and 479 omitted', 'S. 479A unsatisfactory', 'new provision for flagrant perjury proposed, 'Summary procedure for punishment for giving false evidence by making contradictory statements', Ss.480 to 482, S.483, S.485 and S.485A amended, S.486 revised, 'Appeals from convictions in contempt cases', and 'Section 487 amended'.

57. The basic approach of the Law Commission, has been to view offences connected with the administration of Justice very seriously. This approach is reflected even in its incidental observations. Thus, for example, the report in paragraph 35.11 makes reference to an amendment made to the Code of Criminal Procedure by Bombay Act 46 of 1948. It reads as follows:-

"A Bombay Amendment of the Code makes a useful provision conferring power to award costs in proceeding under S. 476 and connected Sections...... ......"

Again in paragraph 35.14 the Commission suggests incorporation of a new provision whereby perjury of a flagrant and unchallengeable type could be effectively punished summarily without seriously prejudicing a fair trial of the person concerned........."

58. Of particular significance for the purpose of the present contention are observations contained in paragraph 35.3 they read:-

"35.3. Under S. 476(2), the Court to which a complaint is made under S.476 shall proceed "as if upon complaint under S. 200". It was suggested during our discussions that since a complaint is made under S. 476 by a responsible judicial officer (and after inquiry in most cases), the Court to which the complaint is made need not and should not hold another inquiry under Chapter 16 but should issue process under S.204. It was urged that when a superior Court had made a complaint, it was inappropriate that a Magistrate should again hold an inquiry or dismiss it under S. 203. We, however, felt that there was no justification for totally dispensing with an inquiry under S. 202.The Court making the complaint under S. 476 may not have made a thorough inquiry, and the Court taking cognizance of the offence under S. 195 might like to have more materials before issuing process. The nature of the jurisdiction to be exercised by the Magistrate under Ss. 202 and 203 is not always similar to the nature of the proceedings held by the complaining Court under S.476. For instance, under S. 202, further "Investigation" may be ordered whereas an "inquiry" under S. 476 is of a limited nature. It would not be correct to assume that one will serve the purpose of the other in every case."

59. Similarly the observations in para 35.13 are of some importance, though made in the context of S. 479A inserted in the Code 1955 :

"35.13. Moreover, action under the Section cannot be taken after judgment is pronounced. Where a complaint "can be" made under the Section, action cannot be taken under S.476, so that if the court, by reason of forgetfulness or insufficient material does not make a complaint on the termination of the proceedings, action cannot be subsequently taken under S. 476, and the offender escapes unpunished a result hardly intended by the legislature. This is positive harm done by this Section."

Viewed in the above background, the legal position appears to be clear enough.

60. It is to be noted that under S. 340, the Court contemplated therein is only to make complaint. It is significant to note that reference to complaint has not undergone any change, notwithstanding the comprehensive amendment of 1976. 'Complaint', by its very definition, has a clear connotation. The definition is as follows:-

"2(d)."Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code,

that some, person whether known or unknown, has committed an offence, but does not include a police report."

(Emphasis supplied)

The continued retention of the word '"complaint" in S. 340(b) and the amplification thereafter contained in S. 340(3) that the complaint under that Section shall be signed by an officer of the High Court when the complaint is by the High Court and the Presiding Officer in other case, continues the basic characteristic of the proceedings. The complaint does not get transmuted to a police report ipso facto. Section 343 is not cast in inflexible language. It gives the Magistrate to whom a complaint is made, option in given cases to proceed with the case as if it were instituted on a police report. There are exceptions envisaged in the very Section, by the employment of the term"as far as may be". It need not, therefore, invariably, be a case of proceedings as iinstituted on a police report Another course is also permissible. In other words, where the background of the complaint is one where materials are uncomplicated and not confusing, and had been gathered sufficiently and satisfactorily both in regard to quality and quantum, the Magistrate could, straightway, proceed as if in a case instituted on a police report. The Court is equipped with the necessary materials which have to be furnished to the accused for preparing his defence. Nothing more is needed for commencement and completion of the trial.

61. It may, however, happen that in a given case, due to the absence of such an enquiry by the complaining Court or by reason of its not being exhaustive or adequately detailed, appropriate procedure as in proceedings instituted on a complaint could be found fair and necessary. The wording of S. 343 permits the Magistrate to adopt the complaint procedure in such a situation.

62. An attempt to argue back on the basis of inflexibility of the provision and to emphasise the indispensability or an exhaustive enquiry by the complaining Court cannot in the circumstances succeed. The historical background of the legal provision , the continued existence and operation of filing a complaint, and a consideration of the principles of interpretation and the concept of the natural justice, all, impel us to came to such a conclusion.

Natural Justice

63. We may preface our discussion on the principles of natural justice by reference to the exhaustiveness and impeccable nature of the two Codes. Their drafting has been such as to elicit admiration of jurists and legislators even after the passage of a century subsequent to the framing of the Codes. The principles of fair play and natural justice are already built in those provisions. Every minute step is taken care of in that process. The field is fully occupied in every detail. In that respect the two complementary codes constitute the entire machinery for the working of the relevant provisions. Adventitious devices are unnecessary and necessarily excluded. The provisions cannot be compared to simple statute containing a single provision for a quasi-judicial adjudication wherein the general principles of natural justice could be read into, appropriately. That would lead to the next query whether the Section on its plain terms require notice to the prospective accused before a complaint could be directed by the Court to be filed before the Magistrate.

