Delhi District Court
Ct Cases/18983/2016 on 15 November, 2022
IN THE COURT OF MS. NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
PATIALA HOUSE COURTS, NEW DELHI DISTRICT:
NEW DELHI
CC No:- 18983/16
Enforcement Directorate v. Pramod Jain Etc.
Sh. B. Hazra
Enforcement Officer
Enforcement Directorate
Ministry of Finance, Government of India
6th Floor, Lok Nayak Bhawan, New Delhi
...... Complainant
v.
1. Pramod Jain
(declared PO vide order dated 29.10.2014)
S/o Late Sh. Dhanpat Singh Jain
2536, 1st Floor, Hudson Lane
Kingsway Camp, Delhi
And at:-
H. No. 459, Alok Nagar, Kanadya Road
Indore, MP
2. Rajinder Singh Bawa
(convicted vide order dated 11.05.2015)
S/o Sh. S. Raghubir Singh
Plot No. 88, Kangra Colony
Amritsr, Punjab
3. Trilok Singh
(convicted vide order dated 08.04.2015)
S/o Late Sh. Kishan Singh
R/o 42, Kishangarh Colony
Chhatiwind Gate, Amritsar, Punjab
4. Jaswinder Singh @ Raju
(convicted vide order dated 11.05.2015)
S/o Sh. Sardar Kartar Singh
R/o EO-54-55, Saida Gate, Jullandhar
CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 1 of 21
5. Ashok Kumar Verma
(convicted vide order dated 08.04.2015)
S/o Sh. Sagarmal Verma
R/o G-3/86, Model Town-III, Delhi
6. Vijender Jain @ Virender Jain
(convicted vide order dated 08.04.2015)
S/o Sh. Ram Bahadur Jain
2294, Gali Paharwali, Dharampura
Chandni Chowk, Delhi-6
7. Rakesh Manchanda
(convicted vide order dated 27.08.2015)
S/o Sh. Mulakhraj Manchanda
5538, Shora Kothi, Paharganj, New Delhi
8. Masoor Singh
S/o Late Sh. Bhajan Singh
R/o 467, Model Town, Bhatinda, Punjab
9. Narinder Singh Randhawa
(proceedings abated vide order dated 16.12.2013)
S/o Sh. S. Amar Singh Randhawa
R/o 195, Rajinder Nagar
Batala Road, Amritsar
10. Ravinder Pal Sethi @ Banti @ Baba
(convicted vide order dated 08.04.2015)
S/o Late Sardar Faqir Singh
R/o 20/8, Old Rajinder Nagar, Delhi
...... Accused persons
Date of Institution : 23.02.1995
Date of reserving judgement : 26.09.2022
Date of pronouncement : 15.11.2022
CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 2 of 21
JUDGMENT
Brief History of Proceedings
1. The instant complaint was filed by Enforcement Directorate through Sh. B. Hazra, Enforcement Officer, (hereinafter referred as 'the complainant') against Sh. Pramod Jain (hereinafter referred as 'the accused no.1'), Sh. Rajinder Singh Bawa (hereinafter referred as 'the accused no.2'), Sh. Trilok Singh @ Raju (hereinafter referred as 'the accused no.3'), Sh. Jaswinder Singh @ Raju (hereinafter referred as 'the accused no.4'), Sh. Ashok Kumar Verma (hereinafter referred as 'the accused no.5'), Sh. Vijender Jain @ Virender Jain (hereinafter referred as 'the accused no.6'), Sh. Rakesh Manchanda (hereinafter referred as 'the accused no.7'). Sh. Masoor Singh (hereinafter referred as 'the accused no.8'), Sh. Narinder Singh Randhawa (hereinafter referred as 'the accused no.9') and Sh. Ravinder Pal Sethi @ Banti @ Baba (hereinafter referred as 'the accused no.10')
2. It is averred that the complainant is authorized to file the present complaint in his official capacity being a public servant vide Central Government notification No. 17/93 F.No.1/2/93-AD- IC dated 24.09.1993 in exercise of powers conferred upon him u/s 61(2)(ii)(b) of Foreign Exchange Regulation Act, 1973 (hereinafter referred as ' the FERA').
