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TMI Blog1996 (4) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... nt/accused went to Malaysia, and purchased and brought foreign goods worth about Rs. 1,62,000, which amount was advanced by one Anthony, a person resident outside India, and that when the house of the respondent/accused was searched on 23-11-1982, the respondent made a statement admitting the same and stated that an amount of Rs. 41,200 remains to be reimbursed to the said Anthony, and thereby the respondent contravened section 9(1)(c) of the Act, punishable under section 56. The accusation against the respondent/accused in Criminal Appeal No. 677 of 1986, is that in connection with the advance made by Anthony, resident outside India, to the wife, son and daughters of the respondent, while they had been at Malaysia during 1980, the respondent made three payments each of Rs. 20,000 two of them to Anthony and the third to his wife, while they visited India, without the previous general or special exemption of the Reserve Bank of India, and thereby the respondent contravened section 9(1)(a), punishable under section 56. The gravamen of the allegations against the respondent/accused in Criminal Appeal Nos. 678 and 679 of 1986 is that in connection with the advance made by Anthony, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent, accused was questioned under section 313 of the Code of Criminal Procedure, 1898, in all these cases, he stated that the evidence of P.W. 1 was not correct. However, no witness was examined on the side of the defence. The trial court, after termination of trial found the accused/respondent not guilty and acquitted him in respect of the above charges in all these four cases, holding that the offences were not proved against the respondent/accused. 3. The findings given by the trial court are as follows : (i)Exhibit P-3 letter written by Anthony, resident outside India, to the respondent was recovered from the house of the respondent under exhibit P-2 mahazar. Merely because the said Anthony, the author of the letter exhibit P-3 has not been examined, it cannot be said that the document cannot be used in evidence, exhibit P-5, the statement of the respondent also would show that the same is in conformity with exhibit P-3 under section 72 of the Act, where any document has been seized from the custody of any person, the Court shall presume, unless the contrary is proved, the truth of the contents of such document. This presumption has to be rebutted not by mere expla-n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Thus, though the trial court gave a finding in the first instance, that on the basis of exhibits P-3 and P-5, it could be concluded that the respondent/accused contravened section 9(1), it has concluded on the basis of the second finding that the prosecution has not proved that the said Anthony was a person resident outside India and that the statement given by the respondent/accused in exhibit P-7 cannot be taken as evidence in these cases. These present appeals have been resorted to by the appellant in this Court, challenging the second finding by the trial court, on the basis of which the respondent/accused was acquitted. 5. Mr. K. Kumar, the learned Special Public Prosecutor (FERA) appearing for the appellant, took me through the entire evidence and contended that the learned Magistrate miserably failed to understand the basic concept of the object and scope of the Act, while observing that the prosecution has not discharged the burden to prove regarding the fact as to whether Anthony was a person resident outside India, especially when he found that in view of section 72, the Court shall presume that the contents of the documents seized from the house of the respondent/a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions rendered by the Supreme Court as well as the other High Courts, to substantiate his submissions. He also submitted that the ground of long lapse of years may not be taken into consideration, for, serious offences, like this. Therefore, he requested this Court, to set aside the judgments of acquittal passed by the trial court in all these cases and to punish the respondent/accused in accordance with law, by convicting thereunder. Before deciding this issue, let me refer to the relevant sections contained in the Act. Section 9 deals with restrictions on payments. Under section 9(1), no person in India, shall without any general or special exemption from the Reserve Bank of India, (a) make any payment to any person resident outside India; (b) receive any payment from any person resident outside India; (c) draw, issue or negotiate any bill of exchange or acknow-ledge any debt, so that a right to receive the payment is created or transferred in favour of any person resident outside India; (d) make any payment to or for the credit of any person by order or on behalf of any person resident outside India. 