Kerala High Court
The Asst.Director vs P.Saidalavi Haji on 26 May, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.A.No.1621 of 2004 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 26TH DAY OF MAY 2020 / 5TH JYAISHTA, 1942
CRL.A.No.1621 OF 2004
AGAINST THE JUDGMENT IN CRL.A NO. 457/1998 DATED 06-02-2003 OF
ADDITIONAL SESSIONS JUDGE, (ADHOC II), ERNAKULAM
APPELLANT:
THE ASST.DIRECTOR,
ENFORCEMENT DIRECTORATE, GOVT. OF INDIA,
5/3256, WAFA BHAVAN,
MAVOOR ROAD, KOZHIKODE.
BY ADV. SRI.P.K.RAMKUMAR
RESPONDENTS:
1 P.SAIDALAVI HAJI
S/O POOKER HAJI, POOKOODA HOUSE,
PERINTHALMANA P.O.
2 STATE OF KERALA.
R2 BY SR PUBLIC PROSECUTOR SRI.B.JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21-05-2020, THE COURT ON 26-05-2020 DELIVERED THE FOLLOWING:
Crl.A.No.1621 of 2004 2
P.V.KUNHIKRISHNAN, J
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Crl.A.No.1621 of 2004
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Dated this the 26th day of May, 2020
JUDGMENT
This appeal is filed by the Assistant Director, Enforcement Directorate, Government of India against the judgment dated 6.2.2003 in Crl.A No.457/1998 of the Additional Sessions Judge (Adhoc II), Ernakulam. The appellate court was pleased to set aside the conviction and sentence imposed on the respondent.
2. The Assistant Director of Enforcement Directorate, Kozhikode filed a complaint against the respondent herein alleging the offence punishable under Sections 56 and 61(2)(ii)(b) of the Foreign Exchange Regulation Act (hereinafter mentioned as 'the Act'). The trial court convicted the respondent. The appellate court reversed the conviction and sentence and acquitted the respondent. Hence this Criminal Appeal is filed. (Hereinafter the parties are referred in accordance to their rank before the trial court).
3. The case of the complainant can be stated as follows:
Based on the information received in the Enforcement Directorate, Kozhikode from the Enforcement Directorate, Bombay Crl.A.No.1621 of 2004 3 to the effect that on 15.4.1984, they had seized Rs.10 lakhs and certain documents from one A.Ahamed Kunhi @ Man of Bombay and that the said documents disclosed seizable amount of receipt and distribution of compensatory payment made under instructions of one Shaik Ahamed Haji who was doing business at Abudhabi and his son-in-law K.Veerankutty Haji, the native of Perinthalmanna, who was then working in the Service Co- operative Bank, Perinthalmanna. It was revealed that the accused was their close relative and the owner of the shop called 'Tarif Metal Stores', Perinthalmanna and he along with the aforesaid Veerankutty were indulging in receipt and distribution of compensatory payments at the instruction of the said Sheik Ahamed Haji at Abudhabi. In this connection on 15.9.1984 the Enforcement Officer, Calicut had searched the business premises of the said Tarif Metal Stores at Perinthalmanna and this has resulted in the seizure of Rs.32,000/- and 14 sheets of documents. The residential premises of the said K.Veerankutty Haji at Perinthalmanna was also searched and this has also resulted in the seizure of note book containing 28 pages written by him and 5 sheets of documents. On 15.9.1984 the Enforcement Officer has recorded a statement of the accused under Section 40 of the Act. In the said statement inter alia he Crl.A.No.1621 of 2004 4 has stated that he was working in Abudhabi during 7.3.1982 and thereafter started business in the name and style M/s.Tarif Metal Stores at Perinthalmanna, that in 1982 when Sheik Ahamed Haji of Jameela Stores, Abudhabi visited India, he contacted him and entrusted him with the task of the receipt and distribution of compensatory payments in India for remuneration of Rs.5,000/- per month, that thereafter Sheik Ahamed Haji or his brother Abu of Abudhabi used to sent chits of coded words for money such as "Narayam", "Para", "Chakra" ie. one Narayam denotes Rs.100/-, one para denotes Rs.1,000/-, one chakra denotes Rs.1,00,000/- etc. with their signatures, through the persons who were to get the payments and had been receiving chits and making payments accordingly. After payments, such chits brought by the persons were handed over to the said K.Verrankutty who used to destroy them at once. He has further stated that as per the direction of the aforesaid Sheik Ahamed Haji at Abudhabi he had received an amount of Rs.26 lakhs in four instalments ie. twice Rs.5,000/- each and twice Rs.8 lakh each from unknown person besides a sum of Rs.40 lakhs received from K.Veerankutty Haji in 1984 out of which he had distributed a sum of Rs.39,68,000/- leaving a balance of Rs.32,000/- which was seized by the officers on 15.9.1984. This amount was also meant for distribution. Crl.A.No.1621 of 2004 5
Further statements were recorded from the accused on 16.9.1984 and 17.9.1984 confirming the above statement and identifying persons and documents seized.
