IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.08.2011 CORAM : THE HON'BLE MR. JUSTICE K.N.BASHA Crl.R.C.No.106 of 2009 1. A.Arunkumar 2. L.Santhosh Kumar .. Petitioners/Accused 4 & 5 Vs. State rep. by Inspector of Police, Special Police Establishment, CBI, Chennai. .. Respondent/Coimplainant Prayer : Criminal Revision Petition filed under Sections 397 r/w 401 of the Code of Criminal Procedure praying to set aside the order dated 19.12.2008 in C.M.P.No.243 of 2008 in C.C.No.3 of 2008 passed by the learned II Additional District Sessions Judge (CBI Cases), Coimbatore. For Petitioners: Mr.K.Subramanian, SC for M/s.R.C.Paul Kanagaraj For Respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBI Cases ORDER The petitioners, who have been arrayed as A4 and A5 out of five accused, have come forward with this revision challenging the order of the learned II Additional District Judge, Special Court (CBI Cases) (Full additional charge), Coimbatore, dated 19.12.2008 made in C.M.P.No.243 of 2008 in C.C.No.3 of 2008 dismissing the petition filed for discharge under Section 239 Cr.P.C. 2. The First Information Report in this case was registered on the basis of source information, in which, the petitioners were implicated for the alleged offences under Sections 120(b) r/w 420 r/w 511 IPC, 468, 471 and 201 IPC, Section 15 of the Prevention of Corruption Act, 1988 and under Sections 132 and 136 of the Customs Act, 1962. On completion of the investigation final report was instituted on which the lower court took cognizance. https://hcservices.ecourts.gov.in/hcservices/ 3. The first petitioner/A4 was working as Appraiser of Customs and the second petitioner/A5 was working as Senior Tax Assistant at Inland Container Depot (ICD), Irugur, Coimbatore during the relevant period. 4. The sum and substance of the prosecution case is that A1 purported to be the Exporter along with A2, who was his employee, floated fictitious firms and with the help of A3 created false and fabricated documents and prepared two sets of shipping bills one containing actual quantity and value and another with inflated quantity and value and colluded and conspired with A4 and A5 to cheat the Customs Department by making an attempt to claim excessive Customs Duty Drawback from ICD, Irugur, Coimbatore. 5. The specific allegation against A4 and A5 is to the effect that A4 inspected the consignment and certified by signing the GR Form (Guaranteed Receipt Form) inspite of knowing that the quantity of weight, FOB Value and market value were inflated in one set of shipping bills and whereas A5 alleged to have made false entries in the customs document, viz., Shipping Bills Register and Customs Security Register in respect of inflated weight, FOB Value and market value and subsequently, after the detection of the fraud, he had erased the entries in the said Registers. It is further alleged that in view of the above said allegations, A4 and A5 have caused disappearance of certain evidence in respect of the offences committed, with the intention of screening the offender. 6. Mr.K.Subramaniyan, learned Senior Counsel for the petitioners as well as learned Special Public Prosecutor for CBI Cases brought to the notice of this Court that during the pendency of this revision, the learned trial Judge framed charges against all the accused including the petitioners, who have been arrayed as A4 and A5. The learned Senior Counsel for the petitioners produced a true xerox copy of the charges framed against the accused. A perusal of the said true xerox copy of the charges framed against the accused reveals that the following charges have been framed against the accused : Charge No. Accused Offences under Section/s I A1 to A5 120-B r/w 420 r/w 511 IPC, 468, 471 and 201 IPC ; Section 15 of the Prevention of Corruption Act, 1988 and Sections 132 and 136 of the Customs Act. II A1 and A2 468 IPC III A1 and A2 468 r/w 471 IPC IV A1 to A3 511 r/w 420 IPC V A1 and A2 201 IPC VI A4 and A5 201 IPC VI A1 to A3 132 of the Customs Act VIII A4 and A5 136 of the Customs Act IX A4 and A5 15 of the Prevention of Corruption Act, 198 https://hcservices.ecourts.gov.in/hcservices/ 7. Mr.K.Subramaniyan, learned Senior Counsel for the petitioners/A4 and A5 vehemently contended that there is no material available on record to implicate the petitioners for the offences alleged against them and the learned trial Judge without considering the contentions raised in the petition for discharge and without any materials available on record dismissed the application