Page 135 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] UNION OF INDIA v. HUKMICHAND JAIN 525

1 and 2 have committed an offence under Section 5 of the said Act. Of course,
appellant also alleged that the original licence, itself was obtained by Respondent
Nos. 1 and 2 by submitting two forged and fabricated export orders. I have to
note that the charge framed does not contain any charge of forgery and the
charge is only that Respondent Nos. 1 and 2 have not fulfilled the export obliga-
tions under the licence issued and, therefore, are guilty of offence under Section 5
of the said Act. The charge framed is for contravening conditions of licence and
thereby committing an offence punishable under Section 5 of the said Act.
4. Respondent Nos. 1 and 2 denied the charges and claimed to be tried.
Respondent No. 1 also gave evidence as D.W.-1 and according to Respondent
No. 1 due to certain unavoidable circumstances, he could not comply with export
obligations within the time prescribed as condition of licence and had applied for
extension and the third extension upto 17-8-1992, was granted and within that
period export obligations had been fulfilled.
5. To drive home the charge, appellant led evidence of three witnesses.
Pramod Kumar Aggarwal, Deputy Director General of Foreign Trade (PW.-1),
Devram Shankar Bagare, Controller of Import and Export (PW.-2) and Har-
bansingh, Investigating Officer (PW.-3). Admittedly, export obligations had not
been fulfilled within the initial time prescribed. PW.-2 in his evidence has stated
that the Chief Controller of Imports and Exports, New Delhi, can extend time
fixed for fulfilling export obligations from time to time. On record, is the letter
issued by the Chief Controller of Imports and Exports, New Delhi, extending
time to export upto 17-8-1992 with further two conditions regarding additional
export and realisation of export proceeds in US Dollars. Mr. Singh in fairness
states, records also indicate that accused had complied with export obligations
before 17-8-1992 and they had also fulfilled the two additional conditions. PW.-3
in his cross-examination has stated that during the course of investigation, he
verified several documents and statements of export found with accused upto
30-4-1990 and he verified the statements by visiting the bank and it was revealed
that the export was made as shown. According to PW.-3, the export, however,
was made after the expiry of period fixed by the competent authority. The peri-
od, what PW.-3 is referring to, is the period prior to granting of third extension.
In this case, the appropriate authority had commenced investigation and filed a
complaint in view of non-compliance with export obligations by accused. Ac-
cused, however, had applied for an extension, which extension was granted after
the complaint was filed and investigation was commenced. PW.-3 also has stat-
ed that he had discussed the matter in the office of the Chief Controller of Im-
ports and Exports, New Delhi, and during the course of discussion, he came to
know that period of completing export obligations was extended upto 17-8-1992.
Of course, PW.-3 denies that he came to know before filing of the complaint that
accused had fulfilled export obligations before the expiry of the extended period,
i.e., 17-8-1992. Therefore, PW.-3, has not denied that accused has fulfilled export
obligations. On the contrary, PW.-3 admits that he fulfilled export obligations
within the extended period of 17-8-1992.
6. Keeping this in mind, the Trial Court has acquitted accused. Ms.
Anandpara is correct in submitting that there can be no perversity in the order
passed by the Trial Court. Relying on the judgment of the Apex Court in Basalin-
gappa v. Mudibasappa [2019 (5) SCC 418], Ms. Anandpara submitted that expres-
sion perverse in terms as understood in law, has been defined to mean “against
weight of evidence”. Ms. Anandpara submits that the evidence indicates that
EXCISE LAW TIMES  15th May 2020  135