3. Allegations are that the devotees of Radha Soamy Satsang Beas, based in foreign countries regularly send donations to the head quarters of the society at Beas near Amritsar, Punjab in the form of International Money orders, World Money Orders, CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 3 of 21 Cheque/drafts of Foreign Exchange by mail. The said foreign mail meant for Beas, District Amritsar was sorted out at RMS, Amritsar and the same was screened in the said office by officers of Intelligence Bureau posted in Postal Research Cell at RMS Amritsar.
4. It is alleged by the complainant that accused persons connived in Delhi, Jalandhar and Amritsar during 1991 and pilfered the foreign exchange drafts etc. from the foreign mail at RMS Amritsar and passed the same to Hong Kong and Singapore for fraudulent encashment through money changers of said countries. It is further alleged that in pursuance of the said conspiracy accused no. 8 (Officer of Intelligence Bureau of the rank of JCIO) and accused no. 9 (Officer of Intelligence Bureau of the rank of ACIO-I) while posted in postal research cell at RMS Amritsar for screening of the foreign mail, pilfered the following foreign exchange instruments sent in favour of the complainant;
(i) 500 Canadian Dollar International Money order No. 0828731 dated 19.04.1991 issued by the Toronto Dominon Ban, Edmonton, Alberta, Canada sent by Janet Beartice Kelley of Canada favouring Radha Soamy Satsang, Beas;
(ii) World Money Order No. 75726543-044 dated 12.04.1991 for 1000 Canadian Dollars issued by Royal Bank of Canada, Toronto, Ontario, Canada sent by John Varga favouring Huzur Maharaj Ji Gurinder Singh Dhillon;
(iii)Franklin Tax-Exempt Money Fund No. 932302 dated 31.10.1991 for US Dollars 500 and No. 932300 dated 14.09.1991 CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 4 of 21 for US dollar 1,500 both issued by Vincent P. Savarese of Calfornia, USA, through Bank of America favouring Radha Soamy Satsang, Beas.
5. It is alleged that accused no. 8 and accused no. 9 after committing the theft of the aforesaid four exchange instruments sold the same in black market to accused no. 2 at Amritsar who further passed the same to accused no. 3 at Amritsar for unauthorized encashment and thereafter accused no. 3 passed two of the foreign exchange instruments i.e. Canadian dollar International Money order no. 0828731 and World Money order no. 75726543-044 to accused no. 10 in Delhi who subsequently disposed the same to accused no. 6 in Delhi for getting the same fraudulently encashed from foreign countries. Thereafter, accused no. 6 further handed over the said stolen foreign exchange instruments to accused no. 7 in Delhi who thereafter passed the same to one Abdul Sahid Proprietor of M/s Whooper Apparel and Peninsula Shopping Centre, Singapore for getting the same encashed fraudulently from Singapore. It is further alleged that accused no. 3 passed on other two stolen foreign instruments i.e. Franklin Tax exempt Money Fund No. 932302 dated 31.10.1991 for US dollars 500 and No. 932300 dated 14.09.1991 for US dollars 1,500 to accused no. 4 for unathorised encashment who thereafter passed said instruments to accused no. 1 and accused no. 5 in Delhi. It is further alleged that accused no. 1 and accused no. 5 thereafter got encashed fraudulently instruments No. 932302 for US dollars 500 from Hongkong Exchange Ltd., Hong Kong.
6. As mentioned in the complaint filed by the CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 5 of 21 Department, accused persons namely Pramod Jain, Rajinder Singh Bawa, Trilok Singh, Jaswinder Singh, Ashok Kumar Verma, Vijender Jain, Rakesh Manchanda, Masoor Singh, Narinder Singh Randhawa and Ravinder Pal Singh Sethi allegedly committed offences punishable under Section 120-B r/w Section 379/414/420 Indian Penal Code (hereinafter referred to as 'IPC') and Section 8 of the Foreign Exchange Regulation Act 1973 (hereinafter referred to as 'FERA') it was further alleged that the accused Narinder Singh and Masoor Singh committed substantive offences u/s 379 IPC & Section 414 IPC & Section 8 of FERA, 1973
7. Also as mentioned in th complaint opportunity notice under FERA Act was issued to all accused persons. As per the complaint, the accused persons failed to furnish requisite evidence within time specified and hence the present complaint was filed and after taking cognizance accused persons were summoned and on appearance of accused persons compliance of Section 207 Cr.P.C was made.
