CBI Vs. SHRI ARUN KUAMR GOENKA AND ANR.

JUDGEMENT

(1.) IMPUGNING the order of learned Special Judge dated 7.12.2004 whereby he discharged the accused persons/respondents in complaint case No. 15/1999 titled as CBI v. Arun Kumar Goenka and Ors., this petition has been filed.

(2.) SUCCINCTLY , case of the prosecution is that accused Arun Kumar Goenka and other directors of M/s Premier Vinyl Flooring Limited (hereinafter referred to M/s. PVFL) in criminal conspiracy with accused K.M. Udupa, bank officer, cheated Canara Bank, Sadarjung Development Area, New Delhi to the tune of Rs. 1,41,81,277/ - in respect of two import bills namely FIBC 13/97 for US$ 243250.02 and FISC 51/97 for US$ 113040/ - in favour of M/s. PVFL received by Canara Bank on 22.1.1997 and 26.3.1997 respectively. Foreign Department (South) of the Canara Bank received foreign import bill for collection on 20.1.1997 from Overseas Chinese Bank, Taoyuan (Taiwan) No. 288, San Ming Road, Sector -3, vide their covering letter No. 7AMMRDA00012/246 dated 14.1.1997 on behalf of M/s. Hi -Lingos Co. Ltd., Taiwan drawn on M/s. PVFL amounting to Rs 2,43,250.02 along with necessary documents. The delivery of documents was to be made against payment/acceptance in two installments i.e. first delivery against payment (DP) for US$ 168640/ - and second delivery against acceptance (DA) for US$ 74,610.02 and the payment was to be made within 45 days from 26.12.1996. The other import bill for collection was received by the said branch on 22.3.1997 from Overseas Chinese Bank, Taiwan vide covering letter 7AMMRDP00035/246 dated 18.3.1997 on behalf of M/s. Hi -Lingos Co. Ltd., Taiwan drawn on M/s. PVFL amounting to Rs. 1,13,040 along with necessary documents. The instructions from the Overseas Chinese Bank in this case was delivery against payment (DP) basis. However, accused K.M. Udupa, officer, posted in the foreign department of the branch handed over original bills of lading, invoices, packing list, certificate of origin etc. to M/s. PVFL without fulfilling the stipulated conditions. This resulted into the company taking delivery of the consignment from Custom Authorities without making the payment to the Overseas Chinese bank as per instructions. The Canara Bank had, therefore, to make payment amounting to Rs. 1,41,81,277/ - to the Overseas Chinese Bank as per instructions to M/s Hi -Lingos Company, Taiwan resulting into consequential loss.

(3.) LEARNED Counsel for the petitioner, Mr. Ashish Kumar, has argued that accused K.M. Udupa in criminal conspiracy with Arun Kumar Goenka parted with the documents pertaining to the said import bills without obtaining the payment against the documents and facilitated accused Arun Kumar Goenka to obtain the goods from Customs authority by using the said documents. The bank was cheated of Rs. 1,41,81,277/ -, which it had to pay to Overseas Chinese Bank on 16.4.1998 for onward payment to exporter M/s Hi -Lingos Company, Taiwan because M/s PVFL did not pay the dues to the bank in respect of the said two bills. It is submitted that the Special Judge failed to appreciate the facts and circumstances of the case and took an erroneous view while discharging the said two accused persons observing that proper procedure was followed by K.M. Udupa while delivering the documents to accused Arun Kumar Goenka pertaining to both bills as delivery was against acceptance basis wherein he could have delivered the documents only against payment.