KAPOOR CHAND MAGANLAL CHANDER!A

DELHI STATE (ADMINISTRATION)

April 16, 1985

[AP. SEN AND E.S. VCNKATARAMIAH, JJ.J

Indian Penal Code, Ss. f20 ·& 511.

Ajfidavit-Subsri1utiot1 of word 'per11u1nentl;;• for '1hree Years'-Prosecution la:u1ched-P/ea of accused....-A/ffdavit used, under 'honest belief'-Pro5ecution

whether 11aUd and perrnissible.

The appellant who wa<; a British citiz,~:-1 of Indian rigin, came on a temporary visit to India fl)r a period or three years in July 1966 as he had a family holding in Messrs Atu\ !)rug House Li1nltcd: to survey the bussiness situation and to m::ike a decision for his future stay in the country. Along with him he brought a Mercedes Benz car as part of 4is personal bazgage, free of duty, underthe Tripe-trique convention under which he was entitled to retain the car for a m1ximum period of one year.

After his arrival in India he was appointed as Managing Director of the Company and this required his

prsencc in the country for quite some time and therefore the appellant applid to the J0int Chief Controller of lmp0rts & D:<port:> for the is'>ue of an import licence co kcp th>! s1id cJr for m(Jre ttia1 ')ne year, but that application of his ... .... _was rejected by the Chbf Controlbr on the gr.Ju:-id that he had not come to iv' India for permanent settlement, On the appellant informing the Chief Con-

'•. trolter t'1at he had reconsidered his decic; ion and decided to stay in India permanently, the Chief Controller required him to submit amongst other documents an affidavit conter-signed either by the High Cofnmission for India in Tanzania or the Indian Embassy at Nairobi in Kenya or a Notary Public.

It appears that the appellant before his arrival in India-had with him an affidavit sworn before the Third Security, High Commission for India at Dar-es-Salaa1n stating that he was taking up appointment as a Director of Messrs Atul Drug house Limted and it. would therefore necessitate his presence in India fora period of three years at least. When the Chief Controller asked the appellant to produce.an affidavit along with the application for grant of an import licence, what he did was to score out the words 'for three years' and

SUPREME COURT REPORTS [1985] j s.c.Ii..

added in ink the word 'permanently'.

The Chief Controller rejected the application on the ground that the affidavit submitted by him was a forged document. Admittedly, the Mercedes Benz car had been repatriated out of India by the appeUant within the period provided u,1der the Tripe-tdque convention.

The appellant was prosecuted by the Central BurcJu of Investigation in the Court of the Additional Chie[, Prcsidency Magistrate, Bombay for commission of an alleged offence punishable under s. 420 of the Indian Penal Code, on the allegation that he had made a false declaration before the Assistant Collector of Customs, Bombay that he was a tourist and had coin~ to Bombay to stay for a period of six months knowing full weII that he had sworn an affidavit before the Third Secretary, High Commission for India at Dar-es-Salaam that he would remain in India for a period of three years. Tbe aforesaid affidavit was put in -evidence b:Y the prosecution. The Customs authorites led no evidence in c; upport of tht cha fee. Tht learned Chief Presidency Magistrate after a trial last- ' ing over four years acquitted the appellant on the ground that the prosecution h::id failed to etablish the charge beyond all reason"'able doubt. l le further held that thd appellant wa'> faJ5ely implicated at the instance of one 3hah, the other Managing Director, in a struggle to gain control over.the cOmpany. ·

The Delhi Special Police Establishment had in the meanwhile filed a challan against the appellant in the Court of th~ Judicial Magitrate (First Class), Delhi on February 10, 1971 for commision of an alleged offenc punishable under ss. 420 and 471 read with s.467 of the Indian Penal Code.

The learned Magistrate framed charges [against the appellant under ss.4].0, 467 and 471 read with s . .467 of the Indian Penal Code directing him to stand trial in a Court Of Sessions.