64. The Section providing for an action for filing complaint against a person guilty of an offence in relation to administration of justice was in force, and had been enforced in the different parts of India from 1869. On the interpretation of the provision, the uniform view taken hitherto is that Section does not mandatorily require issue of a notice to the person against whom the complaint may be filed. One of the earliest decisions is that rendered by a Full Bench of five Judges of the Calcutta High Court in Krishnanand Das v. Hari Bera, ILR 12 Cal 128. Other jurisdictions have also adopted that view. The Madras High Court took such a view in

Queen Empress v. Sheik Bean, ILR 10 Mad 232 and the Allahabad High Court in Manager Ram v. Behari, ILR 18 All 358. Rowland, J. in Nand Kumar, v. Emperor, AIR 1937 Pat 534, observed at page 536:-

"The wording of Section 476 does not make it incumbent on the Court to hold any preliminary inquiry or to give accused notice....

65. Habituated as they are in ensuring that even those against whom any complaint may be filed are liberally (even if liberal to a fault) treated with fairness, the Courts used to issue notices in many cases to the persons affected. Decisions have reiterated in some cases (such as for example, Pampati Sastri v. Subba Sastri, (1899) ILR 23 Mad 210) the desirability of such notice in the peculiar facts of the case. The decision of the Andhra Pradesh High Court in Audi Narrayanamma v. State, AIR 1970 AP l19 :(1970 Cri LJ 443) which is of a comparatively recent times, stated in explicit terms that notice is not compulsory, while indicating that it is desirable. It will therefore be safe and proper to assume that the statutory provision does not mandatorily require the issue of a notice. Whether it is desirable on the facts of the case, would certainly be examined later.

66. If for over a century, the Section has been and interpreted as not requiring a mandatory issuance of notice, does it require a variation or revision having regard to the advanced concepts in Administrative Law and the enormous expansion of the areas where principles of natural justice is permitted to have its play.

67. The topic of natural justice has by now received minute attention of academics and Judges into many facets hit- herto unillumined. Long rows of shelves would be needed to accommodate even a part of the writings on it. We confess the limitations of Courts disable them entering into disquisitions and discussions beyond the immediate problem, which would quite often be only one among the very many facets of that elusive concept. Not all Courts are endowed with that remorsely propensity for looking into everything and probing it into the bottom as Lord Lytton, with pardonable pride, acknowledged as his habit. We do not have in our times a justice, like William Jones, who may pry into the enduring epic of Mahabharatha, and parade to the world (particularly to the West) how even stories told therein demonstrate the applications of the principles of natural justice such as in the region of bias and the obligation of speaking orders. Enthusiasm to look into the legal developments in the developed countries, have stood in our way to check up older volumes of the chartered High Courts in India, wherein the principles have been usefully discussed by Judges who carried with them liberal values. One such decision is of the Madras High Court, dealing with a caste expulsion complained of by a supporter of widow marriage. It is however, necessary in this context to remind ourselves about some of the basic principles about that concept.

68. One prominent principle is that the principles of natural justice could be excluded by express statutory provision or by necessary implication. Maneka Gandhi et-al, have acknowledged that legal position.

69. Without undue generalisation, it can be stated that exclusion of natural justice had been tolerated on occasion, depending upon (a) the peculiarity of the situation (b) the nature of the institution and (c) the essential character of the action in question.

70. (a) A disciplinary action such as against students of a college and in relation to a misconduct or insolent behaviour towards the female ones, is a situation in which punctilious observance of principles of natural justice would not only be undesirable, but even become counter productive. The Supreme Court said so in Suresh Koshi George's case.

71. (b) When institutions reputed for their highly responsible character and acknowledged expertise are involved in a decision taking process, dispensation of principles of natural justice and the statutory provision which enables the decision to be taken,

keeping in view the larger interest of the public, had been upheld as a permissible exercise. Even in an extreme case where the cumulative effect of an application by the responsible and expert body and the order of the High Court is to result in the immediate demise of a corporate undertaking such a statutory provision was tolerated. Such was the position when a Judge of the High Court of Kerala ordered forthwith the winding up of Palai Central Bank, on an application made by the Reserve Bank of India. The slightest delay would have caused loss to the innocent depositors, and facilitated fraud by unscrupulous directors. An institution like the Reserve Bank, is entrusted by the nation to oversee the operation of sensitive financial institutions like the Banks. It had acquitted itself creditably, in the discharge of its duties. Even those in comparatively subordinate posts, had funds of information, faculties eliciting admiration, and involvement in work which commend for emulation. The Reserve Bank used to guide a blundering bank; to chide a misbehaving one; and to bridle an unruly one. When warnings are spurned with callous repetitions of indiscretions and visible show of a feeling of nonchalance and the consequent working of the institution results in ugly swelling of private coffers at the expense of poor depositors, the Reserve Bank could wield the most lethal weapon of liquidation. The use of such a weapon, not an ordinary one, did not get blasted by the impact of the principles of natural justice, AIR 1962 SC 137.

