Shri. Vishnu Kumar Ozha vs The State Of Maharashtra, Through ...
2021 Latest Caselaw 2561 Bom

                                                           19 APL 33.14.jud.odt
                                              1/6



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR.

              CRIMINAL APPLICATION (APL) NO.33 OF 2014



  1.              Shri Vishnu Kumar Ozha,
                  Managing Director,
                  Vinar Ispat Limited,
                  Having its premises at M.I.D.C.,
                  Ghuggus road, Chandrapur, Tahsil
                  and District Chandrapur                        ....APPLICANT


                                      // VERSUS //


  1.              The State of Maharashtra,
                  Through Police Station Officer,
                  Police Station Ghuggus, Tahsil
                  and District Chandrapur

  2.              Mrs. Pritee Choudhary (Jain)
                  Deputy Commissioner,
                  Central Excise Division,
                  Chandrapur

  3.              Shri P.N. Mishra,
                  Superintendent,
                  Central Excise, Range-II,
                  Chandrapur.                            .... NON-APPLICANTS

  Ms. Nidhi Dayani, Advocate for the applicant.
  Ms. Mayuri Deshmukh, Advocate for the respondent No.1/State.
  Shri S.N. Bhattad, Advocate for the respondent Nos.2 and 3.
  ___________________________________________________________________

                               CORAM : Z. A. HAQ AND
                                          AMIT B. BORKAR, JJ.

                               DATE     : 09.02.2021.


 ORAL JUDGMENT: [PER: AMIT B. BORKAR, J.]





                                                        19 APL 33.14.jud.odt

1. This is an application under Section 482 of the Code

of Criminal Procedure, challenging registration of the First

Information Report No.147/2013 registered with the

non-applicant No.1-Police Station for the offences punishable

under Sections 406, 468 and 34 of the Indian Penal Code and

consequent charge-sheet No.16/2014 filed before Chief Judicial

Magistrate, Chandrapur.

2. The First Information Report came to be registered

against the applicant with the accusations that the goods

weighing 1293 ton worth Rs.3.90 Crore attached by the

Department of Central Excise under Section 11 of Central Excise

Act, 1944 and entrusted with the applicant in pursuance of the

order of attachment, were dishonestly misappropriated by the

applicant by giving false receipt to the Central Government. It is

further alleged in the First Information Report that on 26.7.2012

the goods weighing 1150.15 ton were entrusted with applicant

by the Department of Central Excise and on 15th December 2012

goods worth 927.12 ton were entrusted with the applicant. The

goods entrusted with the applicant to the tune of Rs.3.19 crore

had been dishonestly misappropriated by the applicant.

19 APL 33.14.jud.odt

3. The applicant has therefore, filed present Criminal

Application challenging registration of the First Information

Report. This Court on 28th January 2014 issued notice to the

non-applicants and on 23rd March 2015 issued Rule and granted

interim relief in terms of prayer clause (b-ii) thereby granting

stay to the further proceedings in charge-sheet No.16/2014

pending on file of the Chief Judicial Magistrate, Chandrapur.

4. The non-applicants have not filed reply. This Court on

2nd August 2014 recorded statement of the Advocate appearing

for the non-applicant Nos. 2 and 3 that since they are made party

to the present application in their personal capacity and as the

charge-sheet is already filed, they do not wish to file reply in the

present matter. With the result, there is no reply filed by any of

the non-applicants contesting the application.

5. We have therefore, scrutinized the contents of the

First Information Report alongwith material produced by the

applicant in the form of charge-sheet. After careful consideration

of material in the charge-sheet, it appears that first order of

attachment dated 5th October 2006 and second order attachment

dated 26th July 2012 passed by Superintendent, Range-II

19 APL 33.14.jud.odt

Chandrapur were set aside by Commissioner (Appeals) Central

Excise and Customs, Nagpur.

6. The record shows that the possession of the goods in

question was handed over to the applicant in pursuance of the

order of attachment dated 5th October 2006 and 26th July 2012.

On reading of order of Commissioner (Appeals) it appears that

the order of attachment had been set aside mainly on the ground

that orders of attachment were not effective after period of six

months from the date of attachment in absence of order of

continuation passed by Chief Commissioner (Central Excise).

The orders of attachments were also set aside on the ground that

hearing was not granted to the applicants before passing of the

orders.

7. Learned Advocate appearing for the applicant has

brought to our notice the fact that during the pendency of the

proceeding, the applicant has deposited entire amount which is

clear from the order passed by the Commissioner (Appeals).

In paragraph No.61 the Commissioner (Appeals) has recorded

finding that the applicant had deposited entire amount

alongwith interest and demand was raised by the Lower

19 APL 33.14.jud.odt

Authority in spite of full payment of dues.

8. Learned Advocate for the applicant invited our

attention to the judgment of Hon'ble Apex Court in the case of

Radheshyam Kejriwal Vs. State of Bengal reported in (2011) 3

SCC 581. It is submitted that in paragraph No.39 of the said

judgment, the Hon'ble Apex Court has held as under:-

"39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."

9. On meaningful consideration of the material

produced by the applicant and taking into consideration the fact

that the order of attachment had been set aside by the

Commissioner (Appeals) Central Excise and payment of entire

dues of the Department alongwith interest by the applicant, we

are of the view that to secure ends of justice it is necessary to

quash proceedings against applicant.

19 APL 33.14.jud.odt

10. We therefore, pass following order:-

(i) The First Information Report bearing No.147/2013

dated 15th October 2013 registered with the non-applicant No.1-

Police Station for the offences punishable under Sections 406,

468 and 34 of the Indian Penal Code and consequent charge-

sheet No.16/2014 filed before Chief Judicial Magistrate,

Chandrapur is hereby quashed and set aside.

Rule is made absolute in above terms.

                           JUDGE                             JUDGE
manisha