8. Thereafter, matter proceeded for recording of pre- charge evidence wherein witnesses namely Sh. K.L. Sehgal, Sh. B. Hazara Sh. G.P.S. Bhalla, Sh. Surjeesh Saxena, Sh. Satish Kr Dhingra, Sh. Avinash Gulati, Sh. Amit Das, Sh. R.K. Dubey, Sh. Sanjay Kumar, Sah. Ramesh Chand, Sh. Prem Kumar were examined on different dates.
9. Complainant had examined total Eleven (11) witnesses during pre charge evidence. Out of these eleven (11) witnesses, PW-1 Sh. K. L. Sehgal, Superintendent, Fardikot, Post CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 6 of 21 Office deposed that during the period 1980 to 1996 he was posted as Assistant Supdt R.M.S. Amritsar. He further deposed that as per procedure IB staff was supposed to scrutinize foreign mails in presence of RMS staff and the said rule was not being followed by IB staff during the period 1987 to 1996. PW-1 further deposed that IB staff used to keep some of the foreign mails in their custody in violation of the rules. Witness identified accused persons Mansoor Singh and N. S. Randhawa (since deceased) as the IB staff posted to scrutinise foreign mail.
10. Sh. B. Hazara, Enforcement Officer, who was examined as PW-2 proved the notification Ex.PW2/ vide which he was competent to file the present complaint. He also proved the opportunity notice issued by him and placed on record as Ex.PW2/B bearing his signatures at point X. PW-2 stated that the opportunity notice had been issued to all the accused persons. PW- 2 identified his signatures on the complaint Ex.PW2/C bearing his signatures at point Y1, Y2 and Y3. In his cross-examination with respect to the present accused, witness deposed that opportunity notice was sent to office of CBI for service and he could not say anything about the service on the accused. He also stated that signatures of the competent authority to file complaint against the accused is not on record as the same was not required.
11. Sh. Gurkir Paul Singh Bhalla was examined as PW-3. He deposed about the complaint filed by Sh. S.L. Sodhi, Secretary Radha Swami Satsang Beas which is placed on record as Ex.PW3/A and identified the signatures of Sh. S.L. Sondhi (since expired) at point A1. He also proved the letter addressed by Sh. CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 7 of 21 Sewa Singh to CBI which is Ex.PW3/B. The witness identified his signatures on point C1 on seizure memo Ex.PW3/C vide which documents Ex.PW3/D1 to Ex.PW3/D24 were seized. The witness also identified his signatures at point E1 on letter dated 07.07.1993 which is Ex.PW3/E as well as the three cheques submitted along with, which are ExPW3/F1 to F3. The witness deposed about submitting letter of Franklin Administrative which is Ex.PW3/F4. The witness also identified his signatures at point X1 on handing over memo Ex.PW3/G, vide which he had handed over documents Ex.PW3/H1 to H7. The witness was cross-examined by Ld. Counsel for accused where he denied identifying any of the accused.
12. Sh. Surjeesh Sexena was examined as PW-4. He deposed that he was working at the shop of accused Ashok Kr Verma. However, the witness further stated that he does not know whether accused Ashok Kr Verma was in business with regard to foreign exchange. Satish Kumar Dhingra was examined as PW-5. He deposed that he does not know whether accused Vijender @ Vijender Jain and Rakesh Manchanda were dealing with foreign exchange. Sh. Avinash Gulati was examined as PW-6. He deposed that he knew accused Jaswinder Singh @ Raju who is dealing in the business of foreign exchange. The witness further went to state that he does not know whether accused Raju was having any relation with Sardar Trilok Singh. The witnesses then turned hostile and were cross-examined by Ld. SPP for the Department.