The learned Single Judge of the Delhi High Court however on a reference by the Addition!l Sessions Jndge, Delhi under s.438 of the Code of Cri1ninal Proc.::dure, 1898 quai; hed the charge farmed against the appellant under ss.467 and 47 l read with s.467 of the Indian Ptnal code <ind r..!manded the case to th.! Metropolitan Magistrate, Delhi with th~ dir!ctiOn that he should pro::!ed tJ try the a;>;>!lll11t L>r C)m_nis; i, Jn of a.1 allegi:d Offence

pu.nishabl~ under s.420 r..:ad with s.51 l Jf th"! Indian Pn<.tl Code.

Allowing the Appeal,

HELD : 1. In the facts and circumstances of the case, it Would be

etren1ely doubtful whether the ingredients of an offeac~ u11der s.420 readwitb s.511 of the Indian Penal Code were made out. The appellant might come

forward with an explanation, namCly, that he acted an honest belief that he could n1ake use of the unutilized affidavit lying with hirn and it could not b~ said

that thC explanation so offered would not be a reasonable explanation. f779BDj

2. In the instant case, there was absence of any dishonest intention o'r nieans rea on the part of the appellant when he made use of the affidavit sworn by hiin bforc th.! Third Secretary, High C0m ni~-; ion for India at Dt es-SaJaam. It was foolish on hh part to have altered the <ifficlavit by scoring out the words 'for three years' and to have added in ink the word 'permariently~.

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ltAi'OOR CHAND v. DELHI AOMN . (Se~, J.) 115

The appellant could as well have got an affidavit sworn before the Notary

A Public at Bombay and forw:uded it along with his application for grant of an import licence.

Admittr::dly, the Chief Controller of Imports & Exports was not cheated nor was there any attempt to cheat him. The Mercedes Benz car brought by the appellant, free of duty, was _repatriated by him out or India within the prescribed period of one year. [776H; 777A; 779-E]

Although the rule against double jeopardy guarnteed under Art. 20(2) of the Constitution or the pea autrefois acquit under s.403 of. the Code of Criminal Procedure:, 1898 are not available to the appellant since the alleged offences were not substantial the <; ame but were separate and distinct, it would not subserve the interests of justice to direct the prosecution of the appellant over again before the Metropolitan Magistrate, Delhi for an act of indiscretion in 5ubstituting the word 'pennanently' for the words 'for three years' in the affidavit which the circumstances suggest was an honest but a

foolih act, particularly when he had been acquitted of a somewhat similar charge by the AdditiOnal Chief Presidency Magistrate, Bombay wheein the affidavit was relied upon by the pros-:-cution as a piece of evidence to substantiate the charge that he made a false declaration before the Assistant Collector of Customs! Bombay. The adoption of such a course after a Japes of nearly

20 years would not only entail a frt:sh trial but subject the appellant to un_due harassment and ultimately may result in an acquittal. [778G-H; 779E-F]

C<IMINAL Arr3LL<TB J1JRtm1cno>1: Criminal Appeal No: 152 of 1975.

From the Judgment and Order dated 26.8.1974 of the Delhi

High Court in Criminal Revision No. 228 of 1973.

Mr. Ram Jethma/ani and N. H. Hin rani for the Appellant .

. lf.S. Gujara/, G. n. Gupta and R.N. Poddar for the Respondent.

The Judgment of the Court was delivered by

SEN, J. While we strongly deprecate the conduct of the appellant in altering the affidavit sworn by him at Dares-Salaan on July 5, 1966 c0untersigned by the Third Secretary, High Commission for India, Tanzania by substituting in ink the word 'permanently' for the words 'for three years' for securing customs clearance for his Mercedes Benz 200 Saloon Car, Model 1965, bearing registration No, KGA l l l which he had brought along with him in July 1966 as part of his personarbaggage, free of duty, under the international convention known as Carnet De-Passage Tripe-trique, under which

SUPREME COURT REPORTS (1985] :i S.C.It

A he could retain the car only for a maximum period of one year, which may prima facie make out a case for framing of a charge under s.420 read with s.511 of the Indian Penal Colo, 1860, we do feel that no useful purpose would be served by subjecting the appellant to another prosecution punishable under s.420 read with s.511. of the Code after a lapse of nearly 20 years.