4. The Enforcement Officers had also recorded statement of the said Veerankutty Haji under Section 40 of the Act on 15.9.1984 wherein interalia he has stated that under instructions of Sheik Ahamed Haji at Abudhabi, he had received Rs.14 lakhs in cash from unknown persons on eight occasions ie. Rs.5,000/-, Rs.3,00,000/-, Rs.50,000/-, Rs.25,000/-, Rs.1,50,000/-, Rs.30,000/-, Rs.45,000/- and Rs.3,00,000/- within eight months in 1984 and that as per the direction of the said Sheik Ahamed Haji at Abudhabi he had handed over the amount of Rs.40,00,000/- to the accused for distribution to persons who came with coded chits and that he had destroyed each such letters received from the said Sheik Ahamed Haji. Veerankutty Haji admitted that he had also paid a total sum of Rs.40,000/- to the accused towards his commission for eight months ie.Rs.5,000/- per month. Further statements were also recorded from the said Veerankutty on 16.9.1984 and 17.9.1984 confirming the above deposition and identifying parties. Subsequently statement under Section 137 of the Act of one Kotayil Hamza was recorded on 16.9.1984. So also the residential premises of one K.Kunheed Crl.A.No.1621 of 2004 6 was searched on 21.9.1984 and a sum of Rs.6,000/- was seized. Veerankutty was arrested under Section 35 of the Act on 17.9.1984 and was produced before the Chief Judicial Magistrate's Court, Calicut and was remanded to judicial custody and later he was released on bail. Thus , according to prosecution, it is evident that the accused who is resident in India had received a total sum of Rs.40,00,000/- from different persons in India during 1984 as per the direction of Sheik Ahamed Haji at Abudhabi and during the same period made payments totalling to Rs.39,68,000/- to various persons in India also as per the instructions of Sheik Ahamed Haji at Abudhabi. The accused undertook the above transactions without the general or special sanction of the Reserve Bank of India and had thus contravened the provisions of Section 9(1)(b) and 9(1)(d) of the Act. After completing the investigation, the complaint was filed against the accused ie. P.Syed Alavi Haji.
5. Before the trial court, the prosecution examined PW1 to PW3 to substantiate their case. Ext.P1 to P20 are the exhibits marked on the side of the prosecution. Thereafter, the charge was framed under Section 56(1)(i) of the Act against the accused. Thereafter, PW1 to PW3 were recalled and cross examined from the side of the defence. The prosecution again Crl.A.No.1621 of 2004 7 examined PW4 to PW6 also.
6. Thereafter going through the evidence and documents, the trial court found that the accused is guilty of offence punishable under Section 9(1)(d) of the Act. He was convicted and sentenced to undergo imprisonment for one year and also to pay a fine of Rs.50,000/- and in default of payment of fine he has to undergo simple imprisonment for a further period of six months. The appellant was acquitted for the offence charged under Section 9(1)(b) of the Act. Aggrieved by the conviction and sentence, the accused filed Crl.A No.457/1998 and the appeal was considered by the Additional Sessions Judge (Adhoc-II), Ernakulam. The learned Additional Sessions Judge, after going through the evidence and documents found that the prosecution miserably failed to prove the offence punishable under Section 9(1)(d) of the Act. Hence the appeal was allowed and the conviction and sentence imposed on him was set aside. Aggrieved by the order of acquittal passed by the learned Additional Sessions Judge (Adhoc-II), Ernakulam, the present appeal is filed.
