Appeal No 372 of 1979
From the Judgement and Order dated 2551978 of the Delhi High Court in Civil Writ Petition No 1494 of 1973
Dr NM Ghatate and DN Mishra for JBD  Co for the Appellant
VC Mahajan C Ramesh and CV Subba Rao for the Respon dents
The Judgment of the Court was delivered by BP JEEVAN REDDY J
The appeal is preferred against the judgment of the Delhi High Court allowing the writ petition filed by the second respondent Ms Ferro Alloys Corporation Ltd The writ petition was directed against the judgment and order of the Government of India Ministry of Finance dated September 19 1973 in an appeal preferred under paragraph 9 of the Tax Credit Certificate Exports Scheme 1965
The second respondent is the manufacturer cxportcr of ferro manganese and chrome concentrates
During the year 1964 65 from February 28 1965 to June 5 1965 the second respondent entered into a number of agreements with the foreign buyers for the sale of the aforesaid two commodities
The export was routed through the M MTC the appellant herein to bring it within the system of private barter introduced by the Government of India with a view to encourage exports
It would be appropriate to notice the essential features of the barter system in vogue during the relevant period at this stage
The main objective behind the system was to provide a mechanism which would result in increased export of particular commodities which were ordinarily difficult to sell abroad and to destinations in which the selling countries were not able to _Pet a foot hold
This objective was sought to be achieved by linking them to imports of an equivalent or 15 lesser value of essential commodities which in any event the country had to import
All barter proposals were scrutinized in the first instance by the MMTC and then by the Barter Committee
The essential stipulations were i All imports made under barter deals were subject to such sale price and distribution control as were laid down by the Government and iiAll barter deals were to be routed through STC MMTC unless otherwise decided upon by barter committee As and when approval was given by the Government of India a letter of indent used to be issued by the MMTC to the bartering firm or the local supplier as the case may be
In this case there was no bartering firm
Ferro Alloys was directly sending the goods
As far as purchase and sale contracts were concerned the MMTC insisted that there should be one contract of sale between the local supplier and the MMTC and another contract of sale by the MMTC to the foreign buyer on principal to principal basis
The foreign exchange so generated under this arrangement was the basis for issue of import licences which were issued in the name of MMTC with the letter of authority in favour of the bartering firm or the local supplier as the case may be
This enabled the bartering firmlocal supplier to import the approved commodity under its approval barter and thus he in a position to recoup the losses incurred by it in arranging the supply or in supplying as the case may be of export commodities to the MMTC
It was agreed and understood that the ferro alloys should intimate the foreign buyer to enter into a direct contract with the MMTC treating it as the seller
It was also agreed that G RI Form prescribed by the Reserve Bank of India under the Rules framed under the Foreign Exchange Regulation Act for accounting the receipt of foreign exchange was to be signed by the MMTC showing it as the exporter and seller vis a vis the foreign buyer
Letters of credit was also to be opened in the name of MMTC which was to be assigned to the Feffo alloys
This was done with a view to enable the Ferro alloys to receive the payment directly for the goods supplied to MMTC
The Shipping Bill which is a document prescribed under the Customs Act was also to be made out 16 showing MMTC as the exporter
The transactions were gone through
Dispute arose between the parties when the question of issuance of a tax credit certificate under Section 280 Z C of the Income Tax Act arose
Sub section 1 of section 280 Z C as in force at the relevant time read as follows Tax Credit Certificate in relation to exports 1 Subjects to the provisions of this section
a person who exports any goods or merchandise out of India after the 28th day of February 1965 and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act 1947 7 of 1947 and the rules made thereunder shall be granted a tax credit certificate for an amount calculated at a rate not exceeding fifteen per cent on the amount of such sale proceeds
 A reading of the sub section shows that the tax Credit Certificate is issued to the person who exports any goods or merchandise out of India after the 28th day of February 1965 and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act 1947 and the Rules made thereunder
 Question therefore arose who is the person in the case of this transaction who can be said to have exported the goods and received the sale proceeds in the shape of foreign exchange
The matter was taken in appeal before the Government of India under paragraph 9 of the Tax Credit Certificate Exports Scheme 1965
On an elaborate consideration of the bartering scheme and the several documents which came into existence in connection with the transactions between the parties the Government of India held that the MMTC must be held to be the exporter for the purpose of Section280ZC and not the Ferro alloys
This order was challenged by Ferro alloys by way of a writ petition in the High Court
The High Court allowed the writ petition on the following reasoning While the terms of the scheme of barter and the 17 arrangement between the exporter and the Corporation visualizes in theory that the contracts to be entered into between the exporter and the foreign buyers would be duly substituted by principal to principal contracts between the foreign buyer and the Corporation as well as the Corporation and the Indian supplier of the goods so that the Corporation virtually gets substituted for the exporter for all external appearance in actual practice however it appears that the substituted contracts are rarely executed and were in any event not executed in the present case at either of the two ends although the letter of credits were opened by the foreign buyers in favour of the Corpo ration and the shipments were made in some cases in the name of the Corporation on account of the exporter while in the others in the name of the exporter on account of the Corporation
