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Section 173 in The Indian Penal Code
Section 420 in The Indian Penal Code
Section 120B in The Indian Penal Code
Section 471 in The Indian Penal Code
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Andhra High Court
P.S. Prasad vs State Of Andhra Pradesh And Anr. on 9 December, 1997
Equivalent citations: 1998 (1) ALD 554, 1998 (1) ALD Cri 132, 1998 (1) ALT Cri 268
Bench: B Swamy

ORDER

1. This is an application filed under Section 482 Cr.P.C. to call for the records in Crime No.36/94 on the file of the State of Andhra Pradesh represented by the Senior Executive Officer, C.I.D., Hyderabad and quash the same as illegal and arbitrary as the same resulted in humiliation and undue harassment to the petitioner,

2. The facts leading to the filing of this petition are that the Director (Vigilance and Enforcement), Hyderabad addressed a letter to the Director General (V&E) and Ex-Officio Principal Secretary to Government, G.A.D, (V&E) Department, Hyderabad, requesting him to register a case of attempting to cheating and forgery under Sections 417,468,471 and 420 r/w 511 I.P.C. against the petitioner. The sum and substance of the above letter is that M/s. Goldstone Exports (P) Limited established in April' 92 is owned by one Mr. Sashi Kumar S/o Sri L.J. Victor, a police officer and brother-in-law of the petitioner herein and the paid-up capital of the company was invested by him and his wife in equal shares and there is no other share holder or partner in this company. On 12-08-92 the company filed an application before the Director General of Imports and Exports, New Delhi seeking customs clearance certificate to import 1000 pieces of used auto diesel engines from Singapore and Japan on the

basis of liberalised policy of the Government of India by stating that these engines will be used to provide transport facility (o tribal people in agency area of Andhra Pradesh etc. While paying the process fee, the company categorically stated that no assistance or help from the Government of Andhra Pradesh will be sought as their N.RI. Director i.e., the petitioner who is having the citizenship of U.S. A. would provide funds to purchase Those engines. In another letter dated 03-09-1992, the company stated that it will start its own workshop to generate employment in Andhra Pradesh for reconditioning and assembling of diesel engines. In another letter dated 3-10-1992, it stated that the company would like to provide mass transport to handicapped people in Andhra Pradesh without giving the details of the project. In another letter they started saying that they will donate the engines to Industrial Training Institutes in Andhra Pradesh to help the Government in their efforts to provide technical skills to the unemployed youth. As the Government of Andhra Pradesh did not certify the end-use (life) of the goods to be imported, the application of M/s Goldstone Exports (P) Limited was rejected on 29-01-1993 by the Special Licensing Authority by which time the petitioner seemed to have purchased the engines in Singapore and Japan. In those circumstances, the petitioner was looking for an alternative to get the goods (engines) to India and on the advise of some government officials, he approached Sri Khader Ali Khan, the then Managing Director, SETWIN, who in turn seemed to have recommended the application of the Company to the Director General of Imports and Exports, New Delhi stating that the goods would be used by SETWIN for the purpose of imparting training. Mr. R. Prabhakar Rao, Special Commissioner to Government of Andhra Pradesh at New Delhi, also seemed to have certified that SETWIN is a Society promoted by the Government of Andhra Pradesh. On the basis of these two letters, the licencing authority granted licence in the name of SETWIN to import 1000 pieces of used auto diesel engines on 16-03-1993 and

