Full Judgment Text
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PETITIONER:
KAPOOR CHAND MAGANLAL CHANDERIA
Vs.
RESPONDENT:
DELHI STATE (ADMINISTRATION)
DATE OF JUDGMENT16/04/1985
BENCH:
SEN, A.P. (J)
BENCH:
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
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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
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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]
JUDGMENT:
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
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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
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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
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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.
780