Delhi District Court
Enforcement vs Prem Singh & Others on 2 November, 2012
CC No. 808/1/2002
Enforcement V. Prem Singh & Others
02.11.2012
ORDER ON CHARGE
1.The Enforcement Directorate has filed the present complaint case alleging the commission of offence punishable u/s 56 FERA, 1973 on the allegations that on 06/07.3.1991 the residential premises of Prem Singh (accused no.1) was searched by the officers of complainant which resulted into recovery and seizure of Indian currency of Rs.20,46,000/ along with certain documents. During the search of the premises, Rajender Singh @ Raju (accused no. 3) who is son in law of accused no. 1 was also searched which resulted under the seizure of documents including Rs.1,750/ and a Car bearing no. DL3CA0672. Thereafter, the residential premises of accused no.3 was searched which resulted into seizure of Indian currency of Rs.80,000/ and certain documents as per the panchnama prepared by the officers of complainant.
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2. The accused no. 1 tendered his statement on 17.12.1991 under provision of Section 40 of FERA wherein the accused no. 1 admitted to be dealing in purchase and selling of Foreign Exchange worth Rs.1.5 crore and further stated that his two son in laws accused no. 2 Trilochan Singh @ Bittoo and accused no.3 Rajender Singh @ Raju were also assisting him in his work. Accused no. 1 further stated that he had no permission from RBI to deal in foreign exchange.
3. Trilochan Singh @ Bittoo (accused no.2) also tendered his statement u/s 40 FERA, 1973 wherein the accused no.2 stated that whatever the accused no. 1 stated in his statement is true and correct. The accused no. 3 in his statement denied to be indulged in illegal dealing of foreign exchange.
4. As per the allegations in the complaint, the accused persons are purchasing and selling of foreign exchange amounting more than Rs.1.5 crores without having any general or special permission from RBI thus they have contravened the provisions of Section 8(1) and 8 (2) of FERA, 1973 and thus it has been prayed that accused persons be tried and punished as per the provisions of Section 56 FERA, 1973.
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5. Complainant has examined 6 witnesses.
6. PW1 R.K. Rawal proved the complaint as Ex.PW1/A filed on the basis of notification dated 24.9.1993 as Ex.PW1/B.
7. PW2 C.L. Dhar, Chief Enforcement officer deposed that he issued opportunity notice to the accused persons before launching the present prosecution. After service of opportunity notice the accused persons failed to furnish any permission of RBI in support of their case.
8. PW3 Vikas Mehta, Assistant Enforcement officer testified that he conducted search at the residential premises of accused Prem Singh and also conducted personal search of accused Rajender Singh. The witness deposed that as a result of search Indian currency and a car was seized. The witnesses proved the Panchnama in respect of search of the premises of accused no. 1 as Ex.PW3/A along with Annexure A, B and C. The witness also testified that certain documents were also seized as per Ex.PW3/B along with loose sheet containing 1 to 33 written pages as Ex.PW3/B16. The other documents seized have been proved as Ex.PW3/B17 and Ex.PW3/B18.
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9. PW4 Devender Malhotra testified that he recorded statement of accused no. 3 tendered u/s 40 of FERA as per Ex.PW4/A and Ex.PW4/B.
10. PW5 R.K. Handoo testified that he issued summons for appearance to accused no. 2 who tendered his voluntary statement dated 17.12.1991 to him which is Mark A.
11. PW6 Sh. A.K. Narang, Assistant Director testified that he recorded statement of accused Prem Singh as Mark PW6/A.
12. It has been contended on behalf of complainant that by examining the complainant witnesses, the complainant has been able to prima facie establish the commission of offence punishable u/s 56 FERA, 1973 and hence, the charge for the offence be framed against the accused persons.
13. On the other hand, ld counsel for accused persons has submitted that the complainant has failed to bring any material on record which connect the accused with the transacting in foreign exchange and hence, the accused persons are entitled to be discharged in the present matter.
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14. I have heard ld. Counsel for parties and have perused the record.
15. The case of the complainant is that the search of residential premises of accused no. 1 Indian Currency of Rs.20,46,000/ was found along with certain documents. As per the complainant, the documents seized from the accused no.1 contains the entire record showing that the accused no. 1 was dealing in foreign exchange with the aid of accused no. 2 and 3 without being authorized to do so. In this regard, the complainant has proved the seizure of documents which are Ex.PW3/B, Ex.PW3/B1 to B15. A diary Ex.PW3/B16 bearing name of Tirlochan Singh (accused no.2) has also been proved on record along with other documents Ex.PW3/B18.
16. All the above noted documents are nothing but loose sheets of paper that too written mostly in "Gurmukhi" language which does not signify anything in respect of transactions of foreign exchange. The complainant has failed to produce the translation of these documents either in Hindi or in English in order to show that such inscription made by the accused no.1 in the documents were actually transactions relating foreign exchange. It is also matter of record that the complainant has not produced any other evidence in order to establish the actual transactions done by the accused persons in foreign exchange.
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17. In AIR 1998 SC 1406 in case titled as Central Bureau of Investigation v. V. C. Shukla, while dealing with seized documents the Hon'ble Apex Court held that:
39. A conspectus of the above decisions makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and loose sheets (which we have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inference about the formers' correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support thereof.
18. Thus, in the light of aforesaid authoritative judgement it is crystal clear that in order to establish that the seized papers & diary signifies transactions of foreign exchange there must be independent evidence in support of transactions of foreign exchange and in absence of any independent evidence of such transactions the seized documents are nothing but merely a piece of paper. As stated above there is no independent material on record to enable the Court to rely upon these documents. It is matter of record that seized documents are in 'Gurmukhi' language, the complainant did not produce the translation of the written language in to clarify the exact inscription on the seized documents and the significance of the notings on the documents, thus, Enforcement V. Prem Singh & Others 6of 8 by no stretch of imagination it can be presumed that the documents signifies that the accused persons were in fact dealing in foreign exchange.
16. The complainant although has contended that the accused persons have tendered their voluntary statements u/s 40 FERA, 1973 wherein the accused no. 1 and 2 have admitted their guilt in transacting in foreign exchange without having any general or special permission from RBI. However, none of the statements tendered by accused no.1 & 2 have been proved on record in accordance with law. As such, the statements in absence of proof of the same cannot be believed and cannot be considered for framing of charge against the accused persons. It is also on record that in the statements tendered by accused no. 3 Ex.PW4/A to Ex.PW4/B he has denied his role in transacting in foreign exchange. Thus, even the statements tendered by the accused persons u/s 40 FERA, 1973 which have not been proved on record cannot come into aid of complainant's case for framing of charge against the accused persons.
17. Accordingly, in light of the aforesaid discussions, it is held that the complainant has miserably failed to produce any material against the accused persons to establish the allegations that they transacted in Enforcement V. Prem Singh & Others 7of 8 foreign exchange and hence, the accused persons are entitled to be discharged in the present matter. Thus, all the three accused persons are discharged in the present matter.
18. Accused persons are directed to furnish personal bond in the sum of Rs.10,000/ each with one surety each in the like amount in compliance of Section 437A Cr.P.C.
File be consigned to Record Room.
Gautam Manan
ACMM01/New Delhi
02.11.2012
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