CR.MA/4423/2006 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 4423 of 2006 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = APOORVA SHANTILAL SHAH & 1 - Applicant(s) Versus STEEL AUTHORITY OF INDIA A COMPANY & 2 - Respondent(s) ========================================= Appearance : MS MEGHA JANI for Applicant(s) : 1 - 2. MR BN PATEL for Respondent(s) : 1 - 2. MR MR MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 3, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 06/08/2008 ORAL JUDGMENT 1. The applicants herein have moved the present application CR.MA/4423/2006 2/15 JUDGMENT praying to take note of the offences committed by the respondents No.1 and 2 under Section 200 read with Section 193 read with Section 196 of the Indian Penal Code (IPC), read with Section 195 of the Code of Criminal Procedure, 1973 (the Code), and to direct the Registry to file a complaint with respect to the said offences against the respondents No.1 and 2 in the appropriate Court of Metropolitan Magistrate. 2. The facts of the case stated briefly are that the respondent No.1 herein had lodged several complaints in the Court of the learned Metropolitan Magistrate, at Ahmedabad against the applicants for dishonour of certain cheques. The applicants herein had approached this Court under Section 482 of the Code read with Articles 226 and 227 of the Constitution of India, praying to quash the said complaints. In the said Special Criminal Applications, the applicants had filed an affidavit in support of their application on 17th March, 1998. In reply thereto, the respondent No.2 – Branch Manager of the respondent No.1, Steel Authority of India, had filed an affidavit in-reply. According to the applicants, in the said affidavit in-reply filed by the respondent No.2 on behalf of the respondent No.1, certain false statements have been made on oath. It is the case of the applicants that the respondents No.1 and 2 had intentionally given false evidence in the pending Special Criminal Applications before this Court and had corruptly used or attempted to use as true declaration knowing the same to be false. According to the applicants, if such false statements had not been made by the respondent No.2, the applicants CR.MA/4423/2006 3/15 JUDGMENT would have been able to establish and demonstrate before this Court that nothing is due and payable by the applicants to the respondent No.1, which would probably have resulted in quashing the complaint. It is, accordingly, the case of the applicants that the respondents have committed an offence punishable under Section 193 read with Section 196 and 200 of the IPC, hence, the applicants have moved the present application praying for the reliefs noted hereinabove. 3. Heard Ms.Megha Jani, learned advocate for the applicants, Mr.B.N.Patel, learned advocate for the respondents No.1 and 2 and Mr.M.R.Mengdey, learned Additional Public Prosecutor for respondent No.3 – State of Gujarat. 4. Ms.Megha Jani, learned advocate for the applicants has drawn the attention of the Court to the affidavit in-reply filed by the respondent No.2 in Special Criminal Application No.1066 of 1997. It is contended that, in the said affidavit, the following statements are false to the knowledge of the respondents No.1 and 2. “[1] Statement on para (8) page (6) of the said affidavit : It is categorically stated that the Respondent No.1 has paid excise duty whatever required under law for the materials supplied to the Petitioner No.1. [2] Statement on para (8) page (6) of the said affidavit : CR.MA/4423/2006 4/15 JUDGMENT All necessary particulars with necessary documents are supplied by the Respondent No.1 to the Petitioner No.1. [3] Statement on para (8) page (7) of the said affidavit : The order as per Annexure II collectively, which appears to have been passed by the Assistant Commissioner of Central Excise, Division VI, Ahmedabad on 23rd January 1998 appears to have been made for want of proper contest by the Petitioner No.1. [4] Statement on para (8) page (7) of the said affidavit : It is also stated that though the particulars regarding payment of Excise Duty were supplied to the Petitioner No.1 company ..... [5] Statement on para (8) page (7) of the said affidavit : It appears that the management of the Petitioner No.1 has intentionally created this situation so as to create a defence. But, in fact, the Excise Duty is paid and the respondent No.1 would supply the details again. 5. Insofar as the first statement is concerned, it is contended that the respondent No.1 had passed on the Modvat credit to the applicants without giving proper documents evidencing payment of Excise Duty and have CR.MA/4423/2006 5/15 JUDGMENT not taken proper care to see that their invoices bear particulars regarding payment of Excise Duty. As a result, such invoices were not defaced by the jurisdictional Range Superintendent with the words “Modvat credit allowed” during the monthly assessment of the applicants for availment of Modvat credit. 