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TMI Blog2009 (4) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts and circumstances of the case, and oblige. 2. Vide order dated 16-12-2006 which has been impugned in this petition, a charge has been framed against the petitioner by the Court of Addl. Chief Metropolitan Magistrate to the following : US$ Eqv. to Rs. ( a ) 1-7-1992 500 cash 14,850 ( b ) 4-7-1992 10,000 cash 2,95,000 ( c ) 17-7-1992 1,39,000 FITT 42,29,756 ( iii )That from the proceeds of foreign exchange so credited in the account the following cheques for payment were issued : 17-7-1992 Ch. No. 481 in favour of Shri Prakash Chandra for Rs. 30,00,000 18-7-1992 Ch. No. 482 in favour of Shri Vikram Singh for Rs. 5,00,000 20-7-1992 Ch. No. 483 in favour of M/s. Vishwa Dharmayatan for Rs. 5,00,000 12-8-1992 Ch. No. 484 in favour of M/s. Vishwa Dharmayatan for Rs. 5,00,000 ( iv )That Shri Prakash Chandra alias Prakash Chandra Yadav stated that the amounts of Rs. 30 lakhs received by him from the NRE A/c was a loan/advance given by Shri Akbar J. Verjee for construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Verjee c/o M/s. Industries and Finazkontar Post Fach 339, Alternbach 8, FL 9/190 Vaduz, Letchtenstein was being maintained in the R.K. Puram Branch of Canara Bank during 1-7-1992 to 12-1-1993. ( ii )That the following amounts were credited in the said NRE A/c towards proceeds of Foreign Exchange : who had befriended me in the autumn of 1991 when he was visiting London for meetings with one Mr. Adnan Khashogi, Mr. Swami told me that it would be an NRI account and in the event that I did some business in India the account would enable me to conduct business. Later on I found this to be incorrect advice. I was accompanied to the Canara Bank by Mr. Mahesh Ram of B.D. Steel at the request of Mr. Kumar who was at the time the Chairman of B.D. Steel and a disciple of Mr. Swami. I cannot recall the quantum of the deposit paid into the account at the time of opening the account, I went to the bank only once because I was in India only for three days during that visit. I did not personally make any other or further deposits in the Canara Bank. They have been made by someone else. After the bank account was opened I was given a cheque book and pay in book by the bank manager. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permission of RBI. ( x )That by otherwise acquiring and otherwise transferring foreign exchange equivalent to Rs. 30 lakhs in the aforesaid manner, accused No. 3 Shri Prakash Chandra Yadav has contravened the provisions of section 8(1) of the FERA, 1973 and has thereby rendered himself liable to be proceeded against under section 56 of FERA, 1973." 4. It is also the case of the respondents that an opportunity notice was also given to the petitioner under section 61(2)( ii ) of FERA to produce on record any permission/exemption from RBI to enter into aforesaid transaction but no such permission was brought to the notice of respondents and, therefore, they filed the aforesaid complaint for punishing the petitioner and two others. 5. Based upon the aforesaid complaint the ACMM vide order dated 25-11-2006 decided to frame charges against all the petitioners. Insofar as the petitioners before this Court concerned, it has been observed that the pre-summoning evidence which came on record, prima facie, proves the involvement of the petitioner. 6. Relying upon the judgment delivered by the Hon ble Supreme Court in the case of R.S. Malik v. A.R. Antuley AIR 1986 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dnan Khashogi. He has in his communication specifically stated that the accused No. 1 had told him that it would be an NRE account and in that event he did some business in India the account would enable him to conduct business which advice of accused No. 1 he later on found as incorrect. He has stated that he has visited the bank only once since he was in India for only 3 days and during the period he personally did not make any or further deposits and all of them have been made by someone else. He has further stated that in the Ashram of accused No. 1 he was asked by him i.e., the accused No. 1 to handover the two cheque books to the accused No. 2 Vikram Singh and was also made to sign several cheques in the said books. He has also stated that he was not in India on all the occasions on which the deposits were made in the said NRE account nor he is involved in making the deposits. According to said Akbar Verjee he was introduced to the accused No. 3 in the Ashram of accused No. 3 who told them that he was excepting a sum of money from the accused No. l. Further the accused No. 3 told him that his father was a senior Minister in the Government at the relevant time. Sh. Akbar Ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegations that Shri Akbar Verjee himself admitted in the communication to the Indian High Commission that the NRE account opened by him was the account from where the cheque in question was issued to the petitioner which was credited in his account in India. Thus, it is not a case of receiving any Foreign Exchange outside India. It is also submitted that all the deposits in the NRI account of Vikram Virji were made as per the permissible mode and, therefore, it was not a case where there was any violation of section 8(1) of FERA. In this regard, the petitioner has also submitted : "( i )The petitioner submits that the pre-condition to attract section 8(1) of the Foreign Exchange Regulation Act, 1973 would be "buy or otherwise acquiring or borrowing from or sell or otherwise transfer or lend to or exchange with any person not being an authorized dealer, any foreign exchange." The provision alleged against the petitioner is "otherwise acquire". The expression "acquire" must have a definite connotation and it must indicate first possession of foreign exchange and then right to appropriate the possessed foreign exchange. There is not an iota of material to indicate even poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient to have formed an opinion that the petitioner was guilty of the offence alleged." 9. On the other hand the learned counsel for the respondents submitted that in the present case even though the money has been received on the basis of a cheque drawn from the NRI account of Vikram Virji by the petitioner where deposits were also made in the authorized manner but Shri Vikram Virji in his communication written to the Indian High Commission himself admitted that the deposit in his account were not made at his instance and that the said deposits were not authorized. He also admitted his acquaintance with Chandraswami with whom he left his cheque books and also the present petitioner in whose favour the cheque of Rs. 30 lakhs was drawn from the said account which account has been credited to the account of the petitioner in India and which money has been appropriated by him and therefore the presumption drawn by the respondent that this is the acquisition of Foreign Exchange from abroad without the permission of RBI which is the basis of his presumption in the complaint in accordance with section 8(1) of FERA which reads as under: "8. Restrictions on dealing in foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the contrary and the statement having been made by Vikram Virji in his communication to Indian High Commission, prima facie, the case of the respondents that this money belongs to those who were benefiting out of it such as the petitioner in this case and the other accused person is prima facie sufficient for framing the charge against the petitioner. Therefore, to say that charges have been wrongly framed at this stage would not be justified in view of the detailed reasons given by the ACMM while framing the charges ( supra ). Insofar as the defence of the petitioner is concerned, it can always be brought to the notice of Learned ACMM during the course of trial. 13. Thus, I do not find any reason to interfere with the order framing of the charge which has to be passed by taking a prima facie view of the matter and not on the basis of any concrete evidence which may establish that petitioner would certainly be convicted of the charges levelled against him. I need not repeat the judgments which have been already cited in the order framing the charges in this regard. Hence I do not find any merits in this case. Petition filed by the petitioner is dismissed. Let the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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