for discharge on the basis of presumption by merely referring the case laws in respect of the scope of provisions under the Code of Criminal Procedure for discharge of the accused and put forward the following contentions : (1)There are no two sets of documents as alleged by the prosecution and the prosecution failed to bring on record the genuine and the alleged fabricated set of shipping bills. (2)There is no material available on record to show that A4 endorsed two sets of shipping bills one with actual value and another with inflated value and the evidence available on record discloses that A4 signed only in one set of G.R.Forms. (3)The G.R.Form is not mandatorily required for processing and sanctioning the Customs Duty Drawback. (4)There is no material available to show that the alleged manipulated and fabricated shipping bills were produced for assessment or examination to A4. (5)There is no material available on record to show that neither A4 nor A5 is the custodians of the shipping bills and as such, there is no chance for removal of shipping bills or creating any false documents. (6)The G.R. Forms said to have been signed by A4 contains the actual value and not the inflated value. (7)There is no material available on record to establish that A5 erased the original entries made in the Customs Shipping Register and the Security Register which were made on the basis of the inflated weight and corrected the same to the actual value of the weight. (8)A3, who has given a confessional statement under Section 164 Cr.P.C. has not implicated the petitioners/A4 and A5. (9)There is no material either through the statements of witnesses under Section 161 Cr.P.C. or documents produced by the prosecution to prove the allegations against A4 and A5. (10)The statements recorded by the Investigating Officer from P.Ws.18 to 26, the Preventive Officers at Cochin Customs House, under Section 161 Cr.P.C. confirm the export of actual goods in actual quantity and value. (11)From the materials available on record, there is absolutely no scope for framing the charge of conspiracy under Section 120(b) IPC as there is absolutely no material to show that there was any agreement between the main accused/A1 to A3 and A4 and A5 to do an illegal act by illegal means which is the very quintessence of the offence of conspiracy and there is also no material to show that A4 and A5 were having knowledge about the alleged illegal acts of A1 to A3. https://hcservices.ecourts.gov.in/hcservices/ (12)A departmental proceeding was initiated against A4 on the basis of the very same and identical charges as that of the charges in this criminal case and it was held that the charges were not proved and therefore, the criminal proceeding is also liable to be quashed. 8. The learned Senior Counsel for the petitioners would also place reliance on the following decisions in support of his contentions : (1)Sajjan Kumar Vs. Central Bureau of Investigation reported in JT 2010 (10) SC 413 ; (2)State of Madhya Pradesh Vs. Mohan Lal Soni reported in AIR 2000 SC 2583 ; (3)Suresh Budharmal Kalani Alias Pappu Kalani Vs. State of Maharashtra reported in (1998) 7 SCC 337; (4)V.R.Nedunchezhian Vs. State reported in 2000 (106) CRLJ 976 ; (5)P.S.Rajya Vs. State of Bihar reported in 1996 SCC (Cri.) 897 ; and (6)A.Mohammed Vs. State reported in 2007 (207) ELT 202. 9.0. Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI Cases, would contend that there is no illegality or infirmity in the impugned dismissal order of the learned trial Judge dismissing the petition filed by the petitioners for discharge. It is submitted that A1 exported the goods in the name of fictitious firms, namely, M/s.Ayyappan Industries, M/s.Shri J.S.Babu Inc. and M/s.Swamy Metal Industries and prepared the fabricated documents, namely, shipping bills, etc. with the help of A3. It is submitted that at the time of submitting the Shipping Bills for allotment of Shipping Bill Number at ICD, Irugar, Coimbatore, A1 to A3 in collusion with A4 and A5 made entries in the shipping bill register with higher value and weight, but actually they produced the shipping bills before the Customs officials with less value and weight by the employees of A1 and the same were exported. A4 and one Shri.Bindu Saran, Examiner, appraised and endorsed their remarks on the shipping bills. It is further submitted that after receiving the transference copies of the shipping bills from Gate Way Port Cochin, it was made entry in the shipping bills register and at that time, it was noticed that the value and weight were not tallying. In shipping bill register, high value and high rate were mentioned, whereas, in transference copy, no value and no weight were noticed. Thereafter, it was rectified as per the direction of A4 by using the white fluid in the register. 