ELECTRIC MANUFACTURING COMPANY LIMITED Vs. D D BHARGAVA

JUDGEMENT

(1.) These are two connected revision applications (Cr. R. 2.7.3-D of 1965 and Cr. R. 291-D of 1965) arising out of the same criminal proceeding. Cr. R. 273-D of 1965 has been presented by Electrical Manufacturing Company Ltd., of Calcutta under sections 439 and 561-A of the Code of Criminal Procedure and under Article 227 of the Constitution of the India and Cr. R. 291-D of 1965 has been presented by Shri 0m Khosla of Calcutta under sections 439 and 561-A of the Code of Criminal Procedure. Both are directed against the order dated 9-12-1964 of a learned Magistrate, 1st Class, Delhi, rejecting two identical applications by the two petitioners presented in the trial Court on 26-9-1964 pleading that the complainant had not applied his mind while filling the complaint and that as Such it deserved to be dismissed.

(2.) In order to understand the real point in controversy it may be observed that on 31-12-1962, Shri D.D. Bhargava, Deputy Chief Controller, of Imports and Exports (office of the Chief Controller of Imports and Exports) New Delhi, through Mr. Rao, P. P., S. P. E., presented a complaint under section 120-B read with section 420, Indian Penal Code, and section 5 of the Imports and Exports (Control) Act, 1947, in the Court of the Special Magistrate 1st Class, Delhi. In brief the complaint proceeded to allege that during 1954-60, Electrical Manufacturing Company Ltd., Calcutta, M. Nath, Chairman of the Board of Directors, 0m Khosia, Director of Works of E. M. C. Ltd., S. C. Mukherji, Incharge Extrusion Works of E. M. C. Ltd., and P. N. Mirchandani, one of the employees of the said company, were all parties to a criminal conspiracy, having for its object the procuring of import licenses by cheating the licencing authorities and importing of goods on the basis of those licences in contravention of their conditions. On 15-9-1954, M. Nath as Chairman of the said company made an application to the Chief Contreller of Imports and Exports, New Delhi, for an import licence for the import of machinery and equipment for generator, transmission and distribution of electric energy. In pursuance of this application, licence was granted to the said company in January, 1956, for the import of machinery and equipment to the value of Rs. 5,00,000.00 as mentioned in the list appended to the complaint. Certain details are then mentioned and the complaint proceeds on to allege that in the application for the licence, it was indicated that the machinary would be installed at their works near Calcutta and in the licence the name of the actual user in India was mentioned as "self" i.e. E. M. C. Ltd., Calcutta. On the basis of the said import licence, an indent, details of which are given in the complaint, for the import of Foreging Press was placed by 0m Khosia as Director on behalf of the said compony on M/s. EMUCO of West Germany. The correspondence in this connection indicated that the said indent was placed by E. M. C. Ltd., Calcutta only for the E. M. C. Works, Kanpur and not for the use of E. M. C. Ltd., at Calcutta. The Foreging Press was sent by the foreign supplier to E. M. C. Ltd., Calcutta in March, 1957 and immediately thereafter it was cleared at Calcutta docks and sent to E. M. C. Works, Kanpur, where it was installed. E. M. C. Works, Kanpur, is stated to be a separate entity which has nothing to do with the E. M. C. Ltd., Calcutta. The supply of the Foreging Press by E. M. C. Ltd., to E. M. C. Works, Kanpur, for the use of the latter at Kanpur is alleged to be a violation of the condition of the licence. On the basis of the aforesaid licence, 0m Khosla as director of E. M. C. Ltd., is alleged to have placed another import indent in January, 1957 on M/s Maschinen fabrik Herborn, West Germany, for the import of "one complete set of wire drawing equipment and one complete set of sapares required for one year's normal maintenance. "A letter of credit was opened with the State Bank of India, Ltd., Calcutta in connection with this import in which the description of the goods to be imported was given as "one complete set Herborn Non-slip Continuous Wire Drawing Machine Model G-II with 8 drafts, individual motor drive, die holders, selective and emergency switches and wire length measuring device" and M. Nath as Chairman of the E. M. C. Ltd., subsequently addressed letters to the State Bank of India in June, July and August, 1957 for amending the letter of credit for increasing the amount and for making 'alterations in the description of the machinery to be imported and in the letter dated 31-7-1957. M. Nath requested the bank to further amend the above description in the letter of credit as follows :-

(3.) On 7-5-1963, accused No. 1 filled an application for dismissal of the compliant urging that the allegations in the complaint reveal commission of offences between 15-9-1954 and 9-5-1958 and during that period the only authority competent to lodge a complaint was a Customs Collector or an officer of Customs authorised by the Customs Collector. The complainant who is a Deputy Chief Controller of Imports and Exports was neither a Customs Collector nor an officer authorised by him and the complaint deserved to be dismissed as unauthorised. This objection was repelled by the learned Magistrate on 7-8-1963. The accused then submitted another application dated 14-8-1963 raising some other objections to the trial of the suit which the learned Magistrate declined to go into with the observation that the accused was trying to delay the proceedings. The matter was taken on revision to the''Court of the' Additional Sessions Judge who on 8-10-1963 declined to recommend the case to the High Court or to express any opinion on the various matters raised at that stage. The accused-petitioner, according to the learned Additional Sessions Judge, would be at liberty to re-agitate the points raised in those prodeedings if after recording the preliminary evidence, the learned Magistrate decided to frame any charge. I may point out that on the same day the learned Additional Sessions Judge also dismissed the revision from the order of the learned Magistrate dated 7-8-1963 holding the complaint to be in order and rejecting the earlier preliminury objection. It appears that for certain reaons which are unnecessary to state, before the examination of the complaint Shri D.D Bhargave the Court examined Shri C.J. Shah, Development Officer as Public Witness .1 on 19-11-1963 and 20-11-1963 and Dr. P. Dayal also -Davetop ment Ofiicer ,as Public Witness .2 on 20-11-1963 and 20-12-1963. The cross. examination of both these witnesses was deferred till after the examination of the complainant Shri D.D. Bhargava was examined as Public Witness . 3 on 24-2-1964 and 3-3-1964. He was cross-examined on 31-3-1964.