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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