TaxTMI 
TaxTMI 
2018 (7) TMI 37
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....milarasi Publications, Chennai. Issued a letter to the Manager, Indian Bank, Abhiramapuram Branch authorising V. Bhaskaran (A-2), to operate his account on his behalf. From the said account Customs duty for the import of LEXUS car was remitted by way of Bankers Pay Order. Though the Regulation says that Customs duty remittance must be paid by way of Foreign Inward Remittance through Bankers Pay Order, the Indian Currency deposited into the Current Account of M/s. Tamilarasi Publications was used for remittance of Customs duty based on the letter of Natarajan (A-1) as if the said Current Account had enough Foreign Inward Remittance. (ii) V. Bhaskaran (A-2) person found in possession of the LEXUS car claiming it to be his marriage gift by one Dr. S. Balakrishnan an absconding accused in this case and father of Yogesh Balakrishnan (A- 3). Found privy to the cheating and forgery. (iii) Yogesh Balakrishnan (A-3) : Actively co-ordinated in the import of the LEXUS car by fabricating documents to circumvent the conditions imposed by the Government of India in the Transfer of Residence Provisions. (iv) Smt. Sujaritha Sundararajan (A-4) : The Branch Manager of Indian ....
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....-Natarajan : (i) found guilty of offence u/s 120-B r/w 420, 467, 471 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 10,000/-; (ii) found guilty of offence u/s 420 IPC and sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 10,000/-; 2nd Accused-V. Bhaskaran: (i) found guilty of offence u/s 120-B r/w 420, 467, 471 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 10,000/-; (ii) found guilty of offence u/s 420 IPC and sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 10,000/-. 3rd Accused-Yogesh Balakrishnan: (i) found guilty of offence u/s 120B r/w 420, 467, 471 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 10,000/-; (ii) found guilty of offence u/s 420 IPC and sentenced to undergo R.I. for 2 years and to pay a fine of Rs.....
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.... others is contrary to the KVS Scheme and a futile exercise. (ii) The prosecution had strongly relied upon the evidence of R. Bhavani (P.W.14), who was granted pardon and treated as approver. The procedure followed by the Learned II Metropolitan Magistrate, Egmore, Chennai to grant pardon for the accused and to treat her as approver is contrary to Section 306 of the Code. The trial Court even without perusing the previous statement of the approver had treated P.W.14 as an approver and had based conviction of the Accused relying upon her evidence. Without jurisdiction, the Learned II Metropolitan Magistrate, Egmore, Chennai, has granted pardon in the case after the Special Court, constituted to deal with the offence under the Prevention of Corruption Act, 1988, has taken cognizance. Thus, the grant of pardon is in violation of law and the evidence of the approver P.W.14 is non est in law and be totally eschewed. (iii) In addition to the above legal submissions the Learned Senior Counsel appearing for the 1st Accused also submitted that the entire case of the prosecution is a verbatim repetition of the investigation made by DRI and they have virtua....
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....is entitled for acquittal. 8. The Learned counsel appearing for the 2nd Accused-V. Bhaskaran apart from adopting the submissions of A-1 counsel in respect of the legal infirmity pointed out by the 1st Accused, also added that the alleged luxury car was gifted to the 2nd Accused as a marriage gift by Dr. S. Balakrishnan. Since the luxury car worth several lakhs have been gifted to him, he thought fit that he should pay the duty and get the vehicle cleared from Customs. The alleged corrections in the Bill of Entry and other related documents were not carried out by him personally or at his instance. While the prosecution has failed to prove that Account No. 872 in the name of M/s. Tamilarasi Publications, had no Foreign Inward Remittance, contrarily, through P.W.5 it has been elucidated that in the said Account there was Foreign Inward Remittance of USD 2500 which is the subscription made by Foreign Readers of M/s. Tamalirasi Publications Private Limited "Puthiya Parvai". It is also contended by the Learned Senior Counsel appearing for the 2nd Accused that the documents collected from the bank are not duly certified as per the Bankers Book Evidence Act to admit it in evidence....