72. In the present case, the action is one to be taken by the High Court. We shall not blow our own trumpet about the position of trust occupied by a High Court in our Constitutional set up. Brought up in a noble profession, disciplined by rigorous training of long duration and trained in seeing the other side of the coin, and possessing a dispassionate approach and distinguishable detachment, the Judges of the High Court do carry out their mission, with the needed vision which any situation demands. Belloc did not embelish much when he said, "....... anyone thinking of a Judge of some standing upon the English Bench cannot but believe that he is possessed of some learning or some gravity etc.;. . . . . . .. " (see Belloc a biographical anthology by Herbert Vanthal, page 128). The High Court has been rightly treated by the Law Commission as receiving utmost trust in relation to the shouldering of responsibility and reasonable despatch of business, cast under Section 340, I.P.C. See the following observations making the point clear:

"It has been held by the Supreme Court that an appeal lies under Section 476B to the Supreme Court from an order of a division bench of the High Court directing a complaint under Section 476. In our view, this position should be altered by excluding the High Court from the scope of Section 476B. So far as the High Court is concerned, there is no need for an independent right of appeal against its decision to make a complaint."

73. Such was the trust which the Supreme Court had in relation to the very action under Section 340, Cr. P. C. as undertaken by the High Court in M. S. Sheriff v. State of Madras, AIR 1951 Mad 1060 : (1952 Cri LJ 61) that it did not independently evaluate the evidence to find out whether the finding of the High Court was justified. The Supreme Court was supremely satisfied by making the observation:-

". . . The High Court has scrutinised the evidence minutely and has disclosed ample materials on which a judicial mind could reasonably reach to the conclusion. . . . .."

74. In the light of the above principles, we are clearly of the view that an exclusion of an obligation to issue notice in such circumstances as are present in the case, could not be characterised as obnoxious to any principle of fair play or known norm of law.

75. Sometimes it so happens that the consequence arising from a preliminary decision does not by itself bring on instantaneously or immediately, adverse civil consequences. Such exercise of powers stand on a different footing from those which have sour or unsavoury experience for the person rashly

treated. Binapani Dei suffered severe civil consequences when without any forewarning, she was stopped from rendering her service to the State and receiving her salary. Adverse civil consequences had clearly arisen in that case. (See AIR 1967 SC 1269). Maneka Gandhi had a fundamental right to move about in India and abroad; withholding passport without the minimal observance of fairplay was found to be objectionable. (See AIR 1978 SC 597). Even in a less meritorious case of a tax evader, the apex Court was accommodative enough to ensure to the tax evader an opportunity to explain before the Settlement Commission slammed the door against him (See Bhattacharya's case). Instances of that nature, could without difficulty be multiplied.

76. On the other hand, there are cases where an administrative action may cause considerable expenditure in the form of time, energy and money. Yet, the nature of those proceedings were held as not requiring the observance of principles of natural justice before a decision was taken by the administrative agencies. There is a familiar example in a sensitive field of industrial jurisprudence. An adjudication under Section 10 of the Industrial Disputes Act can drag even an unwilling management to the Tribunal and oblige it to file its reply to the demand of the workmen, and to adduce evidence to substantiate its plea and to persuade the Tribunal not to pass an adverse award against it. Before the Tribunal, of course, the management has full opportunity to put forward its pleadings, bring in its evidence, counter the effect of the evidence adduced by the workmen and to advance its arguments. Even in such a situation, an ambitious contention had been urged about the necessity for the Government to hold an enquiry before an order of reference is made. The Courts have held that at that stage and in that statutory context, the principles of natural justice do not require an opportunity to the concerned parties who may be involved in the dispute if and when a reference is made. A full Bench of the Kerala High Court clearly ruled so. (See 1980 Lab IC 910 Kerala). A

Bench of this Court of which one of us (Sukumaran, J. was a party, followed the Kerala High Court, and expressed this Court's view on similar lines. The observations of the Supreme Court, are clear indications favouring such a view. A comparable situation of exclusion of principles of natural justice is thus available from a precedent and parallel available in a familar area.

77. We are not impressed by the contentions urged by Counsel for Godrej that the requirement of notice has an essential component of natural justice to be scrupulously observed before a direction for registering a complaint. The general observations in Karunakaran's case about locus poenitentiae, cannot be stretched to form a Steady proposition that a notice is necessary and indispensible before S. 340 action is set in motion. The observations of the Supreme Court in the Civil Surgeon's case, have to be appreciated in its own factual background. A notice was, as a matter of fact, issued in that case by the Court. The notice did suffer from unsatisfactory features. Understandably, that was commented upon by that Court (See AIR 1978 SC 1753 : (1978 Cri LJ 1804), Dr. S. P. Kohil v. High Court of Punjab and Haryana). The decision of Rangoon High Court, contains general observations. While we appreciate some of the sentiments contained therein, we are unable to take it as laying down an inflexible principle either on notice and or on delay. If it does so, we record our inability to adopt all the ideas in their entirety. (See 1937 Rangoon 62 : (1937 (38) Cri LJ 615) M. Mohamed Kaka v. Dt. Judge, Bassein).

78. Counsel for Godrej submitted that the golden thread of criminal justice should be available to those who are likely to be affected even at the stage of S.340 decision. No Court would withdraw the golden thread so available. That stage is not yet reached. What is needed now is only a cotton cord. To seek more of gold, even at that stage is unnecessary and unjustifiable greed.

79. On a consideration of principles and precedents, we are thus clearly of the view that

the principles of natural justice do not dictate a mandatory notice to the prospective accused at this stage of the proceedings.

