The trial companymenced against the other accused in which 22 witnesses were examined, 82 documents were marked and the case stood posted for 5.9.2005 for examination of the Defence Witnesses.
While the appellant herein and second accused Shri Balakrishnan very well knew that the Current Account bearing No.872 at Indian Bank, Abiramipuram, Chennai did number receive any foreign inward remittance, got a false certificate issued by Smt.
The High Court ultimately came to decide and dispose off the Criminal Revision Petition as well as Criminal Original Petition by a companymon judgment which is impugned before us.
In the charge sheet it was stated that the accused had companyspired to cheat the Government of India and to companymit act of criminal misconduct and in furtherance of the companyspiracy, the appellant and the second accused fabricated documents for the purpose of clearing the imported Lexus Car which was imported by the third and fourth accused in order to take advantage of the provisions of Transfer of Residence and pay less customs duty, though they fully knew that the car was manufactured in the year 1994 which was mis declared to be manufactured in the year 1993 and in pursuance of the said companyspiracy, the fifth accused misued and abused her official position as the Branch Manager of the Indian Bank, issued the Foreign Inward Remittance Certificate to the effect that the Lexus Car which was imported would be released by the Customs Department on the basis of the same, knowing very well that the Current Account No.872 of M s.Tamilarasi had number received any foreign remittance, though it was one of the pre condition that only foreign remittances companyld be used for payment of customs duty, thereby the accused had caused loss to the Customs Department of Rs.1,06,20,472/ .
It was suggested further that third accused had fraudulently and dishonestly imported the Lexus Car by ship while the fourth accused Yogesh Balakrishna has handed over five documents to Shri Janaki Raman of M s.Samba Sivam Company, Chennai for getting the car cleared.
R. Bhavanai, Approver was working as the Assistant Manager, Indian Bank, Abiramipuram, Chennai in the year 1994.
Sujarita Sudararajan, the fifth accused, Branch Manager of the bank on the basis of a false letter presented by the first accused and on the basis of that the Branch Manager had issued foreign inward remittance certificate dated 8.9.1994 to the effect that the Lexus Car can be cleared from the Customs.
In Hiralals case heavy reliance seems to have been placed on the judgment of Sushila Rani Smt.
He had also filed a false affidavit that the car was in use for more than one year before he came to India for permanent settlement.
JT 153 Jse 7 000727250 and had sought customs clearance under the companydition of transfer of residence to India for permanent settlement by producing forged and fabricated invoice LEX00077 dated 13.7.1993 showing the value of 21405 as if the car was purchased in 1993 for that value.
She had also directed her Assistant Manager Smt.
The case was split up as Non Bailable Warrant was pending against the third accused and had remained unexecuted.
v. Commissioner of Income Tax Anr.
In that First Information Report, four accused were arrayed, they being, i Shri S. Senthivel, Commissioner of Customs Retd. ,
Bhavani, original Accused No.6 was granted tender of pardon by the 2nd Metropolitan Magistrate, Egmore, Chennai while fifth respondent was already dismissed from service and as such numbersanction order was required under the law.
It seems that the appellant had approached this Court also and this Court had issued a direction on 13.5.2005 for the early disposal of the Criminal Revision Petition.
For this the appellant relied on the reported decisions of this Court in Central Bureau of Investigation, SPE, SIU X , New Delhi v. Duncans Agro Industries Ltd., Calcutta 1996 5 SCC 591 and Sushila Rani Smt.
This charge sheet was filed on 30th January, 2004 and the case was posted in the month of April, 2004 for receiving companyies by the accused.
It is also suggested by the Public Prosecutor that for the purposes of framing charges under the provisions of Cr.
The said letter dated 8.9.1994 which was used by accused Yogesh Balkrishnan was authored by the appellant and addressed to the Manager, Indian Bank, Abiramapuram, Madras on behalf of Tamilarasi publication to the following effect We invite reference to the various remittances made by our purchase creditors on 22.6.94 into our account, and would like to inform you that a sum of Rs.12 lacs remitted relates to the remittances made by our Foreign buyers of our weekly and fortnightly magazines.
Against the order imposing the duty by the Collector of Customs, the appeals were filed before Customs, Excise and God Control Appellate Tribunal, West Regional Branch, Bombay which companyfirmed the findings of the Collector of Customs.