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....s no manipulation or fabrication in the Invoice submitted by him to the Clearing Agent. While so, the charge that he conspired to fabricate the Invoice to show as if the vehicle was manufactured in the year 1993 and was used by Dr. S. Balakrishnan for more than one year is baseless. The Custom Officials who scrutinized the Invoice and Bill of Lading found it to be in order and had permitted the importer to pay Customs duty and take delivery of the car. While the Customs Officials who are mandated under statute to scrutinize the Bill of Lading and Import documents were satisfied and cleared the car and no prosecution has been launched against them for clearing the car it is improper to find fault with the son of the importer who had submitted the documents to the Customs authority and paid the Customs duty as demanded by them. 10. The Learned Senior Counsel appearing for the 4th Accused-Smt. Sujaritha Sundararajan, submitted that the prosecution case against the accused persons is that, they together conspired to import the Foreign Vehicle which does not fall within the definition of permissible goods for import. According to the prosecution the export and import policy of t....
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....emittance into the Current Account No. 872 of M/s. Tamilarasi Publications, Bankers Pay Order No. 120674 was issued from the said Foreign Inward Remittance. The letter of A-4 marked as Ex.P11 is not the certificate relied by the Customs Authorities to clear the vehicle. While so, the allegation against the 4th Accused that she conspired along with A-1 to A3 and the absconding Accused in the criminal act of illegality importing Foreign car by producing fabricated document as if it is genuine, is totally baseless. Further, without following the procedure laid under Section 306 of Criminal Procedure Code, the person who has issued the Foreign Inward Remittance Certificate Ex.P10 based on which the vehicle was cleared has been granted pardon. Whereas for no fault of her, Smt. Sujaritha Sundararajan had been arrayed as 4th Accused and held guilty solely based on the tainted evidence of P.W.14. The letter Ex.P10 admittedly had been issued by P.W.14 when the 4th Accused was not in the Bank. The evidence of P.W.14 that she was contacted by the 4th Accused over phone and instructed her to issue Ex.P10 does not carry any truth since P.W.15 Chandrasekar has deposed that P.W.14 consulted him r....
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....he Hon'ble Supreme Court in M. Natarajan v. State by Inspector of Police, SPE, CBI, ACB Chennai reported in (2008) 3 SCC (Crl.)507. 16. Regarding the objection of granting pardon to the approver, the Learned Special Public Prosecutor submitted that under Section 306 of the Code pardon to accomplice can be tendered at any stage of the investigation on condition the accomplice undertook to make full and truth disclosure of the whole of the circumstances within his knowledge relating to the offence. In the present case the II Metropolitan Magistrate, Egmore, Chennai, has tendered pardon to the accomplice who was later examined by the prosecution as P.W.14 the order of tendering pardon is marked as Ex.P71. Pardon has been granted after considering the confession given by the accomplice before the X Metropolitan Magistrate, Egmore, Chennai and only after ascertaining that the statement was given voluntarily and knowing about the consequences of the said statement. Under such circumstances, when pardon has been granted after applying the judicious mind there is no need to eschew the evidence. Non-examination of the Magistrate who recorded the confession statement has no bearing i....
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....urrent Account No. 872 of M/s. Tamilarasi for Dr. S. Balakrishnan. After the DRI seized the luxury car without any registration number. On 12-7-1996, enquiry in connection with that car was conducted by V. Ramu, Deputy Director of DRI with the first Secretary, High Commission of Indian at London, Mr. S.B. Singh, to collect information regarding the LEXUS car seized by them. In the course of their investigation it was found that the LEXUS Division of Toyota, London had sold the vehicle to Y. Balu of 3, Shelly Avenue, Manor Park, London E12 6SP and Dr. S. Balakrishnan is the consignee in India and the same was sold by the LEXUS Division of Toyota on 13-7-1994. Since the Government of India Regulation marked as Ex.P31 permits only old car used for more than one year if it is above 1600 C.C. there must be evidence to show that the car which was imported by the accused persons was registered at the exporting country and plying on road for at least one year. Therefore, to show the car was first registered at London one year prior to the date of export the accused has fabricated a document as if the London Central Vehicle Registration Office has issued a letter confirming the registration....
