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TMI Blog2009 (1) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... h Patel and Mrs. Nutan Bipinbhai Patel, persons resident outside India in lieu of having received demand drafts for a total sum of Rs. 10,20,000 (Rs. 5,00,000 + Rs. 5,20,000), Rs. 5,00,000 in favour of son and Rs. 5,20,000 for himself, issued from the NRE Account without the permission of Reserve Bank of India during the year 1994-95. The appellants have made payment of the full amount of penalty. The appellants have moved an application making the request to decide these appeals on merits without compelling them to appear in person where these appeals are taken up for final disposal on merits. 2. Investigations in this case were initiated by the Enforcement Officers on an information that the appellants, Rafiq A. Goghabori, his son Nadeem R. Goghabori and his wife Smt. Mumtazbanu R. Goghabori had received cheques/demand drafts from the NRE Account of Manojkumar M. Patel, Umeshkumar V. Patel and Smt. Nutan Bipin Patel, received from the Income-tax Department. The appellants were summoned by the Enforcement Officers and the statement of Rafiq A. Goghabori was recorded where he admitted that he had received drafts from NRE Account of Umeshkumar V. Patel and Manojkumar M. Patel totall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject drafts. The appellant, Rafiq A. Goghabori also admitted that he had never met Umesh Patel who had given him Rs. 3,00,000 and his son another Rs. 3,00,000 from his NRE Account. He admitted that he only once met Manoj Patel and Smt. Nutan Patel who also made payments to himself and his wife and son. 5. It is submitted in the Memo of Appeal that the ingredients of the charge under section 9(1)(a) of the FER Act were not proved and the impugned order was liable to be set aside. There is no evidence to substantiate the charges against the appellants. The fact of actual payments have not been made has not been established. There was no independent evidence against the appellants. The appellant, Rafiq Goghabori is specifically repeatedly stated that he did not make any payment for receiving the drafts from the NRIs. The statement of third persons, viz,., Bipinchandra Kapadia, Sunil B. Kapadia, etc., was totally extraneous and irrelevant to prove the charges against the appellants. The case of the appellants was different from other alleged recipients. The judgment is based on conjectures and surmises. As against it, Shri A.C. Singh, ALA, vehemently argued against the contentions rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utflow of love and affection for gifting away any valuable property under section 122 of the Transfer of Property Act, 1882 or section 25(1) of the Indian Contract Act, 1872 particularly when substantial amount of Rs. 7,00,000 and 10,20,000 was donated by NRI to the appellant. However, it is a settled law that a gift can never be subject-matter of purchase. It should be made voluntarily and without consideration. If consideration is passed from the donee to the donor for making gift as happened in this case as discussed above, such a purchased gift would be a commercial transaction and a sham in the name of the gift. 9. It is not always necessary to find proof from documentary or oral evidence when circumstantial evidence is available. It will be appropriate to discuss the law as laid down by Supreme Court about the circumstantial evidence in State of Rajasthan v. Kashi Ram AIR 2007 SC 144. In this case, the accused was not on cordial terms with his wife who was last seen with his wife and daughter in the evening of 3-2-1998 in his house. The house was found locked on 4th, 5th and 6th February, 1998 and on 6-2-1998, the dead bodies of wife and daughter were found from the house who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o show that within all human probability the act must have been done by the accused. 12. Argument of the appellant is that there is no evidence to show payment to or for the credit of NRIs from whose accounts purported gift cheques are taken. These and such other arguments about making of gift, love and affection between NRIs and the appellant are within the special know-ledge of the appellant who have to prove these facts under provisions of section 106 of the Evidence Act, 1872. When that 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 persons. 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 relation to the facts of the particular case. The observations of the Supreme Court in Collector of Customs v. D. Bhoormull AIR 1974 SC 859 about smuggling in this regard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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