IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.2710 OF 2013 BETWEEN:
SRI R. YELLAIAH S/O LATE RAMAIAH THE SUPERINTENDENT OF CUSTOMS AGED ABOUT 61 YEARS NO 2570, 17TH MAIN KUMARSWAMY LAYOUT BANGALORE 50070 …PETITIONER (BY SRI. S. RAGHU, ADVOCATE) AND:
THE DEPUTY COMMISSIONER OF CUSTOMS OFFICE OF THE COMMISSIONER OF CUSTOMS P.B. NO 5400, C.R. BUILDING, QUEENS ROAD BANGALORE - 560 001 ...RESPONDENT (BY SRI. JEEVAN. J. NEERALGI, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH/SET ASIDE THE ORDER DATED:18.2.13 PASSED BY THE P.O., FTC-XVII, BANGALORE CITY IN CRL.RP.NO.372/12.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel for the petitioner and the learned counsel for respondent.
2. Petitioner was working as a Superintendent of Customs in Postal Appraising Department, Bengaluru. It is alleged that on 27.12.2005, four parcels were forwarded to Frazer Town Post office for delivery to M/s. Acuta Spectra. The contents were declared as computer parts. The Officials of the Directorate of Revenue Intelligence cleared the parcels as non-taxable articles in gross violation of the procedure for assessment and collections of custom duty and thereby caused loss of custom duty and wrongful gain to the accused. On these charges, private complaint came to be filed against the petitioner seeking his prosecution for the offences punishable under sections 135[1][a] and 136[1] of the Customs Act, 1962 [‘Act’, for short].
3. The learned Magistrate took cognizance of the said offences and issued summons to the petitioner. The petitioner moved an application under section 245 of Cr.PC seeking discharge. The said application was allowed by the learned Magistrate. The respondent challenged the said order before the Additional District & Sessions Judge at Bengaluru and by order dated 18.02.2013 in Criminal Revision Petition No.372/2012, the learned Sessions Judge allowed the criminal revision petition and set aside the order dated 4.5.2012 passed in CC No.165/2010 and consequently dismissed the application filed by the petitioner and remitted the matter to the learned Magistrate with a direction to proceed with the case against Accused No.1. The petitioner has called in question the initiation of the proceedings against him as well as the order passed by the learned Sessions Judge dated 18.02.2013 in Criminal Revision Petition No.373/2012.
4. Learned counsel for the petitioner submits that in respect of the very same accusations, disciplinary proceedings were initiated against the petitioner and after elaborate enquiry, the petitioner was exonerated of similar charges. Further, adjudication proceedings was also taken up against the petitioner before the adjudicating authority under section 112 of the Act. A penalty of Rs.1,00,000/- was imposed. The said order was challenged by the petitioner before the Customs, Excise and Service Tax Appellate Tribunal [‘Tribunal’, for short] and by order dated 30.10.2017 in Final Order No.22652-22653/2017, the order passed by the adjudicating authority under section 112[a] of the Act was set aside and the penalty was deleted.
5. The contention of the learned counsel for the petitioner is that in respect of the very same charges, the petitioner was prosecuted for the offences punishable under sections 120B read with section 420 of IPC and section 13[1][d] read with 13[2] of Prevention of Corruption Act, 1988 and after trial, the petitioner has been acquitted of all the above offences. In the said proceedings, the petitioner was prosecuted on the very same accusations that during his tenure as Superintendent of Customs in Postal Appraising Department between 11.05.2005 to 30.12.2005, he conspired with deceased M.C. Ammasi and Accused No.2 to cheat the customs department in the matter of importing of computer parts in the name of M/s. Acuta Spectra Inc., by clearing the speed post parcels and in furtherance of said conspiracy, accused No.1 cleared four consignments of computer spare parts i.e., 6741 number of RAM cards worth Rs.11,797,000/- as non taxable which is imported from Singapore and the same was delivered to M/s. Acuta Spectra Inc., and thereby caused loss of Rs.24,73,830/- to the Customs Department and corresponding wrongful gain to the petitioner and other accused.
6. Learned counsel for the petitioner submits that the proceedings in the instant case are also based on similar accusations and hence prosecution of the petitioner amounts to double jeopardy and is therefore liable to be quashed. In support of his submissions, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in the case of ‘RADHESHYAM KEJRIWAL v. STATE OF WEST BENGAL’ reported in 2011 [277] ELT 294 [SC] and would submit that the petitioner having been exonerated on merits in the adjudication proceedings, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue.