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....Imports in Chapter-XV of the Export and Import Policy April, 1992 - March, 1997 and their import is not permitted except against a licence or in accordance with a Public Notice issued in this behalf. This Public Notice specifies the conditions under which such vehicles can be imported. 2. Import of passenger cars and automobile vehicles may be made without a licence by the categories of eligible importers specified in this Public Notice subject to the following conditions :- (i) the payment for the vehicle is made abroad and such payment does not involve, directly or indirectly, any remittance except in the case of category 'I' Importers of foreign exchange from India; (ii) the payment of the customs duty is made in foreign exchange, unless expressly exempted in the case of any particular category of importer in this Public Notice. (iii) the conditions specified against each category of eligible importers in this Public Notice are fulfilled; and (iv) in the case of those importers returning to India for permanent settlement, a declaration to that effect is given to the Customs at the t....
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.... Department, Indian High Commission at UK to whom DRI officials sent communication to enquire about the LEXUS car seized by them. Thus, it is not disputed by any of the appellants the fact that the LEXUS car which was seized by DRI was imported by Dr. S. Balakrishnan. The year of manufacturing of the said car is 1994 and not 1993 as found in the Customs Bill of Lading presented by the importer through his Clearing Agent at the time of clearing the vehicle on 8-9-1994. It is also admitted fact that the Custom duty for the import of the said car was paid from the Current Account No. 872 of M/s. Tamilarasi Publications Private Limited which was opened and operated by A-1 in the Indian Bank, Abiramapuram Branch, Chennai. The Bankers Pay Order is marked as Ex.P6. This is also not disputed by the appellants. In a letter under KVS Scheme the importer Dr. S. Balakrishnan has admitted the violation of Customs Regulations and had paid difference Custom duty. This is evident through the defence document marked as Exs.D2 to D5. After settling the Customs duty under KVS Scheme, the vehicle has been taken back by A-3 on 19-9-1994 under Ex.D6. Thus it is clear that the LEXUS car was imported in v....
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....dated 4-5-1994 signed by A-1, wherein A-2 has affixed his specimen signatures. This letter is issued in the Letter Pad of "Puthiya Parvai". 26. It is evident from the Exhibits relied by prosecution that A-1-Natarajan was operating two accounts with Indian Bank, Abiramapuram Branch, Chennai, in the name of Tamilarasi Publications Limited (i) Current Account No. 879 for "Puthiya Parvai", Fortnight Magazine and (ii) Current Account No. 872 for Tamilarasi Weekly Magazine and also a Overseas Account No. 11 in the name of M/s. Tamilarasi Publications Private Limited. Ex.P64 does not specify whether A-1 has authorised A-2 to operate all the three accounts or "Puthiya Parvai" account alone since Ex.P64 letter has been issued in the Letter Head of "Puthiya Parvai". But the fact remains that the Bankers Pay Order bearing No. 120764 for Rs. 11,94,074/- was from the remittance in the Current Account No. 872 of M/s. Tamilarasi Publications Private Limited, that account does not have any Foreign Inward Remittance. 27. In this context it is essential to refer Ex.P13, dated 8-8-1994 issued by A-1 in the Letter Head of M/s. Tamilarasi Publications Private Limited, addressed to the M....
