STATE DELHI ADMINISTRATION Vs. GOPAL KRISHAN

JUDGEMENT

(1.) The C.B.I. (SPE) filed a charge-sheet against the respondents, numbering five in all, under Section 120B read with Section 420, Indian Penal Code, and Sections 420, 467, 468 and 471, Indian Penal Code, on the allegations that during the period April 1971 to December 1973, a large number of import licenses under "actual user category" for importing stainless steel pipes and tubes were obtained by respondents 1 & 2 from the officer of the Chief Controller of Imports and Exports (GLA), New Delhi, in the name of non-existent firms viz, M/s. Anita Industries, Faridabad, M/s. Simco Industries, Ballabhgarh and M/s. Ruby Industries mostly on the basis of essentiality certificates issued by the Director of Industries, Haryana, Chandigarh, respondents 3 to 5 being the concerned officials who allegedly issued false certificates in favour of the non-existing firms. Besides that respondents 1 & 2 also obtained a large number of import licences in the name of aforesaid non-existing firms from the Import Offices at Delhi, Kanpur and Bombay under Registered Exporters Promotion Scheme (R.E.P. category) ; the same having been issued against the export entitlements of different exporters of Bombay purchased by respondents 1 & 2 in the name of the aforesaid fictitious firms. It is further alleged that the papers pertaining to M/s. Anita Industries, M/s. Simco Industries, and M/s. Ruby Industries were signed under the fictitious names of S/Shri Ish Kumar, Kanwal Sen and Uma Kant respectively. The import licences under the "actual user category" were obtained by respondents 1 & 2 for the aforesaid non-existing firms on the basis of false essentiality certificates issued by the officer of the Director of Industries, Haryana, Chandigarh, on the recommendation of respondents 3, 4 & 5 who are alleged to have falsely certified in their reports that the aforesaid firms had installed machinery and the units were under production etc. Similarly the basis for the issue of import licences under R.E.P. category were the certificates issued by the Director of lndustries/ District Industries Officer (respondent No. 3) showing that these firms were engaged in the production activities of various items for which the stainless pipes and tubes were required. Hence the charge against the respondents essentially was that they had entered into a criminal conspiracy alongwith two approvers Smt. Kusam Dewan and Sh. Mohinder Advani and other unknown persons having for its object to cheat the officers of Join't Chief Controller of Imports and Exports, New Delhi and Bombay for obtaining import licences in the name of three aforesaid fictitious firms and in order to achieve the object of the aforesaid conspiracy, the respondents prepared false and forged documents and dishonestly used them as genuine knowing them to be forged and thus induced the import authorities to issue the import licences. A separate complaint was also filed on 1st April,1977, under Section 5 of the Import and Export (Control) Act. 1947 (for short the Act) in respect of only those import licences against which actual imports were made. That complaint, inter alia, alleged hatching of a different conspiracy, having for its object to misutilise the imported material in contravention of the import licences issued in the names of M/s. Anita Industries and M/s. Simco Industries. The said complaint is still pending.

(2.) Before the charges were framed by the learned Chief Metropolitan Magistrate, respondents moved two separate applications, one by respondents 1 & 2. and the other absence of a complaint as envisaged under Section 6 of the Act, the Court was not competent to take cognizance of offence which were primarily and essentially offences under Section 5 of the Act and for which filing of a complaint by a duly authorised officer was a condition precedent. This plea prevailed with the learned Chief Metropolitan Magistrate who vide impugned order dated 3rd December, 1979, discharged all the respondents.

(3.) I have heard counsel for the parties at length and bestowed my careful thought and consideration to the arguments advanced before me. On a consideration of the facts of this case and the authorities adverted to by counsel for the parties, I am inclined to hold that the impugned order of discharge cannot be sustained. So, I proceed to record reasons for the same.