- (1.) The petitioner prays for issuance of a writ of mandamus directing any independent agency to conduct impartial enquiry against the role of the respondents in coercively taking six post-dated advance cheques from him without any liability or notice regarding any proceedings. Further prayer has been made for quashing the five complaints, Annexures P.3 to P.7 and five notices of accusation, Annexures P.11 to P.15 issued under section 138 of the Negotiable Instruments Act, 1881 (in short, "the N.I.Act") against the petitioner by the learned Judicial Magistrate Ist Class, Amritsar on 18.12.2015. Direction has also been sought to respondent No.2 to return the amount of Rs. 5 lacs alongwith interest at the rate of 18% per annum w.e.f 20.1.2004 till the date of actual payment, for which three pay orders dated 20.11.2004 had been taken from the petitioner.
(2.) A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. During the years 1995- 96 to 1999-2000, M/s Swastika Enterprises the petitioner-firm had obtained Advance licences issued by the office of the Regional Joint Director General, Foreign Trade, Amritsar as per the Export and Import policy for the relevant years announced by the Ministry of Commerce. Under the Advance licences, import of raw material was allowed at concessional rate of customs duty on the condition that the importer shall make export of the goods manufactured out of the material imported. Each advance licence was to be got redeemed from the Director General Foreign Trade (DGFT) for which the importer of the material had to submit the documents relating to the import and export of the goods. In the case of the petitioner firm, the raw materials were acrylic fibre and synthetic waste and the goods to be exported were blankets. On 2.8.2001, officers from the Directorate of Revenue Intelligence, Amritsar Unit (DRI) visited the business premises of the firm and seized almost all the records including the ledgers for the years 1995-96 to 1999-2000. On 8.5.2003, officers of the DRI recorded statement of the petitioner concerning the advance licences taken by the firm during the years 1995-96 onwards regarding the imports and exports made and the redemption of the licences by the DGFT etc. The petitioner as partner of the firm explained everything to the said officer. Thereafter, the Senior Intelligence Officer, DRI issued summons under section 108 of the Customs Act, 1962 (in short, "the Customs Act") in the name of the petitioner for attending the DRI office in person on 7.1.2004. Due to the marriage of his daughter, the petitioner could not appear on the said date. On 19.1.2004 on return to Amritsar, the petitioner went to the office of DRI, Amritsar. On 19.1.2004, the officers of DRI questioned the petitioner regarding the spinning charges per kg. of the yarn from acrylic fibre and synthetic waste and regarding the extent of waste taking place in the spinning. The petitioner explained that the charges had been increasing over the years and the wastage was around 19%. According to the petitioner, the questions which were asked were hypothetical and could not be answered on the basis of the information available in the ledgers for the years in question. Based on the rough calculations, the petitioner was made to admit that the total amount of spinning charges of Rs. 2,20,03,995/- paid during the years 1996-97 to 1999-2000 were divided by Rs. 8 per kg. The quantity of yarn worked out to 275.5 MT and secondly if the maximum of 19% wastage as informed by the petitioner was taken into consideration, then the total import of acrylic fibre/synthetic waste came to 327.8 MT whereas the firm had imported about 400 MT of acrylic fibre/synthetic waste. After obtaining the statement of the petitioner on 19.1.2004, he was detained in the DRI office during the night of 19/20.1.2004. On 20.1.2004, when the petitioner was not well, he was made to make another statement to the effect that total four licences were yet to be redeemed by the DGFT. Further, the export obligation had been met with after purchasing the blankets from open market or after the firm's own manufacture. Further, in the name of voluntarily payment of the duty saved on 49.241 MT material imported against the two licences dated 23.4.1998 and 19.3.1998, the petitioner was coerced to arrange demand drafts of Rs. 5 lacs and also give advance cheques for Rs. 13,44,861/- in the name of the Commissioner of Customs, Amritsar on the spot without any notice or liability. The petitioner had to arrange three pay orders dated 20.1.2004 for Rs. 5 lacs and he had to give six advance cheques for Rs. 13,44,861/- in the name of Commissioner Customs, Amritsar. The petitioner issued stop payment instructions to the bank regarding the six cheques which had been obtained from him. When the cheques were presented for encashment by the Commissioner, the same were returned dishonoured on account of stop payment instructions given to the Bank by the petitioner. Thereafter, five complaints under section 138 of the N.I. Act were filed by respondent No.2 against the petitioner. A show cause notice dated 29.3.2004 under section 28 of the Customs Act was also issued to the petitioner by the Deputy Director, DRI, Amritsar to explain to the Commissioner of Customs as to why the amount of duty allowed as concession on the material imported by the firm against the licences dated 23.4.1998 and 19.3.1998 should not be recovered alongwith interest and why a penalty should not be imposed upon him. Reply was filed by the petitioner to the notice. According to the petitioner, the show cause notice issued on 29.3.2004 was in respect of imports made in the year 1998 whereas the maximum period of five years under Section 28 of the Customs Act was already over. The Central Board of Excise and Customs vide notification dated 18.2.2005, Annexure P.8 transferred the case from the Commissioner of Customs, Amritsar and appointed Commissioner of Customs (Export Promotion) Mumbai to act as Commissioner of Customs, Amritsar for the purpose of adjudication of the case. The Judicial Magistrate Ist Class, Amritsar vide judgment dated 13.9.2011 convicted the petitioner in five complaint cases to undergo RI for two years and to pay fine of Rs. 2000/- in each of the five cases. The appeals filed against the said judgment were dismissed by the Additional Sessions Judge, Amritsar vide order dated 13.9.2011, Annexure P.9. The petitioner filed five criminal revisions in this court which were allowed vide order dated 31.10.2015, Annexure P.10 with a direction for de novo decision in the cases. The trial court issued five notices dated 18.12.2015, Annexures P.11 to P.15 regarding notices of accusation in each case. Hence the instant petition by the petitioner.
(3.) We have heard learned counsel for the petitioner.;