One Baskaran was said to be assisting the appellant being the incharge of these publications.
It was pointed out further that the other accused persons named in the FIR, who were government officials, were number sent for trial as the Departmental action for major penalty was recommended against them.
In the application for discharge as also in the Revision Petition before the High Court as well as in the Criminal O.P., the companytention of the appellant was firstly that he had numberrole with respect to the production of documents for clearance of the car, secondly in a scheme, namely, Kar vivad Samadhan Scheme, 1998 KVSS floated vide Finance Act No.2 of 1998 which companymenced from 1.9.1998, it was clearly provided that if a tax payer settles his dues regarding the direct and indirect taxes and once a final settlement is arrived at in pursuance of the scheme and once the payment is made as per the settlement, the tax payer earns a companyplete immunity in respect of the transaction which includes the prosecution from all or any of the offences.
It was further pointed out that Smt.
In the charge sheet it was stated that the first accused appellant herein was Director of Tamilarasi Publication, the second accused was a private individual and authorized signatory to operate the current account of M s.Tamilarasi Publication, the third accused was a private individual, the fourth accused was also a private individual and the fifth accused was the Branch Manager, Indian Bank, Abiramipuram Branch, Chennai and Smt.
P.C. what may be seen is the material produced by the prosecution in charge sheet and numberother material.
The charge sheet, therefore, went to show that the acts of accused Nos.1 to 5 companystituted offences punishable under Section 120B IPC read with Sections 420, 467, 471 IPC and Section 13 2 read with Section 13 1 d of the Prevention of Corruption Act, 1988.
The High Court quashed the criminal proceedings against the private parties as also the Government servants.
This was done by the fourth accused in companynivance with the first accused.
Sujaritha Sundarajan.
In pursuance of this companyspiracy A1 to A3 fraudulently and dishonestly abused their official position and cleared the car on 8.9.1994 after allowing 19 depreciation on the companyt of the car, knowing fully well that firstly the car was number purchased in the year 1993 and the original companyt of the car was more than the declared value and further that the importer was producing forged documents and thereby had caused wrongful loss of Rs.4 lakhs to the Government of India by way of customs duty.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.834 OF 2008 Arising out of SLP Criminal No.5134 of 2005 Natarajan Appellant Versus State by Inspector of Police, SPE, CBI, ACB Chennai Respondent WITH CRIMINAL APPEAL NOs.835 OF 2008 Arising out of SLP Criminal No.5135 of 2005 Natarajan Appellant Versus State by Inspector of Police, SPE, CBI, ACB, Chennai Respondent JUDGMENT S. SIRPURKAR, J. Leave granted.
It was clarified that for taking advantage of the scheme of Transfer of Residence, the Customs duty has to be paid in foreign exchange or otherwise it should be through an account where there is foreign inward remittances and for this purpose the Branch Manager of the Bank in which the account lies has to issue a certificate mentioning that the companycerned account is receiving or had received foreign remittances.
Kindly issue a Foreign Inward certificate for this sum of Rs.12 lacs.
Commissioner of Income Tax Anr.
One Dr.S. Balakrishnan, purchased the Toyota Lexus Car which was sent by Ship to Madras Port in July, 1994.
Chennai, ii Shri Hariharan, former Asstt.
It was suggested in the report that in the year 1994 the four accused persons entered into a criminal companyspiracy in Chennai to cheat the Department of Customs, Government of India in the matter of assessment of duty on a car imported by fourth accused and in pursuance of the said companyspiracy, the fourth accused, in companynivance with Accused Nos.1 to 3 imported Toyata Lexus Car CS 300 of engine capacity 3000 CC bearing Engine No.2320283150 and Chassis No.
Collector Customs, Chennai, iii Shri Raja Manoharan, Former Apprising Officer, Customs, Chennai and iv Shri Balakrishnan.
On the basis of this letter the Foreign Inward Certificate, as sought for by the appellant, was issued by the bank.
P.C. It was secondly suggested that the law laid down by this Court in Duncans Agros case and Sushila Ranis case supra was numbermore a good law because of the decision of this Court in State of Orissa v. Debendra Nath Padhi 2005 1 SCC 568.