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...., in his evidence has stated that during the month of September 1994 the Additional Commissioner of Customs Mr. Gopinath called him over phone and requested him to meet at his office. In response to his request he met Gopinath at his office on the same day he was introduced Mr. Yogesh (A-3) as son of Dr. S. Balakrishnan, the importer of the LEXUS car and sought his help to file papers in the Customs Office. A3 has gone to P.W.1 office on 7-9-1994 and handed over Bill of Lading Ex.P1. When P.W.1 asked for production of the original Bill of Lading, A-3 has promised that he will produce the original Bill of Lading later. 30. P.W. 2 Suresh in his evidence has deposed that while he was working as Import Clerk in Sambasivam Company run by P.W.1 he prepared the Bill of Entry Ex.P2 on behalf of Dr. S. Balakrishnan as per the instructions of P.W.1 based on Ex.P1 Bill of Lading. Declarations under Exs.P3 and P4 were also prepared by him and the same have been identified by him before the Court. The LEXUS car has been allowed to be imported based on these documents. Evidence of P.W.1 and P.W.2 indicates that Ex.P1 was given by A-3 and on the basis of Ex.P1 Bill of Lading, Ex.P2-Bill o....
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.... Hariharan, Assistant Collector of Customs and Senthilvel, Commissioner of Customs at that point of time. He has identified A-3-Yogesh Balakrishnan as a person who was with Hariharan at his Chamber on 8-9-1994. Hariharan has given a Bill of Entry and asked P.W.20 to clear the consignment within two hours. Though in the normal course imported car has to be first appraised before the assessment, Hariharan has insisted to assess the car based on the Bill of Lading first and then to appraise it. On instruction P.W.20 had prepared a note based on the Bill of Entry Ex.P2 and P12 along with declaration Ex.P3 and P4 and the affidavit Ex.P5. 34. A perusal of these Exhibits as spoken by P.W.20 one could have easily seen that the importer has given a declaration to the Customs Department under Ex.P3 that the content of Invoice No. 00077, dated 13-7-1994 of LEXUS Division are true to his knowledge and belief. The importer has also signed the Bill of Entry Ex.P4 wherein he has informed the invoice value as GBP 21,405. He has further given an affidavit Ex.P5 wherein he has declared himself as Citizen of India, the payment to the vehicle was made abroad and it does not require any direct ....
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....hed by the prosecution establish the fact that the car itself was manufactured only in the month of March, 1994 and sold directly for export by the LEXUS company at London on 13-7-1994 and it was never registered at Central Vehicle Registration Office, London. 36. The Learned Counsel appearing for A-3 pleads ignorance of all these forgery and fabrication. The very conduct of A-3, his presence at Customs House, production of all the forged documents to P.W.20, being identified by P.W.20 in the Court falsifies the submission made by the counsel appearing for A-3. 37. The Learned Counsel appearing for A-1 submitted that after settlement of dispute under KVS Scheme the charge has to be quashed since the statute has promised immunity from all prosecution under all law. Hence the trial Court ought not to have proceeded further after the Custom Department has collected the differential Customs duty and returned the car to A-3. Relying upon Sections 90, 91 and 95 of KVS Scheme, 1998, the Learned Senior Counsel tried to impress upon this Court the proceedings in this case is a futile exercise. 38. The Learned Special Public Prosecutor appearing for the respondent CBI....
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.... a full and final settlement of the tax arrears. "Section 91 is the real crux of the matter. It provides immunity from prosecution and imposition of penalty in certain cases : "91. Immunity from prosecution and imposition of penalty in certain cases. - The designated authority shall, subject to the conditions provided in Section 90, grant immunity from instituting any proceeding for prosecution for any offence under any direct tax enactment or indirect tax enactment, or from the imposition of penalty under any of such enactments, in respect of matters covered in the declaration under Section 88". It is this Section 91, which has been relied upon by the appellant suggesting that the language is broad enough to cover not only the declarant but any other person and the prosecution not only under the direct tax enactment or indirect tax enactment but any and every other offence also. It is for this purpose, that the Learned Senior Counsel, Shri K. Subramanian heavily relied upon the observations in paragraph 27 of Hiralal's case. The Learned counsel also relied on the concurring and supplementing observations by Hon'ble Brijesh Kumar, J., in which, the Lea....
