Tapabrata Banerjee vs Central Bureau of Investigation

Joymalya Bagchi, J.—The petition has been filed challenging the order dated 24.04.2012 passed by the learned Judge, 3rd Special Court, CBI, Kolkata in Special Case No. 38 of 2007 rejecting the prayer of the petitioner for discharge from the aforesaid case. The prosecution case as alleged is that initially one R.C. Case No. 10(E) of 2001 was registered at the office of S.P., EOW, Kolkata on 19.10.2001 on the basis of source information against B.N. Jalan, N.K. Jalan, Bhagwati Prasad Tribrewal, Sudipta Paul and other unknown persons u/s 120B read with Sections 419 /420 /467 /468 /471 of I.P.C. and u/s 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and a charge sheet was filed against the aforesaid persons and others under the aforesaid sections.

Subsequently, on 15.06.2005 a supplementary charge sheet was filed against the petitioner and one P.K. Agarwal and S.K. Mahapatra u/s 120B read with Sections 419 /420 /468 /471 I.P.C. read with Section 109 I.P.C. and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act alleging that the petitioner entered into a criminal conspiracy with other accused persons and in pursuance to such conspiracy, the petitioner as examiner verified 15 forged DEPB licences and also endorsed the forged licence numbers by overwriting/erasing earlier DEPB licence numbers in DEPB noting register maintained and kept in his custody and also failed to perform his duty of verifying export promotion (EP) copy of shipping bills as the same were not produced by the companies during verification. The petitioner also did not verify the particulars of the shipping bills from the data available in the DEPB noting register and also did not verify the bills of lading/mate receipt in order to satisfy himself that goods covered under the shipping bills had been shipped/dispatched and also did not check the correctness of the credit permitted for DEPB prior to endorsement for perusal and clearance by the appraisers. He intentionally ignored the DEPB licence numbers written in the appropriate column in the DEPB noting register and overwrote/distorted the said numbers in the register to accommodate the forged licence numbers in the same, causing loss of government revenue to the tune of rupees 3,49,30,882/- and extending wrongful gain to the concerned companies.

In the discharge petition, the petitioner claimed that there was no investigation as to the manner in which the DEPB licences which were security documents had been misplaced from the office of Director General of Foreign Trade (DGFT) Kolkata and no enquiry had been done in that regard.

It was further contended that the noting register was maintained by the noting clerk and one Uma Chatterjee (cited as prosecution witness) was acting as examiner in the DEPB unit and used to verify EP copy of shipping licences. It was further contended that P.K. Agarwal and S.K. Mahapatra as appraisers had cleared the DEPB licences and that there was no procedure laid down in 1999 with regard to verification of such licences and notings in DEPB noting register.

It was further contended that no government revenue loss was suffered as all customs duty had been realized from the concerned parties. It was also submitted that the handwriting expert did not give positive opinion in respect of overwritings on DEPB licences or DEPB noting register. The petitioner also claimed protection u/s 155 of the Customs Act.

Prosecution opposed such prayer stating that the aforesaid DEPB licences were duly utilized and duty exemption was claimed. It was contended that DEPB licences were forged and were never issued by the office of DGFT, Kolkata. Prosecution contended that during verification the examiner has to verify the particulars of shipping bills from the data available in the DEPB noting register in order to satisfy himself that the goods covered by the shipping bills have been shipped/dispatched as well as correctness of the credit permitted in DEPB noting register and make appropriate endorsement in respect thereof and duly ascribe signature on the reverse of the DEPB licences to signify full verification. On the strength of such endorsement appraisers clear such licences. Prosecution further contended that the forged licences had been verified by the petitioner as examiner by endorsing forged licence numbers by overwriting/erasing earlier DEPB licence numbers in DEPB noting register and that he had failed to verify export promotion (EP) copy of shipping bills as the same were not produced during verification of the aforesaid licences. He had also ignored the DEPB licence numbers written in the appropriate column of DEPB noting register and overwrote and distorted the said numbers in the register to accommodate the entry of forged licence numbers in the appropriate column.