There can be no doubt tat the appellant was guilty of impropriety by scoring out the words 'for three years' and substituting in ink the word 'permanently' but the appellant was candid enough to admit that he had done so under the reasonable belief that he could utilize the unused affidavit that he had sworn at Dar-es-Salaan for the. aforesaid purpose of getting customs clearance. But the fact remains .that the Chief Controller of Imports and Exports refused to grant the request as a result of which the appellant expatriated the said Mercedes Benz car out of India within the prescribed period of one year as prescribed under the Tripe-trique convention. Prior to 1966, the appellant was a British citizen of Indian origin having extensive business interests at Mombasa in Tanzania and several other countries of the world.

He had a family holding in Messrs Atul Drug House Limited, Bombay and came on a temporary visit for a period of three years to survey the businese situation and to make a decision about his futhure stay in the country.

After his arrival in India, he was on July, 1966 appointed a Managing Director thereof.

Apparently he found that his involvement in Messrs .Atul Drug House Limitted as a Managing Director required his presence in India for quite some time and accordingly applied to the Joint Chief Controller of Imports and Exports for the issue of an import licence to keep the said car for more than one year. That request of his was turned down by the Chief Controller of Imports and Exports on the ground that he had not come to India for permanent settlement. Thereafter, the appellant intimated.the Chief €ontroller that he had reconsidered his decision and decided to stay in India permanently.

The Chief Controller had required the appellant to submit amongst other documents an affidavit countersigned either. by the High Commission for India in Tanzania or the Indian Embassy at Nairobi in Kenya or a Notary Public. Undoubtedly, the appellant committed a foolish act by substituting in ink the word 'permanently' for the words 'for three years' in the. affidavit submitted by him presumably because he

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thought that he would b~ required to g0 back to Tanzania to swear A such an affidavit which was just a mere formality. The appllant could as well have sworn an affidavit before a notary puplic at Bombay and submitted it along with his application for customs clearance.

The appellant for this act of indiscretion has already suffered a prosecution launched by the Central Bureau of Investigation in the Court of the Additional Chief Presidency Magistrate, Bombay , for commission of an alleged offence punishable under s. 420 of the Indian Penal Code. The aforesaid affidavit which he had furnished to the Chief Controller of Imports & Exports was a document filed by the prd!; ecution in that case and put in evidence to substantiate the charge that he made a false declaration before the Assistant Collector of Customs, Bombay , that he was a tourist and had.come to Bombay to stay for a period of six months and thereby the Assistant Collector was misled by the declaration so made although the appellant knew full well that he . hd sworn an affidavit before the Third Secretary, High Commis- . sion for India at Dar-es-Salaam that he was taking up an appointment as a Director of Messrs Atul Drug House Limited and it would therefore necessitate him to remain in India for a peroid of three years at least. "ihe prosecution further alleged that he made a representation to the Chief Controller of Imports & Exports, New Delhi to issue him a cmtoms clearance and when he was asked to produce affidavit in support of his claim, he scored out the words 'for three years' from the said affidavit and added in ink the word 'permanently' which amounted to forgery for which a case was pending in the Delhi Court.

The appellant pleaded his innocence and denied the commission of the alleged offence.

His plea in defence was one of false implication.

He stated that the prosecution had been launched by the Central Bureau of Investigation in 1969 i.e. long after the

Mercedes Benz car had been exported out of India before July 29, G 1967 i.e. the period of one year allowed under the tripe-trique regulation, at the instigation of his business rival Shah, the other Managing Director. After a trial the learned Additional Chief Presidency Magistrate by his judgment dated April 7, 1973 acquitted therespondent liolding that the prosecution had failed to establish the charge µnder s, 420 of the Indian Penal Code beyond all reasonable doubt tt

SUPREME COURT REPORTS

LJ985] 3 S.C.R.,

He further held that the dispute between the two groups viz. the Shah family on the one hand and the Chanderia and Khimsia families on the other, to gain control over the management of Messrs Atul Drug House Limited arose in 1968 and that the appellant was falsely implicated at the instigation of Shah, the other Managing Director, who was on friendly terms wi\h Wagh, Director of En

forcement.

