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TMI Blog2008 (12) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... s that each of the appellants received separately purported gift cheques of Rs. 1,50,000 from NRE account of one Vinod Goyal through his GPA holder Sanjeev Goyal in lieu of payment of principal amount along with additional amount of 10 per cent without any general permission or special permission from RBI. The appellants have made pre-deposit of their respective penalties along with filing of these appeals. Presently these appeals are taken up for final disposal on merits. 3. We have heard Shri Ashish Bang, Advocate on behalf of the appellant who has filed written submission which are taken on record. On behalf of Enforcement Directorate Shri A.C. Singh, DLA made elaborate arguments. 4. The contentions are made that appellants received cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged. The fact of love and affection between NRI and the appellant is within the special knowledge of the appellant who has to prove this fact under the provisions of section 106 of Evidence Act, 1872. When this burden is not discharged then adverse presumption is going to be taken as a natural consequence. Moreover, common human conduct does not permit gifting away of large sums of money to some unknown person. A presumption of fact in these circumstances can be drawn against the appellant. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act in Collector of Customs, Madras v. D. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn. Article 320, page 291), the presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of section 106 of the Evidence Act and laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 8. In these appeals, the appellants have not disclosed the way of their individual intimacy leading to gift with donor. The origin as well as the growth of love and affection between two unrelated persons 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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