13. Sh. Amit Das Section Officer, I.B. M.H.A was examined as PW-7 who deposed that Sh. N.S. Randhawa, ACIO-I, CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 8 of 21 was working at RMS Amritsar from 11th of April, 1989, to October, 1992 except for the period 01.09.1989 to 26.10.1989 when he was posted at Baba Bakhala. Sh. Randhawa. PW-7 further stated that Sh. N.S. Randhawa also worked as in-charge of PRC from 01.06.1990 to 27.01.1991 and thereafter from 10.09.1991 to 12.08.1992 in the absence of DCIO(PRC). As per PW-7, Sh. Masoor Singh, JIO-II, remained posted in PRC Amritsar from 10.09.1990 to 16.09.1991, and was working on Reception Duty from 17.09.1991 to 30.01.1992. PW-7 further stated that the nature of duty of Sh. N.S. Randhwa and Sh. Masoor Singh at PRC Amritsar was that they were required to examine the mails in order to detect transit of unauthorised lottery tickets and literature, transit of prohibited and pornography literature, transit of article prohibited under Magic Remedy Act, etc., to check misuse of postal stamps, stationery, used of forged/washed postal stationery, transit of foreign currency in violation of FERA, mis-sorting of letters resulting in internal mail getting mixed with foreign mail.
14. PW-7 was cross-examined by Ld. Counsel for accused wherein he stated that he did not work with Masoor Singh and can not identify him. He further deposed that accused Mashoor Singh did not do anything wrong in his presence.
15. Sh. R.K. Dubey, posted as Chief Enforcement Officer, Enforcement Directorate in the year 1991 at Delhi Zonal office,was examined as PW-8. He deposed about the search conducted at the premises belonging to co-accused Sh. Pramod Jain and the documents seized and placed on record as Ex. PW 8/A. PW-8 further deposed that vide memo Ex PW8/B, he handed CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 9 of 21 over the attested copies of panchnama ExPW9/A in respect of search of the premises of the accused Pramod Jain and the document ExPW8/A which were seized from the aforesaid premises to the CBI, and identified his signature at point X-5 and the signatures of Sh. Ajay Rawat at point X-6 on Ex.PW8/B. During pre-charge evidence witness was not cross-examined despite opportunity.
16. Sh. Sanjay Kumar, then posted as Assistant Enforcement Officer at New Delhi was examined as PW-9 and deposed about the search conducted at the premises of the accused Pramod Jain in the presence of two independent witness and in the presence of accused Pramod Jain. As per PW-9, the panchnama Ex.PW9/A was drawn on the spot, which gave details of the seized documents. Witness identified his signatures at point X-3 and signature of the witnesses at point Y-3 and Y-4 and the signature of the accused at point Z-3 on the said document. The witness proved the other recovered and seized documents which are Ex.PW9/B-1 to B-10 and Ex.PW9/B-12. PW-9 further deposed about the diary marked-A Ex. PW9/C-1 to C-30, a slip pad marked-B Ex PW9/D-1 to D-10, a slip pad marked C Ex PW9/E-1 to E-4, a bunch of visiting cards Ex PW9/F-1 to F-20 and one note book marked-D recovered and seized during the search and which is placed on record as Ex.PW9/G-1. PW-9 correctly identified the seized and recovered currency notes which are Ex.P.1 to P.5. PW-9 further deposed about voluntary statements made by accused Pramod Jain U/s 39 of FERA which are Ex PW9/H and PW9/J respectively.
17. Sh. Ramesh Chand then working as SDO, CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 10 of 21 Enforcement Department was examined as PW-10. However, his examination was not completed as the Department failed to ensure the appearance of the witness on subsequent dates.
18. Sh. Prem Kumar then posted as MM Delhi was examined as PW-11. He deposed about recording of statement of accused Ravinder Pal Singh Sethi u/s 164 Cr.P.C and proved the proceedings in respect of CBI Case No- RC 8(S)/92-DLI. PW-11 further proved the application for recording the statement of the accused u/s 164 CrPC which is Ex PW11/A, the order of Learned CMM as Ex PW11/B. The statement of the accused Ravinder Pal Singh Sethi was placed on record as Ex PW11/C which bears the signatures of PW-11 at point A as well as that of the accused at point B on both the pages and further statement is placed on record as Ex PW11/D. PW-11 was cross-examined by Ld. Counsel for the accused.
