IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 43 OF 2007 KETSHI HIRJI SHAH ... Petitioner Versus STATE THROUGH THE CENTRAL BUREAU OF INVESTIGATION, ACB ... Respondent Mr. A.N.S.Nadkarni with Mr. H. D. Naik, Advocate for the petitioner. Mr. C.A. Ferreira, P.P. for the State. Coram:- D. B. BHOSALE, J. Date:- 24th January, 2008 P.C.: 1. Heard Mr.Nadkarni, learned counsel for the petitioner and Mr.Ferreira, learned P.P. for the State. 2. This criminal revision application is directed against an order dated 7.2.2007 passed by the Special Judge in Special Case No.11 of 2002 by which he has ordered to frame charge against the petitioner, who is accused no.4, for the offence punishable under section 420 read with 120-B of the Indian Penal Code. 3. Mr.Nadkarni, learned counsel for the petitioner assailed the impugned judgment on two grounds. Firstly, he submitted that a reference to the statements of accused no.5 - Narayan Bhiwaji Dichwalkar and to the present applicant recorded under section 108 of the Customs Act in the impugned judgment show non application of mind. He submitted that those statements are not part of the charge sheet and, therefore, learned Judge ought not to have taken those statements, recorded under section 108 of the Customs Act, into consideration. He submitted that the impugned order which is mainly based on those statements deserves to be quashed and set aside. Secondly, he submitted that one of the accused person, namely, Venugopal (accused no.3) had filed an application for settlement of case under section 127B and though his application was rejected by the Settlement Commission, the writ petition challenging that order has been admitted by this court and is pending for final disposal. He, therefore, submitted that if the writ petition is allowed, complete immunity will be granted to Venugopal as provided for in section 127H of the Customs Act and in that case remaining accused including the present petitioner would not be liable to be prosecuted. In support of this submission he placed heavy reliance upon the judgment in Hiralal Harilal Bhagwati Vs. CBI, New Delhi (2003) 5 Supreme Court Cases 257. 4. On the other hand Mr.Ferreira, learned P.P. submitted that the judgment of the Apex Court in Hiralal Harilal Bhagwati's case will not apply to the present case since the application in the present case was filed under section 127B of the Customs Act, and not under the Kar Vivad Samadhan Scheme. That apart, he also distinguished the said judgment on facts and submitted that the petitioner cannot be given benefit of the said judgment. He then submitted that even if the statements of accused no.5 and the present applicant recorded under section 108 of the Customs Act are completely ignored, still there is sufficient material on record to connect the present applicant with the alleged office. 5. I perused the impugned judgment and the other material placed before me as also the relevant provisions of the Customs Act and the judgment of the Apex Court in Hiralal Harilal Bhagwati's case. The learned Judge apart from the statements of accused no.5 and the present applicant recorded under section 108 of the Customs Act has considered the statements of various witnesses recorded under section 161 of the Code of Criminal Procedure, namely, Dinesh Amrute, Yogesh Kanaiyalal Selarka, Bhupesh Shah and Vikram. I perused the relevant discussion in the judgment and I am satisfied that the statements of these witnesses are prima facie sufficient to show the complecity of the accused. The learned Judge has dealt with the statements of these witnesses in paragraph 8 to 11 of the judgment. In the circumstances the first submission of Mr.Nadkarni is rejected. 6. The Supreme Court in Hiralal Harilal Bhagwati's case was dealing with the case wherein a certificate of full and final settlement of tax arrears in respect of the Kar Vivad Samadhan Scheme, 1998 was issued to one of the accused - Gujarat Cancer Society (GCS). The said certificate, inter alia, certified the receipt of payment from the accused (GCS) towards full and final settlement of tax arrears determined in the order dated 10.2.1999 of the Designated Authority and further granted immunity to the accused (GCS) from any proceedings for prosecution for any offence under the Customs Act or from imposition of penalty under the said enactment. While dealing with the case the Supreme Court in paragraph 29 has observed that "the alleged criminal liability stands compounded on a settlement with respect to the civil issues and, therefore, the first information report was erroneously issued and they are totally unwarranted". The Supreme Court further observed that "the proposition that follows in the instant case (Hiralal Harilal Bhagwati's case) is that the Kar Vivad Samadhan Scheme, 1998 issued by the Government of India is a voluntary scheme whereby if the disputed demand is settled by the authority and pending proceedings are withdrawn by an importer, the balance demand against the importer shall be dropped and the importer shall be immune from penal proceedings under any law in force". After this observations the Supreme Court rejected the argument sought to be propounded by the respondent that "the Kar Vivad Samadhan Scheme does not absolve the appellants from criminal liability under the Indian Penal Code". 7. At the outset, it is seen that in the present case the application filed by one of the accused person, namely, Venugopal was filed under section 127B of the Customs Act and not under the scheme which fell for the consideration of the Supreme Court, namely, Kar Vivad Samadhan Scheme. Secondly, in the present case the application of Venugopal has been rejected by the Settlement Commission. Even if the writ petition challenging the order of the Settlement Commission is allowed the question still remains whether the petitioner can claim immunity on the basis of the orders that would be passed in favour of Venugopal. At this stage I do not deem it necessary to enter into that controversy. The impugned order is simply the order for framing charge against the petitioner which warrants no interference by this court in the instant revision. In the circumstances the criminal revision application is dismissed. D. B. BHOSALE, J. hcs