6. As regards the second statement, it is submitted that the said statement is far from the truth because, as stated by the Assistant Commissioner of Central Excise, Division VI, Ahmedabad, in paragraph No.2 on page 5 of the order dated 23rd January, 1998, “Now I am of the view that if the goods were cleared on payment of Excise Duty by SAIL Bokaro, it was required to be established by the assessee. Till date, the party could not furnish any details duly certified by the Central Excise office having jurisdiction of Bokaro Steel Plant confirming the details of duty payment.” It is pointed out that though the respondent No.1 has been given 7 days time to determine duty and debit the account on day-to-day basis, it has not been exempted to show the debit particulars on the invoices raised by them at a later stage. In actual fact, no such documents as required by law have been supplied by respondent No.1 inspite of repeated efforts made by the applicants in this regard by writing letters to the Branch Manager at Ahmedabad on 21st December, 1995, 2nd January 1996, 8th January 1996, 6th June, 1996, 12th June 1996 and 8th May 1997. It is accordingly submitted that the aforesaid statements, whereby it is stated that all necessary CR.MA/4423/2006 6/15 JUDGMENT particulars and documents are supplied to the applicant No.1 are false. 7. As regards the third statement, it is submitted that the said statement is false because there could not have been an appropriate contest in absence of appropriate duty paying documents with authenticity regarding the payment of Central Excise Duty on goods covered under the invoices in dispute. 8. As regards the fourth statement, it is submitted that the said statement is false because though the respondent No.1 had supplied data regarding debit entry numbers and dates, the same was found to be irrelevant as part of it related to materials not purchased by the applicants. 9. As regards the fifth statement, it is submitted that the said statement is false because the root cause for the Excise Department to raise demand and then confirm the same was due to failure on the part of the respondent No.1 to provide the applicants with duplicate copies of the invoices on which the appropriate payment of Excise Duty was indicated. It is submitted that the averment that the respondent No.1 would supply the details again is false as when they have not supplied the details in the first instance, there is no question of supplying the same again. 10.It is submitted that the respondent No.2 who has filed the affidavit was responsible as Branch Manager at the relevant time and being aware of the facts of the case, he CR.MA/4423/2006 7/15 JUDGMENT has irresponsibly filed an affidavit making false statements on oath, hence, the complaint should also be filed against him. It is submitted that the affidavits in which the false statements were made were filed in Special Criminal Applications No.1066 of 1997 to 1077 of 1997 and No.1167 of 1997. 11.The learned advocate for the applicants has, accordingly, submitted that in view of the false statements made on oath by the respondent No.2 on behalf of respondent No.1, both the respondents are required to be prosecuted for the offences under Sections 200 read with Section 193 read with Section 196 of the Indian Penal Code read with Section 195 of the Code, and has urged that this Court may direct the Registry to file a complaint in respect of the said offences against the respondents No.1 and 2. 12.The learned advocate for the applicants has, on the question of limitation, submitted that no limitation is provided for the Court to initiate the proceedings under Section 195 of the Code. It is submitted that the provisions of Section 468 of the Code would not be applicable to the facts of the present case. 13.On the other hand, Mr.B.N.Patel, learned advocate for the respondents No.1 and 2 has vehemently opposed the application. It is denied that the statements made in the affidavit filed by the respondent No.2 on behalf of respondent No.1 are in any manner false, as alleged. It is submitted that the application is not maintainable at law because the Company in question namely, Gujarat Steel CR.MA/4423/2006 8/15 JUDGMENT Tubes Ltd. which is now being wound up, had filed Criminal Miscellaneous Application No.1310 of 2000 before the winding up in respect of the same cause of action based on the same facts and praying for the same relief, which is still pending. That, it is only because the applicants who have lost control over the affairs of the said Company, being under the impression that the Official Liquidator may not prosecute the said application any further, have filed the present application in the name of the Company, as a counter-blast to create a defence in the criminal prosecution faced by them in Criminal Cases No.3090 to 3101 of 1997 and 4140 of 1997 pending in the Court of the learned Metropolitan Magistrate, Ahmedabad (Court No.9) under Section 138 of the Negotiable Instruments Act. 14.The learned advocate for the respondents No.1 and 2 has strongly urged that the present application is not maintainable as being time-barred and also as having been made on the