2023 (7) TMI 829 - HC - FEMA

Acquittal of the charge u/s 56 of FERA - trial Court held that there was no other evidence against the respondent except his statements Ex.CW2/A and Ex.CW2/B and no material was available on record to connect the appellant with the commission of the alleged crime and the prosecution had miserably failed to prove the case against him - HELD THAT - As prosecution could not place on record any orders/notice asking the respondent to appear and make the statements. This fact alone proves that the statements made by the respondent were not voluntarily. Apart from that, the learned trial Court has correctly recorded that there is no evidence against the respondent/accused except his own statements Ex.CW2/A and Ex.CW2/B. Even the prosecution could not lead any evidence to connect the respondent with the alleged chits Ex.C2 to Ex.C14 and the findings recorded by the learned trial Court are liable to be upheld. Apart from that, even the complaint was premature as the same was launched on the strength of the orders Ex.CW2/C and the appeal preferred by the respondent against the said order was stated to be pending before the Appellate Tribunal. Thus, it is apparent that the very basis i.e the order Ex.CW2/C had not even attained finality and the complaint was preferred in a tearing hurry without any valid explanation. Thus instant appeal is wholly misconceived, bereft of merits and without any substance; thus, it must fail. No case for interference has been made out.

Summary

Issues Involved:
1. Validity of evidence against the respondent.
2. Non-examination of the complainant.
3. Legitimacy of the raid and its findings.
4. Prematurity of the complaint.

Summary:

1. Validity of evidence against the respondent:
The trial court acquitted the respondent under Section 56 of the Foreign Exchange Regulation Act, 1973, due to insufficient evidence. The court noted that the prosecution failed to provide material evidence connecting the respondent to the alleged crime, relying solely on the respondent's statements (Ex.CW2/A and Ex.CW2/B).

2. Non-examination of the complainant:
The complainant, Mr. D.K. Mitra, Assistant Director, Enforcement Directorate, who filed the complaint, was not examined. The court held that this non-examination caused serious prejudice to the prosecution's case, depriving the respondent of the opportunity to cross-examine a crucial witness.

3. Legitimacy of the raid and its findings:
During the raid on 22.01.1990, various currencies and documents were seized from Balwinder Singh Sandhu's residence, where the respondent was present. However, the court found that the house did not belong to the respondent, and the panchnama (Ex.C1) did not bear his signatures. Additionally, no independent witnesses were involved in the raid, weakening the prosecution's case.

4. Prematurity of the complaint:
The complaint was deemed premature as it was based on an order (Ex.CW2/C) that had not attained finality, with an appeal pending before the Appellate Tribunal. The court observed that the complaint was launched hastily without valid explanation.

Conclusion:
The court upheld the trial court's acquittal, finding no substantial evidence against the respondent. It emphasized that the appellate court should not interfere with an acquittal unless the trial court's findings are perverse or unsustainable. The appeal was dismissed as misconceived and without merit.