Cbi vs Rajinder Kumar Malhotra & Anr
2013 Latest Caselaw 4666 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A.121/2005
%                                                 Judgment dated 08.10.2013
       CBI                                        ..... Appellant
                      Through:         Mr.R.V. Sinha and Mr.A.S. Singh,
                                       Advocates

                              versus

       RAJINDER KUMAR MALHOTRA & ANR...... Respondent

Through: Mr.Pradeep Jain and Mr.Shubhankar Jha, Advocates for respondent no.1 Dr.Ashutosh and Mr.Kapil Chandra, Advocates for respondent no.2

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)

1. By the present appeal under Section 377(2) of Cr.P.C. appellant prays for enhancement of the sentence awarded by the learned ACMM, Tis Hazari Courts by order dated 29.10.2004, by which respondents were ordered to undergo sentence till rising of the court and pay fine of Rs.5,000/- each under each head i.e. under Section 420/120-B IPC and Section 5 of the Import and Export (Control) Act, 1947 on each accused; and in default of payment of fine, both the accused were to undergo simple imprisonment for three (3) months each. The case of the prosecution, as noticed by the trial court is that:

"CBI has filed the present complaint under section 120B read with Section 420, 468, 471 IPC and section 5 of the Impex

Act, 1947 against the accused persons M/s.Neelima International and its partners on the ground that investigation was conducted by Special Police Establishment, CBI that M/s.Neelima International, 70, Okhla Industrial Estate, Phase III, New Delhi (hereinafter referred as accused no.1) was registered with the Export Promotion Council for Handicrafts, Delhi as Merchant Exporter and was a proprietorship concern under the proprietorship of Miss Neelu Malhotra (hereinafter referred as accused no.2). The firm was registered by the AEPC and was carrying on business of export and readymade garments and brass art wares. During the period 1986 to 1988 accused no.2 entered into a criminal conspiracy with her father Sh.R.K. Malhotra (hereinafter referred as accused no.3). Sh.Sunil Madnani (hereinafter referred as accused no.4) and Sh.Niren Ajmera (hereinafter referred as accused no.5) the object of which was to obtain the Advance Licences under Duty Exemption entitlement certificate by fraudulent and dishonest intention to import the Stretch Demin Cloth and Brass Scrap and to mis-utilise the same by not exporting the finished goods in fulfilment of export obligation as per the condition of the advance licences. As per the prosecution accused no.2 submitted an application on behalf of accused no.1 before the office of Jt.CCI&E, CLA, New Delhi. The application was supported with the required Treasury Challan, photocopy of Export order, copy of Income Tax Declaration, Statement showing the export performance for the last 33 years, Certificate by C.A. photocopy of undertaking of supporting manufacturer and other documents. The application was submitted for issuing Import Licence to Import 100% Cotton Denim Cloth. The application was processed and the goods was placed before the Regional Advance Licensing Committee Meeting, New Delhi. After all the formalities it was decided to issue licence to the firm accordingly the firm was issued Advance Licence in the CIF value of Rs.12,79,800/- subject to the various conditions"

2. It is also the case of the prosecution that after receipt of the finances, the raw material was imported but the finished products were not exported. In this case 33 witnesses were examined and respondents no.2 and 3

herein were found guilty and they were convicted for the offence punishable under Section 120-B read with section 420 IPC and section 5 of the Import and Export (Control) Act.

3. Counsel for the appellant submits that the trial court has failed to take into consideration that in cases related to economic offences no leniency should have been shown and imprisonment till rising of the court and fine of Rs.5,000/- each was on the lower side.

4. Counsel for the respondents jointly submit that respondent no.1 is over 75 years of age and he is suffering from various ailments. Respondent no.2 is also a senior citizen, and both of them have faced trial for more than 18 years and they also remained in custody for over two months in this case.

5. I have heard counsel for the parties and carefully examined the evidence on record. After considering the rival submissions and the evidence on record, the trial court has rightly convicted the respondents. Counsel for the appellant submits that having regard to the nature of offence, the court has imposed a lesser sentence and loss has been suffered by the Government of India. There is force in the submissions made by counsel for the appellant. While counsel for the respondents submits that the respondent no.1 is more than 75 years of age and he is suffering from various ailments, his wife also remains unwell; respondent no.2 is also a senior citizen; and both the respondents have faced trial for more than 18 years, and thus the order passed by the trial court should not be unsettled.

6. There is force in the submission made by Mr.Sinha, counsel for the appellant. The order passed by the trial court with regard to the sentence is modified. I deem it appropriate to increase the fine from a total sum of Rs.3,0,000/- awarded by the trial court to Rs.1,05,000/-. Counsel for the parties submit that Rs.30,000/- already stands deposited by the respondents. Accordingly, each of the respondent will deposit a sum of

Rs.37,500/- within a period of two weeks from the date of receipt of the order. While modifying the order on sentence, this court has taken into account the age of the respondents, their medical condition and the fact that they have faced trial for more than 18 years. The appeal stands disposed of, in above terms.

G.S.SISTANI, J OCTOBER 08, 2013 ssn