TaxTMI 
TaxTMI 
2010 (11) TMI 1087
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.... Ahmed Sultan (A-10) were shown as absconders. The learned Special Judge took the charge sheet on file as C.C. No. 3 of 2005 and issued non-bailable warrants against A-1, A-2, A-3, A-6 and A-10. Case against A-1, A-2, A-6 and A-10 came to be separated and case proceeded against A-3, A-4, A-5, A-7, A- 8 and A-9. 3. The learned Special Judge upon consideration of the material made available framed the following charges against the accused persons: i) for the offence under Section 120-B IPC against A-3 to A-5, A-7 to A-9; ii) for the offence under Section 419 IPC against A-3; iii) for the offence under Section 419 r/w 109 IPC against A-4, A-5 and A-7 to A-9; iv) for the offence under Section 468 IPC against A-5; v) for the offence under Section 420 IPC against A-8; vi) for the offence under Section 468 IPC against A-7; vii) for the offence under Section 13 (1) (d) r/w 13(2) of the Prevention of Corruption Act against A-4, A-5, A-7 and A-8; viii) for the offence under Section 12 of the Passports Act, 1967 against A-3; ix) for the offence under Section 420 IPC against A-3; x) for the offence und....
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....rous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 468 IPC; A-8 to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 120-B IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 419 r/w 109 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 420 r/w 109 IPC; rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Section 420 IPC and rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month for the offence under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act. All the substantive sentences were directed to run concurrently. 6. On appeal the High Court of Andhra Pradesh upon re- apprecia....
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....10) is involved in the business of recruiting people for jobs in foreign countries. He gave 10 passport size photographs of A-1 to A-3 and fake names and documents to A-9 to secure passports falsely showing them as residents of Kurnool in the State of Andhra Pradesh. A-9 has relatives in Kurnool. He visited Kurnool in the month of March, 2001 and entrusted the work of securing passports of A-1 to A-3, to A-6 an unauthorized passport agent. At the instance of A-6, A-7 Mohammed Yunis, Mandal Revenue Inspector of Mandal Revenue Office, Kurnool issued a false residential certificates in the assumed names intended for the benefit of A-1 to A-3. A-6 procured fake transfer certificates purported to have been issued by the Headmaster, Zila Parishad High Court, Peddapadu, Kurnool District in the name of Ramil Kamil Malik and two fake memorandum of marks sheets in the names of Neha Asif Jafari and Sana Malik, purported to have been issued by the Headmaster, Higher Elementary School, Kurnool, as a proof in support of date of birth. One Abdul Gaffar (PW-1) filled up three passport applications of A-1 to A-3 at the instance of A-6 and they were accordingly submitted in the Regional Passport Off....
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.... Yunis. That as per exhibit P9 residence certificate, Sana Malik Kamal (assumed name of Monica Bedi) is stated to be residing at Babu Gounda Street, Kurnool. PW-6 at the relevant time was working as Deputy Educational Officer, Nandyal, Kurnool District who stated that there was no school by name of Hanuman Higher Elementary School, Kurnool wherein Sana Malik Kamal was alleged to have studied. PW-7 M. Lakshminarayana at the relevant time was the Junior Assistant in the District Police Office, Kurnool and he speaks of receiving applications for verification of contents therein. According to him, A-4 ( G. Srinivas) who attended to passport inquiries, received the passport application of Sana Malik Kamal. After receipt of exhibit P15 enquiry report along with exhibits P16 and P17 statements submitted by A-5 S.A. Sattar, A-4 prepared the relevant report and forwarded the same to the Regional Passport Office, Secunderabad. Exhibit P18 is the letter addressed by the Superintendent of Police to the Regional Passport Office, Secunderabad reporting no objection for the grant of passport to the applicant. Rest of evidence relates to handing over of speed post articles relating to Babu Miah as....
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....t no person shall be prosecuted and punished for the same offence more than once. 14. Article 20 (2) embodies a protection against a second trial and conviction for the same offence. The fundamental right guaranteed is the manifestation of a long struggle by the mankind for human rights. A similar guarantee is to be found in almost all civilised societies governed by rule of law. The well known maxim `nemo delset bis vexari pro eadem causa' embodies the well established common law rule that no one should be put on peril twice for the same offence. BLACKSTONE referred to this universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence. 15. The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari - a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. This in essence is the common law principle. The corresponding provision in the American ....