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....nd also withdrew the civil appeal pending before this Court. On 19-7-1999, a certificate for full and final settlement of the tax arrears was issued to the GCS. The said certificate provided the final settlement of tax arrears and also granted the immunity to the GCS from any proceedings for prosecution for any offence under the Customs Act, 1962 or from the imposition of penalty under the concerned enactments. However, a case was registered against the appellants on the ground that the appellants in conspiracy with the Director of the GCRI, Secretary of the GCS and others had cheated the Government of India. The prosecution was for the offence under Section 120-B read with Section 420 of the IPC. It was this prosecution which was challenged and after the challenge, failed at the High Court level, and the party had successfully approached this Court the proceedings were ordered to be quashed. 31. In Hiralal's case heavy reliance seems to have been placed on the judgment of Sushila Rani (Smt.) v. Commissioner of Income Tax & Anr. and of Central Bureau of Investigation, SPE, SIU (X), New Delhi v. Duncans Agro Industries Ltd., Calcutta. The Learned Judges in their separate but....
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....munity granted under Sections 127H of the Customs Act, 1962, however, the appellant and his brother were preventively detained under COFEPOSA. The detention was challenged on the ground that once the immunity under Section 127H of the Customs Act was granted in respect of customs offences, after settling the taxes finally by the Settlement Commissioner, the preventive detention could not have been ordered by the authorities for the same reasons. The case of Hiralal (cited supra) was relied upon, which is dear from a reading of paras 17 and 46. This Court proceeded to hold in paras 46 and 47 of its judgment as under : "46. At the time of hearing, Learned Counsel for the petitioner relied upon Hira Lal Bhagwati v. CBI. According to Learned Counsel for the respondent the said relied upon case was a case of duty evasion and the appellant therein was booked by Customs Authority and therefore, customs duty was paid under KVS Scheme and further in the criminal proceedings under Sections 120-B and 420 IPC initiated by CBI was quashed by this Court. Therefore, it is admitted that the above cited case is different from the present case as in the case in hand the detention order....
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....nd, therefore, it would be unjust, unfair and unreasonable if a person is made to suffer preventive detention mainly after his application for settlement is allowed to be proceeded with, and after realization of the customs duties not only the goods are ordered to be released but on considering the cooperation extended by him in the settlement proceedings, the Settlement Commission had also granted to him immunity from prosecution under the Customs Act, 1962 as well as under IPC. The reliance there, however, was being made not on KVSS, 1998, but on the Scheme under Section 127-H of the Customs Act, 1962 which provided the immunity not only from the Customs Act offences but also from the Indian Penal Code and other central enactments. We must hasten to point out that at this juncture itself, the immunity under the KVSS, 1998 does not refer to the offences under the Penal Code or under any other central law, but restricts itself under Section 90(1) only to the offences under the direct tax enactment or indirect tax enactment and as such Section 127H of the Customs Act is much broader than Section 90(1) of Finance Act in its operation. 34. It may be noted further that in Hiral....
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....e Act. Thus it is clear as crystal that the settlement under KVS Scheme does not give any immunity to the appellants from prosecution under Sections 120B, 420, 468 and 471 IPC and Prevention of Corruption Act. 39. The next contention of the Learned Counsel appearing for the appellants is that the evidenciary value of P.W.14 who was granted pardon and treated as prosecution witness is doubtful since tender of pardon was granted not in accordance with the statute. While sub-section (4) of Section 306 of Cr.P.C. mandates that every person accepting a tender of pardon made under sub-section (1) shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any shall, unless he is already on bail, be detained in custody until the termination of the trial. The Magistrate who has examined the person tendered pardon shall without making any further enquiry commit it for trial to the Court of Sessions or to the Court of Special Judge appointed under Criminal Law Amendment Act if the offence is triable exclusively by that Court and in all other cases shall make over the case to the Chief Judicial Magistrate who shall ....
