M/S Sunshine Tubes Pvt Ltd vs The Assistant Commissioner
2023 Latest Caselaw 1730 Kant

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                                                              CRL.RP No. 845 of 2014



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                              DATED THIS THE 9TH DAY OF MARCH, 2023
                                                   BEFORE
                         THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                                       CRL.R.P.No. 845 OF 2014
                   BETWEEN:
                   M/S SUNSHINE TUBES PVT LTD
                   NO.157-1B,INDUSTRIAL AREA
                   BALKAMPADY, MANGALORE - 575 011.

                   MR.SHEKHAR SHETTY
                   AGED ABOUT 62 YEARS
                   M/SSUNSHINE TUBES PVT.LTD.
                   NO.157-1B,INDUSTRIAL AREA
                   BALKAMPADY,MANGALORE - 575 011.
                                                                            ...PETITIONER
                   (BY SRI RAMESH ANANTHAN, ADV.)
Digitally signed   AND:
by B A KRISHNA
KUMAR              THE ASSISTANT COMMISSIONER
Location: High
Court of           OF CENTRAL EXCISE
Karnataka          MANGALORE DIVISION
                   7TH FLOOR,TRADE CENTRE
                   NEAR BUNTS HOSPITAL
                   MANGALORE - 575 011
                   REPRESENTED BY THE
                   SPECIAL PUBLIC PROSECUTOR
                   OF THE COMPLAINANT.
                                                                           ...RESPONDENT
                   (BY SRI AMITH ANAND DESHPANDE, CGSC)

                         THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
                   SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION               PASSED
                   BY   THE   IV   ADDL.   DIST.   AND    S.J.,   D.K.,   MANGALORE   IN
                   CRL.A.NO.410/08 DATED:1.10.14.

                         THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
                   THE COURT MADE THE FOLLOWING:
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                                                  CRL.RP No. 845 of 2014




                                ORDER

This criminal revision petition under Sections 397 read

with 401 Cr.PC has been filed challenging the judgment and

order of conviction and sentence dated 01.10.2014 passed by

the IV Addl. District & Sessions Judge, D.K., Mangaluru

(hereinafter referred to as 'the Sessions Court'), in

Crl.A.No.410/2008.

2. Heard the learned Counsel for the parties.

3. Brief facts of the case as revealed from the records

that may be necessary for the purpose of disposal of this

petition are, the petitioner herein is a private limited company

engaged in the manufacture and clearance of tubes and flaps of

different sizes situated at Baikampady Industrial Area,

Mangaluru, represented by its Director. On 15.10.1991, the

raiding squad of the respondent had visited the factory of the

petitioner and noted that the manufacturing activities of inner

tubes of rubber tyres of different sizes were done in the factory

of the petitioner. It is the case of the respondent that the

petitioner had wrongly claimed the benefit of the Notification

bearing No.188/86 CE dated 03.03.1986 with an intention to

evade payment of duty, and it is the further case of the

CRL.RP No. 845 of 2014

respondent that in order to evade Central Excise Duty, the

petitioner misused the exemption given under the Central

Excise Act, 1944 (for short, 'the Act') and thereby evaded

payment of excise duty to the tune of Rs.13,98,261/- to the

respondent-Department. It is under these circumstances, a

private complaint under Section 200 Cr.PC was filed by

respondent before the I Addl. Civil Judge & CJM, Mangaluru

(hereinafter referred to as 'the Trial Court') as provided under

Section 9A of the Act alleging that the petitioner had committed

the offences punishable under Sections 9(1)(b), 9(1)(bb),

9(1)(bbb) of the Act and Rules 9(1), 173B, 173G & 173F of the

Central Excise Rules, 1944 (for short, 'the Rules'), which are all

non-cognizable offences.