EXPEDIENCY

80. We shall now address ourselves on the further requirement of a definite finding about the expediency in initiating action as contemplated in S. 340, Cr. P.C.

81. Expediency, as has been observed by the Supreme Court, involves balancing of many factors. (See M. S. Sheriff v. State of Madras, AIR 1954 SC 397 : (1954 Cri LJ 1019), The gravity of the offence is one of the important factors. A trifling incident of fabrication of documents, may not thus be viewed seriously. A Counsel's clerk perplexed by the expiry of the period of limitation subsequent to the entrustment of the records by the client, making a curious endorsement to overcome the bar of limitation, no doubt, commits an offence under S. 192, IPC. There is not much of any personal gain, for, if a decree is obtained, the beneficiary will be the plaintiff. The Court may feel that it is not expedient to prosecute the vexed man who carries from Court to Court, the bundles of papers containing the grievances of many many clients,(See the understanding decision of the Madras High Court rendered many years back). It may be different, if a person who is expected to behave with greater probity and responsibility stooped to fabricate documents. Even if personal gain is wanting, if the effect is, to mislead the Court in relation to its judicial function, it would be expedient to prosecute him. A member of the medical profession producing a bundle containing false recording of non-existence classification, may expose himself to action under S. 192 of the IPC. (See Dr. S. Dutt v. State of U.P., AIR 1966 SC 523 : (1966 Cri LJ 459) The gravity of the offence, as an important factor in evaluation of expediency, has been emphasized by Rankin, C. J. speaking for the Bench of the Calcutta High Court in Nawabali Khan v. Chandrakanta Banerji, AIR 1931 Calcutta 760 : (1930 (31) Cri LJ 1226). The learned Judge proceeded to observation (at Page 761):-

"I rather protest against the idea however that, if there is a prima facie ground for thinking that a serious offence has been committed, there is necessarily very much more in the case to inquire into."

The Calcutta High Court declined to interfere with the finding recorded by the lower Courts that a false return had been made and a very grave fraud upon the Court was committed. The fact that the offender was a peon, did not detract from the gravity of the offence. The complaint under S. 340 was, thus, sustained.

82. While dealing with an action under S.340, Cr. P.C. the Court is not primarily concerned with purely moral questions. Social scientists may comment on 'the new class of enterpreneurs' who 'now work......... to....... generate false documents'(see the Article of Lakshmi Srinivas, 1991 EP.W. p.243) or write elaborately on 'Corporate Culture in India'(see M. N. Panini on that topic 1988 EPWM 86 to 94). The following observations of the Supreme Court in Karunakaran's case in paragraph 15 deserve particular attention in this context:-

"Lie tends to become almost a style of life. Lies are resorted to by the high and the low being faced with inconvenient situations which require a Mahatma Gandhi to own up Himalayan blunders and unfold unpleasant truths truthfully. But when principles are sacrificed at the altar of individuals, selfishness of man, desire to continue in position and power, lining up with the high and mighty, lead to lies, euphemistically prevarication. But all lies made, here and there, ignored by the people or exposed on their own to nudity are not subject-matters for the Court to take action. When the court takes action it is a species of falsehood clearly defined under S. 191, IPC and punishable under S.193, IPC."

(See AIR 1978 SC 290:(1978 Cri LJ 339) at 294).

83. One of the clear guidelines given by the decisions of the Supreme Court is about

an assurance that the complaint should culminate in a conviction. We have, again prima facie speaking, plenteous of such assurance in the present case.

84. In the present case, a deliberate and calculated fabrication of documents has been prima facie made out. It was not a case of inaction. Considerable time and strain of brain had been involved, in drafting and finalising a communication with such meticulous hints and advice on fabrication. Then there was the propulsion of this missile in various directions and to various branches with instructions to get fabricated documents in the manner envisaged therein. A radar screen was provided to watch the later developments. Communication had to be sent to the wholesale dealers direct to the Head Office or to the Branch Managers who in turn had to endorse them to the Head Office.

85. The principal perpetrators of the crime would be Godrej, one which has a sizable industrial empire, with branches and activities spread over even very remote corners of this vast sub-continent. The monetary gain would accrue to Godrej, if the game had gone through smoothly. And the gain was not an insignificant one. (Godrej paid ultimately to Central Revenue about Rs. 3.80 crores). An industrial enterprise which had daringly caused fabrication of documents, with a view to make wrongful gain of a great magnitude of about Rs.4 crores cannot seek a softened attitude from a Court of law. To permit a corporate stalwart of that standing to tear off and throw away the fair fabric of administration of justice by the use of sophisticated tools and gadgets would lead to a crisis in credibility as regards judicial institutions and undermine the faith of the common man in the administration of justice. A corporate undertaking could not be considered as a straying soul stealing a loaf of bread or as a roofless man sleeping on open pavement, as Ingersol, who did not believe in a soul referred to in his caricature against the majesty of law. Posterity will not willingly condone the lapse on the part of the judiciary, if it thinks that even in such a case, it is not expedient to initiate action under S. 340, IPC.

86. A ten celled battery was flashed by Counsel to highlight facts which, according to him, would indicate that there is not expedient to take action under S. 340. They overlap to some extent. We shall now proceed to deal with them.