7. I heard Sri.P.K.Ramkumar, the learned Special Public Prosecutor appearing for the appellant. The learned counsel for the complainant submitted that the order of acquittal passed by Crl.A.No.1621 of 2004 8 the lower court is perse illegal. He also submitted that the trial court considered all the aspects of the case and based on cogent evidence convicted the accused for the offence punishable under Section 9(1)(d) of the Act. The documents relied by the trial court is reliable and more than sufficient to convict the accused.
8. Eventhough the notice was issued by this Court to the respndent in the above appeal, it was not served. Hence this Court directed the Station House Officer, Perinthalmanna to ensure the service of the notice to the 1 st respondent and the Station House Officer returned the original duly signed by the accused. Accordingly, notice was served on respondent and even then there is no representation to the respondent/accused.
9. After considering the contentions of the learned counsel, who appeared for the appellant, I think, no substantial contentions are raised by him to interfere with the order of acquittal passed by the appellate court. This is an appeal against acquittal. It is a settled position that the jurisdiction of this Court to interfere with the acquittal order is limited. In Chandrappa and others V. State of Karnataka (2007(4) SCC 415), the Apex Court had laid down certain principle while considering the appeal against Crl.A.No.1621 of 2004 9 acquittal and the relevant portion is extracted hereunder:
"Recently, in Kallu v. State of M.P., (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person Crl.A.No.1621 of 2004 10 shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
10. In Sampat Baso Kale and another v. State of Maharastra (AIR 2019 SC 1852) the Apex Court held that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. The Apex Court also relied the Chandrappa's case (supra) while passing such an order.
11. Therefore, it is clear that the interference by the Apex Court against the acquittal order can be only in inevitable circumstances. Once an accused is acquitted, the presumption of innocence will strengthen. It is fundamental principle of criminal law that every person is innocent till a court of law finding him guilty. The High Court cannot interfere with the acquittal order passed by the lower court in a lighter way. It is also a rule that, in case of an acquittal of an accused by the lower Crl.A.No.1621 of 2004 11 court, there is double presumption in favour of the accused. Firstly, the presumption of innocence which is a fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent till the court find him guilty. This is is strengthened when he is acquitted by a court. Therefore an acquittal order passed by the lower court cannot be interfered lightly.
12. In this case, the appellate court considered all the aspects of the case. The relevant portion of the judgment of the appellate court is extracted hereunder:
"10. Section 9 of the Act deals with restrictions on payments. Section 9(1)(b) reads that save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in or resident in India shall receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India. Likewise Section 9(1)(d) provides that save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in or resident in India shall make any payment to, or for the credit of, any person by order or on behalf of any person resident outside India. The explanation to sub clause (1)(b) of Section 9 clarifies the existing position and is intended to ensure that compensatory payments prohibited under the clause do not get exempted merely because the payment is ultimately received by the party in India by way of a draft drawn on a Bank in India. The phrase compensatory payments is not defined in the Act nor has it been shown that it occurs in any other provisions of law. When Section 9 deals with restrictions on payments, sub clause (1)(b) of the section posits a situation of receipt while sub clause Crl.A.No.1621 of 2004 12 (1)(d) of Section 9 envisages a situation in making payments on behalf of any person resident outside India.