19. No other witness was examined and pre-charge evidence was closed. After conclusion of pre-charge evidence, the matter proceeded for arguments on the point of charge. Vide order dated 21.03.2018, it was held by Ld. Predecessor Court that there was sufficient evidence to frame charge against accused Masoor Singh for contravention offences u/s 120-B IPC, Section 379 r/w Section 120-B IPC, Section 8 of FERA, 1973 punishable under Section 56 FERA, 1973, to which the accused did not pleaded guilty and claimed trial.
20. It is pertinent to mention here that during the trial, accused no. 1 was declared PO vide order dated 29.10.2014, accused no. 2 CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 11 of 21 and accused no. 4 have been convicted vide order dated 11.05.2015, accused no. 3, 5, 6 and 10 have been convicted vide order dated 08.04.2015, accused no. 7 had been convicted vide order dated 27.08.2015 and proceedings against accused no. 9 were abated vide order dated 16/12.2013.
21. The matter proceeded for post charge-evidence. The following witnessed were examined at this stage:-
a) S. B Hazre adopted his examination-in-chief.
During his cross examined he deposed that he did not search the residential premises or office of accused Masoor Singh and did not make any investigation with respect to the said accused. He further deposed that he could not say if any opportunity notice was received by the accused or not.
b) PW-7 Sh. Amit Das during his cross-examination stated that he did not see the accused commit any wrong in his presence and neither had he seen the case property i.e. foreign exchange drafts. He also stated that the theft was not committed in his presences.
c) PW-8 during his cross-examination stated that he had not searched the house of accused Masoor Singh and neither could he tell if any documents pertaining to Masoor Singh was recovered during search at premises of co-accused Pramod Jain.
22. No other witness was examined during post charge evidence and matter proceeded for recording of statement of accused.
23. During his examination u/s 313 Cr.P.C all the CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 12 of 21 incriminating circumstances were put to the accused. Accused denied all the incriminating circumstances and averred that he is falsely implicated. No evidence was led by the accused person in his defence as the defence witness summoned was reported to have expired.
24. Final arguments were heard on behalf of both the sides. Also written arguments were filed by the accused. Ld. SPP for the complainant argued that all the witnesses have supported the case of the complainant and hence accused is liable to be convicted for the offence charged. Ld. SPP for the Department further argued that PW-2 has subsequently mentioned about sending the opportunity notice to all the accused persons. It is further argued by the Ld. SPP for the department that as per Section 71 of the FERA Act the burden to prove compliance of Section 8 of the Act is upon the accused. He further argued that since other accused persons have pleaded guilty, hence the offence of factum of conspiracy between the accused persons stands admitted. It is also argued by Ld. SPP for the Department in response to the arguments addressed by the Ld. Counsel for the accused that the requirement of sanction u/s 197 Cr.P.C is not required in the present case. He further argued that the issue of jurisdiction stands disposed of at the time of arguments on the point of charge. Ld. SPP for the Department has relied upon the judgments of Hon'ble Supreme Court of India in "Devendra Prasad Singh v. State of Bihar in Criminal Appeal No. 579 of 2019"; "S.K. Miglani v. State of NCT of Delhi in Criminal Appeal No. 744 of 2019" and "Station House Officer v. B.A. CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 13 of 21 Srinivasan" in Criminal Appal No. 1837 of 2019 in support of the case.
25. On the other hand, it is submitted by Ld. Counsel for the accused that the present complaint is not maintainable as the condition to give an opportunity notice has not been complied with in the present case and the accused has not received any opportunity notice in the present case. It is further argued by Ld. Counsel for the accused that the Department has not taken sanction u/s 197 Cr.P.C. It is further argued that the present complaint has been filed in violation of Section 177 Cr.P.C as the offence is alleged to have been committed at RMS Amritsar and hence present complaint is not maintainable in Delhi.
