2018 (7) TMI 708 - MADRAS HIGH COURT

Offense under Prevention of Money-Laundering - question of determination of sex - Held that:- It is an admitted fact that initially the appellant was permitted to appear through the authorised agent. The impugned notice was issued on finding certain new facts and contradiction in the statements given, which could not be satisfactorily explained by the authorised agent. The appellant has been rendering a professional service by travelling extensively throughout the country. While doing so, the question of determination of sex did not stand in any way. However, for appearing before an authority, which is mandated by law, she seeks protective discrimination as a woman.

A legal profession stands apart on its own. In discharge of a professional duty, there is no difference between a man and woman. The summons were issued to the appellant in her discharge and capacity as a professional and not otherwise. It is clear from reading of Section 160 of the Code of Criminal Procedure, certainly, the fair construction principle as discussed supra would apply. This Court is unable to see any demon in the summons issued at this stage. There is no need to speculate. Neither a likelihood of bias nor malice can be seen through the summons issued. The appellant did not choose to challenge the summons earlier. She did rightly appear through the authorised agent. Issues have been raised only when the second respondent had asked her to appear in person.

The Submissions on the CBI enquiry vis-a-vis the summons cannot be countenanced with the scope being totally different. Similarly, the scope and applicability of Sections 126 to 129 of the Indian Evidence Act, 1872, is not required to be gone into at this stage as otherwise we will be entering into a realm of speculation. We also find that the appellant is not entitled to invoke Section 160 of the Code of Criminal Procedure since the special enactment specifically deals with the power, authority and procedure for issuance of summons under Section 50 of the Act and therefore, there is no requirement to read the proviso to Section 160 of the Code of Criminal Procedure into Section 50 of the Act.

The contention of the learned Senior Counsel appearing for the appellant that the averments not being controverted, there is a deemed acceptance, in our considered view cannot be countenanced. When there is no material to substantiate the averments, there is no need to deny them. The appellant has not produced sufficient materials, even prima facie so as to enable us either to hold the existence to likelihood of bias or malice either in fact or law.

In fine, both the appeals stand dismissed. However, liberty is given to the respondents to issue a fresh summons to the appellant requiring her appearance in person. No costs.