1 cri-apln-3056-09 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN. NO. 3056 OF 2009 IN APPEAL NO. OF 2009 Union of India ..Applicant Vs. Zoher T.Dalal and Ors. ..Respondents .... Smt. A.A.Mane Adv. for applicant Mr. A.M.Sachwani Adv. for respondent no.2 Smt. M.M.Deshmukh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : SEPTEMBER 28, 2010 ORAL ORDER: 1 Heard the learned advocate for the applicant-Union of India and the learned advocate for the respondent no.2. Respondent no.1 is present in person. 2 The applicant has challenged the judgment and order of acquittal dated 15.2.2008 passed by the learned Addl. Chief Metropolitan Magistrate Mumbai in C.C. No. 300/CW/1997 whereby, he 2 cri-apln-3056-09 acquitted the respondents-accused under sections 135(1)(a) r.w. Section 135(1)(ii) of the Customs Act 1962 and under Section 120-B of the Indian Penal Code, 1860. In addition, respondent no.2 was acquitted of the offence under Section 136(1) of the Customs Act, 1962. 3 The case of the prosecution is that on 12.10.1995 the Officers of the Customs department intercepted respondent no.1 at the airport at Mumbai after he had cleared immigration for the purpose of boarding flight to Dubai and foreign currency of US$ 40000 was found in his possession. It is further the prosecution case that on 18.9.1995 when respondent no.1 came to India, respondent no.2 who was an Officer working with the Customs department, helped respondent no.1 in fraudulently preparing the currency declaration form dated 18.9.1995 which showed that respondent no.1 had brought 40000 US$ to India without respondent no.1 actually bringing the said currency into India. Thus, the prosecution case is that respondent no.1 was smuggling foreign currency i.e. US$ 40000, out of India. 4 The learned Magistrate after considering the evidence led by the prosecution in detail acquitted the respondents by judgment and order dated 15.2.2008. Being aggrieved thereby, the applicant preferred appeal i.e. Appeal No. 308 of 2008 before the Sessions Court, Mumbai which came to be dismissed along with the application made therein by 3 cri-apln-3056-09 judgment and order dated 5.2.2009 and holding that the appeal is not maintainable. Hence, this application for leave to file appeal. 5 Admittedly based on the very same incident, adjudication proceedings came to be initiated against the respondents. In the adjudication proceedings the respondents came to be penalized by the Commissioner of Customs who was adjudicating authority in the adjudication proceedings. Being aggrieved thereby, the respondents have challenged the said order by filing appeals Nos. 178 of 1997 and 249 of 1997. The said appeals were decided in favour of the respondents and they came to be exonerated in the said proceedings. Being aggrieved thereby, the applicant preferred writ petition i.e. W.P. No. 668 of 2000 before this Court. The said writ petition came to be dismissed by the Division Bench of this Court with costs. 6 The Appellate Tribunal has clearly come to the conclusion that there was no material against the respondents. This Court also in W.P. No. 668 of 2000 observed that the material on record shows that when respondent no.1 came to India, he brought along with him the foreign currency i.e. US$ 40000 as declared in the currency declaration form. 7 The learned counsel for the applicant submitted that the adjudication proceedings and the criminal proceedings are two entirely 4 cri-apln-3056-09 different proceedings and that the finding in adjudication proceedings would not be binding on the Court in a prosecution under Section 135 of the Customs Act. To support her contention, she has placed reliance on the decision of the Supreme Court in the case of Standard Chartered Bank & Ors. Vs. Directorate of Enforcement and others [2006] RD SC 107. However, the said judgment has been considered by this Court in its decision dated 29.6.2007 in Criminal W.P. No. 1812 of 2005 in the case of Manojkumar Sarangi Vs. Deputy Commissioner of Customs (P) R & I and Anr. (Coram : S.C.Dharmadhikari,J. ) and in the decision dated 25.4.2007 in Cri. Application No. 1070 of 1999 in Hemendra M. Kothari Vs. Shri. W.S.Vaigankar Assistant Director of Enforcement Directorate (FERA) (Coram: J.H.Bhatia,J.). It was held in the decision in Manojkumar Sarangi (supra) that while it may be true that both proceedings being independent and their continuation is not bad in law, their continuance cannot also be invalid and illegal in all cases, but, if it is demonstrated that their continuance would be an abuse of the process of the Court, then, in the interest of justice, the inherent powers of this Court can always be invoked and applied. Similar view is taken in Hemendra Kothari. 8 The present case is based on self same allegations as in the adjudication proceedings. The allegations being that when the 5 cri-apln-3056-09 respondent no.1 came to India he was not carrying with him 40000 US$ yet a false CDF form came to be filled in with connivance of respondent no.2 to show that he had brought with him 40000 US$ when he came to India. The transaction in the adjudication proceedings and the documents in both the proceedings are the same. Hence, it is in this context that the adjudication proceedings assume some significance. The appeal preferred by the respondents against the adjudication proceedings came to be decided in their favour which was challenged before this Court by filing W.P. No. 668 of 2000. This Court while dismissing the writ petition with costs has clearly observed that the material on record shows that respondent no.1, when he arrived in India, brought along with him foreign currency as declared in the currency declaration form. On the basis of the evidence on record, it has also been so observed by the learned Magistrate in his judgment and order whereby he acquitted the respondents. Looking to all these facts, no case is made out for grant of leave to file appeal, hence, application is rejected. Consequently, appeal is dismissed. [ SMT. V.K.TAHILRAMANI, J.]