the same was delivered to one Mr, Chunnilal working as driver in A.P. Bhawan, New Delhi, at the instance of the petitioner instead of sending it to M.D., SETWIN or his nominee, with proper authorisation. Having taken the licence, the petitioner shipped 368 diesel engines in the name of SETWIN and they arrived at Vizag port in June, 1993, by which time there is a change in the post of M.D. SETWIN and one Khaja Mohiuddin took over the charge as M.D., SETWIN. After some correspondence with the Government, the petitioner and the Collector, Customs Vizag, the M.D., SETWIN informed the petitioner that the SETWIN will not be accepting the donation. The Director (V&E), further stated that having received secrets information about the bad reputation of the petitioner in the business circles in the United States of America and his boosting about his influence in Andhra Pradesh especially among the police officers in Delhi and has indulged in yet another shady deal of importing 1000 numbers of used auto diesel engines for commercial purposes by using SETWIN as a cover (shield) to over come the hurdles. He Director (V&E) discussed the matter with the Collector, Customs, Vizag who also entertained certain doubts about the genuineness of the transaction and recommended for cancellation of the licence having come to know of certain irregularities in obtaining the licence. The Collector, Customs. Vizag seemed to have opined that only through manipulations the special licence could be obtained. The Director (V&E) concluded that the petitioner conspired with the M.D., SETWIN to import the engines to India to make easy money and had Mr. Khan continued as M.D., SETWIN, nobody could have come to know of their under-hand deal. In this letter he opined that the officials of the Commerce Ministry and the Special Commissioner to Government of Andhra Pradesh apart from Sri K.A. Khan grossly violated the procedures to be followed by the Government officials in given circumstances. He also opined that Mr. Khan obliged the petitioner by giving a letter to the Director General of Foreign Trade,

violating the normal procedures for some unexpected gain. He completed the letter advising the Government to direct the State A.C.B./D.I.G. to register a case for attempt to cheating and forgery and to take up the investigation as there is a prima facie case against the petitioner under Sections 417,468 and 511 IPC. Having received the above letter, the Director General (V&E) and Ex-Officio Prl, Secretary to Government directed the Additional D.G.P., C.I.D, Hyderabad, A.P. to register the crime and investigate into the case. Ultimately, on 04-07-1994, crime No.36/94 was registered against the petitioners by the respondents herein for the offence punishable under Sections 417,468,471 and 420 r/w 511 I.P.C. This application under Section 482 Cr.P.C. was filed on 05-G9-1994, seeking quashing of the F.I.R., on various grounds, viz.,

1. Even if the allegations in the report are true, no offence tribal by a Criminal Court is made out;

2. the allegations made in the report are not specific and they are only imaginary. Hence, no lawful investigation can be done.

3. the allegations are inherently improbable and they are absurd.

4. even if the allegations held to be true, the necessary ingredients for the offences alleged against the petitioner as required under the I.P.C. are not fulfilled.

lastly, the petitioner contended that the whole issue is concluded in his favour by various judicial and administrative proceedings and nothing is left out to can on the investigation by the respondents.

3. The State resisted the petition by contending that the investigation so far made in the crime reveals that the petitioner along with his associates entered into a criminal conspiracy to import used auto diesel engines with fraudulent and dishonest intention and in furtherance of their common object they made false representations to various authorities.

The petitioner was instrumental for forging the signatures of Sri Khan, the then M.D., SETWIN and prepared a letter dated 16-03-1993 appointing one Mr. Jagdish Kumar as representative of SETWIN for clearance of 368 used auto diesel engines. The petitioner by making false representations was instrumental for issuance of a licence in favour of SETWIN to import 1000 used diesel auto engines by the Director General of Foreign Trade though no application was submitted by the SETWIN requesting for issuance of such licence. The Goldstone Exports (P) Limited never acquired any diesel engines or instructed or authorised to acquire such diesel engines by the petitioner and the company never intended to donate the used diesel engines to SETWIN. The petitioner himself proceeded in his personal capacity in purchasing the engines and transported them to India on the basis of the licence issued by D.G.F.T. It is also their case that the petitioner made false representation and impersonated himself as agent of M/s Goldstone Exports (P) Limited and corresponded with the Government of India for obtaining licence. The engines are said to have been imported to India under the guise of donation to SETWIN for evasion of (ax and for obtaining licence by D.G.F.T., New Delhi. Hence, the respondents are perfectly justified in conducting investigation and see that the prosecution ends in conviction.

4. In the light of the rival contentions and the factual background adverted to, this Court is called upon to decide whether the allegations made by the prosecution can constitute the offences with which the petitioner was charged and whether the criminal proceedings can be allowed to go on.

