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TMI Blog2009 (11) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of receipt of the said order. It is stated that the appellant has made the pre-deposit in compliance of said order. It is stated that the appellant has made the pre-deposit in compliance of said order of pre-deposit dated 23-7-2009. Presently this appeal is taken up for final disposal on merit. 2-3. Shri Pramender Ojha, advocate appearing for the appellant, vehe-mently contended that appellant and his son received gift cheques issued from NRE accounts of persons resident outside India through banking channels and as such, no inference of contravention of provision of FER Act, 1973 can be drawn either against the appellant or his son. Secondly, it is argued that the amounts mentioned in cheques issued from the NRE accounts are in Indian currency and deposited in Indian banks and, accordingly, the said amounts in Indian currency cannot be termed as foreign exchange. In such a situation, the said transactions are beyond the ambit of provision of FER Act, 1973. Shri Pramender Ojha advocate then contended that NRI donors gifted the amount in question referred in gift cheques out of love and affection and not against any consideration. It is further contended that impugned order h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. The bald allegations are required to be supported by a little evidence so that burden can be shifted to the opposite side for leading proof otherwise. In this regard reference can be made to K.T.M.S. Mohd. v. Union of India [1992] 3 SCC 178, Hon'ble Supreme Court made following observations: We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Customs authorities or the officers of Enforcement under the relevant provisions of the respective Acts. Is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise, etc., to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat, etc., against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remittances as defined in section 2(b) in the said Act means remittances made in foreign exchange by any person resident outside India to persons resident in India. The Act of 1991 only grants immunity against receiving foreign exchange payment but making payment in lieu thereof to or for the credit of non-resident person. Thus, the transaction is not covered by Remittances of Foreign and Investment in Foreign Exchange Bonds (Immunity and Exemption) Act, 1991. Similarly receiving money by order or on behalf of non-resident person is forbidden under section 9(1)(b) or 9(1)(d) and is not covered under the Remittance of Foreign and Investment in Foreign Exchange Bonds (Immunity and Exemption) Act, 1991. 8. It is not always necessary to find proof from documentary or oral evidence when circumstantial evidence is available. In a recent judgment of judgment in Trimukh Maroti Kirkan v. State of Maharashtra 2006 (10) Scale 190, Hon'ble Supreme Court has held the husband guilty of murder despite absence of occular evidence when husband and wife slept together in a room but next morning that body of the wife was found inside the room in a pool of blood because injury on the body of wif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question was examined by this Court in connection with sections 167 and 178A of the Sea Customs Act in Collector of Customs, Madras v. P. Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under : It cannot be disputed that in proceedings for imposing penalties under clause (8) of section 167 to which section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainly is a myth, and as Prof. Brett felicitously puts it - all exactness is a fake . EI Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar AIR 1997 SC 1830 where a married woman had committed suicide on account of ill-treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar [2000] 8 SCC 382. In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial court convicted the accused under section 364 read with section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wth of love and affection between two unrelated person either by blood or vaginal relations leading to the gift of a high amount of needs a sufficient explanation from the appellants. The gift depending solely out of natural love and affection without any natural connection between two individuals have raised certain questions. These questions have not been answered by the appellants whose burden squarely lies on the appellant. Moreover long association even from childhood will also fail to permit gift of high value in common human conduct unless the recipient is in total penury and financial doldrums which is not the case here. 10. Further in the instant case, appellant received cheques from NRE accounts of NRIs supported by gift deeds executed in India on the dates when none of the NRI donors were present in India. In the light of above discussion genuineness of alleged gifts received from NRE accounts by appellant and his son when tested with surrounding circumstances and the touchstones of principle of human conduct and as observed by Hon'ble Supreme Court in Sumati Dayal v. CIT [1995] 214 ITR 801 1 lead towards the logical inference that compensatory payment were made by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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