Delhi District Court
Sh. B.Hazra vs Sh.Waryam Singh on 19 January, 2013
IN THE COURT OF SH. GAUTAM MANAN,
ADDL. CHIEF METROPOLITAN MAGISTRATE -01,
PATIALA HOUSE COURTS, NEW DELHI
Sh. B.Hazra,
Enforcement Officer,
Enforcement Directorate,
Lok Nayak Bhawan,
New Delhi ..................... Complainant
Versus
Sh.Waryam Singh
M-191, Greater Kailash-II,
New Delhi ...................... Accused
C.C. NO. 42/1/95
U/S 56 of The Foreign Exchange Regulation Act,1973
JUDGMENT U/S 355 Cr. P.C.
a) S. No. of the case 02403R0002901995
b) Date of commission of offence 1990
c) Name of the complainant Sh. B.Hazra,
Enforcement Officer.
d) Name, parentage & address of Waryam Singh
accused M-191, Greater Kailash-II,
New Delhi.
e) Offence Complained of or proved U/S 56 of The Foreign
Exchange Regulation Act,1973
f) The plea of the accused and his The accused has denied his
examination involvement in dealing with
foreign exchange.
g) The Final order Accused Waryam Singh is
acquitted.
h) The date of such order 19.01.2013
Enforcement V. Waryam Singh Page 1 of 8
Date of institution of case : 28.05.2002
Date of reserving judgment/order : 03.01.2013
Date of Pronouncement : 19.01.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :-
1.The Enforcement Directorate has filed the present complaint case alleging commission of offence punishable u/s 56 FERA, 1973 on the allegations that accused is involved in receiving and making payments of Rs26,31,250/ being consideration for and in association with the receipt of payment amounting to US $ 75000 without the previous general or special permission of the Reserve Bank of India, other then authorized dealer, has contravened the provisions of Section 9(1) (f)(i), 8(1) & 8(2) read with section 64(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.
2. On conclusion of precharge evidence, the charge for the offence punishable under section 56, FERA was framed against accused on 14.08.2007 to which the accused pleaded not guilty and stated that he would crossexamine complainant's witnesses after charge.
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3. Complainant in postcharge evidence examined 4 witness.
4. PW2 R.D.Gandhi,Assistant Director, Enforcement, deposed that he recorded the statement under section 40 FERA of Sh.Narinder Pal Singh Ex PW2/1 on 17.08.1991.
5. PW3 BK Arora,Enforcement Officer, deposed that he recorded the statement under section 40 FERA of Sh.Kulwant Singh s/o Sh.Gurnam Singh Ex PW3/1 on 09.07.1992, during recording of the statement Kulwant Singh gave him a paper ExPW3/1A and further deposed that he recorded the statement under section 40 FERA of Sh.Kulwant Singh s/o Sh.Dalip Singh Ex PW3/2.
6. PW5 Vikas Mehta, Assistant Enforcement officer testified that on 16.08.1991 he conducted search of the Maruti Car 1000 bearing no.DL3C0397 which was occupied by accused. As a result of search Indian currency and documents as per punchnama ExPW5/1 were recovered and seized. Annexure to punchnama has been proved as Ex PW5/1A,B & C. Bunch of loose sheets containing page 116 and two driving license as mentioned in Ex PW5/1C are Ex PW5/A1 to A17X. Diary Mark A as mentioned in Ex PW5/1C is Ex PW5/2A1A40. Diary Mark B containing pages 133 as mentioned in Ex PW5/1C is ExPW5/C1 to 33X.
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7. PW6 Jaswant Singh deposed that he conducted the search of M191, Greater KailashII, New Delhi on 16.08.1991 & as a result of search two telephone diaries Mark A & B containing pages 1 to 23 & 1 to 24 and loose sheets 1 to 7 were recovered and seized as per punchnama Ex PW6/1. The photocopies of seized documents are ExPW6/BB23 & ExPW6/BXBX24. Loose sheets are ExPW6/D1D7X.
8. The accused Waryam Singh in his statement under Section 313 Cr.P.C., denied dealings in foreign exchange and has claimed his innocence and stated that he has been falsely implicated.
9. I have heard the ld Counsels for the parties and have gone through written submissions filed on behalf of them.
10. It has been contended on behalf of complainant that by examining the complainant's witnesses, the complainant has been able to establish the commission of offence punishable u/s 56 FERA, 1973 by the accused and hence, he is liable to be convicted. Enforcement V. Waryam Singh Page 4 of 8
11. On the other hand, ld counsel for accused has submitted that the complainant has failed to bring any material on record which connects the accused with the transacting in foreign exchange and hence, the accused is entitled to be acquitted.
12. The case of the complainant is that accused is involved in receiving and making payments of Rs26,31,250/ being consideration for and in association with the receipt of payment amounting to US $ 75000. As per complainant the search of car & residential premises of accused resulted into seizure of foreign currency of US $ 8090 besides Indian currency and documents. Although no independent witness has been examined by the prosecution to prove the seizure and recovery of documents from the accused but even persuming the recovery of the documents from the accused even then the Diaries or loose sheets does not signify any transaction in the foreign exchange for want of independent prove of transactions.
13. As per the complainant, the documents seized from the accused contains the entire record showing that the accused was dealing in foreign exchange without being authorized to do so. In this regard, the complainant has proved the seizure of documents which are two diaries Mark A & B Ex PW5/2A1A40 & ExPW5/C1 to 33X. Telephone Diary and loose sheets which were recovered from the Enforcement V. Waryam Singh Page 5 of 8 residence of accused are produced on record as ExPW6/BB23 & ExPW6/BXBX24. Loose sheets are ExPW6/D1D7X.
14. All the above noted documents are nothing but loose sheets of paper which does not signify anything in respect of transactions of foreign exchange. The complainant has failed to produce any evidence in order to show that such inscription made by the accused 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.
15. 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.Enforcement V. Waryam Singh Page 6 of 8
16. 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.
17. The complainant although has contended that the accused has tendered their voluntary statements u/s 40 FERA, 1973 wherein the accused has admitted his guilt in transacting in foreign exchange without having any general or special permission from RBI. However, the statement tendered by accused has been proved on record in accordance with law as the witness who had recorded his statement was not examined in postcharge evidence. Even otherwise also, it has come on record that the PW6 Jaswant Singh, Enforcement Officer of the complainant is facing trial in a case of custodial death of brother of the accused and the accused has given an explanation that he statement was extracted under force and duress. Thus, the statement tendered by the accused persons u/s 40 FERA, 1973 which has not been proved in post charge evidence cannot come into aid of complainant.
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18. Accordingly, in light of the aforesaid discussions, it is held that the complainant has miserably failed to produce sufficient evidence against the accused to establish the allegations that he transacted in foreign exchange and hence, the accused is entitled to be acquitted in the present matter. Accordingly, the accused stands acquitted. His surety discharged. The Bail Bond stands canceled.
19. Accused is directed to furnish personal bond in the sum of Rs.10,000/ with one surety in the like amount in compliance of Section 437A Cr.P.C.
File be consigned to Record Room.
Announced in the open Court on 19th January, 2013.
Gautam Manan ACMM01/New Delhi 19.01.2013 Enforcement V. Waryam Singh Page 8 of 8