5. The petition was admitted on 23-09-1994 and the case underwent several adjournments to enable the State to complete the investigation and file charge-sheet in the case. In fact, having noticed snails progress in the investigation, I was compelled to pass an elaborate order on 08-10-96 wherein I expressed my anguish over the way in which

the investigation is being conducted and ultimately gave four weeks time to complete the investigation and file charge-sheet by making it clear that no further time will be given if the investigating agency wants to prosecute the case and adjourned the matter to 18-11-96. From the beginning of the case I gained an impression that the investigating agency having failed to collect any incriminating evidence against the petitioner, looking for an external agency to come to its rescue. Hence, I am obliged to adjourn the case several times to enable the respondent to come out with its case. Ultimately, the respondent filed charge-sheet on 16-11-1996. Before filing the charge-sheet, the investigating officer submitted a detailed note running into 23 pages with reference to the evidence collected during the investigation on the basis of the allegations contained in the F.I.R. I have gone through the entire note-file and my initial impression has come true. The investigating officer in clear terms stated that no evidence could be collected to prove any of the charges levelled against the petitioner.

6. Be that as it may, the charge-sheet was filed under Sections 120B, 471 and 420 r/w 511 1PC. The allegations in the charge-sheet will be discussed at a later stage, but it is interesting to note that the charge-sheet was filed with the following averments.

"In view of the directions of the Hon'ble High Court, a report under Section 173(2) is submitted against the accused while investigation against his associates who are parties to the conspiracy and who were instrumental in signing various documents and making representations is still continuing under Section 173 for which a separate requisition under Section 173(8) is being filed.

7. From this it is seen that though the crime was registered way back on 30-06-1994, the investigating agency came up with a plea nearly 2 1/2 years after registration of the crime, that stilt the investigation against the associates of the petitioner is going on, more so when the Court is literally after the investigating agency to see that the

investigation is completed at an early date-The IX Metropolitan Magistrate before whom the charge-sheet was filed commenced the proceedings by taking cognizance of the case for the offences punishable under Sections 120B, 471 and 420 IPC in CC No.646/96, even without applying his mind whether any prima facie case was made out by the prosecution and issued warrants for the appearance of the petitioner before the Court on 05-02-1992.

8. On the basis of the averments referred above in the charge-sheet, the Counsel for the petitioner contended that the same cannot be treated as a charge-sheet in the eye of law. In other words the charge-sheet cannot be construed as police report, within the meaning of Section 173(2) Cr. P.C. and in the normal circumstances, the Magistrate could not have taken cognizance of the offence alleged against the accused, but for the statement made in the charge-sheet "in view of the directions of the Hon'ble High Court a report under Section 173(2) is submitted." In support of his plea, the Counsel for the petitioner relied on a judgment of this Court in T. V. Sarma v. Smt. Toraga Kamala Devi, 1976 CrlLJ. 1247. In that case his Lordship while considering the ambit and scope of Section 167 Cr. P.C. had an occasion to consider the effect of preliminary charge-sheet by posing a question as to "what is a police report". Having extracted Section 173 categorically, recorded a finding that any report before the investigation is completed will not be a police report within the meaning of sub-section (2) of Section 173 Cr. P.C. and there is no question of the Magistrate taking cognizance of the offence and consequently the provisions of Section 309 Cr. P.C., cannot be invoked. Rejecting the contention of the Public Prosecutor that there is a charge-sheet though styled as a preliminary and so the proviso to Section 167(2) does not apply, held that the Cr. P.C. does not contemplate a preliminary charge-sheet and a final charge-sheet and as contemplated there is only a police report within the meaning of Section 173(2) Cr. P.C. in the following terms :

"The Code of Criminal Procedure does not contemplate apreliminary charge-sheet and a final charge-sheet. What is contemplated is only a police report within the meaning of sub-section (2) of Section 173, Cr. P.C. Admittedly in this case, there is no such report. The so-called preliminary charge-sheet filed in this case is not a police report because the investigation is not yet completed, and so the proviso to Section 167 sub-section (2) is attracted. In this connection the learned Public Prosecutor has relied upon subsection (8) of Section 173, Cr. P.C. in order to contend that even a preliminary charge-sheet is a police report within the meaning of sub-section (2) of that Section. But a reading of sub-section (8) of Section 173, Cr. P.C. shows that after a police report under sub-section (2) is sent to the Magistrate, further investigation is not precluded and if upon such investigation further evidence is obtained a further report should be sent to a Magistrate. Therefore sub-section (8) of Section 173, Cr. P.C. comes into play only after a report under sub-section (2) is sent but not before. In this case since no report under subsection (2) is sent, sub-section (8) does not come into operation at all. Since the preliminary report is not the one sent to the Court after a report under subsection (2) was sent, the learned Public Prosecutor cannot invoke the provisions of sub-section (8) of Section 173, Criminal Procedure Code."