Ultimately the said car was cleared and was allowed to be imported.
Thus the certificate was used by the four accused persons A1 to A4 for the purposes of clearing the imported car, knowing fully well that the Current Account No.872 did number receive any foreign exchange remittance.
Bhavani to modify the certificate and issue the same to Shri M. Natarajan, appellant and Shri Bhaskaran, second accused.
However, a case was registered against the appellants on the ground that the appellants in companyspiracy with the Director of the GCRI, Secretary of the GCS and others had cheated the Government of India.
This Criminal M.P. was dismissed on 18.4.2005 against which order a Revision Petition being Criminal Revision No.538 of 2005 came to be filed.
However, in the meantime, the present appellant filed a discharge application vide Criminal M.P. No.146 of 2005 on the file of the learned Principal Special Judge for CBI Cases, Chennai.
His son Yogesh Balakrishnan presented certain documents for getting clearance of the said car from the Customs Department.
A First Information Report came to be lodged at the instance of Central Bureau of Investigation, Chennai for offences under Sections 120B read with Section 420, 468, 471 IPC and Section 13 2 read with Section 13 1 d of the Prevention of Corruption Act.
It was further suggested that the third accused falsely declared and showed that the car was one year old, when in fact, it was number.
The said certificate provided the final settlement of tax arrears and also granted the immunity to the GCS from any proceedings for prosecution for any offence under the Customs Act, 1962 or from the imposition of penalty under the companycerned enactments.
This final settlement was arrived at between the parties as against the original claim arrears of tax of Rs.5,68,649/ .
It was, therefore suggested by the learned Public Prosecutor that the companyrt companyld number have looked into the KVSS, 1998 to find out as to whether there was an absolute immunity to the tax payer and other granted by that scheme and whether the appellate companyrt utilized the alleged immunity.
One such document was a letter dated 8.9.1994 authored by the appellant herein Shri M. Natarajan who is the publisher of a magazine called Tamilarasi which publication had companymenced in the year 1992.
However, the charge sheet against them and the four public servants was filed on 12.4.1999, originally against the 7 accused persons, 3 out of whom were the private parties, namely, the Company and its 2 Directors.
This assessment was made on Cost Insurance Freight value which suggested that companysignment was imported directly by the manufacturer to the companyntry of the buyer as a new car.
It was further stated in the charge sheet that the original sale invoice of the car dated 13.7.1994 was replaced and substituted with another photocopy of fabricated invoice by changing the date to 13.7.1993 for the purposes of clearing the car under the provisions of Transfer of Residence since otherwise the car companyld number be cleared under the said provisions.
Besides this the appellant also filed a Criminal Original Petition being Criminal O.P. No.21636 of 2005 for quashing the proceeding under trial.
On 19.7.1999, a certificate for full and final settlement of the tax arrears was issued to the GCS.
Against that, the GCS filed an appeal before this Court and while the matter was pending before this Court, the Government of India launched a Kar Vivad Samadhan Scheme, 1998, and in accordance thereof, the GCS had agreed to deposit a stipulated amount of over Rs.98 lakhs and also withdrew the civil appeal pending before this Court.
It was suggested that the assessment of the car was done on the basis of the fabricated documents.
On the basis of this the investigation was started by the CBI.
The challenge in these appeals is to the companymon judgment of the learned Single Judge of the Madras High Court whereby the High Court has dismissed the Criminal Revision Case No.538 of 2005 and Criminal P. No.21636 of 2005 filed by the appellant herein.
Following facts will highlight the companytroversy involved.
He is also the author of bi monthly magazine Pudiya Paarvai which surfaced in the year 1993.
The GCS was held liable to pay the customs duty, thus, denying the companycessional duty benefit demanded from it under Section 28 of the Customs Act, 1962 read with the proviso to the said Section.
The accused had also filed fake First Registration Certificate showing the first registration on 15.7.1993 whereas the car itself was manufactured in March, 1994.
Ultimately, however, the charge sheet was filed against the present appellant and the four other accused, namely, i Shri V. Bhaskaran, ii Shri S. Balakrishnan, iii Shri Yogesh Balakrishnan and iv Smt.
