7. cr wp 1766-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1766 OF 2010 Jayesh Jain .. Petitioner Vs Union of India & Ors. .. Respondent Mr. Yogesh M. Rohira i/b Mr. Sanjay Agarwal for the Petitioner Mr. G.B. Srinivasan for Respondent Nos. 1 to 3 Mr. J.P. Kharge, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 30th AUGUST, 2010. P.C.: 1. Heard learned advocate for the petitioners, learned advocate for respondent nos. 1 to 3 and the learned APP for the State. 2. Rule. By consent rule is made returnable forthwith and the matter is heard finally. 3. The petitioner has filed this petition for quashing of complaint i.e. CC No. 171/SW/09 filed against him by the Union of India through Commissioner of Customs (Exports). 1 7. cr wp 1766-10.doc The said complaint has been filed before the learned Chief Metropolitan Magistrate, Esplande, Mumbai. The complaint is in respect of alleged violation under Sections 135(1)(a), 135(1)(i), 135(1)(b) of the Customs Act 1962 read with 120 B of IPC. The above mentioned complaint is filed by the Deputy Commissioner of Customs (Exports) JNCH, Nhava Seva, Uran against two persons. The exporter is arraigned as accused no. 1 and the petitioner who is a Customs House Agent i.e CHA is arraigned as accused no. 2 in the complaint. 4. The learned advocate for the petitioner stated that adjudication proceedings were also initiated against the petitioner by respondent no. 2. The petitioner challenged the adjudication proceedings by filing Appeal Nos. 94(ADC/SIIB EXP.)/2009(JNCH) before the Commissioner of Customs (Appeals). In respect of the adjudication proceedings, by order dated 4th March, 2009, the petitioner's appeal came to be allowed. In the said order, it is observed that "It is also accepted position that the shipping documents in the office of Shri. Jayesh Jain were prepared on the basis of the invoice and packing list furnished by the exporter. It is also not the job of the CHA to examine the consignment before shipment. The job of examining the consignment is of the examination officer. His statement does not in any manner raise any allegation against Shri. 2 7. cr wp 1766-10.doc Jayesh Jain." In the said order, the Commissioner of Customs (Exports) further observed that since there is no sustainable material available on record, to even suggest conscious knowledge of Shri. Jayesh Jain regarding the fraud, he cannot be held responsible even on the basis of preponderance of probability. Lastly, in the said order, it is observed that , "Thus, I have no hesitation to hold that Shri. Jayesh Jain is not liable to any penalty and is therefore, entitled for exoneration." Observing thus, the appeal came to be allowed. The CHA (Custom House Agent) referred to in the said order is the present petitioner. 5. The said order came to be challenged by respondent no. 2 before the Customs, Excise & Service Tax, Appellate Tribunal (CESTAT) by filing Appeal No. C/547 of 2009. The said appeal came to be disposed of by order dated 4th September, 2009 by observing that the lower appellate authority has rightly exonerated the CHA and the CHA is not liable for any penal action. The department of Customs has not challenged this order by initiating further proceedings. In other words, petitioner contends that the department has accepted the said order. 6. It is an admitted position that the petitioner preferred an appeal in respect of the orders passed in 3 7. cr wp 1766-10.doc adjudication proceedings. It is also admitted that the petitioner succeeded in the appeal and the appeal preferred by respondent Customs against said order has been dismissed and the order of dismissal has not been challenged. The learned advocate for the petitioner submitted that in view of these orders, the complaint is liable to be quashed because the complaint and and adjudication proceedings are based on self same allegations. In such an event this court can exercise its inherent powers and quash the complaint. He placed reliance on the decision in the case of Richman Silks Ltd VS. Assistant Commissioner (Legal), Customs & Central Excise, Hyderabad reported in 2004 (182) E.L.T. 318 (A.P.) wherein the view has been taken that if the adjudication proceedings are set aside, then the complaint is also liable to be quashed. Similar view has been taken by this Court in the case of Mohan Shet Vs Union of India and Ors in Criminal Writ Petition No. 442 of 2005 decided on 16.03.2005. I have also taken similar view in Criminal Writ Petition No. 1921 of 2005 in M/s. Choudhary International Pvt Ltd & Ano Vs Union of India & Ors decided on 11th August, 2005. 7. Mr. Srinivasan, learned counsel for respondent Custom has placed reliance on a decision of the Supreme Court in the case of Ispat Industries Ltd Vs Commissioner of Customs, Mumbai reported in (2006)12 SCC 583. He placed reliance on 4 7. cr wp 1766-10.doc the observations therein that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observations found therein. However, when a question was put by the Court to Mr. Srinivasan as to what is the ratio in M/s. Choudhary International's case and whether it can be applicable to the present case, he was not able to deny that the ratio applies to the present case. 8. The standard of proof required in the criminal case is much stronger and rigorous than that required in adjudication proceedings. In the light of the fact that the petitioner has been exonerated in adjudication proceedings where the rigour is not what is required in criminal proceedings, then, this is a fit case where regular criminal case should be quashed as in adjudication proceedings itself, the respondents could not bring home the charge against the petitioner. It is not now possible for the prosecution to prove the case against the petitioner. In such circumstances and when the participation and role of the petitioner in the entire transaction is in grave doubt, then, interest of justice would be subserved by holding that continuation of the subject criminal proceedings is an abuse of the process of the Court. The prosecution having not been able to succeed in adjudication proceedings, forcing the petitioner 5 7. cr wp 1766-10.doc to go through a trial would not be in the interest of justice but would be a clear abuse of the process of the Court. 9. In the above facts and circumstances and for the reasons recorded above, petition deserves to succeed. Criminal Complaint No. 171/SW/09 pending before the learned CMM, Esplanade, Mumbai is quashed. Bail bonds executed by the petitioner shall stand discharged. 10. Rule is accordingly made absolute in terms of prayer clause (a). 11. It is made clear that this proceeding is quashed only in respect of present petitioner. It is necessary to make this clarification as there is one more accused in the present case i.e the exporter. [SMT. V.K. TAHILRAMANI, J.] 6 7. cr wp 1766-10.doc 7