same facts and cause of action, and for the same relief as in the pending Criminal Miscellaneous Application No.1310 of 2000. It is pointed out that the present application is filed after a period of eight years, which is much beyond the statutory period of limitation, and as such, is not maintainable as being time barred. The learned advocate for the respondents No.1 and 2 has drawn the attention of the Court to Article 137 of the Schedule to the Limitation Act, to point out that where no limitation is provided for making an application, the period of limitation prescribed is three years. It is, accordingly, submitted that the present application which CR.MA/4423/2006 9/15 JUDGMENT is filed after eight years is hopelessly time-barred. It is submitted that, the right to apply for prosecuting the present application would have accrued as soon as the affidavit in-reply was filed. That even from the date of the affidavit in-reply, a period of eight years has elapsed. Hence, the application being hopelessly time-barred, is required to be rejected on that count alone. 15.On merits of the case, it is submitted that the respondent No.2 herein has not made any false statements on oath in the affidavit in-reply. Referring to the statements on oath in the affidavit in-reply, it is submitted that, in fact, the excise duty in question was fully paid by the respondent No.1 Company and the details of the same were supplied to the buyer i.e. Gujarat Steel Tubes Ltd., and that, no false statement had been made by the respondent No.2 in the affidavit in-reply filed in 1998 in the earlier proceedings. Attention of the Court is drawn to the order in original dated 23rd January, 1998 passed by the Assistant Commissioner, Central Excise, Division VI, Ahmedabad against M/s Gujarat Steel Tubes Ltd., and more particularly, to the contents of page 8 thereof, to point out that it is recorded therein that the assessee had given a written submission along with xerox copy of the permission whereby Bokaro Steel Plant is exempted from making debit entries within 7 days of the removal of the goods and also submitted invoice-wise debit entry numbers duly certified by SAIL, Bokaro Steel plant. It is submitted that without supply of the documents and details, the representative of Gujarat Steel Tubes Ltd. could not have produced invoice-wise debit entry CR.MA/4423/2006 10/15 JUDGMENT numbers duly certified by SAIL, Bokaro Steel Plant. It is, accordingly, urged that, no false statement has been made as alleged in the application. It is further pointed out that the letter dated 5th March, 1998, Annexure “J” to the application, written by the respondent No.1 to the Superintendent, Central Excise, Range IX, Division VI, Ahmedabad, clearly shows that the payment of excise duty and details were duly verified by the Plant Excise Superintendent. The learned advocate for the respondents No.1 and 2 has, accordingly, submitted that none of the statements made in the affidavits filed by the respondent No.2 were false to the knowledge of the respondents. Hence, the application being devoid of merit deserves to be rejected. 16.This Court has considered the rival submissions advanced by the learned advocates for the parties and has perused the record of the case. 17.In the background of the facts noted hereinabove, it is apparent that the main grievance raised in the application is to the effect that certain statements made in the affidavit in-reply filed by the respondent No.2 on behalf of respondent No.1 in the Special Criminal Applications filed by the applicants, were false to the knowledge of the respondents No.1 and 2. The statements which are alleged to be false have been re- produced hereinabove. 18.At the outset it may be pertinent to examine each of the aforesaid statements independently. CR.MA/4423/2006 11/15 JUDGMENT 19.The first statement is to the effect that the respondent No.1 has paid excise duty whatever required under law for the materials supplied to the petitioner No.1. In this context it would be relevant to refer to order of the adjudicating authority and more particularly to the following part of the defence of Gujarat Steel Tubes Ltd. to the show cause notice issued against it : “The invoices issued under Rule 52 A by Bokaro Steel Plant or SAIL contain the particulars regarding the amount of Central Excise duty paid on the goods supplied under the respective invoices. The assessee takes Modvat credit of C.Ex. duty based on such duty paying documents issued by the SAIL which is GOI undertaking. The invoices issued under Rule 57 GG issued by the SAIL’s stockyard at Kaligam give cross reference of the invoices issued under Rule 52 A received by the stockyard from the SAIL’s steel plant and also give the particulars of the amount of C.Ex. duty paid by the Steel plant of SAIL on the goods supplied by the stockyard. Thus the invoices under rule 52A or 57GG received from SAIL’s Steel Plant at Bokaro and stockyard at Kaligam respectively do show that the goods supplied under them were clearly Central Excise duty paid goods and therefore the assessee was