4. The learned Magistrate after taking cognizance of the

offences punishable under Sections 9(1)(b), 9(1)(bb),

9(1)(bbb) of the Act, had issued summons to the

petitioner/accused no.1 and had directed to register a case

against the petitioner, and accordingly, a case was registered

against the petitioner in C.C.No.35/1997. In the said

proceedings, the petitioner pleaded not guilty and claimed to be

tried, and therefore, the respondent in order to prove its case

CRL.RP No. 845 of 2014

had examined five witnesses as PWs-1 to 5 and had also got

marked 27 documents as Exs.P-1 to P-27. The petitioner had

denied the incriminating material during the course of his

statement under Section 313 Cr.PC. However, no defence

evidence was led. The Trial Court, thereafter, heard the

arguments of both sides and by judgment and order dated

05.09.2005 acquitted the petitioner of the offences for which he

was charged. As against the said judgment of acquittal, the

respondent had filed an appeal under Section 378(2) of Cr.PC

before the Sessions Court in Crl.A.No.410/2008 and the said

appeal was allowed by the Sessions Court and the judgment of

acquittal passed by the Trial Court was set aside and the

petitioner was convicted for the offences under Sections

9(1)(b), 9(1)(bb), 9(1)(bbb) of the Act and sentenced to

undergo simple imprisonment for a period of two years and to

pay fine of Rs.10,000/- and in default to undergo simple

imprisonment for a period of three months. Being aggrieved by

the said judgment and order of conviction and sentence passed

by the Sessions Court, the petitioner is before this Court.

5. Learned Counsel appearing for the petitioner submits

that the respondent had filed a private complaint against the

CRL.RP No. 845 of 2014

petitioner under Section 200 Cr.PC and as against the

judgment of acquittal passed in a complaint case, the only

remedy available to the complainant was to file an appeal

before this Court under Section 378(4) Cr.PC, and an appeal

under Section 378(2) Cr.PC before the Sessions Court was not

maintainable. He also submits that any order passed by a court

without jurisdiction is a nullity in the eye of law. In support of

his arguments, he has relied upon the judgments of the Hon'ble

Supreme Court in the case of SUBHASH CHAND VS STATE

(DELHI ADMINISTRATION) - (2013)2 SCC 17, C.SHEKAR VS

K.SARASWATHI - 2019 SCC OnLine Kar 219, and SREE MAHA

GANAPATHI TRADERS, BY ITS PROPRIETOR VS N.S.RAVI -

2021 SCC OnLine Kar 498.

6. Per contra, learned Counsel appearing for the

respondent submits that the objection with regard to

maintainability of the appeal was not raised by the petitioner

before the Sessions Court. He submits that the respondent is

an authority under the Act who is authorized to initiate

prosecution under Section 9A of the Act, and therefore, as

against the judgment of acquittal, an appeal under Section

378(2) of Cr.PC is maintainable before the Sessions Court. He

CRL.RP No. 845 of 2014

submits that the petitioner who has participated in the appeal

proceedings without raising any objection cannot challenge the

same after having suffered an order. He also submits that even

if the Sessions Court had no jurisdiction to entertain an appeal

as against the judgment of acquittal, since the order of

conviction passed against the order after appreciation of oral

and documentary evidence by the Sessions Court, is in

accordance with law, this Court in exercise of its power under

Section 401 Cr.PC cannot interfere with the same. In support of

his arguments, he has placed reliance on the judgments in the

case of T.C.BASAPPA VS T.NAGAPPA & OTHERS -

MANU/SC/0098/1954, STATE OF RAJASTHAN VS

GURCHARANDAS CHADHA - MANU/SC/0257/1979, TRISUNS

CHEMICAL INDUSTRY VS RAJESH AGARWAL & OTHERS -

MANU/SC/0581/1999, and G.BASAWARAJ VS THE STATE OF

A.P. & OTHERS - MANU/APPELLANT/0752/2010. He has also

placed reliance on the judgment of the Division Bench of this

Court in the case of STATE OF KARNATAKA VS RAMESH - ILR

2016 KAR 2875 and submits that the appeal by the respondent

before the Sessions Court was maintainable.

CRL.RP No. 845 of 2014

7. I have carefully considered the arguments addressed

on both sides and also perused the material available on

record.

8. The only point that arises for consideration in this

revision petition would be,

"whether the appeal filed by the respondent against the judgment of acquittal passed by the learned Magistrate in a complaint case was maintainable before the Sessions Court under Section 378(2) of Cr.PC?"

