VISHWAJEET R. SAMBHUS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD advocates for the petitioners and the respondent No. 1.

(2.) THIS Revision is filed against the Order of the Metropolitan Magistrate, 16th Court Ballard Pier, Mumbai, dated 12.3.1997 rejecting the application of the accused - petitioners for discharge. I heard advocate for the petitioners and the APP at length. Before appreciating their respective contentions, it is necessary to give facts of the case in brief. The petitioners are the employees of M/s. Videocon International Ltd., (hereinafter referred to as the 'company') and FIR came to be lodged against these petitioners and two employees of the Bombay Port Trust (BPT) namely, Mr. R.N. Ninave and Mr. S.S. Lakhwani. The offences under Sections 420, 379, 511 read with 34 of the IPC were registered against the accused. In short the allegations in the FIR are that the company used to import certain articles and goods for their manufacturing unit at Mumbai. In respect of these imported goods they were required to pay customs duty depending on the valuation of the goods and demurrage charges depending on the size and weight of the goods. For this purpose an account was opened by the complainant with the BPT. Employee of the company used to go to the BPT office, fill in the prescribed forms giving weight and value of the articles imported. One of these forms was called Chappa. These forms were scrutinised by the officers of the BPT with reference to the record available with them and thereafter they would charge the customs duty payable and the demurrage. The employees of the company would give cheque in respect of that amount and thereafter used to go to the godown of the BPT, produce the receipt regarding the payment of the charges and get the delivery of the goods.

(3.) COUNSEL for the petitioners made submissions on different points in support of his contention for discharge of the present petitioners and also against the impugned order of the rejection of their application of the petitioners for discharge. Firstly, he contended that in the chappa the valuation of the consignment was properly given and the bona fide mistake occurred while giving the weight as a result of which instead of putting the actual weight of 198324 kgs. the weight that was given was 19832 kgs. Secondly, according to him once the chappa along with the other documents are given by the company through its representative, it was for the BPT officials to verify whether the valuation and weight along with the other particulars tallied according to the record of the BPT. Thirdly, he contended that there was nothing in the charge -sheet to show that the present petitioners had joined hands with the employees of the BPT in commission of this offence of forgery and cheating. He further contended that even if the prosecution case was accepted as it is there was nothing to point the accused any finger as there was nothing with the prosecution to show that all these petitioners were responsible for misdescription of weight in the chappa. He further pointed out that when the company or the representative of the company realised that a mistake had occurred in the chappa regarding the weight of the consignment, the said mistake was immediately rectified by submitting other form along with the chappa and the customs duty as well as the demurrage which was due and payable after calculating the correct weight i. e. 198324 kgs. was offered and paid by the company to the BPT by cheque. Therefore, for all these reasons according to him the accused were entitled for discharge. He further contented that prosecution case was based on circumstantial evidence which did not fulfil requirements as laid down by the Supreme Court in different judgments. He also contended that mere motive was not sufficient to make out a prima facie case against the accused or to bring home the guilt of the accused.