26. It is further argued on behalf of the accused that there is no recovery or any incriminating evidence available against the accused and neither any statement u/s 40 of the FERA Act or under Section 164 Cr.P.C of the accused was recorded. It is also stated by Ld. Counsel for the accused that confession of accused Ravinder Pal Sethi can not be used against the present accused, as the accused Ravinder Pal Sethi was not examined himself as a witness. Ld. Counsel for accused in support of his arguments had relied upon the following judgments:-
a) United India Airways Ltd & Anr.v. Chief Enforcement Officer, Enforcement Directorate in CRL.REV.P. 642/2017 (Hon'ble High Court of Delhi) ;
b) Directorate of Revenue Intelligence v. Jagdish Raj in Criminal Revision Petition No. 758/2002 decided on 22.03.2005 (Hon'ble High Court of Delhi);
c) Kanwarjit Singh v. Union of India in Criminal Writ Petition No. CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 14 of 21 350 of 1993 decided on 20.10.1993 (Punjab & Haryana High Court);
d) Amal Kumar Jha v. State of Chhatisgarh & Anr in Criminal Appeal No. 396 of 2016 (Supreme Court of India);
e) Radheshyam Kejriwal v. State of West Bengal & Anr;
f) Kamal Suri v. Dy. Director, Enforcement Directorate in Crl. M.C No. 2655 of 2006 decided on 11.01.2008 (Hon'ble High Court of Delhi in);
g) Anil Mahajan & Anr. v. Union of India & Anr in Crl. Rev. P. No. 160/2007 (Hon'ble High Court of Delhi);
h) CBI v. B.A. Srinivasan & Anr in Criminal Appeal No. 1837 of 2019, decided on 05.12.2019 (Hon'ble Supreme Court of India);
27. It is settled principle of law that in criminal proceedings, prosecution has to prove its case beyond reasonable doubt. In the present case, the accused is charged for the offfences punishable under section 120-B IPC, Section 379 r/w Section 120-B IPC and Section 8 of FERA, 1973 punishable under Section 56 FERA, 1973. Before recording any finding on the facts, it is imperative to discuss the essential ingredients of each of the offences:-
Section 120 B IPC reads as under :-
120B. Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 15 of 21 with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Section 378 IPC Theft-Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Section 8(1) of FERA Act:-
Section 8: Restrictions on dealing in foreign exchange. (1) Except with the previous general or special permission of the Reserve Bank, no person other than an authorised dealer shall in India, and no person resident in India other than an authorised dealer shall outside India, purchase or otherwise acquire or borrow from, or sell, or otherwise transfer or lend to or exchange with, any person not being an authorised dealer, any foreign exchange..."
28. So far as the charge u/s 120 B IPC is concerned, the same prescribes punishment for the offence of criminal conspiracy. The offence of 'criminal conspiracy' has been defined in Section 120A IPC which contemplates an agreement between two or more persons for doing an illegal act or for doing with illegal means an act which itself may not be illegal. The essence of the offence is an agreement to do an illegal act and such an agreement can be proved either by direct or circumstantial evidence or by both. The direct evidence of conspiracy is rarely available and the inferences are normally drawn from the acts of the parties in pursuance of a common purpose. Where the factum of conspiracy is sought to be inferred from the circumstances, the prosecution has to show that the CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 16 of 21 circumstances give rise to a conclusive or irresistible inference of an agreement to commit an offence.
29. In the present case the prosecution was firstly required to prove that accused Masoor Singh conspired with co-accused N.S. Randhawa and committed theft of foreign instruments received in the post office RMS Amritsar. Secondly the prosecution was required to prove that accused Masoor Singh in pursuant to criminal conspiracy pilfered the foreign exchange instruments and thus committed theft of the said foreign exchange instruments.
30. Sh. K.L. Sehgal who was examined on behalf of Department to prove the aforesaid fact during his pre-charge evidence has stated that the IB staff posted at RMS Amritsar between the period 1987 to 1996 was not following the procedure to scrutinize the foreign mail in presence of RMS staff. He had also deposed that some of the staff used to keep the mails in their custody in violation of the rules. He has also identified the accused as one of the IB Staff who was posted to scrutinize the foreign mail along with accused N.S. Randhawa (since expired). However, the said witness has not deposed about seeing either of the accused commit the offence of theft of the foreign exchange instruments in his presence. Also, it is pertinent to mention that the said witness was not called for examination during the post charge evidence and hence his testimony does not hold much weight.
