Antony Sijo vs State Of Kerala
2021 Latest Caselaw 12774 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                      THE HONOURABLE MR.JUSTICE V.G.ARUN
       TUESDAY, THE 8TH DAY OF JUNE 2021 / 18TH JYAISHTA, 1943
                              CRL.MC NO. 853 OF 2021
 CC 2421/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOCHI,
                                      ERNAKULAM
PETITIONER/S:

               ANTONY SIJO
               AGED 25 YEARS
               S/O. JOHNSON, VELIPARAMBIL HOUSE, KADEBAGHAM ROAD,
               PALLURUTHY, COCHIN-682003.
               BY ADVS.
               AMRIN FATHIMA
               SRI.J.RAMKUMAR
               SMT.STEFIN THOMAS


RESPONDENT/S:

       1       STATE OF KERALA
               REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT
               OF KERALA, HARBOUR POLICE STATION, KOCHI-682031.
       2       B.G.KRISHNA,
               AGED 37 YEARS
               S/O.BALAGOPAL, JOINT COMMISSIONER OF CUSTOMS, CUSTOMS
               HOUSE, WILLINGTON ISLAND, KOCHI-682009.

OTHER PRESENT:

               PP MAYA M.N.

THIS       CRIMINAL   MISC.    CASE   HAVING     COME   UP   FOR   ADMISSION   ON

17.03.2021, THE COURT ON 08.06.2021 DELIVERED THE FOLLOWING:
 Crl.M.C.No.853 of 2021
                                       2



                                 ORDER

Dated this the 8th day of June, 2021

The petitioner is the second accused in C.C.

No.2421 of 2019 pending on the files of the

Judicial First Class Magistrate Court-I, Kochi.

The case originated from Crime No.1635 of 2018

registered at the Harbour Police station,

Ernakulam City for offences punishable under

Sections 379, 468, 447, 471 r/w 34 of the IPC. The

crime was registered on the basis of a complaint

lodged by the Joint Commissioner of Customs,

Cochin. The allegation is that the petitioner and

one Joakim Yesudasan, who were employees of a

Shipping Line Company named MBK Logistics (P) Ltd,

presented false documents to sign-on the Merchant

Vessel, M V Varda. The document was forged by

affixing the official seal stolen from the Custom Crl.M.C.No.853 of 2021

House and by forging the signatures of the Customs

officials. Based on Annexure A4 Final Report, the

court took cognisance of the offences under

Sections 468 and 471 read with 34 of IPC.

Meanwhile, the Central Board of Indirect Taxes and

Customs initiated proceedings against the

petitioner and four others, alleging violation of

the provisions of the Customs Act and imposed a

penalty of Rs.50,000/- under Section 117 of the

Act. This order was challenged by the petitioner

before the Customs, Excise and Service Tax

Appellate Tribunal (CESTAT) and the appeal was

allowed vide Annexure A3 order. The Crl.M.C. is

filed seeking to quash the criminal proceedings

against the petitioner in view of the petitioner's

exoneration in the departmental proceedings.

2. Heard Ms. Amrin Fatima, learned Counsel for

the petitioner and Ms.Maya M.N, learned Public Crl.M.C.No.853 of 2021

Prosecutor.

3. Learned Counsel for the petitioner

contended that proceedings under the Customs Act,

initiated on the basis of the same set of

allegations as in the criminal proceedings, having

ended in the petitioner's exoneration,

continuation of the criminal proceedings amounts

to an abuse of process. To buttress the

contention, reliance is placed on the decision of

the Apex Court in Radheshyam Kejriwal v State of

West Bengal [ (2011) 3 SCC 581].

4. Per contra, the learned Public Prosecutor

submitted that, exoneration in departmental

proceedings will not ipso facto lead to acquittal

in the criminal proceedings.

5. For appreciating the rival contentions, the

scope of the penalty proceedings under Section 117

of the Customs Act, as also the reasoning in Crl.M.C.No.853 of 2021

Annexure A3 order have to be considered. Section

117 of the Customs Act reads as under;

"117. Penalties for contravention, etc., not expressly mentioned.--Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to a penalty not exceeding one lakh rupees."

