9911796707
TMI Blog2008 (7) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... disposal on merit. 4. Shri Arun H. Mehta, Ld. Advocate for the appellants vehemently contended that the appellant company made the remittance to M/s TRES Corporation, Taiwan in pursuance to the collaboration agreement dated 5-11-1992 entered into with the approval of RBI for supply of technical know how as per provision of clause 6(a)(i) of the said collaboration agreement. According to Shri Arun H Mehta, Ld. Advocate the appellants imported the goods after receipt of the technical know how and after using the said technology it also exported goods out of India and, therefore, the question of failure to utilize the foreign exchange for the purpose it was remitted docs not arise. 5. Per contra, Shri A.C. Singh, Ld. DLA contended that it is revealed from the investigations that neither transfer of technology had been effected nor training of any personnel of appellant company i.e National Telecom of India Ltd. (NATELCO) had taken place subsequent to remittance of US $16,733.33 in April, 1993. Shri A.C. Singh then submitted that in such a situation, contravention of provisions of FER Act, 1973 is clearly established and the impugned order cannot be faulted with. 6. In view of the riv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement of production only after receiving payment of the balance consideration by M/s TRES Corporation from the appellant company (NATELCO). In such a situation, the contention of the appellant company that they had received the know how, technical data, necessary training, etc. before making the balance payment cannot be appreciated in absence of material evidence brought on record. It is unlikely that a foreign seller will deliver the goods without receiving the entire consideration money contrary to the terms of the agreement. The appellant company has not brought on record any material showing how they had received know how, etc. for manufacturing the goods in utilization of the foreign exchange acquired and remitted abroad. Rather the records available clearly show that only after making payment of subsequent instalments pursuant to the terms of the said Technical Collaboration Agreement pursuant to the terms of the said Technical Collaboration Agreement, the acquisition of technical data or training of NATELCO personnel would take place- Therefore, the fact of actual/effective utilization of the valuable foreign exchange acquired and remitted abroad k within the knowledge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence The burden would be of a comparatively lighter character in view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer any explanation. 13. A somewhat similar question was examined by this Court in connection with Section 167 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls 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, presumption juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property , though the latter is only a presumption of fact, 'thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on the conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may he inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conducted, in relation to the facts of the case. 34. When it is proved lo the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered with ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
