G.S.CHAHAL,J - (1.) PREM Nath Sharma by means of this petition under Section 482 Cr.P.C. seeks quashing of the complaint dated 4th of September, 1985 titled as State of Punjab v. Tirlochan Singh and others for offences under Sections 420, 471, 120-B, I.P.C. Sections 5(1)(d) & 5(2) of the Prevention of Corruption Act and Sections of the Imports and Exports Control Act, pending in the Court of Special Judge, Chandigarh annexure P-1, and the summoning order passed by the Special Judge on 1st December, 1986.
(2.) THE petitioner was employed as a License Assistant in the office of Joint Chief Controller of Imports and Exports. In that capacity, he dealt with two applications for issuance of import licences and according to the averments made in the complaint he and his co-accused had entered into a criminal conspiracy amongst themselves to cheat the Imports and Exports Office, Chandigarh by fraudulently and dishonestly issuing import licences for import of emergency spares on the basis of mis-representation and false documents as also by corrupt and illegal means and by using their official position as a public servant. As per the import policy circular No. 25/80 dated 2nd of August, 1980, a limit has been imposed on Controller-Assistant Chief Controller of Imports and Exports, Chandigarh, for issuance of an import licence for emergency spares at Rs. 1.00 lac in case of a large scale unit and Rs. 50,000/- in case of actual users non-industrial. Cases exceeding these values were required to be referred to the headquarters for prior clearance. A reminder circular No. 35/80 dated 24th of September, 1980, emphasising that the instructions contained in IPC No. 25/80 dated 2.8.80 were to be strictly followed at the time of issuing of import licences has been issued. The circular as well as the reminder had been noted down both by Sh. L.N. Malhotra, who was Controller of Imports and Exports, Chandigarh and P.N. Sharma (petitioner) the Licence Assistant. According to the procedure on receipt of any application for import licence, the same was received by the diary clerk who after entering the same in the diary handed over the same to the Licence Assistant for further scrutiny and processing. It was the duty of the Licensing Assistant to scrutinise the application and accompanying documents and made a proposal for issuance of Import licence, if the application and the enclosures were found to be in order. It was then the duty of the Assistant Chief Controller of Imports and Exports Controller of Imports and Exports to further examine the application and after satisfying himself he had to prove the proposal and the file was then sent to B/L Clerk for checking and also for confirmation if the firm was not already black listed. If the firm was so cleared from B/S side only then the import licence was to be issued. If, however, the firm was found to be black listed then the application had to be rejected. M/s Entac Enterprises and M/s United Engineers were respectively the proprietary concerns of Trilochan Singh and Ramesh Kumar accused. Devinder Mohan accused had taken the premises SCO No. 83-84, Sector 16-D, Chandigarh from Satnam Singh Thakur on rent and during 1982 displayed the sign-board of M/s Aum Enterprises and these premises had been given to him on the recommendation made by the petitioner. These two units namely M/s Entac Enterprises and United Engineers had declared themselves to be actual users (non industrial) in the import applications and entered in job work and repair work. M/s Entac Enterprises was registered with Industrial Department of Chandigarh Administration as a small scale unit. In pursuance of the criminal conspiracy entered into by the petitioner and his co-accused, the following acts were alleged to have been committed by them: (i) Shri Trilochan Singh (A-1) submitted an application dated 5.3.83 to the office of Controller of Imports and Exports, Chandigarh, for obtaining import licence for import of emergency spares for imminent breakdown of production machinery. With this application he had submitted the required documents declaring address as 8, Industrial Area, Chandigarh. The application along with its enclosures were received on 8.3.83 in the said office which were marked to Shri P.N. Sharma (A-4) by Shri L.N. Malhotra (A-5) for scrutiny. These papers were scrutinised by Sh. P.N. Sharma, (A-4) who proposed for issuance of import licence for Rs. 93,200/- which was also approved by Shri L.N. Malhotra (A-5) the B/L Clerk was asked to report as to whether the firms or its proprietor was on the black list. B/L Clerk Shri K.S. Yadav reported that the firm M/s Entac Enterprises 24, Indl. Area, Chandigarh was on the black list. The import licence therefore should not have been issued to the firm as the firm M/s Entac Enterprises was a black listed firm and it was pointed out by the B/L Clerk in writing to Shri L.N. Malhotra (A-5) and P.N. Sharma (A-4). Shri L.N. Malhotra and Sh. P.N. Sharma however dishonestly and fraudulently suggested the firm to file an affidavit by addressing the letter as follows:- "I write to inform you that M/s Entac Enterprises bearing No. 24, Industrial Area, Chandigarh appeared in the black list of this office record. You are therefore requested to kindly furnish the necessary affidavit that your firm has/had no connection with this firm on the stamped paper duly certified by Oath Commissioner so as to enable this office to finalise the import application." The letter No. CI&E/E-19/Emergency Spares/CHD/AM/83/2455 dated 19.3.1983 under the signature of Sh. L.N. Malhotra (A-5) was sent to the party. (iii) That Shri Trilochan Singh (A-I) dishonestly and fraudulently submitted a false affidavit under a covering letter dated 22.3.83 stating as follows : " I, Major Trilochan Singh (Retd.) son of Shri Gursharan Singh, Proprietor of M/s Entac Enterprises, 8 Industrial Area, Chandigarh do hereby solemnly affirm and declare as under :- That the our firm has/had no connection with the firm M/s Entac Enterprises, 