Criminal Revision Application No.179 of 1999.

23rd April, 2001

Petitioner Counsel: Mr. H. V. MEHTA
Respondent Counsel: MR. P. D. LALAN

JUDGMENT

JUDGMENT :- Heard Mr. Mehta the learned counsel appearing for the petitioner-complainant, Respondent no.1 in person Shri. Lalan and Smt. S.R. Kumbhat the learned A.P.P for the State. The petitioner-complainant has challenged the order passed by the learned Chief Metropolitan Magistrate, 3rd Court, Mumbai dated 16.12.1997 discharging the respondent-accused Shri. Pravinchandra Lalan by holding that there is no case against the respondent-accused for the offence under sections 120B, 420 of the IPC as well as section 5 of the Imports and Exports Control Act, 1947.

2. Earlier when the revision application was filed by the petitioner, it was time barred and while considering the application for delay, the application for delay was granted and delay was condoned and this court considering the submission and considering the order under challenge has issued rule which was made returnable on 12th April, 2001 and accordingly after the notice of motion to the respondent no.1 was served, the matter was notified for hearing.

3. Mr. Mehta the learned counsel who appeared for the petitioner-complainant has also tendered the copy of the depositions of the witnesses recorded by the learned Magistrate and while taking me through the evidence and the documents attached to the revision application as well as order under challenge, Mr. Mehta has vehemently urged that the learned Magistrate was not right in holding that there is no sufficient evidence against the accused for framing charge and further by holding that there is no prima facie case against the accused. Mr. Mehta while taking me through the evidence has submitted that as found from the evidence, the witnesses who have been examined by the prosecution,have identified the accused respondent no.1 who was dealing with the firm for the import of material and its disposal. It is the case of prosecution that respondent-accused has applied for import licence in the name of M/s. Jagesh Chemicals and M/s. Metro Engineers Proprietary concern from the Joint Controller of Imports and Exports. One of the accused Mr. K. K. Mody, Chartered Accountant issued a certificate in respect of requirement of material for its use in their factory. The said accused Shri. Mody had expired and the case against him is abated. The licence was issued in the name of Jagesh Chemicals (J.C.C.I.) for actual user for a sum of Rs. 8,97,697 and for Rs. 9,29,054/-. It is the case of the prosecution that documents which were produced by the respondent-accused for import licence were forged one and fabricated by respondent no.1-accused and respondent no,1 had no factory or any electricity consumption in the premises at the address furnished by the applicant while obtaining licence. It is the case of prosecution that respondent-accused had obtained the Letter of Credit to Commission Agent and goods were sold in open market. It is only the respondent no.1 who has issued the Letter of authority for a receipt and clearance of the goods. It is the prosecution case that no part of the goods imported were utilised by the actual user for the purpose for which it was imported. The matter was investigated and complaint was filed against the respondent-accused and one another accused and as another accused was dead, the complaint was abated qua that accused for the offence under sections 120B read with section 420 of the IPC and section 5 of the Import and Export (Control Act) 1947 and the complaint was filed before the learned Additional Chief Metropolitan Magistrate 3rd Court, Mumbai and the complaint was registered being case no.16/S/1986. The complainant has examined 14 witnesses before framing of charge. After considering the evidence of these witnesses, the learned Magistrate discharged the respondent no.1-accused by observing that there is no sufficient evidence to frame the charge against the accused.

4. Mr. Mehta the learned counsel appearing for the petitioner has taken me through the evidence of P.W.7 and P.W.9, P.W.7 Ramesh Ramchandra Mehta has deposed that in 1981-82 he was proprietor Of M/s. Kashmira Enterprises and in the year 1982 some body has approached him on behalf of Metro Engineers and according to P.W.7 the said person was Pravin Lalan. The witness had deposed that Pravin Lalan had approached him on behalf of Metro Engineers. The letter of authority dated 6.1.1982 was in favour of M/s. Kashmira Enterprises and letter of authority was signed by Prop. M/s. Metro Engineers by Shri. Waghela Managing Director. After receipt of the said letter of authority, he obtained the letter of credit and he imported the goods and given for the custom clearance to Shri. Shantilal M. Shah and since after clearance of the goods from the custom, he had delivered goods to M/s. Metro Engineers Shri. Pravin Lalan. P.W.2 deposed that while referring the letter of authority dated 6.1.1982 the said letter of authority was issued in his favour and the said authority issued by Prop. M/s. Metro Engineers. It is further found from the deposition of P.W.7 that after the said letter, the letter of authority received by him and he obtained letter of credit and he imported the goods through M/s. Shantilal M. Shah and sons and after clearance of goods, the same were delivered to M/s. Metro Engineers through the accused M/s. Pravin Lalan. In cross examination, it is found that on referring letter of authority dated 6.1.1982 which was addressed to his company, the said letter was signed by proprietor of the said Metro Engineers. It is further found from his cross examination that letter of authority was given to him by Shri. P. D. Lalan and he identified the accused in the Court. It is further found from the cross examination of P.W.7 in clear terms that he did not know the position of Shri. P. D. Lalan in M/s. Metro Engineers and he was not acquainted with the signature of Shri. P. D. Lalan and he denied that it is not true that P. D. Lalan never met him and he has not given any document. Mr. Mehta has placed reliance upon the next witness P.W.9 Narendra D. Shah. As found from his evidence that he is working as a broker since last 25 years. He knows Neela Exports Pvt. Ltd. In the year 1981-82 Shri. P. D. Lalan had brought one import licence as he wanted to import some items against the said licence and he introduced P. D. Lalan to Neela Exports Pvt. Ltd. Mr. P. D. Lalan has brought letter dated 18.12.1998 to him and P. D. Lalan had given import licence and letter dated 12.12.1981 and he gave this documents to M/s. Neela Export Pvt. Ltd. The witness in cross-examination has denied the suggestion that P. D. Lalan had never met him and he is falsely claiming that P. D. Lalan had given him one import licence and one letter to him. P.W. 5 Arvind Chaganlal Parikh is examined by the prosecution. As found from the evidence of P.W.5, he deposed that from the year 1977-82 he was working in Pravinchandra of M/s. Neela Exports Pvt. Ltd. M/s. Neela Exports Pvt. Ltd. cleared the goods through CHA Amar Clearing Agent. According to him, one broker approached to him and he told to him to contact Shri. Pravinchandra of M/s. Neela Exports Pvt. Ltd. It is further found from his examination in chief that he cannot remember whether anybody was accompanying broker Narendra. M/s. Neela Pvt. Ltd. cleared the goods through Amar Clearing Agent. It is further found from the cross examination that he never met the accused Pravinchandra Lalan in his office.

5. On considering the submission of Mr. Mehta and on going through the evidence of the prosecution witnesses and the order under challenge, as transpired from the evidence, it is clear that the said evidence does not connect the accused with the offence and learned Magistrate has while considering the said evidence for framing charge, has rightly held that the evidence is not such for which the charge is to be framed against the accused and accordingly, the learned Magistrate has discharged the accused. On examining the order in light of submission made before me, in my view, no error is committed by the learned Magistrate and the learned Magistrate was right in discharging the accused from the accused. Accordingly, while exercising my revisional jurisdiction, this is not a case where this Court has to interfere with such order passed by the learned Magistrate and accordingly, revision application is dismissed. Rule is discharged.

Revision application dismissed.