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....ences are distinct, there is no question of the rule as to double jeopardy being applicable. In Leo Roy Frey vs. Superintendent District Jail, Amritsar3, petitioners therein were found guilty under Section 167 (8) of the Sea Customs Act and the goods recovered from their possession were confiscated and heavy (1954) SCR 1150 (1958) SCR 822 personal penalties imposed on them by the authority. Complaints thereafter were lodged by the authorities before the Additional District Magistrate under Section 120B of the Indian Penal Code read with provisions of the Foreign Exchange Regulations Act, 1947 and the Sea Customs Act. The petitioners approached the Supreme Court for quashing of the proceedings pending against them in the court of Magistrate inter alia contending that in view of the provisions of Article 20 (2) of the Constitution they could not be prosecuted and punished twice over for the same offence and the proceedings pending before the Magistrate violated the protection afforded by Article 20 (2) of the Constitution. This Court rejected the contention and held that criminal conspiracy is an offence under Section 120B of the Indian Penal Code but not so under the Sea Customs Act....
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....icle 20 (2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence. In Bhagwan Swarup vs. State of Maharashtra6, the accused was convicted with regard to a conspiracy to commit criminal breach of trust in respect of the funds of one Jupiter company. There was another prosecution against the accused for the conspiracy to lift the funds of another company, though its object was to cover the fraud committed in respect of the Jupiter company. This Court held that the defalcations made in the Jupiter may afford a motive for new conspiracy, but the two offences are distinct ones. Some accused may be common to both of them, "some of the facts proved to establish the Jupitor conspiracy may also have to be proved to support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence. The ingredients of both the offences are totally different and do not form the same offence within the meaning of Article 20 (2) of the Co....
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....he other." 21. Shri K.T.S. Tulsi, learned senior counsel in the present case before us mainly contended that the facts based on which the appellant (Monica Bedi) was prosecuted and punished by a competent court of jurisdiction at Lisbon and the facts based on which prosecution has been initiated resulting in conviction are the same and, therefore, the conviction of the appellant is in the teeth of Article 20 (2) of the Constitution and Section 300 of the Code of Criminal Procedure. The submission is not well founded for the simple reason that the same set off facts can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under IPC and at the same time constitute an offence under any other law. It needs no restatement that the bar to the punishment to the offender twice over for the same offence would arise only where the ingredients of both the offences are the same. 22. The question that falls for our consideration is, whether the appellant can be said to have satisfied all the conditions that are necessary to enable her to claim the protection of Article 20 (2) of the Constitution. The charges upon which the appellant h....
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....ave the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials (f). " 25. However, having regard to the nature of the guaranteed right we have examined the judgment passed by a Constitutional Court, Lisbon ( a typed copy of the same made available by the learned senior counsel for the appellant - Monica Bedi which we believe to be a true copy) does not support the plea of the appellant. The Constitutional Court while considering the issue of extradition of the appellant and the nature of the trial undergone by her in Portugal observed: [*] "It is a fact that the appellant has been trialled in Portugal for committing an offence provided and punishable under article 256 of the penal code. However, should any facts be found in that process and in that trial that would release her of any guilt regarding offences based upon which she is wanted by the requesting state, then it is not acceptable by means of a restrictive and formal interpretation of a principle which is deemed to assume wider configurations to authorize her extradition to tri....
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....regarding offence subsumable under an offences of criminal association which does not correspond to the Indian charges. ...it is not up to the constitutional court to interpret and set out the meaning of any provisions contained in the Indian Penal Code and establish on a final basis the scope of criminal conspiracy, given that this would transcend the object of constitutional rules control. Taking into consideration the reasons stated in the appealed decision, one cannot accept the argument that the appealed courts interpretation of article 31, no. 2 of law 144/99 of 31st August was in the sense that the judge is not obliged to substantiate and explain (in the decision to extradite someone claimed for the commission of offences which do no fall within the range of offences provided under our legal system) the reasons why the offence should be appealed decision, the appellant could not have raised this unconstitutionality based on the different of legal qualification of the offences that the was charged with by both legal systems in concurrence. As a matter of fact, the question under consideration is the charge with different offences, one should note that, besid....