Expediency - (a) Single Judge's Inclination

87. One argument which had been hammered on with understandable force, was about the learned single Judge not initiating action under S. 340, even when the materials were there very much before the Judge. The opposition of the Union of India even to the withdrawal of writ petition was also visible in all its transparency. The Minutes prepared, though only for identification, did have a clear reflection of agitated stance of the Union in the petitioner merely retracting its steps, but without undergoing punishment it deserves in relation to the fabrication of the documents. The situation of a Court overburdened with work, has necessarily to be appreciated in that context. Confronted with acute pressure of work and paucity of time, one case less out of backlog of arrears, could be a source of much relief to any Court. The significance, however, lies in the fact that the learned Judge did not record a finding that no action under S. 340 is called for in the facts and circumstances of the case. As we have already noted, in such a situation, an undoubted jurisdiction vests in us for initiation of action. We take note of that aspect. But it is not of such a decisive character, in the circumstances of the case; as to induce us to drop further proceedings.

Expediency-(b) Omission to Initiate Action As Seen From Proceedings Before Supreme Court and Appellate Bench After Remand

88. The same arguments were repeated as regards the omission of the Appellate Bench of this Court and the Supreme Court, in not ordering the prosecution for reasons similar to those already indicated above, we repel those contentions as well. We have before us a serious motion where pointed attention is drawn to very grave aspects regarding administration of justice. In such circumstances,

the omission of other judges who did not have the advantage of the elaborate pleadings and materials and profusion of legal arguments, is no indication that we should abdicate our judicial function and duty, if and when circumstances are made was contended that instead of writing the letter, Dr. Hathi could have directed the wholesale dealers to file affidavits about their having complained about scratches and dents on the refrigerators and that in that event action under S.340 would not have been possible. It is not necessary for us to deal with a hypothetical situation and the later wisdom, which dawned on a hind sight.

Expediency - (c) Effect of Full Payment of Money by Godrej to Union of India

89. One other pleasing phase of the case as presented by Counsel was the payment by Godrej of the entirety of its excise dues and something more. Even if there be some remise on the part of some over-enthusiastic officer, is it not time enough to wipe off the scribbling, and start on a new slate, wondered Counsel. We regret our inability to share those sentiments. The gravity of the offence, the substantiality of the offenders, the cool and calculated manner in which the offence appears to have been committed and pernicious influence such conduct will have in the working of the Courts and the very faith of the common man in Courts and the system of the administration of justice, all have been reckoned by us in arriving at a conclusion that action under S. 340 is fully justified. If that conclusion happens to be unpleasant to those who had perpetrated such a vicious crime, that cannot be helped in the circumstances. The fact that the payment had been made to the Union, in all its fullness and the additional payment of something extra, will not obligerate the crime. The sterling strength of administration of justice cannot be bartered away for such casual consideration. Even when they had been alerted about its fabricated character by the affidavit filed in the Supreme Court, there was no remorse and/ or repentance. They rubbed salt further into the wound. Additional affidavit of Mr. Lam, the Vice-President of Godrej (Corporate Affairs) was a further aggravation of seriousness of the crime prima facie already committed. We do not furnish an easy outlet for exoneration of persons with abundance of intellectual equipments, worldly experience, and a reputation of enlightenment and cultured behaviour. If such persons, and persons who are presumably reaping substantial profits like the wholesale dealers, could venture to stab truth, so recklessly and so seriously, that shall not go un-noticed by a Court of law which works under the constitutional symbol proclaiming to the world that Truth, and truth alone, ultimately flourishes.

Expediency - (d) Delay

90. Counsel for Godrej submitted that the delay is to be reckoned as a factor while determining the question of expediency. We agree. It is even then only one of the many factors. It is not a decisive factor. As against the preponderance of formidable factors available in the present case some of which have been already alluded to, this factor, even if be a real and life one, would not be sufficient to sway the mind of the Court as regards the action u/S. 340, IPC. Even then, we shall narrate the facts and find out about the existence of any objectionable or unexplained delay.

91. In support of the proposition that the delay which has intervened in this case should induce us to decline action, Counsel placed reliance upon AIR 1943 Bombay l13, 1980 Supp. SCC 415 : (1981 SCC 356). We do not read these decisions as diktat to drop action under S. 340 the moment there is some delay. Even in the context of impairment of personal liberty, the apex Court had now clarified the position that in relation to delay there is no magic formula. Everything, as is often said, would depend upon the facts of the particular case and the circumstances which emerge in the course of the consideration of the case.

92. The documents of the case were placed on record for the first time in 1984. That, however, is not a starting point for reckoning the delay. No information was

available to the Union, evoking a suspicion about them at that time. That situation arose only long subsequent. It was as a result of the raids conducted in 1987, that data and materials happened to be possessed by the Department. It is difficult to visualise a computer like reckoning, the moment the piles and piles of documents are seized by the departmental officials all over the country. Intellectual application and intelligent classification of such seized documents is necessary. That takes time. Thereis, therefore, justification for the Department to have a breathing time in relation to make a proper analysis of the documents and make a synopsis of the resultant findings. The realisation seems to have come to the Department about fabrication of the false documents somewhere in 1989. It was highlighted in the affidavit dated 9-1-1990 before the Supreme Court. They were clearly indicated in the grounds of appeal in Special Leave Petition before the Supreme Court. It cannot be said that there has been any undue delay on the part of the Department in bringing the relevant facts to the notice of the highest Court which was seized of the matter at the relevant time. The Supreme Court did refer to the documents and give directions to the High Court to consider them. If the Union of India could not do much before in such circumstances, it could not be condemned or chastised for the intervening delay. No doubt, by the further affidavit filed before the High Court of Bombay, after the remit of the case by the Supreme Court, another affidavit of 5-1-1990 urging action, had been filed. If the Union of India had not exhibited extra-ordinary enthusiasm at that time and stage, that would not warrant a wholesale condemnation of its conduct on the ground of delay.