and is entitled to take Modvat Credit on the basis of such documents evidencing payment of Central Excise duty.” From the aforesaid defence raised by Gujarat Steel Tubes CR.MA/4423/2006 12/15 JUDGMENT Ltd. before the adjudicating authority, it is apparent that it was the case of Gujarat Steel Tubes Ltd. itself that the goods supplied to Gujarat Steel Tubes Ltd. were Central Excise duty paid goods. In the circumstances, there is no reason to disbelieve the statement that the respondent No.1 has paid excise duty as required under law in respect of the materials supplied to the Gujarat Steel Tubes Ltd. 20.The second statement is to the effect that all necessary particulars with necessary documents are supplied by the respondent No.1 to the petitioner No.1 i.e. Gujarat Steel Tubes Ltd. In this context also it would be pertinent to refer to the end of the defence version recorded by the adjudicating authority, which reads as follows: “Shri M.N. Shah appeared and gave written submission along with Xerox copies of the permission whereby Bokaro Steel Plant is exempted from making entry within 7 days of the removal of the goods and also submitted invoice-wise debit entry nos. duly certified by SAIL, Bokaro Steel Plant.” It is evident that without supply of documents and details the representative of Gujarat Steel Tubes could not have produced invoice-wise debit entry nos. duly certified by SAIL Bokaro Steel Plant. It is the specific case of the respondents that the requirement was to mention details of the debit entries etc. on the invoice which were supplied later, in view of permissions granted in their favour by the Central Excise authorities whereby the CR.MA/4423/2006 13/15 JUDGMENT respondents were permitted not to mention debit entry no. at the time of issuing invoices, but to determine duty and debit the account current on day to day basis within 7 days of actual removal of goods. In the light of the aforesaid facts, it is not possible to hold that the aforesaid statement made by the respondents is false to their knowledge as alleged. 21.Insofar as the third and fifth statements are concerned, the same are only expressions of opinion, and can in no manner be said to amount to an offence under sections 193 read with sections 196 and 200 of the Indian Penal Code. 22.The fourth statement whereby it has been stated that “though the particulars regarding payment of Excise Duty were supplied to the petitioner No.1 company…” is interconnected with the first and second statements, hence, as a necessary corollary the said statement also cannot be said to be false to the knowledge of the respondents. 23.In view of the above discussion as well as considering the submissions advanced by the learned advocate for the respondents No.1 and 2, whereby the learned advocate has successfully pointed out that the said statements are based upon the documents on record, none of the statements made in the affidavit can be said to be in any manner false. It may be that the said statements have been read by the applicants in a different manner, however, that by itself, would not make the said CR.MA/4423/2006 14/15 JUDGMENT statements false, as alleged. In such an application whereby the applicants seek a direction against the Registry of the High Court to prosecute the respondents No.1 and 2 for the offences under Sections 200, 193 read with Section 196 of the IPC, the falsity of all the statements should be apparent on the face of the record. Considering the allegations made in the application in the light of the explanation tendered by the respondent, it is not possible to state that any false statement has been made as alleged, as the same would fall within the realm of disputed questions of fact. The relief claimed in the application can be granted only if on the basis of the record of the case, the Court finds that a false statement has been made which to the knowledge of the deponent was false. In the facts and circumstances of the present case, it is not possible to state that any of the statements that are alleged to be false, are borne out to be false from the record. Hence, no case is made out to initiate any criminal proceedings against the respondents as prayed for in the application. 24.Besides, the learned advocate for the respondents No.1 and 2 is justified in contending that the present application, which is filed after a delay of eight years from the date of the said affidavit in-reply, is also hopelessly time-barred. Any application other than those for which a specific period has been prescribed under the Limitation Act, would be governed by the provisions of Article 137 of the Schedule to the Limitation Act, which prescribes that in case where no period of limitation is prescribed, the period of limitation would be three years. Hence, apart CR.MA/4423/2006 15/15 JUDGMENT from the merits of the case, the application is also time barred. 25.For the foregoing reasons, the application being devoid of any merit or substance, does not merit acceptance, and is, accordingly, rejected. Notice is discharged. [HARSHA DEVANI, J.] parmar*