31. Furthermore, PW-7 Sh. Amit Das who has deposed about CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 17 of 21 the posting of accused at RMS Amritsar has stated that neither he can identify accused Masoor Singh and nor he has worked with the said accused. Also the said witness has clearly stated that accused Masoor Singh did not do anything wrong in his presence and neither has he seen the case property i.e. foreign exchange drafts. The witness has also deposed that the theft was not committed in his presence. Furthermore, PW-8 has also stated that neither he had recorded the statement of accused Masoor Singh nor he had conducted the search of the house of the accused. Further he could also not say whether any documents pertaining to accused was recovered at the time of search of the premises of accused Pramod Jain.
32. Thus in view of the testimony of the prosecution witnesses as discussed above, the court is of the opinion that the prosecution has failed to establish its case either by direct or by circumstantial evidence for the aforesaid charges. There is no other evidence on record to prove the aforesaid charges against the accused.
33. Now coming to the charge u/s 8 r/w Section 56 of FERA, 1973. The aforesaid charge has been framed against the accused on the ground that the foreign exchange instrument acquired was sold by the accused in black market. The relevant witness to prove the aforesaid charge of the prosecution is PW-11. The said witness has deposed regarding recording of statement of co- accused Ravinder Pal Sethi u/s 164 Cr.P.C which is Ex.PW11/C and Ex.PW11/D. Before examining the said statement it is important to examine the voluntariness of the said statement. CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 18 of 21
34. It is well-settled that a confession which is not free from doubt about its voluntariness, is not admissible in evidence. A confession caused by inducement, threat or promise cannot be termed as voluntary confession. Whether a confession is voluntary or not is essentially a question of fact as held by the Hon'ble Apex Court in State (NCT of Delhi) v. Navjot Sandhu, Pakala Narayana Swami v. Emperor and Jameel Ahmad v. State of Rajasthan.
35. Thus in view of testimony of PW-11, the court is of the opinion that the statement of the accused was voluntary in nature. However, the said statement Ex.PW-11/D only mentions that accused Masoor Singh had come to the shop of accused R.P. Sethi with three cheque in the form of draft in foreign currency in Canadian Dollors. It is further stated that he had taken three cheques from accused Masoor Singh and given the same to Trilok Singh. Further in the statement dated 02.05.1994 accused has stated that he can not say if the IMO No. 0828731 dated 19.04.1991 of Tornoto Dominion Bank, IMO No. 75726543044 of Roayl Bank of Canada are the same which were given by Trilok Singh to Jain. Thus this court is of the opinion that the said statement even though voluntary is not sufficient to prove the case of the prosecution.
36. Furthermore, the other relevant witnesses i.e. PW-4, PW-5 & PW-6 have turned hostile and not supported the case of the prosecution. The evidence of PW-9 is also not relevant to prove the aforesaid charge against the accused.
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37. Further, the department has also failed to prove the service of opportunity notice upon the accused. PW-2 who was examined in order to support the said charge has deposed that the opportunity notice was issued to all the accused persons. However, in his cross-examination he has stated that the notice was sent through the office of CBI for service. He has further stated that there is nothing on record to show the service of opportunity notice upon the accused persons. Thus Hon'ble Delhi High Court in United India Airways Ltd & Anr.v. Chief Enforcement Officer, Enforcement Directorate in CRL.REV.P. 642/2017 has held that the requirement of proviso to Cl (11) of S.S(2) of Section 61 is that an opportunity of showing that the accused had the required permission is a mandatory requirement. Since the service of opportunity notice upon the accused has not been proved, hence the case of the prosecution remains doubtful on the aforesaid charge as well.
Conclusion
38. After appreciation of the testimonies of the witnesses as well as the material on record by the prosecution, I have no hesitation in holding that the prosecution has failed to proved the case against the accused for offences u/s 120-B IPC, Section 379 IPC r/w Section 120-B IPC and Section 8 of FERA, 1973 punishable under Section 56 FERA, 1973. Accordingly, accused Masoor Singh S/o Lt. Sh. Bhajan Singh is acquitted for the above mentioned offences.
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39. Ordered Accordingly.
ANNOUNCED IN THE OPEN COURT On 15th November, 2022 This judgment contains twenty one pages and each page is signed by me.
(NABEELA WALI) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI 15.11.2022 CC No:- 18983/16 Enforcement v. Pramod Kumar Jain Page No:- 21 of 21