93. Even after the acceptance of Minutes of Order and passing of the ultimate order in terms thereof by the learned single Judge on 9-3-1990, there has been some delay. The affidavit filed to explain the delay which had occurred thereafter, could have given more cogent and closely covered explanations. There is, however, a reference to the substantial grounds about the reasons for the delay. The sentence reads as follows:

"..........it was necessary for the Respondents to obtain proper legal advice about the propriety of moving this Hon'ble Court in the aforesaid manner. It is only after obtaining such legal advice and completing Several procedural formalities that the Respondents have filed this Notice of Motion. While, though, in any event, question of limitation is irrelevant for the prayers made herein. I have stated the aforesaid only to explain this Hon'ble Court that so far as the Respondents are concerned they have not deliberately delayed bringing on record to the notice of this Hon'ble Court the relevant facts concerning the offence committed by the Petitioners, inter alia, under S.192 of the Indian Penal Code."

(From page No. 21 N/ M No.1318/91 in Writ Petition No. 1110/83).

94. In evaluating the sufficiency of explanation for this delay, a Court of law has necessarily to be alive to, and understand the hard, even if it be uncomfortable, facts about the functioning of the Governmental machinery. A positive action in the form of Notice of Motion could be only the result of a conscious order passed by the Government of India. That Government has necessarily to weigh very many aspects before it could come to a final conclusion. Those who have to take the decision and bear the brunt of its execution have their own tormenting worries." Oh, yes, in retrospect things are always more simple, one can see the choices that were available. But human affairs are in a state of perpetual movement, always either ascending or descending. It is not very easy at the time what to do" (See Paul Thompson's "The Lovenzaccio's Story'). The relevant materials have to be marshalled and assessed by those who have to share the responsibility of the ultimate decision. Whether the Government should initiate action against such a giant industrial undertaking, could be a matter requiring long deliberation. The notorious red tape which renders it difficult for swifter

activity, cannot also be wished away. An instrumentality like the Government has necessarily to work through human agency. The civil service, unfortunately, lacks many officials of daring, dedication, dynamism and involvement. That is also a hard reality of life. Institutionally, the Government suffers from acute shortage of capabilities, and is subjected to manifold disabilities. In the background of all these disadvantageous encircling the Governmental machinery, making its wheels move so slowly, we are of the view that the delay could not be characterised as oppresively long in the peculiar facts of the case. We are equally clear that the delay that has intervened, is not sufficient or strong enough to outweigh the other circumstances which impel us to take action under S. 340 of the Criminal Procedure Code.

In the light of the above discussion, we are of the view that none of the arguments advanced by Counsel for Godrej makes any impact to shake or shatter our finding that expediency exists in this case for action under S. 340, IPC. .

Identification of Accused

95. Counsel for Godrej repeatedly stressed the contention that while initiating action under S.340, the Court has necessarily to identify the accused. That submission may not have any statutory backing having regard to our earlier findings and the fact that we are directing only the filing of a complaint. A complaint, as explained earlier could be even against persons who could not be identified at that particular stage.

96. As noted earlier, there may be cases plain enough for a prompt action for filing complaint. A witness may own a signature which even a casual glance may alert a Court as rank perjury. At the same time, he may be tenacious in adducing it is evidence and attempt to mislead the Court. That may be one such illustration of swift action under S. 340. There may, however, be cases where the offence is disclosed clearly but offender is not ascertained with certainty. Action is justified under S.340, though the place at which and the manner in which the offence was committed may have to be elicited by further investigation.

97. Counsel for the Union contended that Godrej, the first petitioner, though a corporate undertaking exposes itself to proceeding under S. 192 read with S. 340. He stated that the persons who have the administrative control in accordance with the law providing for the same (the Companies Act, 1956, for example) are easily identifiable as the persons against whom the action should be commenced. The list of the directors of the Company was put across the Bar, for us to act. We have considerable difficulty in accepting papers without due regard for even elementary formality. We have nevertheless perused them. We decline, however, to act on them. That would, in a sense pacify counsel for Godrej who was unduly and possibly rightly enraged at the casual manner in which a long list of the Directors had been handed over to the Court, as possible prospective accused. We wish that the Union of India had displayed a greater intellectual imagination and industry in the final phase of the proceedings.

98. The identification of the accused has therefore to be done on the basis of the material available, alerting ourselves to the need that there must be prima facie materials as against them, and they must have much more than a theoretical connection as the Directors of a corporate undertaking and guiding its destiny.