The Delhi Special Police Establishment had in the meanwhile filed a clnllan against the appellant in the Court of the Judicial Magistrate (First Class), Delhi on February 10, 1971 for commission of an alleged offence punishable under s. 420 and 47 l read withs. 467 of the lnd._n Pwal Code. By his order dated May 14, 1973, upon an inquiry under s. 207A(4) of the Code of Criminal Procedure, 189l the Judicial Magistrate (First Class), Delhi being of the view that the aforesai i affidavit was a valuable security, framed charges against the appellant Qnder s. 420, 467 and 471 read with s. 467 of the Indian Penal Code directing him to stand his trial in a Court of Sessions.

In revision. the Additional Sessions Judge, Delhi by hi; order dated May 22, 1971 made a reference under s. 438 of the Code for quashing of the charge under ss. 467 and 471 read with s. 467 of the Indian Penal Code taking a contrary view.

Accepting the reference, a learned Single Judge of the Delhi High Court by his order dated August 26, 1974 set aside the order ofcommittal passed by the learned Judicial Magistrate and quashed the charge framed against the appellant under ss. 467 and 471 read with

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s. 467 of the Indian. Penal Code and re mandcd the case to the Metropolitan Magistrate, Delhi with the dir cction that he should proceed to try the appellant for commission of an alleged offence punishable under s. 420 read with s. 511 of the Indian Penal • . '1 Code .

. Learned counsel for the appellant with his usual fairness frankly concedes that the plea of autrefois acquit under s. 403 of the Code or the rule against double jeopardy guaranteed under Art. 20(2) of the Constitution are not availa , Je to the appellant since the offences are not substantially the same but separate and distinct. He however contends that the substitution in ink of the word 'perma. nently' for the words 'for three years' in the affidavit was an honest but a foo]ish act anc.\ therefore no useful purpose would be served ip

'.

directing another prosecution of the appellant for an alleged offence punishable under s. 420 read with s. 511 of the Indian Penal Code.

The contention must, in our opinion, be accepted.

Although we commenced this order by observing that the act of the appellant in altering the affidavit may prima facie make out a case for framing of a charge under s\ 420 read withs. Sil of the " Indian Penal Code, he has come forward with a explanation, namely that he was under an honest belief that he could utilize the unused affidavit lying with him and it cannot be said that the explanation so offered was not a reasonable explanation. If that be so, the act .\....... complained of may or may not amount to an offence punishable ~-under s. 420 read withs. 51 l of the Indian Penal Code, 1860. It would not subserve the interests of justice when admittedly the Chief Controller of Imports and Exports was not cheated, nor was there an attempt to cheat him. This is amply borne out by the fast that the Mercedes Benz car brought by the ppellant, free of duty, under the. Tripe-trique convention was repatriated by him out of India before July 29, 1967 i.e. within the period of one year prescribed thereunder. For aught we know, the appellant did not have

any dishonest intention. ·

In the facts and circumstances of the case, we do not think that it would be expedient, in .the interests of justice to maintain the order of the learned Single Judge by which he has remained the case to the Metropolitan Magistrate, Delhi with the direction that he should proceed to try the appellant for commission of an alleged offence punishable under s. 420 read with s. 511 of the Indian Penal Code. The adoption of such a course after a lapse of nearly 20

\, ty~r~ "'.old _not only entail a frsh trial but subject the appellant to

\ undue harassment and ult1mately may result m nn acquittal.

In the result, the appeal succeeds and. is allowed. The order passed by the High Court is set aside and the proceedings now pending before the Mctrnrolitan Magistrate, Delhi are quashed.

A.P.J., Appea/ tdlowed.