9. In arriving at the above conclusion his Lordships relied on a decision of a Division Bench of this Court in Bandi Kotaiah v. State of Andhra Pradesh, . In the said judgment their Lordships categorically held that unless a police report as envisaged under Section 173 Cr. P.C. is before the Magistrate, he cannot take cognizance of the offence in support of which he has to hold an enquiry. Their Lordships further held that it is clear from the terms of sub-section (1) that the report under Section 173, Criminal Procedure Code, is submitted by the Police only after the investigation is completed and not before.

10. In the instant case, conspiracy under Section 120B is one of the charges levelled against the petitioner. But, till this dale except the petitioner no other person was shown as an accused and in the so-called charge-sheet they tried to explain the same by saying that investigation against his associates is going on. In fact, by order dated 06-02-1997, I passed the following order:

"The respondent shall file an affidavit in the Court on the following facts:

(i) During the course of investigation, the material found by the Investigating Officer on the role of the alleged associates of the petitioner so far and the persons identified as Associates till this date.

(ii) Whether investigation against the petitioner for the offences alleged against him is completed or not.

They shall also produce the entire record concerning Crime No.36/94."

11. Pursuant to the above order, the respondents filed affidavit naming four persons i.e., (1) Sri Khader All Khan, for issuing recommendation letter dated 18-02-1993 by contending that the same was given in his personal/individual capacity without maintaining office records in the SETWIN office. This information is very much available to the investigating officer from the letter of Director (V&E) dated 31-12-1993. But, Mr. Khan was not shown as an accused either in the FIR or in the charge-sheet till this date. (2) Mr. K.N. Murthy. He submitted number of applications by misrepresenting the facts from time to time to the licensing authority from 12-08-1992 to 14-10-1992. Even as per the version of the Investigating Officer this individual gave applications between 12-08-1992 to 14-10-1992 at a time when the application of the company was receiving the attention of the licensing authority. As the application of the company was rejected, I hold that no further enquiry is needed on the actions of this individual. (3) Sri D.S. Rao. By letter dated 21-05-1992, he informed the C&MD

SETWIN that the petitioner informed that the goods were arrived at Vizag Port. Further, it is alleged that he communicated the original Customs Clearance Permit to Mr. Jagadish Kumar with two letters dated 16-03-1993 one appointing him as agent, two, that he will be paid an amount of Rs. 1507-per engine for the service rendered by him. If the imputations against Mr. Rao are true, he cannot be said to have committed any offence as alleged by the investigating officer. (4) Sri Sunder Raj. He addressed a letter to the C & M.D., SETWIN on 19-08-1993, wherein the petitioner expressed his willingness to release the engines by paying the entire amounts if the SETWIN is agreeable to give 200 engines to them by taking the remaining 168 engines free of cost. Even if this allegation is accepted, Mr. Sunder Raj cannot be prosecuted for any of the offences levelled against the petitioner, as the petitioner himself cannot be prosecuted for the offences alleged against him for the reasons that are going to be given by me while adverting to each of the charges -Jevelled against him. Hence, by any stretch of imagination the charge-sheet filed in the case cannot be treated as a police report as contemplated under Section 173(2) Cr.P.C. Further, the question of filing a requisition under Section 173(8) does not arise for the reasons recorded above.

12. Hence, I have no hesitation to hold that there is nothing remained for further investigation in this case and a defective charge-sheet filed as the Court is literally after the Investigating Officer, to get rid off himself from the case. Had it not been mentioned in the charge-sheet that under the directions of the High Court, the charge-sheet was filed, "I am sure, the Magistrate would not have commenced the proceedings and issued warrants for the appearance of the petitioner without appyling his mind to find out whether the charge-sheet discloses any prima facie evidence, to proceed against the petitioner. The conduct of the Magistrate in taking cognizance of the offences against the petitioner without looking into the orders passed by this Court and without knowing the

circumstances under which this Court is compelled to pass that order, is highly objectionable and unknown to law.