Upon consideration of the materials on record, learned Judge by impugned order dated 24.04.2012 dismissed the prayer for discharge of the petitioner. By the self-same order, the learned Judge, however, allowed the prayer of discharge of P.K. Agarwal and S.K. Mahapatra, the appraisers of DEPB Section on the ground that they had relied on the dishonest endorsements made on the DEPB licences by the petitioner on the bona fide belief that they are genuine and cleared the same.

Learned counsel appearing for the petitioner submitted that the petitioner stands in the same footing as P.K. Agarwal and S.K. Mahapatra, the appraisers, who have been discharged from the instant case. He, therefore, prayed that he ought to be discharged too. He further submitted that neither DEPB noting register was in his custody and that the said verifications were done by Uma Chatterjee as examiner who has been cited as prosecution witness. It was also contended that no opinion could be given by the handwriting expert that the signatures in the DEPB licences or overwriting/erasing made in the DEPB noting register were that of the petitioner. Accordingly, he prayed for quashing of the proceeding against the petitioner.

Mr. De, senior counsel, appearing for the CBI opposed such prayer. He submitted that no application challenging the discharge of the appraisers P.K. Agarwal and S.K. Mahapatra has been filed. He however contended that the appraisers stood on a different footing from the petitioner and the latter cannot claim parity with them. He submitted that it is evident from the statements of prosecution witness that the petitioner as examiner verified the forged DEPB licences ascribed his signature/endorsement thereto and also made overwriting/erasing in DEPB noting register in order to accommodate the forged licence numbers therein without verifying the export promotion (EP) copy of shipping bills with regard to the shipments in question.

He further contended that in view of the overwhelmingly incriminating statements of the prosecution witnesses the nonspecific opinion of the handwriting expert cannot be a ground for discharge of the petitioner.

I have considered the submissions of the respective parties.

I find that the prosecution has relied on the statement of one B.B. Mahapatra, the then Deputy Commissioner of DEPB Section who has identified the signatures of the petitioner on the shipping bills and the DEPB noting register. S.K. Chatterjee, a former Assistant Commissioner of Customs has stated that it was, in fact, the petitioner who examined and verified the aforesaid DEPB licences.

In view of such overwhelming materials against the petitioner, I am of the view that the learned Judge did not err in law in declining to discharge the petitioner.

I am also satisfied that in view of incriminating materials collected against the petitioner it cannot be said that the petitioner acted in good faith so as to extend the protective umbrella of Section 155 of the Customs Act to him.

It is true that the opinion of the handwriting expert is not specific but the impact thereof cannot be adjudged at the present stage bearing in mind the consistent statements of witnesses fixing the liability upon the petitioner with regard to signature and overwriting/erasing in the DEPB licences and noting register, as aforesaid.

One cannot lose sight of the fact that in view of Section 47 of the Evidence Act, opinion of a person acquainted with the handwriting of another is relevant to prove the same.

The case against the appraisers P.K. Agarwal and S.K. Mahapatra stand on an entirely different footing. The prosecution case is that the petitioner was the examiner of DEPB licences and dishonestly made overwriting/erasing in the DEPB noting register to accommodate the forged licence numbers therein and illegally made endorsement without verifying the export promotion (EP) copy of shipping bills with regard to the exports in question. The role of the appraisers was supervisory in nature and relying on such dishonest endorsement made by the petitioner and believing the same to be bonafide, they cleared DEPB licences in question. Hence, the petitioner cannot be said to be standing at par with the appraisers in the facts of the case. Accordingly, discharge of the appraisers cannot be of any help to the petitioner to claim the same relief. There is also no material on record that Uma Chatterjee had examined the licences in question in the instant case and therefore failure to include her as an accused cannot be said to be unjust in law or in fact. For the aforesaid reasons, I do not find any merit in the instant application. The same is accordingly, dismissed.