99. We have carefully and anxiously considered the materials before us. On the basis of such close and careful examination, we feel, that the first person on the array of accused should be Dr. Hathi. The letter written by him on 1-6-1983 is at pages 54 to 57 of the compilation which was marked as exh. 'l' for identification. The statement which he made on 17-6-1987 to the Departmental officials is annexure-1 to the affidavit of Viswas Bholse filed on 17-10-1991. He was the General Manager for seven years as on 1987. For four decades and four years, he had

served the company. There is hardly any worldly work with which he would be unfamiliar. He must be an adept in market operation and clever in commercial drafting, and endowed with the foresight about the above possible consequences of every step he takes and of every act he does. To such a person, a plea of "order from above" would not be of any avail. The general position of law is that no one can plead the order of a superior officer, military or civil, as an excuse for breaking the law. The official superior could not write, as was done by Kaiser when he wrote his name, and added below, "Supreme Lex Regis Voluntas"(The Will of the King is the Highest Law!). The remark is applicable even in the case of an industrial empire. He is not one who could sing the lines in the song of Brecht. "Here a good deed may be a crime And a wrong be right To you who go in darkness we say It's not easy to know the light." We are clearly of the view that among the identified accused, Hathi stands foremost.

100. K. S. G. Murthi, Branch Manager of Madras is a senior officer, whose statement dated 12-6-1987 is Exh. 2, in the aforesaid affidavit of Viswas Bhosle. He is the Regional Manager of the South. The materials do indicate his deep involvement in the offence. He shall figure as accused No. 2.

The two persons who had intimate connection with the proceeding and the production of the letters, and the perseverance in the presentation of the false facade, prima facie as revealed as false, are Mr. Lam and 2nd writ petitioner K. N. Naoroji. Mr. Lam occupies the high and responsible position of Vice President and the Director (Corporate Affairs). His involvement is of such depth, that he could not be let off as a mere passive Director, who is content to receive the reward but reluctant to undertake work or take any trouble. The affidavit of Mr. Lam before the Supreme Court and before this Court are contained in pages 162 and 239 of the paper book. He shall figure as accused No. 3. Mr. K. N. Naoroji, the second petitioner in the Writ Petition, cannot be treated as a mere Director. He is a Director, who, on his own showing, had a greater interest in the prosecution of the Writ Petition. The writ petition contains profuse pleadings which was eloquently about the infraction of his constitutional and legal rights. He had not withdrawn from the Writ Petition and its prosecution at any stage later. He cannot plead ignorance about the subsequent developments. He cannot, as a petitioner, disown the acts of Counsel and/ or officers of the company whose cause he had espoused with vigour and vitality. He shall figure as accused No. 4.

101. The records contain letters signed by the following persons in their capacity as Partners or Proprietors of the wholesale dealer concerns. The letters are acknowledged as having been signed by them, in the relative statements given by them to Departmental officials. It is unnecessary to refer to the details in the letters or the statements. In the case of every one of the above persons, there are materials which prima facie disclose offences under S.192 by the fabrication of those letters and otherwise. In some cases, older letter heads (as advised by Dr. Hathi) has been used. In that hurried process, some had overlooked the fact that the other circumstances had changed in the meanwhile, such as the telephone numbers. (The details are matters of trial which is to follow). The above persons shall be accused Nos. 5 to 10. Though there are seven letters, only six concerns are involved. There are two letters of M/s.M. Amin and Company, Baroda. Notwithstanding the production of the two letters, only one accused could be pitched upon. That is the person who had, as disclosed by the statement, acknowledged the signature on the offending letters.

102. The wholesale dealers occupy a place of importance not merely in the trading community but also in the social circles. Their conduct quite often sets the pace and standard for lesser view to follow and emulate. Discarding moral values is bad enough. But then Courts are not the agencies entrusted with the enforcement of morality. Defiling the Laws is, however, a most serious matter with which the Court is directly concerned. When grave

legal action is warranted in a given situation, the Court shall not hesitate to act. That is what we have done. "The world is there, whether, we like it or not, and it follows laws of its own, whether we like them or not' , as observed by Robert White.

103. To decline action merely on the ground of some inevitable delay in the scheme of things, when every other circumstance every fact spur the Court to do it with all vigour, is to cruelly deflect the course of justice. A Court of conscience confronted with such a serious problem cannot permit itself to appear shaky or doubting in such a situation. If there be a case where insistence for an action under S. 340 of the I.P.C. is eminently justified, it is this. We have no hesitation in declaring it loudly and forcefully.

104. We, therefore, direct a complaint to be filed under S. 340 of the Cr. P.C. Even then, we shall endeavour to ensure the maximum procedural safeguards to those who are to face the trial. We have declined to make a preliminary enquiry in the case. We have not issued notices to some atleast among the prospective accused. The company whose servant Mr. Hathi is, and the second petitioner, the Director of the company, have had their full say through their eminent Counsel and in an exhaustive manner. In a sense, he had covered all areas that could possibly be attempted by any Counsel even on behalf of the wholesale dealers whose names have not figured as parties in the Notice of Motion. Strictly speaking, therefore, there is no failure of substantial justice, merely for the reason that a formal notice was not issued to all such persons. They were confronted with the letters and had made statements to the Departmental officials which contained their versions, although not in the immediate and direct context of S. 340 proceedings. Whether they would ultimately be charged, and if charged, whether they would have effective defence, it is unnecessary for this Court to predicate at this juncture. Circumstances, according to us, do justify a direction to be issued for action to be taken forthwith under S. 340 of the Criminal Procedure Code.