9. The undisputed facts of the case is, that the

respondent had filed a private complaint under Section 200

Cr.PC before the Trial Court against the petitioner herein

alleging that the petitioner had committed the offences

punishable under the provisions of the Act and Rules. The

offences alleged in the complaint were all non-cognizable

offences. Since the complainant was a public servant, the

learned Magistrate, after receipt of the said complaint, had

exempted recording the sworn statement of the complainant

and after taking cognizance for the offences that were alleged

in the complaint, had issued summons to the

accused/petitioner. After appearance of the petitioner in the

CRL.RP No. 845 of 2014

said proceedings, since he pleaded not guilty and claimed to be

tried, charge was framed against the petitioner for the offences

punishable under Sections 9(1)(b), 9(1)(bb), 9(1)(bbb) of the

Act, which are undisputedly non-cognizable offences. The Trial

Court had, therefore, tried the petitioner for the charged

offences in a case instituted upon private complaint filed by the

respondent and acquitted the petitioner of the alleged offences.

10. Section 378 of Cr.PC which provides for appeal in

case of acquittal, reads as under:

"378. Appeal in case of acquittal.-(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5),-

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non- bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court 2 or an order of acquittal passed by the Court of Session in revision.]

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the

CRL.RP No. 845 of 2014

Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal-

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.]

(3) No appeal to the High Court] under sub-

section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub- section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a

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CRL.RP No. 845 of 2014

public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)."

11. From the reading of the aforesaid provision, it is seen

that Section 378(4) of Cr.PC provides for an appeal as against

an order of acquittal passed in any case instituted upon a

complaint and such an appeal would lie only to the High Court

and if only the High Court grants special leave to appeal, the

complainant can maintain an appeal against the order of

acquittal.

12. The question regarding filing of an appeal against the

order of acquittal passed in a complaint case by a Magistrate

was considered in detail by the Hon'ble Supreme Court in

Subhash Chand's case supra, and in paragraphs 19 & 23, has

observed as under:

"19. Sub-section (4) of Section 378 makes provision for appeal against an order of acquittal passed in a case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave

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CRL.RP No. 845 of 2014

to appeal, the complainant may present such an appeal to the High Court. This sub-section speaks of "special leave" as against sub-section (3) relating to other appeals which speaks of "leave". Thus, the complainant's appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub-

section (5) which refers to application filed for "special leave" by the complainant. It grants six months' period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub-section (6) is important. It states that if in any case the complainant's application for "special leave" under sub-section (4) is refused no appeal from the order of acquittal shall lie under sub-section (1) or under sub- section (2). Thus, if "special leave" is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation.

23. In view of the above, we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case the complaint alleging offences punishable under Sections 16(1) & (1- A) read with Section 7 of the PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House

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CRL.RP No. 845 of 2014

Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order [Criminal Misc. Case No. 427 of 2009, decided on 7-1- 2011 (Del)] holding that this case is not governed by Section 378(4) of the Code is quashed and set aside. In the circumstances the appeal is allowed."

13. In the aforesaid case, the Hon'ble Supreme Court

held that once a case is instituted on a complaint and an order

of acquittal is passed, whether the offence is bailable or non-

bailable, cognizable or non-cognizable, the complainant can file

an application under Section 378(4) of Cr.PC for special leave

to appeal against it in the High Court and no appeal could be

maintained before the Court of Sessions. The Hon'ble Supreme

Court also held that it is immaterial whether the complainant is

a private person or a public servant or the State or State

Authority. The only point that is required to be considered is

whether a case is a case instituted on a complaint.