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....in the order, the same need not be testified under oath. 42. It is contended by the Learned Counsels for the appellants that the proceedings under DRI literally been lifted by the CBI and photo copy of the documents collected by DRI had been marked without abiding the Law of Evidence. In the said course the statements given by the accused persons in the DRI proceedings had been relied upon by the prosecution to hold the accused guilty. 43. In this regard, this Court is bound to refer the judgment rendered by the Hon'ble Supreme Court in K.T.M.S. Mohd. and Another v. Union of India reported in AIR 1992 Supreme Court 1831 which is extracted hereunder : 22. Every investigation or proceeding under Section 40 is deemed to be a judicial proceeding by a legal fiction embodied in sub-section (4) of that Section though the proceedings are neither in nor before any Court at that stage. But there is no such deeming provision under Section 39 of FERA bringing every investigation or proceeding in its ambit as "a judicial proceeding" within the meaning of Sections 193 and 228 of the Indian Penal Code. When it is so, as rightly pointed out by Mr. A.T.M. Sampath, the statem....
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....ll the provisions contained in the Act have been designed with the object of achieving that purpose." 27. Coming to the FERA, it is a special law which prescribes a special procedure for investigation of breaches of foreign exchange regulations. Vide Shanti Prasad Jain v. The Director of Enforcement, [1963] 2 SCR 297. The proceedings under the FERA are quasi-criminal in character. It is pellucid that the ambit, scope and intendment of these two Acts are entirely different and dissimilar. (emphasis applied) 28. Therefore, the significance of a statement recorded under the provisions of FERA during the investigation or proceeding under said Act so as to bring them within the meaning of judicial proceeding must be examined only quo the provisions of the FERA but not with reference to the provisions of any other alien Act or Acts such as I.T. Act. 29. If it is to be approved and held that the authorities under the I.T. Act can launch a prosecution for perjury on the basis of a statement recorded by the Enforcement Officer then on the same analogy the Enforcement authority can also in a given situation launch a prosecution for perjury on the basis of any incul....
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....d counsel next contended that the confession relied upon by the two courts attributed to the 1st accused has no probative value inasmuch as PW1 was not authorised to receive such confession. Alternatively, he contended that as a matter of fact the confession was made not to PW1 but to an IFS Probation Officer who has not been examined in this case. 6. Both the said arguments are fallacious. There is no legal requirement that a confession should be made to an authorised officer. Any person can give evidence in a court regarding a confession made by an accused to him. In such confession was made to a Magistrate the law requires the same to be recorded in the manner prescribed by law. If a confession is made to any other person, the court has to consider whether the evidence of that person can be believed which depends upon the credibility of the witness giving such evidence in Court." 45. Therefore, the contention of the Learned Counsels for the appellants to reject the documents relied by the prosecution which was collected by DRI and the statements of the accused persons to DRI officials is not sustainable. It is the credibility of the person to whom the confession ....
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.... but also under the general statutes like the Indian Penal Code. The Indian Evidence Act provides for such a burden on an accused in certain matters, as, for example, under Section 113A and 113B thereof. Even otherwise, this Court, having regard to the factual scenario involved in cases, e.g., where husband is said to have killed his wife when both were in the same room, burden is shifted to the accused. Enforcement of law, on the one hand and protection of citizen from operation of injustice in the hands of the law enforcement machinery, on the other, is, thus, required to be balanced. The constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens. The court must assess the importance of the right being limited to our society and this must be weighed against the purpose of the limitation. The purpose of the limitation is the reason for the law or conduct which limits the right. 42. The presumption raised in a case of this nature is one for shifting the burden subject to fulfilment of the conditions precedent therefor. 43. The issue of reverse burden vis-&....
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.... Act is subjected to judicial scrutiny, refusal to accord sanction should also be subjected to judicial scrutiny so that improper exercise of power by unscrupulous person, shielding his subordinate shall be averted. 49. In respect of the plea raised by the Learned Senior Counsel for the 4th accused that the 4th accused was not aware of the happenings took place at Customs House or in the Office of the Clearing Agent (P.W.1), it is suffice to reproduce the illustration in the wise words of Hon'ble Justice Ramaswamy in Ajay Agarwal case reported in (1993) 3 SCC 609 :- "Thus, an agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means. Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into. It is undoubt....