The Magistrate to whom the complain is to be filed, we are sure, would lake into consideration the entirety of the circumstances in modulating his action. We have indicated the legal position that would be open to him to proceed in the matter, as though upon complaint This is notwithstanding the fact that in the generality of the cases it would have been permissible for him to proceed as though he had received a police report.

Procedure under Chapter XV Cr. P.C.

105. In relation to the procedure under Chapter XV of the Cr. P.C. which among others contain Ss. 200, 202, 203 and 209, there is a abundance of guidelines in the understanding and working of those provisions in the form of decisions of the apex Court. Nirmaljit Singh Hoon v. State of West Bengal, AIR 1972 SC 2639, is one such example. The scope and ambit of Ss. 202, 203 and 209 have been explained therein. Earlier decisions of the Supreme Court in R. J. Riva v. State of Bombay, AIR 1958 SC 97, Vadilal Panchal v. Ghadigaonkar, AIR 1960 SC 1113, Chandra Deo Singh v. Prakash Chandra Bose, AIR 1963 SC 1430, have been usefully referred to in that decision. We trust that the procedural format would appropriately be adopted by the learned Magistrate.

CONCLUSION

106. In view of the aforesaid discussion, we are of the opinion that it is expedient in the interest of justice that an enquiry should be made into the offence under S. 102 which appears to have been committed in respect of documents produced or given in evidence in the proceedings of Writ Petition No. ll10 of 1983 before the learned single Judge of this Court and the complaint under S. 102 of the Indian Penal Code should be filed in that behalf against (1) Godrej and Boyce Manufacturing Company (P) Ltd., Godrej Bhavan, 4A, Home Street, Fort, Bombay-400 001; (2) Shri K. N. Naoroji, residing at 6, Belha Court, 24, Ramchandani Marg, Appollo Bunder, Bombay-39: (3) Phiroze Dinsha Lam, Vice-President (Corporate Services) and Director,

Godrej and Boyce Manufacturing Company (P) Ltd., 21/23, Mistry Park, 77, Bhulabhai Desai Road, Bombay-400036; (4) Dr. K. R. Hathi, General Manager(Marketing), Godrej and Boyce Manufacturing Company (P) Ltd. Gl, Godrej Hill Side Colony, Vickroli, L. B. Shastri Marg, Bombay; (5) K. S. G. Murthi, Regional Manager, Southern Region, Godrej and Boyce Manufacturing Company (P) Ltd. 3, Nungambakkom High Road, Apex Plaza, 4th floor, Madras; (6) Putushbai Chandrakant Shah, Shrenik Trader;, V. P. Road, Valsad; (7) Narsar Harichandra Wadia, Partner, M/s. M. H. Wadia, Porbandar; (8) Ashwinibhai Dhirajilal Shah, Partner, Dhirajlal Shah, Partner, Dhirajlal Narsidas Shah, Bhavanagar; (9) Mandakini Amin, M. Amin and Co. Baroda; (10) Jagadish Vadilal Udani, Jodiavala Trading Company, Jamnagar; (11) Malcolin Kekobar Nanavati, Proprietor, Nanavati and Company, Surat.

107. We direct that the Registrar of the High Court at Bombay shall file the complaint. The draft of the complaint to be filed shall be placed for consideration of this Court on or before 20-12-1991. We request the Advocate General to render the Registrar the necessary assistance in the matter. Having regard to the seriousness and importance of the matter, we direct the State of Maharashtra to appoint Special Prosecutor for conducting the proceedings before the Magistrate.

Some Further Remarks

108. We have to appreciatively comment upon the troubles taken, the risks faced and devotion displayed by very many officials in unravelling what we have prima facie found to be a massive fraud. Administrators with admirable acumen have commented about the laudable roles played by such officials. An illustrative case of compliments paid in a handsome manner by an administrative wizard, can be usefully extracted in this context:-

"Some men cannot resist the natural instinct to protest when they see things going wrong; others can and do, Possibly among successful officials there are more of the former type than of the latter".

(See John P. Thompson (19220 Mont Ford Report para 310).

Sri Harcourt Butler, an eminent administrator, referred to such officials as "spell binders who do good by stealth". Right up to the Central Board, we have refreshingly noticed unswerving fidelity to truth.

COSTS

109. We shall now consider the appropriate order as to costs under S. 343. In this connection, it is to be remembered that the Bombay State had incorporated the revisions for orders as to casts by a Special State amendment of the year 1955. The Law Commission specifically noted it and commented about it in appreciative terms. That provision has been incorporated with the Code under S 342. We shall not ignore the thrust and farce of these legislative developments.

110. We feel that the lst petitioner in Writ Petition No. 1110 of 1983, Godrej, shall be made liable for the costs of these proceedings. The actions involved are, as we have indicated earlier, very serious. The revenue sought to be evaded is appreciable. A sum of about Rs. 4 cores was ultimately paid by way of duty. The proceedings were protracted and lasted for more than ten years. Many compilations of records had to be furnished. Taking into consideration all aspects, we fix the costs in a consolidated sum of Rs. 10,000,/- which shall be paid by Godrej to the Union of India within 15 days from today.

111. Counsel for Godrej prayed for stay of further proceedings pursuant to the judgment. We are not satisfied that any grounds are made out to stay the further proceedings. The prayer is therefore declined.

112. There was a further request for supply of an urgent certified copy of the judgment. Photocopy of the judgment shall be supplied within an outer limit of seven days from today.

Order Accordingly