9911796707
TMI Blog1989 (4) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... these proceedings may be briefly summarised as under : The officers of Enforcement Directorate, Bombay searched the residential premises of Shri Mohd. Ismail, 39-A, Chowpatty Sea Face, Bombay-7 resulting in the recovery and seizure of certain documents and Indian currency worth Rs. 2,21,000. The statement of Shri Mohd. Ismail was recorded on the very next day wherein he, inter alia, admitted to have been receiving and making payments in India under instructions from one Shri Meera Mohideen a person resident in Singapore. He further stated that he had received a payment of Rs. 1,30,000 from the appellant and another Rs. 1 lakh from Shri Hamid of Bombay (totalling Rs. 2,30,000) and that the balance amount of Rs. 2,21,000 found from his possession was the balance of the aforesaid money. The bunch of loose sheets contained certain codes and Shri Ismail explained the same. Acting on the basis of his statement, the officers of the Enforcement Directorate searched the premises of the appellant on 29-4-1985 but nothing incriminating was found therefrom. The statement of one Shri Kirti Kumar P. Seth, partner of the appellant was also recorded who denied any knowledge about the activities of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicator to hold the appellant liable ; that the statement of Mohd. Ismail who stood in the shoes of an accomplice could not be relied upon against the appellant without any corroboration whatsoever ; that the allegation itself is quite vague since there is nothing to suggest as to who (which of the partners of the firm) gave such a huge sum to Ismail, in what connection and precisely at what time ; that the penalty imposed on the firm as such and not upon the person who is alleged to have made the payment is illegal and cannot be sustained ; that the statement of Shri Seth - a partner of the appellant firm - recorded under section 40 of the Act could not be just set aside by the adjudicator without assigning any reason for the same ; that the adjudicator misconstrued the decision of the Supreme Court Balbir Singh v. State of Punjab AIR 1957 SC 216 while holding the appellant liable for the said contravention. The department's representative on the other hand without making any specific plea, supported the order for the reasons given therein. 5. I have carefully considered the aforesaid contentions and the material available on record. It is really difficult to sustain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom his statement that Shri Ismail is a person who is used as a tool by said Shri Meera Mohideen to receive and make payments of different sums of amounts to random persons as per the directions of the latter and earns commission at the rate of Rs. 100 against a transaction of Rs. 1 lakh. 6. The transcript of the relevant entry in the loose sheet (page 12/c of the paper book) contains various names and amounts. The writing connected with the alleged payments by the appellant reads as 'Bharatha-130'. It is significant that while other entries containing the specific names of the persons alleged to have made payments to or received money from Ismail are given, the name of the person alleged to have made payment of Rs. 130 or say Rs. 1,30,000, is not given. Plain reading of entry would mean that some Bharatha is connected with the said figure of Rs. 130 mentioned therein. Significantly, the Enforcement Officers who recorded the statement of Ismail in great detail, did not bother to find out from him as to who was the person who made this alleged payment. It is quite possible and rather natural to presume that somebody named Bharatha, and not the appellant, made this payment. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other if it fulfils the conditions laid down in section 30 of the Evidence Act. One of the conditions is that the confession must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration. Where on reading the confession as a whole, it appears that he was really trying to throw the main blame on the other accused and make out that he was an unwilling spectator of crime committed by the other accused, the utmost that can be stated is that the confession cannot be used at all against the other accused . ... (p. 216) I am afraid the above observation is not applicable to the facts of the present case. Firstly, it is not a case of common allegation against the appellant and Shri Mohd. Ismail and that in that sense he is not a co-accused. He has not been tried along with the appellant. This is apart from the fact that even the statement of Mohd. Ismail is not sufficient to establish that the payment was made to him by the appellant on behalf of a non-resident person as such. It only shows that he (Mohd. Ismail) received the payment for the aforesaid non-resident person. The fact of receiving payment is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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