7. Learned counsel for the respondent does not dispute the factual background that the petitioner has already been exonerated in adjudication proceedings as well as charges laid against him have been dropped in the final order passed by the Tribunal. However, he contends that both proceedings are independent and therefore there is no bar to allow simultaneous prosecution of the petitioner. Learned counsel further submits that whether charges framed against the petitioner in the instant proceedings are overlapping is a matter for consideration of the trial Court dealing with CC No.165/2010. Hence, there is no ground to quash the proceedings.
8. In the light of the rival contentions urged by the parties, the only point that arises for consideration is whether prosecution of the petitioner is permissible, in view of his exoneration in an adjudication proceedings on the same set of facts and circumstances?
9. I have already detailed the facts in extenso. A perusal of the private complaint indicates that the petitioner herein is sought to be prosecuted for the offences punishable under sections 135[1][a] and 136[1] of the Act on the charge that the petitioner entered into conspiracy with Accused No.2 and in furtherance thereof, cleared parcels of dutiable computer parts without collecting the duty payable thereon and thereby caused extensive loss to the Customs Department and wrongful gain to the petitioner and other accused.
10. A perusal of the order passed by the Special Court in Special [Corruption] Case No.183/2007 reveals that on the very same accusations, the petitioner herein was prosecuted and after trial, he has been acquitted. Though learned counsel for the petitioner submits that the order passed by the Special Judge in Special [Corruption] Case No.183/2007 is challenged before this Court and the said order has not become final, yet the fact remains that on the very same allegations, adjudication proceedings were taken up against the petitioner in Adjn.BNG.II/1641 and Adjn. BNG.II/1650 dated 27.02.2009. Though the petitioner was found guilty in the said adjudication proceedings, ultimately, the Tribunal in its Final Order No.22652-22653/2017 dated 30.10.2017 has exonerated the petitioner of the charges and deleted the penalty.
11. In this context, it may be apposite to refer to the position of law when a person is prosecuted and exonerated in adjudication proceedings as to whether criminal prosecution could be continued in the wake of exoneration of the petitioner. Dealing with the said question, the Hon’ble Supreme Court analyzing various authorities on the effect of adjudication proceedings on pending prosecution in paragraph-43 of the Judgment in RADHESHYAM KEJRIWAL’s case [supra] has held as under:
“43. We find substance in the submission of Mr. Sharan. There may appear to be some conflict between the views in the case of Standard Chartered Bank [supra] and L.R. Melwani [supra] holding that adjudication proceeding and criminal proceeding are two independent proceedings and both can go on simultaneously and finding in the adjudication proceedings [supra] and K.C. Builders [supra] wherein this Court had taken a view that when there is categorical finding in the adjudication proceeding exonerating the person which is binding and conclusive, the prosecution cannot be allowed to stand. Judgments of this Court are not to be read as statute and when viewed from that angle there does not seem any conflict between the two sets of decisions. It will not make any difference on principle that latter judgments pertain to cases under the Income Tax Act. The ratio which can be culled out from these decisions can broadly be stated as follows:-
[i] Adjudication proceeding and criminal prosecution can be launched simultaneously.
[ii] Decision in adjudication proceeding is not necessary before initiating criminal prosecution.
[iii] Adjudication proceeding and criminal proceeding are independent in nature to each other.
[iv] The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution.
[v] Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20[2] of the Constitution of Section 300 of the Code of Criminal Procedure.
[vi] The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merits, prosecution may continue; and [vii] In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue underlying principle being the higher standard of proof in criminal cases.”
12. The ratio laid down in the above case, in my view, squarely applies to the facts of this case. The order passed by the Tribunal clearly indicates that the petitioner has been exonerated of the charges on merits. Under the said circumstances, the prosecution of the petitioner on the same set of facts and circumstances cannot be allowed to continue. Hence, the petition deserves to be allowed and the impugned proceedings are liable to be quashed.
Accordingly, the petition is allowed. The order dated 18.02.2013 in Criminal Revision Petition No.372/2012 passed by the Presiding Officer, Fast Track Sessions Court XVII, Bangalore City, is set aside. Consequently, the proceedings in CC No.165/2010 on the file of the Special Court for Economic Offences at Bangalore are quashed.
Sd/- JUDGE AN/-