9.1. The learned Special Public Prosecutor would submit that A1/Exporter entered into a criminal conspiracy with A4 and A5 and made an attempt to claim excessive Customs Duty Drawback by allowing 40 shipping bills to export the stainless steel in the name of three fictitious firms. It is further contended that two sets of G.R.Forms were prepared, one with actual value of export and sent to the bank for realization and another inflated one to https://hcservices.ecourts.gov.in/hcservices/ RBI for records. When such malpractice was exposed, A4 removed and destroyed the copies of shipping bills and G.R.Forms to be retained by the Department and also got the shipping bills register, etc., amended in connivance with A5. By the above misconduct, A4 and A5 favoured A1 and A2 to claim excessive Customs Duty Drawback to the tune of Rs.2.50 Crores with dishonest intention. 9.2. It is further submitted by the learned Special Public Prosecutor that A4 in connivance with exporter failed to carryout necessary checks in detecting the manipulation of export documents and signed the G.R.Forms, shipping bills and gave “Let Export” order for two different values and thereby attempted to defraud the Government in order to gain ineligible claim of Customs Duty Drawback. 9.3. The learned Special Public Prosecutor would contend that the evidence of L.W.31, Shri.V.Vijayakumar, and other Customs officials clubbed with documentary evidence like shipping bills, extract of shipping bill register, G.R.Form, etc., would prove the offences committed by the petitioners/A4 and A5. 9.4. The learned Special Public Prosecutor would contend that as per the ruling of the Hon’ble Apex Court at the stage of framing charges, the trial court need not look into the defence documents or the defence of the accused and prima facie evidence is sufficient to frame the charges. It is contended that the decision rendered by the Hon’ble Apex Court is to the effect that the test is whether there was sufficient ground to proceed and not whether there is sufficient ground for conviction and when there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left decided by the trial Court. It is submitted that the Hon’ble Apex Court held that at the stage of framing charge, the duty of the Court is only to evaluate the materials and documents to find out whether the facts emerging therefrom disclose all the ingredients of the alleged offences and the probative value of the materials on record cannot be gone into. 9.5. The learned Special Public Prosecutor would place reliance on the following decisions in support of his contentions : (1)Nirmaljit Singh Hoon Vs. State of West Bengal reported in AIR 1972 SC 2639 ; (2)State of Bihar Vs. Ramesh Singh reported in AIR 1977 SC 2018 ; (3)Superintendent of Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja reported in 1979 Cri.L.J.1390 ; (4)Niranjan Singh Punjabi Vs. State of Maharashtra reported in AIR 1990 SC 1962 ; (5)State of Jammu & Kashmir Vs. Sudarshan Chakkar reported in AIR 1995 SC 1954 ; (6)State Anti Corruption Bureau, Hyderabad and another Vs. P.Suryaprakasam reported in 1999 SCC (Cri.) 373 ; https://hcservices.ecourts.gov.in/hcservices/ (7)State of Orissa Vs. Debendra Nath Padhi reported in 2004 (8) SC 568 ; and (8)State of Delhi Vs. Gyan Devi & Others reported in 2001 MLJ (Cri.) 117 ; 10. I have given my careful and anxious consideration to the rival contentions put forward by either side and scrutinized the entire materials available on record including the statements recorded under Section 161 Cr.P.C. and perused the First Information Report, Charge sheet, the charges framed against the petitioners/A4 and A5 along with other accused and the impugned order passed by the trial court dismissing the discharge petition filed by the petitioners. 