Kalappa Abdul vs State of Karnataka

A.S. Pachhapure, J.—This revision is directed against the order rejecting the request of the petitioner for discharge for the offence punishable under Section 120B r/w Section 420 of IPC.

The facts reveal that the petitioner was an accused in Spl.C.C. No. 15/1998 along with other accused Nos. 1, 3 and 4. They were charge sheeted for the offence punishable under Section 120B r/w Section 420 of IPC. As the petitioner was not available for a trial, the case against him was split-up and ultimately, accused Nos. 1 and 4 were acquitted of the charges aforesaid. After securing the presence of the petitioner, the trial Court has now registered Spl.C.C. No. 61/2013 and when the matter was posted for hearing before charge, an application was filed by the petitioner under Section 227 of Cr.P.C. for his discharge.

It is the case of the prosecution that accused No. 3 returned from Dubai on 30.08.1994 and he arranged to book contra-bands and other items from Dubai to India in the name of the petitioner and when the consignment came to India through Cargo, the petitioner declared the value of the goods at Rs. 67,632/- and on assessment, paid duty of Rs. 29,000/- on the goods assessed at Rs. 75,000/-. He got release of the goods and later it revealed that the goods were worth Rs. 11,19,400/-. In the circumstances, as the petitioner who was requested by accused No. 3 to spare his passport for the purpose of transferring the goods to Bangalore, agreed to do so at the request of accused No. 3. It further reveals that these goods are 985 watches and 30,000/- watch modules. Under the guise of residential goods were transported to India, a charge has been laid against the petitioner for the offences under Section 420 r/w Section 120B of IPC for getting release of the aforesaid goods by declaring the less value than the actual price of the goods.

It is the contention of the learned counsel for the petitioner that accused Nos. 1 and 4 have been acquitted of the charges and that the petitioner had valued the goods at Rs. 67,632/- and the Department assessed the value of the goods at Rs. 75,000/- and in case there is variation in the assessment of the value of the goods, it is not the petitioner who is responsible and there is no evidence of conspiracy between the petitioner and accused No. 3. Hence, the question of framing the charge for the offence under Section 420 of IPC does not arise. It is also her contention that it is the case of evading duty and is an offence under Sections 132 and 135 of the Customs Act for which a charge has to be framed and in the absence of such charge, the provision of Section 420 of IPC, the general law is not attracted. It is also her contention that the Customs or the State is not a person and Section 420 of IPC does not apply. On these grounds, she submits that the order of the learned Special Judge framing charges is improper and sought for setting aside the order and to grant an order of discharge.

Learned counsel for the petitioner has placed reliance on the decision of the Apex Court reported in Krishnan and another Vs. Krishnaveni and another, AIR 1997 SC 987 : (1997) CriLJ 1519 : (1997) 1 Crimes 97 : (1997) 1 JT 657 : (1997) 1 SCALE 458 : (1997) 4 SCC 241 : (1997) 1 SCR 511 : (1997) AIRSCW 950 : (1997) 1 Supreme 628 wherein the Court while considering the provision of Section 397(3) of Cr.P.C. held that the State did not fall within the purview of the ''person'' and therefore, it could maintain second revision against an order in the revision petition filed by it.

The word ''person'' that has been considered by the Apex Court as defined under Section 11 of the IPC in different context and laid down the principle. But it does not apply to the facts of the case on hand. A compliant is filed by the Customs department which is to recover the custom duties and in case, if for any reason, any person causes an act which deprives the Department from receiving the customs duty, by doing such an act much amounts to offence under Section 420 of IPC, the person deceived who is entitled to file a complaint and falls within the purview of Section 11 of the IPC.

That apart, the State which has the Departments to take action for violation of law by any individual, particularly the Penal law, an authority vested with the Department to initiate the case.

That apart, as could be seen from the said definition, the word "person" includes any Company or Association or body of persons, whether incorporated or not. The Department under the Sate is the body of persons, whether incorporated otherwise.

In that view of the matter, I am of the opinion that the Custom Department is a person which would fall within the purview of Section 11 of IPC and therefore, the provision of Section 420 of Cr.P.C. would apply in case, if ingredients are fulfilled by the State-Authority.

Now it is relevant to note that accused No. 3 had shifted his residence from Dubai to India. Under the guise of shifting his residential articles, he has utilized the passport of the petitioner and in the name of the petitioner, 985 watches and 30,000/-watch modules were transported from Dubai to India. By any stretch of imagination, it cannot be said that these 985 watches or 30,000/- watch modules would be the residential articles of accused No. 3. So prima-facie looking to the goods which were transported by accused No. 3 in the name of the petitioner under his passport were contra-band goods and they are not residential articles of accused No. 3 and it would within the knowledge of the petitioner as it is he who declared the value of the goods at Rs. 67,632/- though the value of the goods was much more.

It is no doubt true that accused Nos. 1 and 4 who were tried for the offence under the provisions of Prevention of Corruption Act and also they were arrayed as accused because they showed the value of goods at Rs. 75,000/- though the value of the goods was about Rs. 11,19,400/-. The acquittal of accused Nos. 1 and 4 does not come in the way of taking action against the petitioner prima-facie for the reason that the value of the goods which either goods belong to the petitioner or to accused No. 3, its value was declared at Rs. 67,632/-. A conspiracy in between the petitioner and accused No. 3 can be presumed. There could not be any direct evidence for the charge under Section 120B of the IPC.

Perusal of the facts would reveal that though there is a evasion of duty and may be that offence would be under the provision of Sections 132 or 135 of the Customs Act, looking to the conduct of the petitioner in declaring the goods as residential goods sent by accused No. 3 to India and declaring its value at Rs. 67,632/-, prima-facie dishonest intention can be inferred for causing loss to the Department by not paying the duty on the goods. Therefore, I am of the opinion that the prima-facie there is material for the offence under Section 420 of IPC. In that context, the decision relied upon by the learned counsel for the petitioner in ''2008 CRL.L.J. (NOC) 47 (JHAR.)'' [Avjit Ghosh and Anr. v. State of Jharkhand and Anr.] is not applicable.

Though many other contentions were raised by the learned counsel for the petitioner, looking to the grounds that have taken by the petitioner in the revision petition, I am of the opinion that the learned Special Judge was right in rejecting the application of the petitioner for his discharge. Anyhow, as the matter is of the year 1998 and the petitioner was taken to custody after a long lapse of time, the trial Court shall dispose of the main case at an earliest point of time.

Therefore, the revision petition has no merits and it is accordingly dismissed. Anyhow, the trial Court is directed to dispose of the case expeditiously and conclude the trial preferably within a year from the date of the communication of this order.