13. Before considering whether the petitioner can be prosecuted for any of the offences levelled against him it is useful to refer to the events that have taken subsequent to the orders of the SETWIN rejecting the donation, to know the scope of the real controversy involved in this case. It is an admitted case that the used diesel auto engines not being a banned item, the department is permitting clearance of the second hand diesel engines even if they are imported without valid import licence on payment of redumption^ fine at 100% of the value including personal penalty. In this case, after receiving the proceedings dated 15-12-1993 rejecting the donation, the petitioner addressed a letter to the licensing authority by his representations dated 06-12-1993 and 28-12-1993 requesting for amending and transferring the licence in his favour. In the meantime, the Collector. Customs Vizag confiscated the goods (Engines) under the provisions of the Foreign Trade Development Act (for short 'FTD Act') as" the donee (SETWIN) abandoned the goods under Section 23(2) of the Act-Questioning the said order the petitioner filed a writ petition on the file of this Court and a Division Bench of this Court by order daled 7th April, 1994 directed the D.G.F.T., to consider the representation of the petitioner dated 06-12-1993 and 23-12-1993 within two weeks from the date of receipt of a copy of the order. While directing the petitioner to file an appeal before the Tribunal questioning the confiscation orders before 30th April, 1994, and if such an appeal is filed, the Tribunal was directed to condone the delay in filing the appeal and dispose of the same as expeditiously as possible. Till then the Customs authorities were directed not to dispose of the goods confiscated. The Appellate Tribunal in A.No.C/137/94/MAS & C/Cross/4/94/ MAS, passed an elaborate order holding that the petitioner is having locus standi as owner of the goods to stake his claim for the clearance of the same, by observing that since the donee could not clear the goods by paying

duty under Section 23(2) of the Act, the petitioner would be entitled (o seek clearance of the goods as owner under the provisions of the Act. The Tribunal also directed the licensing authority to consider the claims of the petitioner for clearance of the goods on payment of redumption fine consistent with the practice of the department in similar circumstances. Simultaneously, the cross-objections filed by the Collector, Customs, Vizag were dismissed- After remand, the Collector, Customs by order dated 21 -02-1995 allowed the release of the 368 engines on payment of duly on the value fixed by him as well as the personal penalty of Rs.10.00 lakhs and a fine of Rs.50.00 lakhs. Questioning the said action, the respondents herein filed Writ Petition No.7648/95 on the file of this Hon'ble Court and a Division Bench of this Court consisting of Justice Syed Shah Mohammed Quadri as he then was and Justice T.N.C. Rangarajan by order dated 28th April, 1995 held that though the import was irregular, the goods being permitted goods, the Collector, Customs rightly allowed the petitioner to clear the goods on payment of redumption fine and personal penalty. As the State failed to place any material to indicate any inherent infirmity in that order or lack of jurisdiction or violation of statutory provision by which it can be said that the impugned order was invalid, stating so, the action of the Collector, Customs was upheld and also rejected the request of the State that if the goods are handed over to the petitioner herein, it would not facilitate the proposed prosecution and it would be a great impediment for the State to seize the goods once they are allowed to be taken delivery by the petitioner herein. Thereafter the petitioner paid the redumption fine and got the engines released.

14. With regard to the allegations in the F.I.R, as well as the charge-sheet that having made an application to the licensing authority on behalf of M/s Goldstone Exports (P) Limited, the petitioner and his associates went on giving applications from time to time changing the end use of these engines and there may be justification for the investigating agency in suspecting that the engines are

being imported to India to sell them in the open market with good margin of profit. But at the same time, the application of the company was rejected by the licensing authority. Hence, it is difficult to hold that commission of offence has taken place, even if there is any truth in the suspicion of the investigating agency, as the intention has not taken the shape of commission of offence. Hence, no importance can be given to the change of version by the petitioner and his associates for obtaining a customs clearance permit in their name.

