P S PRASAD Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This is an application filed under Section 482 Cr.P.C. to call for the records in Crime No.36/94 on the file of the State of Andhra Pradesh represented by the Senior Executive Officer, C.I.D., Hyderabad and quash the same as illegal and arbitrary as the same resulted in humiliation and undue harassment to the petitioner,

(2.) The facts leading to the filing of this petition are that the Director (Vigilance and Enforcement), Hyderabad addressed a letter to the Director General (V&E) and Ex-Officio Principal Secretary to Government, G.A.D, (V&E) Department, Hyderabad, requesting him to register a case of attempting to cheating and forgery under Sections 417,468,471 and 420 r/w 511 I.P.C. against the petitioner. The sum and substance of the above letter is that M/s. Goldstone Exports (P) Limited established in April' 92 is owned by one Mr. Sashi Kumar S/o Sri L.J. Victor, a police officer and brother-in-law of the petitioner herein and the paid-up capital of the company was invested by him and his wife in equal shares and there is no other share holder or partner in this company. On 12-08-92 the company filed an application before the Director General of Imports and Exports, New Delhi seeking customs clearance certificate to import 1000 pieces of used auto diesel engines from Singapore and Japan on the basis of liberalised policy of the Government of India by stating that these engines will be used to provide transport facility (o tribal people in agency area of Andhra Pradesh etc. While paying the process fee, the company categorically stated that no assistance or help from the Government of Andhra Pradesh will be sought as their N.RI. Director i.e., the petitioner who is having the citizenship of U.S. A. would provide funds to purchase Those engines. In another letter dated 03-09-1992, the company stated that it will start its own workshop to generate employment in Andhra Pradesh for reconditioning and assembling of diesel engines. In another letter dated 3-10-1992, it stated that the company would like to provide mass transport to handicapped people in Andhra Pradesh without giving the details of the project. In another letter they started saying that they will donate the engines to Industrial Training Institutes in Andhra Pradesh to help the Government in their efforts to provide technical skills to the unemployed youth. As the Government of Andhra Pradesh did not certify the end-use (life) of the goods to be imported, the application of M/s Goldstone Exports (P) Limited was rejected on 29-01-1993 by the Special Licensing Authority by which time the petitioner seemed to have purchased the engines in Singapore and Japan. In those circumstances, the petitioner was looking for an alternative to get the goods (engines) to India and on the advise of some government officials, he approached Sri Khader Ali Khan, the then Managing Director, SETWIN, who in turn seemed to have recommended the application of the Company to the Director General of Imports and Exports, New Delhi stating that the goods would be used by SETWIN for the purpose of imparting training. Mr. R. Prabhakar Rao, Special Commissioner to Government of Andhra Pradesh at New Delhi, also seemed to have certified that SETWIN is a Society promoted by the Government of Andhra Pradesh. On the basis of these two letters, the licencing authority granted licence in the name of SETWIN to import 1000 pieces of used auto diesel engines on 16-03-1993 and the same was delivered to one Mr, Chunnilal working as driver in A.P. Bhawan, New Delhi, at the instance of the petitioner instead of sending it to M.D., SETWIN or his nominee, with proper authorisation. Having taken the licence, the petitioner shipped 368 diesel engines in the name of SETWIN and they arrived at Vizag port in June, 1993, by which time there is a change in the post of M.D. SETWIN and one Khaja Mohiuddin took over the charge as M.D., SETWIN. After some correspondence with the Government, the petitioner and the Collector, Customs Vizag, the M.D., SETWIN informed the petitioner that the SETWIN will not be accepting the donation. The Director (V&E), further stated that having received secrets information about the bad reputation of the petitioner in the business circles in the United States of America and his boosting about his influence in Andhra Pradesh especially among the police officers in Delhi and has indulged in yet another shady deal of importing 1000 numbers of used auto diesel engines for commercial purposes by using SETWIN as a cover (shield) to over come the hurdles. He Director (V&E) discussed the matter with the Collector, Customs, Vizag who also entertained certain doubts about the genuineness of the transaction and recommended for cancellation of the licence having come to know of certain irregularities in obtaining the licence. The Collector, Customs. Vizag seemed to have opined that only through manipulations the special licence could be obtained. The Director (V&E) concluded that the petitioner conspired with the M.D., SETWIN to import the engines to India to make easy money and had Mr. Khan continued as M.D., SETWIN, nobody could have come to know of their under-hand deal. In this letter he opined that the officials of the Commerce Ministry and the Special Commissioner to Government of Andhra Pradesh apart from Sri K.A. Khan grossly violated the procedures to be followed by the Government officials in given circumstances. He also opined that Mr. Khan obliged the petitioner by giving a letter to the Director General of Foreign Trade, violating the normal procedures for some unexpected gain. He completed the letter advising the Government to direct the State A.C.B./D.I.G. to register a case for attempt to cheating and forgery and to take up the investigation as there is a prima facie case against the petitioner under Sections 417,468 and 511 IPC. Having received the above letter, the Director General (V&E) and Ex-Officio Prl, Secretary to Government directed the Additional D.G.P., C.I.D, Hyderabad, A.P. to register the crime and investigate into the case. Ultimately, on 04-07-1994, crime No.36/94 was registered against the petitioners by the respondents herein for the offence punishable under Sections 417,468,471 and 420 r/w 511 I.P.C. This application under Section 482 Cr.P.C. was filed on 05-G9-1994, seeking quashing of the F.I.R., on various grounds, viz., 1. Even if the allegations in the report are true, no offence tribal by a Criminal Court is made out; 2. the allegations made in the report are not specific and they are only imaginary. Hence, no lawful investigation can be done. 3. the allegations are inherently improbable and they are absurd. 4. even if the allegations held to be true, the necessary ingredients for the offences alleged against the petitioner as required under the I.P.C. are not fulfilled. lastly, the petitioner contended that the whole issue is concluded in his favour by various judicial and administrative proceedings and nothing is left out to can on the investigation by the respondents.

(3.) The State resisted the petition by contending that the investigation so far made in the crime reveals that the petitioner along with his associates entered into a criminal conspiracy to import used auto diesel engines with fraudulent and dishonest intention and in furtherance of their common object they made false representations to various authorities. The petitioner was instrumental for forging the signatures of Sri Khan, the then M.D., SETWIN and prepared a letter dated 16-03-1993 appointing one Mr. Jagdish Kumar as representative of SETWIN for clearance of 368 used auto diesel engines. The petitioner by making false representations was instrumental for issuance of a licence in favour of SETWIN to import 1000 used diesel auto engines by the Director General of Foreign Trade though no application was submitted by the SETWIN requesting for issuance of such licence. The Goldstone Exports (P) Limited never acquired any diesel engines or instructed or authorised to acquire such diesel engines by the petitioner and the company never intended to donate the used diesel engines to SETWIN. The petitioner himself proceeded in his personal capacity in purchasing the engines and transported them to India on the basis of the licence issued by D.G.F.T. It is also their case that the petitioner made false representation and impersonated himself as agent of M/s Goldstone Exports (P) Limited and corresponded with the Government of India for obtaining licence. The engines are said to have been imported to India under the guise of donation to SETWIN for evasion of (ax and for obtaining licence by D.G.F.T., New Delhi. Hence, the respondents are perfectly justified in conducting investigation and see that the prosecution ends in conviction.