STATE OF MAHARASHTRA Vs. SHANTILAL K SOMAIYA

JUDGEMENT

(1.) By this Criminal Revision Application the State challenges the order of the learned Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Bombay, dated 5-9-1974, discharging the respondent who was accused No. 1. In all five persons including accused No. 1, the present respondent were prosecuted for alleged offences under section 5 of the Imports and Exports (Control) Act, 1947 read with section 120-B of the Indian Penal Code and also under section 5 of the Imports and Exports (Control) Act, 1947.

(2.) The allegations on which the prosecution was founded are briefly these : At Alnia, district Kota in the State of Rajasthan, where was what is known as "M/s. Oriental Power Cables Ltd." (hereinafter referred to as "Cables Ltd.") which was manufacturing cables. Accused No. 1 Shantilal K. Somaiya was one of the Directors of the Cables Ltd. M/s. Somaiya Bharkitya Pvt. Ltd., were the managing agents of the Cables Ltd. and accused No. 1 was a Director of the said Company. M/s. Somaiya Bharkitya Pvt. Ltd. had a sister concern called "Somaiya Organo Chemicals". Because of power shortage the Cables Ltd. decided to import a Skoda Diesel Generating Set. That is why on 30-11-1964, an application was made to the Chief Controller of Imports and Exports (C.C.I.) for the requisite import licence. The Cables Ltd., took on hire a diesel set from Somaiya Organo Chemicals on a hire of Rs. 4000/- per month some time in May 1965 for meeting the power requirements of the Cables Ltd. The import licence Exh. K was actually issued on 12-11-1965. On 12-6-1967, the imported diesel set was received in 8 packages. These packages were sent to Kota in July 1967 and were in the custody of the Cables Ltd. Notwithstanding the arrival of this imported set, the Cables Ltd. continued to use the hired set of Somaiya Organo Chemicals and decided to dispose of the imported set. Two advertisements offering the imported set for sale actually appeared in the Indian Express dated 9th and 13th December, 1967. On reading that advertisement one Puranmal Agarwal (P.W. 2) who was a partner of M/s. Power Plant Corporation, a firm of brokers contacted accused No. 3 who was the Assistant Secretary of the Cables Ltd. and found out that the set was at Alnia, district Kota and it was to be sold for Rs. 5,00,000/-, This broker also told his brother Sanwarlal who was a partner of M/s. Agarwal Corporation a firm of brokers to find out customer. When both the brothers were thus in search of customers, Puranmal learnt through Sanwarlal that M/s. H.J. Leach & Co. of which accused No. 5 was alleged to be a partner were interested in the set.

(3.) It may be mentioned that it appears that meanwhile H.J. Leach and Co. had found out that one J.K. Synthetics, the actual users were interested in the imported set. That is why accused No. 5 went to Alnia. He inspected the set which was shown to him by accused No. 2 to whom he was taken by accused No. 3. It may be mentioned that accused No. 2 was at that time the Chief Executive Officer of the Cables Ltd. whereas accused No. 3, as stated earlier, was the Assistant Secretary. Accused No. 4 was a clerk of the Cables Ltd. Accused No. 5 having asked accused No. 2 to reduce the price of the set, which was quoted at Rs. 5 lacs, accused No. 2 told him that he could not reduce the price and then took accused No. 5 to the residence of accused No. 1 at Bombay. Accused No. 1 declined to reduce the price which was quoted by accused No. 2. As a result of what transpired in that meeting accused No. 4 purporting to act on behalf of accused No. 2 sent in a letter Ex. Z-12, dated March 29, 1968 to M/s. H.J. Leach & Co. Since the contents of that letter are important they may be set out here for ready reference :---