Dismissal of criminal revision petition seeking discharge from main CBI case alleging fraud and duty evasion. Held prima facie material exists; trial is necessary to ascertain conspiracy.
None. Impugned order dated 19.09.2017 dismissing discharge application was confirmed.
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HON’BLE SRI JUSTICE U.DURGA PRASAD RAO
Criminal Revision Case No.2869 of 2017
ORDER :
This Criminal Revision Case is directed at the instance of petitioner/A.6 against the order dated 19.09.2017 in Crl.M.P.No.1251/2017 in C.C.No.7/2010 on the file of II Additional Special Judge for CBI Cases, Visakhapatnam, whereunder learned Judge dismissed the application filed by the petitioner under Section 239 Cr.P.C to discharge him from main case.
a) A.1 to A.3 are Assistant Commissioner and Superintendents in the office of Commissioner of Customs and Central Excise, at Wadodra and Visakhapatnam respectively. A.5—M/s. Sri Balaji General Trading Co. (SBGTC) which is a partnership firm floated by its Partners P.Kesava Rao (A.4) and K.Surya Rao, both are fictitious persons. The firm was registered with the District Registrar, Srikakulam. K.Surya Rao, appointed A.4 as Attorney of the Firm to execute the partnership works. The prosecution case is that A.1 to A.3 being officials of customs and central excise in abuse of their official position, allowed A.5 firm for deemed export of materials like Polyester Gray Fabric (PGF), Nylon Gray Fabric (NGF) etc, without payment of duty to three non-existing firms in violations of the provisions of EXIM policy, 1997-2002 as per which a 100% trading export oriented Unit could make physical exports only but not deemed export. A.1 to A.3, abusing their official position, allowed clearance of numerous consignments to the three
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non-existing companies against the advance release orders and thereby caused wrongful loss of Rs.32.28 crores to the Government of India. A.1 to A.3 accommodated fabricated and fake bank guarantees submitted by A.4 for issuance of private bonded warehousing licence.
b) Initially, Inspector of Police, CBI filed charge sheet against A.1 to A.5, showing A.4 as absconded and it was taken cognizance. Later, the I.O filed the additional charge sheet against two persons namely Polaki Janaki Ram (who impersonated as A.4—P.Kesava Rao) and Shabbir Haji Issak Noorani (petitioner—A.6). The brief details of additional charge sheet are that A.4— Palla Kesava Rao, was a non-existing person and Polaki Janaki Ram of Pondur by impersonating P. Kesava Rao and in conspiracy with some other persons floated A.5 firm and committed fraud in conspiracy with public servants. Sofaras petitioner/A.6 is concerned, he is a native of Doraji of Rajkot in Gujarat and settled in Mumbai. He is engaged in import and export business, his forefathers are having business interest in Orissa. They are having one Oil Mill in the name of Jamal Oil Mill at Pondur. The investigation revealed that in 2001, the petitioner/A.6 came into contact with P.Janaki Ram at which time, the Government of India made amendments to the EXIM policy 1997-2001 as per which even trading units were entitled for the exemption of excise duty and custom duty on indigenously procured and imported materials if they are physically exported in toto. However, such benefit is not available in case of making deemed exports. It is alleged, petitioner/A.6 in conspiracy with P.Janaki Ram, hatched a plan to take undue advantage of Government scheme. Pursuant to thereof, P.Janaki Ram started
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a fictitious partnership with non-existing partners i.e, K.Surya Rao, and Kesava Rao and both petitioner/A.6 and P.Janaki Ram approached Ch.Eswar Mohan Rao, a chartered Accountant and got prepared one project report in the name of SBGTC to set up as 100% EOU and they also obtained PAN cards in the fictitious name of P.Kesava Rao. For obtaining the same, petitioner/A.6 and P.Janaki Ram, used photo of one A. Laxmi Naidu, who is an illiterate Kalasi in Jamal Oil Mill of petitioner/A.6. Later, P.Janaki Ram, in pursuance of conspiracy with petitioner/A.6 opened a current A/c.No.309 in Indian Bank, Srikakulam Branch. Later, both of them obtained a Trading Licence to establish 100% EOU at the leased premises at Srikakulam. They got declared their premises at Industrial Estate, Kusalapuram as warehousing Station under Customs Act, 1962. P.Janaki Ram, in the fictitious name of P.Kesava Rao, obtained C.TC certificates from Central Excise, Srikakulam, for procurement of indigenous goods, without payment of Central Excise duty. He obtained duty free indigenous goods from three firms namely M/s. Sunrise Textiles Ltd., M/s. Blue moon Textiles Ltd. and M/s. Jash Overseas, Malegaon, Nasik. They also imported Polyester Fabric, Artificial leather, beetle nuts and brass scrap in the name of A.5 without payment of customs duty. They were required to physically export all the material procured on behalf of M/s. SBGTC, however, petitioner/A.6 and Janaki Ram pursuant to their conspiracy with A.1 to A.3, fraudulently cleared the above materials as deemed export to the three 100% EOUs namely 1) M/s.T.Chandrakala Super Auto, Mumbai, 2)M/s. Shivam Corporation, Mumbai and 3) M/s.Chinta Subramanyam,
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Mumbai. In the process, they caused loss of Rs.32.28 crores to the Government of India.
1 (2015) 4 SCC 609
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“Whether there are merits in the Crl.R.C to allow?”
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that in the account opening form, relating to Current A/c.No.309 of Indian Bank, Srikakulam Branch, standing in the name of SBGTC, there were 2 photographs, one such photograph under the name of K.Surya Rao, belonged to him. He does not know the said Surya Rao. He was not a partner of the said firm. He does not know P.Kesava Rao, the other partner. After he met with accident, petitioner/A.6 took him to Srikakulam to obtain handicap certificate and at that time he took his photographs and one of such photographs might have been used in the Account opening form.
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the petitioner/A.6. The decision cited by the petitioner will have no application to the facts of the present case.
As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_________________________ U. DURGA PRASAD RAO, J
Date: 11.06.2018
scs
3 issues framed by the court
Whether the material available on record establishes prima facie complicity of the petitioner in the alleged conspiracy to cause loss to the Government?
Whether the impugned order dismissing the discharge application under Section 239 Cr.P.C. should be set aside?
Whether distinctions in the cited precedent preclude its application to the facts of the present case?
Colour shows how this judgement treated each authority
Sunil Bharti Mittal v. Central Bureau of InvestigationDistinguished¶27
(2015) 4 SCC 609 · Who else cites this
2 provisions across 2 enactments
Shabbir Haji Issak Noorani
State of Andhra Pradesh
U. Durga Prasad Rao
As recorded by the court registry
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