15. Now coming to the charges levelled against the petitioner I will deal with them one by one.

Section 120B: Punishment for criminal conspiracy : While Section 120A deals with criminal conspiracy, Section 120B specify the punishment for criminal conspiracy to commit an offence. Under Section 120A, there should be an agreement between two or more persons agree to do, or cause to be done : (1) an illegal act, or (2) an act, which is not illegal, by illegal means.

16. From this it is evident that agreement and common desire to commit an offence are the principal factors to constitute the offence of conspiracy. In the instant case, in the FIR itself Mr. Khan was found fault for not maintaining official records of his negotiations and a presumption was drawn that the petitioner and Mr, Khan agreed for mutual benefit from the deal. That is why Mr. Khan personally gave the letter flouting all normal procedures. Likewise, Mr. R. Prabhakar Rao, Special Commissioner to Government of Andhra Pradesh at New Delhi for issuing a certificate stating that SETWIN is a Society promoted by Government. Further, the officials of the Commerce Ministry were also found fault for reviving the application of M/s Goldstone Exports (P) Limited on the basis of Mr. Prabhakar Rao 's letter, without insisting for a fresh application from SETWIN and also for issuing licence in the name of SETWIN C/o A.P. Bhawan,

New Delhi and for delivering the licence to Mr. Chunnilal, a driver in A.P. Bhawan. In the F.I.R., it is also staled as follows:

"As pointed out earlier, there are several gross violations of the procedure in issuing this licence and it was learnt that because of un-precedented pressure from the commerce Minister the case was decided as per wishes of Dr. Prasad."

But, none of the officers were shown as accused in the case. From the note submitted by the investigating officer, it is seen that after rejection of the application of the company, the petitioner seemed to have approached the D.G.F.T. as well as Minister of Slate for Commerce, who agreed to grant permission to import the engines for donation to the welfare Society in Andhra Pradesh set up by the Government of Andhra Pradesh. It is only on the advice of the licensing authority he seemed to have approached Mr. Khan through the then Chief Minister, who inturn gave the recommendation letter. It is also not in dispute that after issuance of the licence, the petitioner approached Mr. Khaja Mohiuddin, who succeeded Mr. Khan as C & MD, SETWIN and requested him to get the goods cleared by paying customs duty. It is on record that Mr. Mohiuddin referred the matter to the Government for clarification and in fact, he met the Chief Secretary on this issue more than once. It is also on record that initially they thought of getting the engines released and sell them in the open market so that the financial resources of the SETWIN can be augmented. But, the said idea was given up as the SETWIN has to give an undertaking to the customs authorities about the end use of these engines i. e., for promotion of self-employment and training to unemployed youth as stated in the recommendation letter dated 18-02-93 which contains penal action. In fact, when the SETWIN authorities have expressed their inability to get the engines cleared by paying the customs duty, the petitioner came forward to pay the amount on condition that 200 engines should be given to him and the rest can be taken delivery by the SETWIN

authorities. But, this proposal seemed to have not received any intention from the authorities concerned. All these facts will lead to an irresistible conclusion that the petitioner having spent considerable amounts for purchase of the engines might have thought of donating them to the State Government agencies for promotion of self-employment and training to un-employed youth in the State than foregoing the same as suggested by the licensing authority and proceeded as per their directions.

17. Had there been any under-hand dealings between Mr. Khan and the petitioner as alleged in the charge-sheet, the Government of Andhra Pradesh would not have thought of getting the engines released with a view to sell them in the open market to augment the financial resources of the SETWIN. The only mistake committed by Mr. Khan is in not maintaining a file and keeping a copy of the letter in it for the purpose of record. At worse, it amounts to a procedural irregularity. But, the offence of criminal conspiracy cannot be proved against the petitioner even if Mr. Khan is brought as an accused in the case.

18. The other allegations i.e., in the letter the address of the SETWIN was shown as A.P. Bhawan, New Delhi and the licence was received by Mr. Chunnilal, a driver in AP. Bhawan etc., may, at worse be considered as procedural irregularities, but they cannot be made use by the investigating agency to prove the charge of criminal conspiracy.

