BUSHAN LAL OGRA Vs. CBI THROUGH SSP, JAMMU

JUDGEMENT

(1.) THE petitioner -accused is seeking the quashment of the charge sheet and consequent criminal proceedings initiated against him in the case entitled State through CBI v. Bushan Lal Ogra, by invoking the powers of this Court under section 561 -A Cr. P. C.

(2.) BRIEF facts of the case are that CBI registered FIR No. RC. 10/E/86 -DLI dated 30th September 1986, on the complaint received from Shri N. S. Srivastava, DCCI&E, Office of Jt. CCI&E New Delhi. After registration of the case, the investigation was commenced. During investigation, it transpired that the Government of India vide its Circular dated 30th September 1982 formulated a scheme under which all licensing Officers under the CCI&E were empowered to allow Cash Compensatory Support (Cash Incentives) to the exporters of hand -made woolen carpets. Under the said scheme, accused -petitioner B. L. Ogra used to export hand made woolen Carpets to foreign buyer on behalf of M/s Sea Rock Exporters and claimed cash incentives. In the investigation, it was further revealed that the accused B. L. Ogra submitted 31 applications in the Office of ACCI&E, Srinagar for the grant of cash assistance against the exports of hand made woolen carpets on behalf of M/s. Sea Rock Exporters on 21 -05 -1984, 22.5.1984, 23.5.1984, 24.5.1984, 25.5.1984, 28.5.1984 and 29.5.1984 which were received in the Office of ACCI&E on the same dates. Along with these 31 applications, the accused also enclosed invoices in favour of M/s. United Mcans Inc 1123, Broadway, Suite 1015 New York duly certified by Bombay Mercantile Cooperative Bank, Srinagar, shipping bills of M/s K. K. Raity & Co. CHA Bombay, Banks certificate in respect of invoices purported to have been issued by Bombay Mercantile Cooperative Bank, Srinagar, application forms, disclaimer certificates, Cash certificates and provisional certificates. These papers were found to have been signed by the accused B. L. Ogra on behalf of the Firm as its proprietor. The investigation further disclosed that B. L. Ogra was allowed cash assistance to the tune of Rs. 5, 45, 157/ - against the above said 31 claims. It was also revealed that in addition to above amount of cash assistance, M/s. Sea Rock Exporters obtained cash assistance of Rs. 1, 67, 177/ -, Rs. 1, 13, 3761, 05, 668 and Rs. 1, 72, 258/ - on earlier occasions on the basis of Bank certificates issued by the State Bank of Patilia, Srinagar. The bank Certificates for this amount of Rs. 5,53,479/ - had been genuinely obtained from respective banks on the basis of genuine export documents but an amount of Rs. 1, 67, 258/ - obtained as cash assistance on the basis of bank certificates issued by the State bank of Patilia, Srinagar had not been paid to the bank by the Importer and hence B. L. Ogra, Proprietor of M/s Sea Rock Exporters undertook to refund this amount from his future claim of CCS for the year 1984 -85. Subsequently, against the above mentioned 31 claims submitted by the accused, this amount of Rs. 1, 67, 258/ - was refunded by him to ACCI&E, Srinagar. Against the 31 claims, a total amount of Rs. 5, 45, 157/ - was granted to Firm M/s Sea Rock exporters as cash assistance against the export figures provided by the accused which included the earlier amount of Rs. 1, 67, 258/ - refunded by him. It was further disclosed from the investigation that all the above mentioned claims had been availed by the accused on behalf of M/s Sea Rock Exporters on the basis of bank certificates and the said bank certificates had been got issued by the accused on the strength of forged bills of lading, shipping bills etc. It was also revealed to the Investigating Agency that while applying for the bank certificates, an exporter was required to fill in GR -I Form and submit the same to the Bank in 10 digits for the purpose of obtaining bank certificates on which the Office of the CCI&E allowed the claims of cash assistance. The accused however, submitted GR -I form in six digits only which had been accepted by the Bombay Mercantile Cooperative Bank, Srinagar on an undertaking from the accused for indemnifying the bank against any loss. It was however, revealed that the accused had submitted forged shipping bills and bills of lading etc. with his application for obtaining bank certificates and thereby defrauded the office of ACCI&E, Srinagar to the tune of Rs. 5, 45, 157/ - in the claim of cash assistance on the basis of forged documents.

(3.) ON the aforesaid investigation and revelation, the CBI instituted the charge sheet against the accused seeking his trial for commission of offences under sections 420, 467/468/471 RPC before the Court of Learned Chief Judicial Magistrate, Srinagar on 12th October 1988. Since the offence under section 467 RPC is exclusively triable by the Court of Sessions, therefore the learned Chief Judicial Magistrate, Srinagar committed the case for trial to the Court of Sessions Judge, Srinagar by his Order dated 26th May 1989. The case file was received and taken cognizance by the learned Sessions Judge on 11th July 1989. Before the learned Sessions Judge, Srinagar, after appearing for 2/3 dates, the accused absented and remained absent up to the year 1997. Thereafter, a Criminal Application No. 4/1995 was filed by the accused before this Court and this Court vide its order dated 13th March 1997 transferred the case from the file of learned 3rd Additional Sessions Judge, Srinagar to the file of Ist Additional Sessions Judge, Jammu. After transfer of the case, the file was received in the Court of Ist Additional Sessions Judge, Jammu on 29th May 1997 and on that date as the accused was absent so he was ordered to be summoned through non -bailable warrants. The accused however, appeared on 22nd July 1997, on which date Presiding Officer was on leave so the case came up on 27th August 1997. On that date, PP submitted before the Court that documents and record of the case have not been received along with the file so the same were ordered to be summoned. It appears that record could not be traced and produced before the learned trial court till 22nd September 2001, on which date Special PP produced some Photostat copies of the record instead of the record and thereafter the case was heard on the question of charge and discharge. The orders could not be passed by the learned trial court due to the non -availability of the relevant record and, therefore, another endeavor was made for procuring the record, as is indicated from the interim order dated 24th August 2002. Ultimately, the learned trial Court again re -heard the case on 15th January 2003 on the question of charge and the learned trial court by its order dated 29th January 2003, framed the charge against the accused for commission of offences under sections 420/467/468/471 RPC. The accused has pleaded not guilty to the charge and, therefore, the learned trial Court directed the prosecution to lead evidence. Till date, no witness of the prosecution has been examined, however, the accused filed this petition under section 561 -A Cr. P. C, seeking the quashment of the proceedings on 21st August 2003. The main ground urged by the learned counsel for the petitioner for quashing the proceedings is that there has been delay of about 15 years in disposal of the case which according to learned counsel for the petitioner, has resulted in violation of the fundamental right to speedy trial guaranteed under Article 21 of the Constitution of India.