14. The coordinate bench of this Court in C.Shekar's case

supra has held that as against the order of acquittal passed in a

complaint case, the appeal would only lie to the High Court

under Section 378(4) of Cr.PC and if the District Court/Sessions

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CRL.RP No. 845 of 2014

Court has entertained an appeal preferred against the order of

acquittal passed in a complaint case by the Magistrate, the

order passed in such an appeal is a nullity and the same is not

sustainable in the eye of law. A similar view has been taken by

another coordinate bench of this Court in Sree Maha Ganapathi

Traders' case, wherein at paragraph 11, it is observed as

under:

"11. In the circumstances, needless to say that a judgment passed by a Court which does not have a jurisdiction to try the matter is a nullity in the eye of law. As such, without much discussion, it can be held that the impugned judgment passed by the learned FTC-VII and FTC-XIII in the matter in Criminal Appeal No. 868 of 2010 and Criminal Appeal No. 870 of 2010 is a nullity in the eye of law. Consequently, the appeals which are required to be preferred against the judgments of acquittal would only be before this Court under Section 378(4) of the Cr.P.C. Since by misconception of law, the complainant approached the FTC-VII and FTC-XIII, wherein, the accused as a respondent also without raising any objection about the maintainability of the said appeals before the said Courts participated in its proceedings, I am of the view that the complainant be given an opportunity to prefer an appeal under Section 378(4) of the Cr.P.C."

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CRL.RP No. 845 of 2014

15. In Ramesh's case supra, the Division Bench of this

Court was considering the question whether the appeal against

the order of acquittal passed by the Court of Magistrate in a

case involving both cognizable and non-cognizable offences as

well as bailable and non-bailable offences, the appeal would lie

under Section 378(1)(a) or (b) of Cr.PC. The Division Bench of

this Court in the light of the judgment of the Hon'ble Supreme

Court in Subhash Chand's case supra, has held that Section

378(1)(b) of Cr.PC specifically leaves out the orders of acquittal

passed by a Magistrate in respect of a cognizable or non-

cognizable offence from the control of the State Government,

and therefore, in cases where the order of acquittal is passed

by the Magistrate which involves both cognizable and non-

cognizable, bailable and non-bailable offences, the appeal

would like to the Sessions Court under Section 378(1)(a) of

Cr.PC and not under Section 378(1)(b) of Cr.PC. The said

judgment would, therefore, not be applicable to the facts of the

present case.

16. The material on record in fact would go to show that

objection was raised regarding the maintainability of the appeal

by the petitioner before the Sessions Court itself. A reading of

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CRL.RP No. 845 of 2014

the answer to point no.3 by the Sessions Court would go to

show that the objection regarding maintainability of the appeal

was raised by the petitioner and reliance was placed on the

judgment of the Hon'ble Apex Court in the Subhash Chand's

case. However, the Sessions Court had failed to properly

appreciate the said judgment and has erroneously held that the

appeal filed by the respondent under Section 378(2) of Cr.PC

as against the judgment of acquittal passed by the Magistrate

on a private complaint was maintainable. This approach of the

Sessions Court, in my view, is totally illegal.

17. The judgments in T.C.Basappa's case, Gurcharandas

Chadha's case, Rajesh Agarwal's case and G.Basawaraj's case

supra on which reliance has been placed by the learned Counsel

for the respondent would not be applicable to the facts of the

present case. It is trite law that judgment can be relied upon as

precedents if only the same is applicable to the facts and

circumstances of the case.

18. The Hon'ble Supreme Court in Subhash Chand's case

supra has clearly held that as against the order of acquittal

passed by the Magistrate in a complaint case, the only remedy

available to the complainant irrespective of the fact that it is a

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CRL.RP No. 845 of 2014

private person or a public servant or the State or State

Authority, is to file an appeal under Section 378(4) of Cr.PC to

the High Court. Under the circumstances, I am of the

considered view that the appeal filed by the respondent before

the Sessions Court under Section 378(2) of Cr.PC as against

the judgment of acquittal passed by the Trial Court in

C.C.No.35/1997 was not maintainable and the judgment of

conviction and order of sentence passed by the Sessions Court

in Crl.A.No.410/2008 being without jurisdiction, is a nullity in

the eye of law, and therefore, the same is liable to be set aside.

Accordingly, the following order:

19. The revision petition is allowed. The judgment and

order of conviction and sentence dated 01.10.2014 passed by

the Sessions Court, in Crl.A.No.410/2008, is set aside, and the

judgment of acquittal dated 05.09.2005 passed by the Trial

Court in C.C.No.35/1997, is restored.

Sd/-

JUDGE KK