11. At the outset, it is to be stated that the perusal of the impugned order does not disclose that the learned trial Judge has considered the points raised for seeking the relief of discharge by the petitioners/A4 and A5. It is pertinent to note that a perusal of the discharge petition reveals that the petitioners have raised substantial grounds highlighting that there are no two sets of documents as alleged by the prosecution and it is contended that the prosecution failed to bring on record the alleged fabricated set of shipping bills. It is stated in the discharge petition that even as per the version of the prosecution actual goods with actual value and weight were exported properly and there is no evidence to show that A4 endorsed two sets of shipping bills, one with actual value and another with inflated value. It is stated that there cannot be two sets of G.R.Forms with same serial number. Apart from such substantial grounds in respect of the crux of the charges alleged and framed against the petitioners, it is also stated in the discharge petition that the original G.R. Form is not anyone of the documents required for processing and sanctioning Duty Drawback. 12. It is also highlighted in the discharge petition that the corrections were carried out in the shipping bill register only to the correct value and not for higher value and it was based on the actual value reflected in the Transference copy of the shipping bills received from Gateway Port of Cochin, where another copy of the Transference copy of shipping bill was retained. The said value is also supported by the important document of Bank Realization Certificate received from the bank, which is used for sanctioning Customs Duty Drawback claim. It is further stated in the discharge petition itself that A4 has nothing to do with the shipping bill register and A5 is to make entries in the shipping bill register and assign numbers of the shipping bills and further stated that the said shipping bills register is not a statutory document and it is purely for statistical purpose and in normal course of day-to- day work any correction can be carried out in the said Register by the clerk who make entries in the shipping bill register. The shipping bill register is never referred to for the purpose of processing duty drawback claim. Therefore, it is stated that both A4 and A5 have not committed any misconduct. It is also further stated that A4 is not the custodian of shipping documents and A4 https://hcservices.ecourts.gov.in/hcservices/ and A5 are not entrusted with the duty of collecting the shipping bills or to keep the records. It is specifically stated in the discharge petition itself that there is no evidence, either statement of witnesses or documents produced by the prosecution, to prove the allegation levelled against A4 and A5 to the effect that they have knowledge about the fabrication of documents by A1 and A2. 13. Yet another important ground raised in the discharge petition is to the effect that none of the witnesses in their statements recorded by the Investigating Officer under Section 161 Cr.p.c. implicated A4 and A5 for the commission of the offences alleged against them and it is stated that the statements recorded from witnesses 18 to 26, who were Preventive Officers at Cochin Customs House, under Section 161 Cr.P.C. confirmed the export of actual goods in actual quantity and value. It is seen that the petitioners also presented a memorandum of written arguments under Section 314 Cr.P.C. 14. However, inspite of raising substantial grounds, as already pointed out, the learned trial Judge has simply ignored and overlooked the said grounds raised by the petitioners and without assigning any valid reason for rejecting the said grounds passed the impugned order. The learned trial Judge need not undertake the exercise of elaborate discussions by conducting fishing and roving enquiry. But the learned trial Judge is entitled to sift the evidence in order to find out whether or not there is sufficient ground for framing the charges against the accused and during such exercise, the trial Judge is expected to assign reasons for rejecting the points raised by the petitioners. But a perusal of the impugned order reveals the non-application of mind to the specific grounds raised by the petitioners as the learned trial Judge has not assigned any reason for rejecting the said contentions except highlighting the case laws regarding the scope and power of the trial court to discharge the accused. The learned trial Judge in paragraph 2 narrated the grounds raised for discharge ; paragraph 3 reflects the counter filed by the prosecution ; in paragraph 4, the learned Judge framed the point for determination ; in paragraph 5, it is stated that both sides were heard and records were perused. Thereafter, the learned trial Judge in the remaining paragraphs 6 to 9 cited the decisions of the Hon’ble Apex Court relating to the scope of discharge under Sections 227, 239 and 245 Cr.P.C. The learned trial Judge has not given any specific finding for the grounds raised in the discharge petition. 