24, Industrial Area, Chandigarh. (iv) That affidavit filed by Shri Trilochan Singh (A-1) was false in material particulars as Shri Trilochan Singh (A-1) was the Proprietor of M/s Entac Enterprises, 24, Industrial Area, Chandigarh which was a black listed firm and the firm M/s Entac Enterprises which existed at 8, Industrial Area, Chandigarh (as declared in the application for import licence) was the same which existed at 24, Industrial Area, Chandigarh and Shri Trilochan Singh (A-1) was Prop. of both firms. (v) That on the basis of the said false affidavit filed by said Shri Trilochan Singh (A-1) and obtained by S/Sh. P.N. Sharma (A-1), L.N. Malhotra (A-5) import licence bearing No. P/S/1951126 dated 24.3.1983 for Rs. 93,200/- for import of emergency spares and was issued under the firm aforesaid was not lawfully entitled in the given circumstances. The affidavit obtained from Sh. Trilochan Singh (A-1) was processed by Shri P.N. Sharma, (A-4) under the instruction of Shri L.N. Malhotra (A-5) before issuing the import licence. (vi) That for issuing this import licence for more than Rs. 1,00,000/- to actual user (non-Industrial) Shri L.N. Malhotra (A-5) had not obtained prior permission from the headquarter and even Shri P.N. Sharma (A-4) had not proposed for the same in spite of the fact that instructions issued for the Chief Controller of Imports and Exports regarding their limits for issuing import licence vide circular No. 25/80 and reminder No. 35/80 had been noted by both these officers. (vii) That in pursuance of the said criminal conspiracy in case of M/s United Engineer an import application dt. 26.8.1982 had been submitted by Sh. Ramesh Kumar (A-2) at the instance of Sh. Devender Mohan (A-3) when Shri S.P. Chibber was the Asstt. Chief Controller of Imports and Exports with this application the photo copy of registration certificate No. 81/10897 dt. 28.2.82 purported to have been issued by Shop and Establishment Officer of the Asstt. Labour Commissioner, Chandigarh alongwith other documents, was also submitted. This application had been marked by Shri S.P. Chibber to Shri P.N. Sharma (A-4), Licensing Asstt. on 27.8.82 for secutiny who proposed for issuance of import licence for 94,000/-. When the file was put up to Shri S.P. Chibber on 30.8.82, he suggested to obtain certificate from Chartered Accountant and accordingly a letter No. U-1) Emergency Spares- AM/81/1158 dated 31.8.82 was issued which was delivered to one Krishan Kumar on the same day. Shri Ramesh Kumar (A-2) submitted the certificate obtained from Chartered Accountant and the same was marked to Shri P.N. Sharma (A-4) for scrutiny by Shri S.P. Chibber on 8.9.82. Shri P.N. Sharma (A-4) again proposed for issuing the import licence but Shri S.P. Chibber, the then Asstt. Chief Controller of Imports and Exports, Chandigarh, did not act as he had smelt some foul play and he had some doubt about the existence of the unit. After 9.9.82 no reference was made in this case and it was suddenly on 10.3.83 the file was put up by Sh.P.N. Sharma (A-4) to Shri L.N. Malhotra (A-5) immediately approved the proposal vide his order dt.11.3.83 despite the fact that Shri S.P. Chibber had closed the case. (viii) That after the approval of Shri L.N. Malhotra (A-5), the file was put up to Sh. K.S. Yadav, B/L Clerk on 14.3.83 who reported on the same day that the Prop. on this firm was on the black list of another firm M/s Bright Agricultural Works, Mehatpur (Una) H.P. S/Sh. L.N. Malhotra (A-5) and P.N. Sharma (A-4) dishonestly and fraudulently by corrupt and illegal means and by abusing their official position as public servants to cause pecuniary gain to Ramish Kumar (A-2) sent a suggestive letter to the party to file an affidavit denying the fact about the black listing of the Prop. The letter was sent on 14.3.83 under the signatures of Sh. L.N. Malhotra (A-5) on the next day of affidavit had been filed at the counter vide receipt No. 98947 dt. 15.3.83. This was also scrutinised on the same by Sh. P.N. Sharma (A-4) who proposed for issuance of import licence for Rs. 94,000/-. This proposal was too approved by Sh. L.N. Malhotra (A-5) and on the same day import licence No. P/S1951117 dt. 16.3.83 for Rs. 94,000/- Shri L.N. Malhotra (A-5). (ix) That the regd. letter No. containing import licence mentioned above was not delivered at the address of the firm as SCO No. 83-84, Sector 16-D, Chandigarh as the premises was found to be locked and there was no activity as such. This was redirected to Sh. Devinder Mohan (A-3) at the residence 1206, Section 15-B, Chandigarh and the same was delivered to his brother Sh. Arun Mohan. (x) That for issuing the aforesaid import licence Sh. L.N. Malhotra (A-5) had not obtained any permission from the Headquarter nor Sh. P.N. Sharma (A-4) had suggested about the same. (xi) That the investigation revealed that the registration certificate submitted alongwith the application for import licence was forged. The office of the Asstt. Labour Commissioner, Chandigarh, confirmed this fact that the firm M/s United Engineers was not registered with them. (xii) That premises SCO No. 83-84, Sector 16-D, Chandigarh had been given on rent to Sh. Devender Mohan (A-3) at the instance of Sh. P.N. Sharma (A-1). (xiii) That the said two import licences had been issued by Shri P.N. Sharma (A-4) and L.N. Malhotra (A-5) on the basis of the bonus documents and on the basis of mis-declaration as aforesaid knowing fully well that they could not issue the import licences without the approval of H.Q. as per the instructions contained in IPC Circular No. 25/80 and 35/80 of CCI and EM/New Delhi."
(3.) IN pursuance of this conspiracy, Sh. L.N. Malhotra and the petitioner fraudulently and dishonestly and by corrupt illegal means and by abusing their official position as public servants caused pecuniary gain to non-existent firms at Chandigarh and Mehatpur and the details of the same is given in para 10 of the complaint. It is thus stated that the petitioner had committed the offence complained of.;