Kapoor Chand Maganlal Chanderia Vs.
Delhi State (Administration) [1985] INSC 88 (16 April 1985)
SEN, A.P. (J) SEN, A.P. (J) VENKATARAMIAH,
E.S. (J)
CITATION: 1985 SCR (3) 773 1985 SCALE (1)1003
ACT:
Indian Penal Code Ss 420 & 511
Affidavit-Substitution of word ' permanently' for 'three Years'-Prosecution
launched-Plea of accused-Affidavit used under 'honest belief'-Prosecution
whether valid and permissible
HEADNOTE:
The appellant who was a British citizen of
Indian origin , came on a temporary visit to India for a period of three years
in July 1966 as he had a family holding in Messrs Atul Drug House Limited , to
survey the business situation and to make a decision for his future stay in the
country. Along with him he brought a Mercedes Benz car as part of his personal
baggage , free of duty , under the Tripe-trique convention under which he was
entitled to retain the car for a maximum period of one year. After his arrival
in India he was appointed as Managing Director of the Company and this required
his presence in the country for quite some time and therefore the appellant
applied to the Joint Chief Controller of Imparts & Exports for the issue of
an import license to keep the said car for more then one year , but that
application of his was rejected by the Chief Controller on the ground that he
had not come to India for permanent settlement , On the appellant informing the
Chief Controller that he had reconsidered his decision and decided to stay in
India permanently , the Chief Controller required him to submit amongst other
documents an affidavit counter-signed either by the High `Commission 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-Salaam stating that he was taking up
appointment as a Director of Messrs Atul Drug house Limited and it would
therefore necessitate his presence in India for a 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 license , what he did was to
score out the words 'for three years' and 774 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 appellant within the period
provided under the Tripe-trique convention.
The appellant was prosecuted by the Central
Bureau of Investigation in the Court of the Additional Chief.
Presidency Magistrate , Bombay for commission
of an alleged offense 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 come to Bombay to stay for a
period of six months knowing full well 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. The aforesaid affidavit was put in
evidence by the prosecution. The Customs authorities led no evidence in support
of the charge. The learned Chief Presidency Magistrate after a trial lasting
over four years acquitted the appellant on the ground that the prosecution had
failed to establish the charge beyond all reasonable doubt. He further held
that the appellant was falsely implicated at the instance of one Shah , 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 the
Judicial Magistrate (First Class) , Delhi on February 10 , 1971 for commission
of an alleged offense 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.420 , 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 Additional Sessions Judge ,
Delhi under s.438 of the Code of Criminal Procedure , 1898 quashed the charge
farmed against the appellant under ss.467 and 471 read with s.467 of the Indian
Penal Code and remanded the case to the Metropolitan Magistrate , Delhi with
the direction that he should proceed to try the appellant for commission of an
alleged offense punishable under s 420 read with s.511 of the Indian Penal
Code.
Allowing the Appeal.
^
HELD: 1. In the facts and circumstances of
the case , it would be extremely doubtful whether the ingredients of an offense
under s.420 read with s.511 of the Indian Penal Code were made out. The
appellant might come forward with an explanation , namely , that he acted an
honest belief that he could make use of the unutilized affidavit lying with him
and it could not be said that the explanation so offered would not be a
reasonable explanation. [779B D]
2. In the instant case , there was absence of
any dishonest intention or means rea on the part of the appellant when he made
use of the affidavit sworn by him before the third Secretary , High Commission
for India at Dar-es-Salaam. It was foolish on his part to have altered the
affidavit by scoring out the words 'for three years' and to have added in ink
the word 'permanently' , 775 The appellant could as well have got an affidavit
sworn before the Notary Public at Bombay and forwarded it along with his
application for grant of an import licence.
Admittedly , 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 of India within the prescribed period of one year. [776H; 777A; 779-E]
3. Although the rule against double jeopardy
guaranteed under Art. 20(2) U of the Constitution or the plea autrefois acquit
under s.403 of the Code of Criminal Procedure 1898 are not available to the
appellant since the alleged offenses were not substantial the same but were
separate all 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 substituting the word
'permanently' for the words 'for three years' in the affidavit which the
circumstances suggest was an honest but a foolish act , particularly when he
had been acquitted of a somewhat similar charge by the Additional Chief
Presidency Magistrate , Bombay wherein the affidavit was relied upon by the
prosecution 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 lapse of nearly 20 years would not only
entail a fresh trial but subject the appellant to undue harassment and
ultimately may result in an acquittal. [778G- H; 779E-F]
CRIMINAL , APPELLATE JURISDICTION: 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 Jethmalani and N. H. Hingorani for the
Appellant.
M.S. Gujaral, G.D.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 countersigned 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 111 which he had brought along with him in July 1966 as
part of his personal baggage , free of duty , under the international
convention known as Carnet De-Passage Tripe-trique , under which 776 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 Code , 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 that 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 sports 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 1) 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 business situation and to make a decision about his future 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 Limited 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 license 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
Controller 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 777
thought that he would be required to go back to Tanzania to swear such an
affidavit which was just a mere formality. The appellant could as well have
sworn an affidavit before a notary public at Bombay and submitted it along with
his application for customs clearance.
The appellant for this act of indiscretion
has already n 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 prosecution 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 had sworn an affidavit
before the Third Secretary , High Commission 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 period of three
years at least. The prosecution further alleged that he made a representation
to the Chief Controller of Imports & Exports , New Delhi to issue him a
customs 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 , 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 thereupon dent holding that the prosecution had failed to establish
the charge under s. 420 of the Indian Penal Code beyond all reasonable doubt
778 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 with Wagh , Director of Enforcement.
The Delhi Special Police Establishment had in
the meanwhile filed a challan 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 471 read with s. 467 of the
Indian Penal Code. By his order dated May 14 , 1973 , upon all inquiry under s.
207 A(4) of the Code of Criminal Procedure , 1893 the Judicial Magistrate (First
Class) , Delhi being of the view that the aforesaid affidavit was a valuable
security , framed charges against the appellant under 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 his
order dated May 22 , 1973 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 of committal passed by the learned Judicial Magistrate and quashed the
charge framed against the appellant under ss. 467 and 471 read with s. 467 of
the Indian Penal Code and remanded 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. 5 11 of
the Indian Penal 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 available to the appellant since the offenses are not
substantially the same but separate and distinct. He however contends that the
substitution in ink of the word 'permanently' for the words 'for three years'
in the affidavit was an honest but a foolish act and therefore no useful
purpose would be served in 779 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 the 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 with s. 511 of the R
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 explanations 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 with s 5ll 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 appellant , 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 years would not only entail a fresh trial but
subject the appellant to undue harassment and ultimately may result in an
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 Metropolitan Magistrate , Delhi are quashed.
A.P.J. Appeal allowed.
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