Section 471; Using as genuine a forged document:

Using a forged document, which he knows or has reason to believe to be a forged document as genuine document. The basis for framing the above charge is the two letters dated 16-03-1993, one, appointing Mr. Jagdish Kumar as agent and the second one, agreeing to pay Rs. 150/- per engine for the service rendered by him under the signature of Mr. Khan, which he has denied. While sending the

recommendation letter dated 18th Feb.'93 and the letter dated 16-03-1993 appointing Mr. Jagdish Kumar as an agent, the investigating officer did not choose to send the letter dated 16-03-1993, where under the SETWIN agreed to pay Rs. 150/- per engine towards service. While the signature on the recommendation letter dated 18th Feb.'93 was marked as Ql, the signature on the letter dated 16lh March, 93 appointing Mr. Jagdish Kumar as agent was marked as Q2. These signatures were sent to the Forensic Laboratory for expert opinion along with the admitted signatures of Mr. Khan (S1 to S20), the signature of the petitioner herein (S21 to S40) and one R. Rama Murthy (S41 to S62). The scientific officer attached to the Forensic laboratory in his report dated 09-02-1996 opined that the person who signed SI to S20 also signed Ql, i.e., the recommendation letter, but did not sign Q2. With regard to the signature on the letter dated 16-03-1993, where under Mr. Jagdish Kumar was appointed as an agent of SETWIN, the scientific officer opined that it is not possible to offer any opinion on the authorship of the signature marked as Q2 as it is a traced forgery. In the light of the opinion of the scientific officer, it is difficult to establish that the petitioner is the author of the letter dated 16-03-1993. Further, from the statement of Mr. Jagdish Kumar it is seen that he received the letter through post. Then, it is much more difficult to establish that the petitioner forged the signature and posted the same. Further, to prove the charge under Section 471, the prosecution has to prove not only that it is a forged document, but it is used as genuine one and he must have used the same fraudulently and dishonestly- In other words the document should be used with an intention to defraud. Even assuming that there is some truth in the allegation of the prosecution that the first two essential ingredients of the Section can be proved, third allegation cannot be proved in this case i.e.. using the forged document as a genuine one with an intention

to defraud, as by these two letters though it can be said that Mr. Jagdish Kumar was appointed as an agent of SETWIN without the knowledge of the SETWIN, they did not do any further act to defraud the SETWIN as Mr. Jagdish Kumar as well as the petitioner informed about the arrival of the engines at Vizag Port and requested the SETWIN to get them cleared by paying customs duty. As such it cannot be said that this letter was brought into exercise with any dishonest intention there is no substance in this charge also. At any rate, from the expert opinion obtained by the prosecution, it cannot be said that the petitioner is the author of the forged signature, but as the petitioner is involved in the whole transaction, it may give rise to a suspicion that he might have brought into existence these two documents. However strong the suspicion may be, it cannot take the place of proof and in a criminal proceedings the prosecution should bring home the guilt of the accused beyond reasonable doubt to get him convicted for the offence alleged against him. As stated supra, the signature found on the authorisation letter is a traced one and the authorship could not be established. Further, Mr. Jagdish Kumar in his 161 Statement stated that he received the papers in the post. On the basis of such a vague allegation, if the petitioner is put to trial, the prosecution except making a vague suggestion cannot establish that the petitioner used these documents as a genuine ones.

19. For all the above, I feel that there is 10 substance in this charge also.

Section 420: Cheating and dishonestly inducing delivery of properly : To constitute an offence under this Section there should be a deception and an intention to defraud. To bring the offence under Section 420, pursuant to the deception the properly should be passed or delivered otherwise if the property is not passed it would be a representation with afraudulent-and dishonest intention.

Under this Section to bring whom the guilt of the accused the prosecution should prove that by making a false statement the accused induced the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security", and mere making a fraudulent representation itself may not be sufficient to punish the guilty.

20. If we look at the facts of this case the representation made by the petitioner is in two parts i.e., Firstly, at the time when M/s Goldstone Exports (P) Limited applied for a licence, he was giving different versions about the end-use of these engines in the State for their import at different points of -time. Whatever may be the representations that were made by the petitioner, the licensing authority ultimately rejected their application. Hence, even assuming that the petitioner and his associates entertained an idea of importing the engines to sell them in the open market for gain, their intentions have not been transformed into action. The well settled principle is mere intention to commit an offence is not punishable under any of the provisions of I.P.C. unless it is translated into commission of offence. In tliis case leaving apart the petitioner and his associates doing something after importing the engines, 'the licensing authority itself refused (o grant licence. Hence, it cannot be said that the petitioner and his associales have deceived the licencing authority to do a thing which he would not do if he is not so deceived.

