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TMI Blog2007 (2) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant but has only described about general mode of receipt of gift cheques through him in lieu of payment. Further show-cause notice at pages 15-16 of the record clearly states that reliance is placed on the statement dated 21-9-1994 of aforesaid S.J. Anand. Though statement of appellant was recorded which being exculpatory had not been relied upon but suppressed by Enforcement Directorate. Later, the aforesaid S.J. Anand has also retracted his statement but the impugned order is passed without any evidence to connect the appellant with the factum of payment to or for the credit of non-resident person named Smt. Anjali Verma. It is also contended that gift cheque of Rs. 10 lakhs is given due to love and affection by non-resident person with whom the appellant has association from the very childhood. Also the contentions are raised that on similar fact situation where gift cheques were given by one R.K. Verma who is none else than the husband of Mrs. Anjali Verma, the adjudicating authority exonerated the person who took gift cheques from the charges of contravention of FER Act and such exoneration order attained finality when not been challenged by Enforcement Directorate. 3. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to find proof from documentary or oral evidence when circumstantial evidence is available. In a recent judgment of 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 the body of the wife was found inside the room in a pool of blood. Because injury on the body of wife are not explained by husband, the Court made the following observations: If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 - quoted with approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. 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 certainty is a myth, and as Prof. Brett felicitously puts it - all exactness is a fake . El 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 require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man s estimate as to the probabilities of the case. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 at p. 65 according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted . Since it is exceedingly difficult, if not absolutely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 down the following principle in paras 31 to 34 of the reports : The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aulted. Moreover co-noticee who arranged similar gifts cheques made a statement divulging payment by like persons in lieu of gift cheques as this statement can be accepted on it being explanatory to the whole situation when provisions of section 30 Indian Evidence Act, 1872 do not come into play as pleaded by Shri A.C. Singh, ALA. There is no other error pointed out in the impugned order. The negative equality pleaded by learned counsel of having, others similarly situated, acquitted provides no sound basis to attack the impugned order. This position of law is repeatedly reiterated by Supreme Court. Therefore, the appellant is correctly held guilty for contravention of section 9(1)(a) FER Act, 1973. The penalty amount is not more than the amount involved in contravention, thus, making the penalty quite reasonable and correct. Therefore, this appeal contains no merit and is required to be dismissed. The adjudication order challenged is liable to be sustained and maintained. 8. For the reasons stated herein above, this appeal is dismissed having no merits. The adjudication order is affirmed and sustained. The penalty amount of 10 per cent pre-deposited by the appellant may be appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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