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....ication seeking the passport in the assumed name. Stage two is the involvement of Monica Bedi (A-3), Shaik Abdul Sattar (A-5) and D. Gokari Saheb (A-8) after the submission of passport application before the authorities. Exhibit P2 is the passport application submitted in the assumed name of Sana Malik Kamal which contains the photograph of Monica Bedi (A-3). Essential requirements for obtaining the passport are: (1) passport application; (2) proof of residence and (3) date of birth certificate as spoken to by PWs. 2, 3, 21 and 31. How these documents are obtained for the benefit of Monica Bedi has been clearly brought on record through a number of witnesses whose evidence remained unimpeached. It is Mohd. Yunis (A-7), the Mandal Revenue Inspector who verified the residence particulars of Sana Malik Kamal on the instructions of PW-5, Mandal Revenue Officer, Kurnool and submitted a false verification report based on which exhibit P9 residence certificate was issued by PW-5. PW-17 on requisition from C.B.I officials once again got verified and issued exhibit P30 certificate to the effect that no person by name Sana Malik Kamal resides in the house as earlier submitted by Mohd. Yunis ....
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....(A-7) at all for it had found no case against the appellant made out under Section 120B IPC and further found that there is no evidence to assume that he was hand in glove with the other accused for the purpose of cheating. That there is no evidence that A-7 prepared false document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud. The ingredients of Section 463 are not satisfied. In such an event the conviction of the appellant under Section 465 IPC is unsustainable. 31. That so far as D. Gokari Saheb (A-8) is concerned there is a clear evidence which has been properly appreciated by the courts below that he who took the article (envelop contained the passport) addressed to Sana Malik Kamal from PW-11 representing that he knew the addressee and deliver the same. The said article was actually entrusted to PW-11 for its delivery but D. Gokari Saheb (A- 8) took the same from PW-11 for delivery to Sana Malik Kamal - assumed name of Monica Bedi (A-3). The courts below found that D. Gokari Saheb (A-8) was....
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....t for herself in the assumed name of Sana Malik Kamal. His conviction for the charged offences is accordingly upheld. The High Court however, reduced the sentence awarded by the trial court to one year rigorous imprisonment under each count while maintaining the fine imposed by the trial court. The sentence awarded under Section 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act has been confirmed. Having regard to the facts and circumstances of the present case, we however, reduce the sentence to that of six months rigorous imprisonment under each count while maintaining the fine imposed by the trial court and the sentence to suffer imprisonment, in default, of payment of fine. Sentences are directed to run concurrently. Case of Monica Bedi - Appellant in Criminal Appeal No. 782/2007: 33. So far as the appellant - Monica Bedi is concerned she is involved in the conspiracy as proved at both stages i.e. pre-passport application stage and post-passport application stage. The conspiracy itself has been hatched only with a view to secure a passport for Monica Bedi in the assumed name of Sana Malik Kamal. We do not find any merit in the submission of Shri Tulsi, learned senior ....
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.... to 10.11.2005. However, having regard to the facts and circumstances of the case and the fact that she had undergone more than 2 = years of sentence, we consider it appropriate to reduce the sentence to that of already undergone by her while maintaining fine amount imposed by the courts below. 34. In the view we have taken it is not necessary to go into the question as to the interpretation of Section 428 Cr.P.C and her entitlement to set off against the sentence imposed on her. Conclusion: 35. Criminal Appeal NO. 782 of 2007 ( Monica Bedi - A-3) For all the aforesaid reasons, we confirm the conviction of Monica Bedi (A-3) under Sections 120B, 419 and 420 IPC. The sentence awarded under each count directed to run concurrently is reduced to that of the period already undergone by her while maintaining the sentence of fine awarded by the courts below. The bail bonds shall stand cancelled. The appeal is, accordingly, partly allowed. Criminal Appeal NO. 784 of 2007 ( Shaik Abdul Sattar - A-5) The conviction of Shaik Abdul Sattar (A-5) under Sections 120B, 419 r/w 109, 420 r/w 109 and 468 IPC and as well as under Section 13 (1) (d) r/w 13(2) of the Prevention of Corrupti....