21. The second part of the representation relates to the intention of the petitioner (o donate the engines to the SETWIN. From the facts narrated above, it cannot be said that the petitioner tried to the a the SETWIN and knocked away the engines by deceitful means. All through he was requesting the SETWIN to gel the engines released as early as possible as the demurrages payable to the customs authorities are increasing day by day. When the SETWIN

authorities expressed their financial inability (o pay the customs duty, the petitioner came forward to get all the 368 engines released that arrived at Vizag Port with his own monies, if they are willing (o sell 200 engines to him at a rate of Rg-6,000/- by accepting the remaining 168 engines as a donation. But, the SETWIN did not even act upon the said representation and informed the customs authorities that they are not accepting the donation. On the basis of such a letter addressed by the M.D., SETWIN, the Collector, Customs, Vizag confiscated the engines as the donee abandoned the goods under Section 23(2) of the F.T.D. Act. At that stage the petitioner approached the Courts and claimed the engines as a donar of them for redressal of his grievance and as per the directions of this Court, the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Branch at Madras, held that the petitioner is entitled to seek clearance of the goods as owner under the provisions of the above act as he happened to be the donar and the donee could not clear the goods by paying of the duty and abandoned them. Pursuant to those orders the Collector Customs released the goods in favour of the petitioner by collecting redumption fine and personal penalty and the State made a feeble attempt to see that the engines are not delivered to the petitioner by filing Writ Petition No.7648/95 on the file of this Court and this Court by order dated 28th April, 1995 held that the orders of the Appellate Tribunal as well as the Collector, Customs in releasing the goods are quite in order. In fact, the request of the respondents to give a direction to the Collector Customs not to release the goods was positively rejected by this Court.

22. This part of the representation of the petitioner by any stretch of imagination cannot be treated as cheating as the petitioner or his associates never went back on their promise to donate the engines. It is the donee which even after the change in the office of C & M.D. once considered to get the engines released and sell them in the open' market, but having afraid with the penal consequences in filing the undertaking about the end-use of the engines, went back on their acceptance.

23. Hence, for the foregoing reasons, it cannot be said that any part of these representations can constitute an offence punishable under Section 420 IPC, more so when the person so deceived i.e., either the licensing authority or the SETWIN ever delivered any property to any person on the basis of a representation made by the petitioner.

24. Then remains the offence alleged against the petitioner under Section 511 IPC. In this Section a person while attempting to commit an offence punishable by this Code, does any act towards the commission of the offence, this Section prescribes the punishment for such an Act. While considering whether the allegations made by the prosecution can constitute any of the offences alleged against the petitioner, I dealt with the prosecution case in depth and came to the conclusion that even assuming that what all was alleged by the prosecution is found to be true, they cannot constitute any of the offences alleged against the petitioner. Hence, the question of pressing the Section 511 IPC into service does not arise.

25. For all the above reasons, I do not find any merits in the prosecution case and no useful purpose will be served by directing the petitioner to face the trial, except subjecting him to harassment and humiliation as the prosecution cannot prove any of the offences alleged against the petitioner on the basis of the material gathered by them during the course of the investigation. This fact is also well known to the investigating agency and the same is reflected in the note file submitted by the Investigating Officer to the superior authorities before filing the charge-sheet referred supra.

26. I am supported in my view by a decision of the Supreme Court in Ashim K. Roy v. Bipinbhai Vadilal Mehta and others, 1997 (8) SCC 490.

27. Hence, I am inclined to set at naught the Criminal Proceedings launched against the petitioner in exercise of the inherent powers

vested in the Court under Section 482 Cr. P.C Accordingly the Criminal proceedings in C.C.No.646/96 on the file of IXth Metropolitan Magistrate arising out of Crime No-36/94 on the file of State of A.P. represented by the Senior Executive Officer, Central Investigation Department, Hyderabad are quashed as devoid of merits.