No consideration however passed between the Corporation and the exporter on account of any sale of the commodity to the Corporation
The letters of credit being transferable are endorsed immediately on receipt in favour of the exporter by the corporation and the sale proceeds are directly realized by the exporters through their bankers and the commission of the Corporation agreed to is paid by the exporter to the Corporation
The declaration under Section 12 of the Foreign Exchange Regulations Act in Form GR I contains the name of the Corporation as the exporter
But the form lists the name of the exporters  banker as the banker concerned
 In other words the High Court s approach was that while for external appearances the corporation was given out as the exporters Ferro alloys was the real exporter for all purposes and it was Ferro alloys which earned and received the foreign exchange
MMTC got only its commission of 2 and nothing more
Alternatively held the High Court even if it is held that the documents executed between the parties had the legal effect of transferring title in the goods to and in favour of the Corporation even so Ferro alloys must be deemed to be 18 the real exporter for the purposes of Section 280ZC having regard to the objective underlying the said section viz providing an additional incentive to the real exporter
The correctness of the said view is questioned in this appeal
Though the second respondent Ferro alloys Corporation Ltd has been served no one appears on its behalf
We are therefore obliged to dispose of this appeal only with the assistance of the counsel for the MMTC
May be that there are factors in this case supporting the contentions of both the parties
In such a case we have to decide the question on a totality of relevant factors applying the test of predominance
It is true that there was initially an agreement or contract between Ferro alloys and the foreign buyer for export of manganese and other goods but that was substituted and superseded by the two contracts entered into with respect to the very same goods
One contract was between Ferro alloys and MMTC for sale of the said goods to and in favour of MMTC and the other was a sale by MMTC to the foreign buyer
It is significant to notice that these contracts were on principal to principal basis
Apart from this fact all the statutory documents viz G RI Form prescribed under the Foreign Exchange Regulation Act 1947 and the shipping bill prescribed by the Customs Act were made out in the name of MMTC showing it as the exporter
We have perused the Form GRIColumn 1 pertains to exporter sname
Against this column is shown Minerals and Metals Trading Corporation of India Limited 
The Form contains a declaration to be signed by the exporter declaring that he is the sellerconsignor of goods and a further undertaking that they will deliver to the Bank mentioned in the said Form the foreign exchange resulting from the export of the goods mentioned therein
It was signed by the MMTC Letters of credit were opened in the name of MMTC
All this was done as required by the system of barter
Ferro alloys availed of this system presumably because it was to its advantage
In fact it appears that it was not able to sell the said goods otherwise
Be that as it may whether by choice or for lack of alternative it chose to route its goods through MMTC
Is it open to the Ferro alloys now to say that all this must be ignored in the name of external appearances and it must be treated as the real exporter for the purposes of Section 280ZC
It wants to be the gainer in both the events
A case of heads I win tails you lose
 As against the above circumstances the factors appearing in favour of the 19 Ferro alloys are the following The contract between the parties spoke of commission of two per cent payable to the MMTC Use of the expression commission it is pointed out is indicative of the fact that M MTC was only an agent
For the MMTC it is explained that it was one way of describing the difference between the export price and the sale price
It is submitted that the said feature must be understood in the context of the totality of the scheme which was not a mere commercial scheme but a scheme conceived in the interest of foreign trade economy and balance of payments
Ferro alloys also relied upon a certificate given by the foreign buyer stating that the goods in question were sold to it by Ferro alloys
But as rightly pointed out by the Government of India this certificate was obtained long after the relevant transactions were over and evidently to buttress its case with respect to the tax credit certificate
Not much significance can be attached to it also because it is in the teeth of the contracts signed by the foreign buyer with the MMTC with respect to the very same It is also pointed out that some of the documents required to be executed according to he system of barter were not actually executed between the parties
May be so
The fact yet remains that the entire export was done through MMTC in accordance with the system of barter
There is no half way house either it is no  barter system or it is
This is an undisputed fact as are the several statutory documents made out in the name of MMTC referred to here in before
On a consideration of all the relevant factors and circumstances we are of the opinion that the MMTC must be held to be the exporter for the purpose of Section 280ZC
The entire system of barter and the several documents executed in that behalf including those required by statutory provisions cannot be explained away as mere external appearances
The Ferro alloys cannot come to MMTC when it is profitable to it and disavow it when it is not profitable to it
It cannot have it both ways
The title to goods passed to MMTC by virtue of the several documents executed between the parties
Indeed that was the fulcrum of the entire scheme of Barter
We are also not convinced with the alternative reasoning of the High Court that even if it is held that the title to the goods passed to MMTC even so Ferro alloys must be held to be the real exporter in view of the objective underlying Section 280ZC
If MMT C has acquired the title to the goods and is the exporter for all other purposes it equally the exporter 20 for the purposes Section 280ZC
There can he no dichotomy of the nature propounded by the High Court