When distinction is drawn in such a line, it appears at the very outset that these clauses are interlinked or intertwined. This must be so, since receipt is a pre- requisite to guarantee payment on behalf of a person resident outside India. The lower court has held with reference to point No.2 in the judgment that there is no dispute that the prosecution has not succeeded in establishing that there was no corresponding inward remittance in respect of the amounts received by the appellant for distribution to persons in India. It was thus found by the lower court that the appellant has not committed an offence punishable u/s.9(1)(b) of the Act and he was acquitted of that charge. As regards the allegations regarding payments done by the appellant the point was found in favour of the prosecution by placing too much reliance in Exts.P3 to P5 statements given by the appellant u/s.40 of the Act and also Ext.D2, the retracted confession of the appellant. The lower court has entered into a finding that Exts.P3 to P5 statements were given by the appellant in his own handwriting voluntarily and that there is nothing in evidence to show that the said statements were obtained from the appellant by the Enforcement Officials by employing threats and torture. The lower court on successive occasions in the judgment had relied in Ext.D2 to arrive at a finding that the search and seizure of Ext.P1 series and Rs.32,000/- from the business establishment of the appellant is established beyond all reasonable doubt. It must be noted here that the appellant has no dispute at any time that the officers of the Enforcement Directorate had effected seizure of Ext.P1 series and Rs.32,000/- and Ext.D2 would stand as an explanatory note of the articles seized. In that view of the matter, the attempt made by the lower court to catch up Ext.D2 retracted confessions to plug the appellant with criminal liability is an erroneous approach in the matter of understanding of law. Mention must be made here regarding Ext.P1 series, 14 in Nos. which are scribblings of a various kinds and do not speak of any illegal payments made by the appellant in contravention of the Act. It can be seen from the facts on records that these were made incriminating solely on the basis of the statements rendered by the appellant before the Enforcement Officials. Thus, Exts.P3 to P5 statements alone are the evidence relied on by the trial court to sustain a finding of guilt against the appellant Crl.A.No.1621 of 2004 13 u/s 9(1)(d) of the Act. The retracted confession Ext.D2 was also relied on to give a corroboration to Exts.P3 to P5 by the lower court.
11. I am afraid that the approach of the lower court is unsustainable in law. The question to be considered at this juncture is as to whether the confessions rendered by the appellant which have been retracted subsequently at the earliest opportunity could be used in the absence of any other materials to give corroboration. The evidence adduced by the prosecution has to be necessarily corroborated in material particulars so as to incriminate the particular accused in the commission of the crime. It is a settled position of law that the burden is on the department to prove contraventions of the provisions of the Act. Neither the uncorroborated statements of the officials nor the confessions made by the accused are enough for finding the accused guilty. Section 9(1)(b) of the Act prohibits receipt of any payment by order or on behalf of any person resident outside India otherwise than through an authorised dealer. The explanation to Section 9(1)(a) and (b) makes it further clear that, receipt made in this manner would become penal only if there was no corresponding inward remittances. Therefore, apart from the proof regarding the receipts of amounts, it must also be established that the payment was through unauthorised dealer and that there was no corresponding inward remittance. A close peep into the evidence in this case would show that the Enforcement authorities had failed to prove that the remittance were made through unauthorised channels and that there was no inward remittance. Failure to prove these vital ingredients of the offence would obviously come to the rescue of the appellant and the prosecution cannot be heard to contend that the appellant had contravened the provisions of the Act. The prosecution has set up a case in such a manner that the confession statements of the appellant were recorded in a relieved manner on three days viz., 15.9.84, 16.9.84 and 17.9.84 and he was arrested only on 17.9.84. The attempt made by the prosecution is to canvass the position that the appellant was not in custody while he gave the confessions and that these were made voluntarily. These circumstance would not relieve the prosecution from its duty of positively establishing that the confession was voluntary. Then lower court, on the other hand, took a view that there is no evidence to show that the confession Crl.A.No.1621 of 2004 14 statements were obtained from the appellant by the Enforcement Officials under threats or torture. When the confession has been retracted and the prosecution has failed to get corroboration in material particulars, it is only safe to held that the prosecution case has to necessarily fail and the appellant is entitled to get the benefit of doubt. It therefore, follows that the appellant has not committed an offence punishable u/s 9(1)(d) of the Act. The order of the lower court in convicting and sentencing the appellant is liable to be set aside."
13. On going through the above findings of the appellate court, I do not think that there is any illegality in the order of acquittal passed by the appellate court. The appellate court considered the evidence produced by the prosecution and thereafter found that the accused is not guilty. For satisfying myself, I perused the entire evidence and documents produced by the prosecution once again. Then also, according to me, the findings of the appellate court are perfectly legal. There is nothing to interfere with the judgment of the appellate court reversing the acquittal order passed by the lower court.
Hence, this Criminal Appeal is dismissed.
Sd/-
P.V.KUNHIKRISHNAN
ab JUDGE
Crl.A.No.1621 of 2004 15