6. The contravention alleged in the instant

case is of Section 42, which stipulates that the

person-in-charge of a conveyance, which had

brought any imported goods or had loaded any

export goods at a Customs Station, shall not cause

or permit such conveyance to depart without

obtaining a written order to that effect from the

proper officer. The allegation is that the

petitioner and others had contravened Section 42

by procuring a written order permitting departure

of a Merchant Vessel on the strength of forged Crl.M.C.No.853 of 2021

documents.

7. The reason for allowing the petitioner's

appeal, as discernible from Annexure A3, is that

the appellants had retracted from their statements

given under Section 108 of the Customs Act, which

was mainly relied on by the original authority for

imposing penalty. The Tribunal also found that

copies of the statements and the documents relied

on by the department were not furnished to the

appellants, thereby depriving them of the

opportunity to effectively defend the case. The

Tribunal found no justification in imposing

penalty on the appellants, who are only lower

grade employees of the company, after exempting

the Senior Manager and the General Manager. The

contradictions and discrepancies in the

investigation conducted by the Department were

also taken into account. A careful scrutiny of the Crl.M.C.No.853 of 2021

findings in Annexure A3 unequivocally reveal that

the appeal was allowed on technical grounds,

rather than on merits.

8. In Radheshyam Kejriwal (supra), penalty

proceedings under Section 50 of the Foreign

Exchange Regulation Act, 1973 (FERA) was initiated

against the appellant therein alleging

contravention of Sections 8(2), 9(1)(f)(i) and

64(2) of that Act. In the departmental

adjudication, the allegations were found to be

unsustainable and hence the proceedings were

dropped. Meanwhile, on the very same allegations,

a complaint under Section 61(2) of the FERA was

filed before the jurisdictional Magistrate Court.

The appellant challenged the criminal proceedings

in the light of his exoneration in the

departmental proceedings. After careful scrutiny

of the previous decisions on the point, the Apex Crl.M.C.No.853 of 2021

Court laid down the law at paragraph 38 of the

judgment, as under;

"(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

           (ii)       Decision      in      adjudication
      proceedings      is    not    necessary      before

initiating criminal prosecution;

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."

Crl.M.C.No.853 of 2021

9. The petitioner's exoneration vide

Annexure A3 being on technical grounds, the

observation in paragraph 38 (vi) above will apply.

Yet another pertinent aspect is that in Radheshyam

and the decisions discussed therein, the

departmental proceedings as well as the criminal

prosecution were initiated and conducted by the

department itself, whereas in the petitioner's

case the investigation was conducted by the police

and prosecution is by the State. Having found the

allegations to be true, the police had filed the

Final Report and the jurisdictional court has

taken cognisance of the offences therein. In such

circumstances, exoneration in the departmental

proceedings cannot have any impact on the criminal

proceedings.

The foregoing discussion leads to the only Crl.M.C.No.853 of 2021

possible conclusion of the Crl. M.C being without

merit. In the result, the Crl.M.C is dismissed.

Needless to say that the dismissal of this

Crl.M.C will not prejudice the petitioner from

raising all the contentions, including those

raised herein, before the trial court.

V.G.ARUN JUDGE Scl/ Crl.M.C.No.853 of 2021

APPENDIX

PETITIONER'S/S EXHIBITS:

ANNEXURE A1 CERTIFIED COPY OF THE FIR DATED 8.12.2018 IN C.C.NO.2421/2019 PENDING BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI.

ANNEXURE A2 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 10.12.2018 ISSUED TO THE PETITIONER FROM THE OFFICE OF COMMISSIONER OF CUSTOMS.

ANNEXURE A3 A TRUE COPY OF THE FINAL ORDER NO.20475-20476/2019 DATED 20.6.2019 OF THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, BANGALORE. ANNEXURE A4 CERTIFIED COPY OF THE FINAL REPORT/CHARGE SHEET DATED 15.11.2019, ALONG WITH WITNESS STATEMENTS, IN C.C.NO.2421/2019 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT- I, KOCHI.

ANNEXURE A5 A TRUE COPY OF THE DECISION IN RADHESHYAM KEJRIWAL V. STATE OF WEST BENGAL AND ANR. [(2011) 3 SCC 581]. ANNEXURE A6 A TRUE COPY OF THE DECISION IN S.K.SINHA V. S.K.SINGAL AND ORS. [1987 (1) CRIMES 842].