We are therefore of the opinion that the High Court was not right in holding to the contrary
The appeal is allowed
The judgment and order of the High Court of Delhi is set aside and the order of the Government of India dated September 19 1973 is restored
The writ petition filed by the second respondent in the Delhi High Court is dismissed
No costs
G N Appeal allowed


Summary:
The appellants were charged with offences under Sections 302 149 148324 and 326 IPC for causing the murder of one IS  and for causing grievous Injury to one R 
The Trial Court acquitted them
On appeal by the State the High Court reversed the order of acquittal
Aggrieved by the High Court s judgment the appellants preferred the present appeal
It was contended on behalf of the appellants that the version of the occurrence given by PW II in his statement recorded viz exhibit P12 was materially different from the statement of PW 13 recorded as FIR Ex7 and gave a lie to the prosecution case rendering the prosecution case doubtful that the High Court erroneously ignored the statement of PW 11 holding it inadmissible in evidence on the ground that it had been recorded during the investigation and that due to the admitted enmity between the parties and the hostility of the Mukhiya of the Gram Panchayat towards Al and A2 it would not be safe to rely upon the testimony of the prosecution witnesses without looking for independent corroboration and in the absence of which the conviction of the appellants was not justified
Partly allowing the appeal this Court HELD 1
In view of the admitted enmity between the parties and the close relationship of the witnesses inter se and the close relationship of the accused persons with one another the possibility that 2 alongwith the actual assailants some others have also been implicated cannot be ruled out
Prudence therefore requires that this court should look for corroboration of the testimony of PW 13 in respect of each of the accused before finding them guilty
Since the prosecution witnesses knew each of the accused the non identification by any one of them of A5 A6 and A7 renders the presence of these accused and their participation rather doubtful
It is not possible to say with any amount of certainty that they were actually involved in the commission of the crime along with the other accused persons
Of course PW 13 would not leave her own assailants or the assailants of her father but it is not unknown that in view of the pronounced hostility between the parties the close relations of Al A2 A3 and A4 namely accused A5 A6 and A7 may have also been roped in 8 H 9 A C
Though PW 10 and PW 12 did not recognize A4 as one of the accused but the participation of A4 who according to PW 13 had given her the blow with the grass chopping off her two ringers of the left hand has been conclusively established
The presence of A3 since deceased is admitted by all the prosecution witnesses
The testimony of PW 13 is consistent a bout the participation of Al and A2 alongwith A4 in the crime
Inspite of long thy cross examination nothing has been brought out to discredit her testimony in so far as either the occurrence or the actual assault on her and the deceased is concerned
The ocular testimony regarding the participation of the accused in the crime as well as the manner of assault and the nature of weapons used by A 1 A2 and A4 for causing injuries has received ample corroboration from the medical evidence and the recovery of the blood stained clothes and earth from the place of occurrence
The FIR lodged promptly by the injured witnesses also lends enough assurance as regards the participation of A 1 A2 A3 and A4 in the crime
Thus the prosecution has established the case against Al A2 A3 since dead and A4 beyond any reasonable doubt 9 D G 3
Since the presence of A5 A6 and A7 and their participation in the crime is in doubt they are entitled to the benefit of doubt and giving them the benefit of doubt their conviction and sentence are set aside and they are acquitted
With their acquittal it is only the four appellants Al A2 A3 and A4 against whom the prosecution can be said to have established its case beyond reasonable doubt Section 148 IPC under the circumstances would have no application
Similarly 3 Section 149 IPC would also not be attracted and A2 A3 and A4 cannot be convicted under Section 302 with the aid of Section 149 IPC
From the prosecution evidence however it stands amply established that the three appellants Al A2 and A4 alongwith A3 since dead had come together armed with deadly weapons to the house of the deceased and while A I had fired pistol shot at the deceased resulting in his death A2 had fired from his gun at PW 13 causing her a serious injury on her breast while A4 had caused her grievous injuries with a grass resulting in the chopping off two of her fingerson the left hand
The crime was committed in the presence of A3
Therefore while A2 A3 and A4 cannot he convicted for the offence under Section 302149 IPC all of them can be said to have shared the common intention with A 1 for committing the murder of the deceased
The very fact that A 1 A2 A3 and A4 came together armed with deadly weapons at the night to the house of the deceased and caused deadly injuries to the deceased and seriously wounded PW 13 and thereafter escaped together would undoubtedly go to show that all of them shared the common intention
They are therefore liable to be convicted with the aid of section 34 IPC
9 H 10 A F 5
The evidence on record has established beyond any doubt that A 1 committed the murder of the deceased by firing the pistol shot
He has therefore rightly been convicted by the High Court for the offence under Section 302 IPC and sentenced to suffer imprisonment for life
His conviction for the offence under Section 27 of the Arms Act and the sentence of two years RI is also justified
Hence his conviction and sentence on both counts is maintained
However the conviction of A2 A3
and A4 for the offence under section 302149 IPC is altered to the one under Section 30234 IPC
A2 and A4 are sentenced to suffer imprisonment for life A3 being already dead
The convic tion of Al A2 and A4 for the offence under Section 148 is however set aside
The conviction and sentence of the appellants under section 27 of the Arms Act and under Sections 324 and 326 IPC are maintained
The sentence of imprisonment imposed on A 1 A2 and A4 on different counts shall however run concurrently
10 H 11 A C 4