15. It is relevant to note that only in paragraph 7, it is observed by the trial court as follows : “7. In the instant case, the respondent put up a specific case that the petitioners fraudulently made attempts to claim duty drawback by manipulated shipping bills by adding the digit from the total quantity of the shipment. The respondent/CBI in their final report as https://hcservices.ecourts.gov.in/hcservices/ well as the statement of the witness highlighted that the accused persons have committed the offence. ….” 16. After observing, as stated above, the learned trial Judge immediately referred the decision of the Hon’ble Apex Court. Finally at paragraph 11, the learned trial Judge concluded hereunder : “11. In the present case, from a plain reading of the statement of the witness, it is clear that the facts mentioned in the Final Report, taken on their face value has clearly made out a prima facie case against the petitioners. It is also manifestly clear from the statement of the witnesses and from the Final Report that there is allegation set out against the petitioners/accused and in support of the allegation the respondent/CBI Police examined the witnesses and filed the statement of the witnesses." 17. At this juncture, it is pertinent to note that the learned Judge has not pointed out the statement of any particular witness implicating the petitioners with specific allegations. The above said finding is not only vague, but also not based on materials available on record. Except rendering the above vague findings, there is absolutely no discussion whatsoever in respect of the grounds raised by the petitioners in the impugned order. The learned trial Judge has not pointed out even a single piece of material either through the statements of any witnesses or through the documents produced by the prosecution to arrive at the conclusion that the prosecution made out a prima facie case for framing the charges against the petitioners, who have been arrayed as A4 and A5. 18. It is needless to state that merely reproducing the principles laid down by the Hon’ble Apex Court is not sufficient and the principles should apply to the facts and materials available on record in the instant case. 19. The Hon'ble Apex Court in CCE Vs. Srikumar Agencies reported in 2009 (1) SCC 469 has held as follows : "4. ..... Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated." 20. There is no doubt that at the stage of framing of charge, the trial court cannot conduct a fishing and roving enquiry and to go into the probative value of the materials on record. However, the settled principle laid down by the Hon’ble Apex Court is to the https://hcservices.ecourts.gov.in/hcservices/ effect that at the stage of framing charge, the trial court is entitled to evaluate the materials available on record by sifting and weighing the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused. 21. It is relevant to refer the latest decision of the Hon’ble Apex Court in P.Vijayan Vs. State of Kerala and another reported in AIR 2010 SC 663. The Hon'ble Apex Court in the said decision has held as hereunder: “10. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that Judge is not a mere Post Office to frame charge at the behest of the prosecution, but has to exercise his judicial mind to fact of case in order to determine whether a case for trial has been made out by prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused." (emphasis supplied) The Hon’ble Apex Court in the said decision has clearly made distinction between suspicion and grave suspicion. 22. The Hon'ble Apex Court in Sajjan Kumar Vs. Central Bureau of Investigation reported in JT 2010 (10) SC 413 has held as follows : “If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused.” 23. At this stage, it is pertinent to state that Mr.K.Subramaniyan, learned Senior Counsel for the petitioners, produced the copies of the statements recorded under Section 161 of the Code of Criminal Procedure from the witnesses. If the said statements are perused on the touch-stone of the principles laid down by the Hon'ble Apex Court in the decisions cited supra, the irresistible conclusion would be that this is a classic case of no material, as far as the petitioners/A4 and A5 are concerned, and the allegations were made against the petitioners on mere surmises and assumptions. It is to be stated that this Court is also constrained to state that even for raising such