THE STATE OF MAHARASHTRA V/S RAJKUMAR KOCHHAR ON 16 DECEMBER , 1969

THE STATE OF MAHARASHTRA V/S RAJKUMAR KOCHHAR ON 16 DECEMBER , 1969

FACTS OF THE CASE

1. The facts of the case are complicated but will have to be set out for the purpose of deciding the present application . This is very complicated and involves many sections under which application is being filled.
2. The total number of accused persons in this case are seven who are alleged to have committed an offence under section 120(B) of Indian Penal Code . The main and principal accused involved in this case is Nanda who died on September 15, 1960.  There were several business concerns, the composition of which it is necessary to set out for the purpose of the present case. One was the Eastern Trading Corporation, whose proprietor was the said Nanda, and manager accused No. 1 who was a nephew of the said Nanda, but accused No. 2 held a power–of-attorney to operate the bank account of the said concern with the Hongkong and Shanghai Bank. The second concern to which reference must be made is the one called Shantilal Chhaganlal & Co. in which accused No. 2 was one of the partners. The third concern was Hind Trading Service in which Nanda and accused No. 1 were partners. The fourth concern was named Suresh Trading Co., of which the proprietor was accused No. 8 who resided permanently at Delhi, but accused No. 2 held a general power-of-attorney not only to operate the bank account of the said concern, but to manage its entire affairs. The fifth concern was D. Deepak & Co. of which the proprietor was one Desh Deepak who also resided permanently at Delhi and from whom also accused No, 2 held a comprehensive power-of-attorney to manage the entire affairs of the said concern and to operate its bank account. The sixth concern was Raj Trading Co. of which the proprietor was Nanda and the manager, his nephew, accused No. 1. 
3. The real importer in respect of that shipment was accused No. 2 in the name of Shantilal Chhaganlal, acting in concert with the said Nanda. The prosecution case is that the other accused persons, however, also played a part in it. Out of the 49 cases imported under the shipment covered by item No. 1 in the said schedule, 14 cases contained contraband goods, and the rest of the cases contained goods of trifling value covered by the import license in respect of the said shipment. The said shipment was transferred in due course to Hind Traders.  The bill of lading, however, wrongly showed all the goods imported under those shipments as being goods covered by the licence. The procedure in regard to the same which was followed in Germany will be set out in this judgment hereafter. 
4. All goods under the said shipment were taken delivery of under the bill of lading prepared as aforesaid. The prosecution case is that this procedure was, however, found somewhat risky by the accused persons and the said Nanda, as the Customs authorities, who used to pick at random and open cases for the purpose of checking, might happen to open one or other of the 14 cases containing the contraband goods, in which case the offence would be detected.
5.  The improved procedure which evolved was that two consignments of goods were sent from abroad by the same ship, one of which was of a lesser quantity, just by a few cases, and the consignment containing the lesser quantity always contained the contraband goods. The other consignment would contain goods which were covered by the import licence. The two consignments would have on them marks which were nearly identical e.g. ZTC & ZIC, or KTL & KIL, the difference being such that with a slight touching up of the middle letter of the mark they would become identical.  The accused persons would then remove the entire quantity of contraband goods, plus 2 or 8 cases extra out of the genuine goods in order to make up the actual quantity of the shipment relating to the larger consignment. The remaining goods which were in fact goods covered by the licence and were of trifling value were never removed from the Port Trust shed by the accused persons and remained abandoned there.  On March 3, 1966, the case was revived before the Magistrate on the application of accused No. 2, but was adjourned from time to time for the purpose of enabling the prosecution to bring witnesses from Germany. On August 12, 1966, accused No. 1 filed Criminal Application No. 1108 of 1966  in the court.

ISSUES

1. Is the present application covered by the terms of Section 503 of the Code of Criminal Procedure and maintainable under that section ?

ARGUMENTS

When this case was  scheduled for hearing the issue was formulated by cited judgments which were related to the case by the  knowledgeable lawyers.

One of the cited Judgement was Om Prakash v. State 

It has been laid down that for the purpose of section 503 of code of Criminal Procedure the inconvenience that has to be considered by the court is not only the inconvenience  to the parties but also the witness who is to be examined and that word inconvenience which occurred in the said section was very important as what was convenience and inconvenience.

Turning to the facts of the present case the two fold submission is been accepted Mr. Khandalawala has rightly contended , therefore , the possibility of his losing job if he were to disobey by his employees and come to India to give evidence , would be harm or injury which would clearly fall within terms of inconvenience in section 503 0f code.

JUDGEMENT 

  In the result, the judgement was passed in the present by the bench  that the prosecution must pay to each of accused Nos, 1, 8, 4, 5 , 6 and 7 tourist class air fare for one lawyer plus Rs. 100 per day for the expenses of the stay of the lawyer in Germany during the actual time required for executing the commission. The  order was passed  that the witnesses mentioned in para. 4 of the present petition be examined in Germany by the appropriate Court or authority, and that the commission be returned to this Court on or before May 31, 1970. The prosecution as well as the accused persons are permitted to take the exhibits on the record of this case to Germany for the purpose of examining or cross-examining the witnesses who are to be examined there, on furnishing true copies thereof and complying with such other formalities as may be required by the office. The party taking any of the exhibits as aforesaid will be required to give an undertaking to produce the same in this Court or have the same forwarded along with the commission papers back to this Court.

REFERENCES

[1] https://indiankanoon.org

[2]https://legaldata.in

This article is written by Sukhman Kapoor of Panjab University , Chandigarh , Intern at Legal Vidhiya

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