8. The preamble to the Act discloses that this Act has been introduced to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for contravening any of the provisions of this Act, or of any rule, direction or order made thereunder which prohibits him from doing an act without permission, the burden of proving that he had the requisite permission shall be on him." So, both these sections, viz., sections 59 and 71 would disclose that in a prosecution under this Act, the Court shall presume the existence of the mental state on the part of the accused and the burden of proof to disprove such mental state shall be on the offender and offender alone and not upon the prosecution. 12. Section 101 and section 103 of the Evidence Act deal with the burden of proof, which provides that when a person is bound to prove the existence of any fact, the burden of proof lies on that person. But section 71 of the Act, being a provision of the special statute provides for the burden of proof being shifted to the offender. It means, the burden of proof was not cast upon the prosecution. To put it in a nutshell, sections 59 and 71 fixed the onus on the part of the accused to prove that Anthony was not a resident outside India, or he had permission to transact with the said Anthony. All the decisions of the Supreme Court, refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied] 15. Exhibit P-4, is the visiting card of the respondent/accused, in which the residential address particulars of Anthony are written. In exhibit P-4, the date has been put as 15-2-1982. Exhibit P-4 contains the address of the said Anthony as follows : "A. Antonie, No. 1, A. Clifford Road, Kuala Lumpur, Malaysia." 16. Exhibit P-5, is the statement given by the respondent/accused on 23-11-1982. Some of the relevant portions relating to the residence of Anthony as found in exhibit P-5 are as follows ; ****** If these documents alone de hors the other documents like exhibit P-7 are taken into consideration, the contents of the same would be sufficient to establish that Anthony was a resident outside India, in the light of section 72. Even, according to the trial court, under section 72, the contents of the documents exhibit P-3 coupled with exhibit P-5 could be an admitted evidence. 17. The search was made on 23-11-1982. The show-cause notice exhibit P-6 was issued on 2-11-1983. The reply, exhibit P-7 of the respondent/ accused was given on 29-11-1983, nearly a year after the seizure of exhibit P-3 letter. Even in exhibit P-7 reply, the respondent/accused said that "A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lifies the voluntary nature of the statement exhibit P-5 lacks substance. Moreover, subsequent to exhibit P-7 reply dated 29-11-1983, the respondent through his representative filed a written statement, admitting the receipt of the payment from Anthony, pleaded guilty and seeking to take a lenient view. So the argument of Mr. Panchapagesan, cannot be accepted as a valid one. 20. In the light of the above discussion, I am of the considered opinion, that the trial court has taken a wrong view of the settled position of law in relation to the appreciation of evidence, concerning the cases under FERA, while acquitting the respondent/accused. The principles referred to above, have also been expressed by a Division Bench of this Court in Sarathas v. Assistant Director, Enforcement Directorate A.A.O. No. 830 of 1982 dated 2-11-1995. Thus, I find that the offences with which the accused had been charged by the trial court, have been committed by the accused/respondent. 21. The Apex Court in State of Gujarat v. Mohanlal Jitamalji Porwal AIR 1987 SC 1321, while dealing with the analogous provisions of the Customs Act, has taken into consideration the scope of the Act, which was enacted for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court, as referred to above, I am not able to persuade myself to agree with the learned counsel for the respondent/accused, to show sympathy to the respondent. 23. On the basis of the foregoing analysis of the various aspects of these cases, I am of the view that the judgments of acquittal dated 24-3-1986, rendered in E.O.C.C. Nos. 1252 to 1255 of 1985, by the learned Addl. Chief Metropolitan Magistrate (E.O. II), Egmore, Madras, are liable to be set aside, as the respondent/accused is found guilty of the charges under sections 9(1)(c), 9(1)( a) and 9(1)(d) punishable under section 56. As such the appeals are allowed and the respondent-accused is convicted for the above charges in all these four cases. Regarding the question of sentence, Mr. K.A. Panchapagesan, the learned counsel for the respondent, submits that under section 248(2) of the Code of Criminal Procedure, the respondent could be asked about the question of sentence through his counsel. For this course, there is no objection on the part of the appellant. Mr. K.A. Panchapagesan submitted that there are totally seven cases, out of which three cases ended in conviction and four cases ended in acquittal. Against those ..... X X X X Extracts X X X X X X X X Extracts X X X X
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