TMI Blog1996 (4) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1986, against the repondent/accused is that during 1980, the wife, son and daughters of the respondent/accused went to Malaysia, and purchased and brought foreign goods worth about Rs. 1,62,000/-, which amount was advaced by one Anthony, a person resident outside India, and that when the house of the respondent/accused was searched on 23-11-1982, the respondent made a statement admitting the same and stated that an amount of Rs. 41,200/- remains to be reimbursed to the said Anthony, and thereby the respondent contravened Section 9(1)(c) of the Act, punishable under Section 56 of the Act. 4. The accusation against the respondent/accused in Criminal Appeal No. 677 of 1986, is that in connection with the advance made by Anthony, resident outside India, to the wife, son and daughters of the respondent,while they had been at Malaysia during 1980, the respondent made three payments each of Rs. 20,000/- two of them to Anthony and the third of his wife, while they visited India, without the previous general or special exemptions of the Reserve Bank of India, and thereby the respondent contravened Section 9(1)(a) of the Act, punishable under Section 56 of the Act. 5. The gravemen of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complaints were lodged in E.O.C.C. Nos. 1252 to 1255 of 1985, before the Additional Chief Metropolitan Magistrate (E.O. II), Egmore, Madras. 7. When the respondent/accused was questioned under Section 313 Cr.P.C. in all these cases, he stated that the evidence of P.W. 1 was not correct. However, no witness was examined on the side of defence. 8. The trial court, after termination of trial found the accused/respondent not guilty and acquitted him in respect of the above charges in all these four cases, helding that the offences were not proved against the respondent/accused. 9. The finding given by the trial court are as follows :- (i) Ex. P3 letter written by Anthony, resident outside India, to the respondent was recovered from the house of the respondent under Ex. P2 Mahazar. Merely because the said Anthony, the author of the letter Ex. P3 has not been examined, it cannot be said that the document cannot be used in evidence Ex. P5, the statement of the respondent also would show that the same is in confirmity with Ex. P3 under Section 72 of the Act, where any document has been seized from the custody of any person, the court shall presume, unless the contrary is proved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, as referred to above. As such, the accused is entitled to acquittal. 10. Thus, the trial court though gave a finding at the first instance, that on the basis of Exs. P3 and P5, it could be concluded that the respondent accused contravened Section 9(1) of the Act, has concluded on the basis of the second finding that the prosecution has not proved that the said Anthony was the person resident outside India and that the statement given by the respondent/accused in Ex. P7 cannot be taken as evidence in these cases. These present appeals have been resorted to by the appellant in this court, challenging the second finding by the trial court, on the basis of which the respondent/accused was acquitted. 11. Mr. K. Kumar, learned Special Public Prosecutor (FERA) appearing for the appellant, took me through the entire evidence and contended that the learned Magistrate miserably failed to understand the basic concept of the object and scope of the Act, while observing that the prosecution has not discharged the burden to prove regarding the fact as to whether Anthony was the person resident outside India, especially when he found that in view of Section 72 of the Act, the Court shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cited number of decisions rendered by the Supreme Court as well as the other High Courts, to substantiate his submissions. He also submitted that the ground of long lapse of years may not be taken into consideration, for the serious offences, like this. Therefore, he requested this court, to set aside the Judgments or acquittal passed by the trial court in all these cases and to punish the respondent/accused in accordance with law, by convicting thereunder. 14. Before deciding this issue, let me refer about the relevant sections contained in the Act. Section 9 of the Act, deals with restrictions on payments. Under Section 9(1) of the Act, no person in India, shall without any general or special exemption from the Reserve Bank of India, shall (a) make any payment to any person resident outside India, (b) receive any payment from any person resident outside India; (c) draw, issue or negotiate any bill of exchange or acknowledge any debt, so that a right to receive the payment is created or transferred in favour of any person resident outside India; (d) make any payment to any person by order or on behalf of any person resident outside India. 15. The Preamble of the Act disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntravening any of the provisions of this Act, or of any rule, direction or order made thereunder which prohibits him from doing an act without permission, the burden of proving that he had the requisite permission shall be on him. So, both these sections viz. Sections 59 and 71 would disclose that in a prosecution under this Act, the Court shall presume the existence of the mental state on the part of the accused and the burden of proof to disprove such mental state shall be on the offender and offender alone and not upon the prosecution. 20. Section 101 and Section 103 of the Evidence Act deals with the burden of proof, which provides when a person is bound to prove the existence of any fact, that the burden of proof lies on that person. But Section 71 of the Act, being a provision of the special statute provides for the burden of proof being shifted to the offender. It means, the burden of proof was not cast upon the prosecution. To put it in a nutshell, Sections 59 and 71 of the Act, fixed the onus on the part of the accused to prove that Anthony was not a resident outside India, or he had permission to transact with the said Anthony. 21. All the decisions of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. Ex. P4 is the visiting card of the respondent/accused, in which the residential address particulars of Anthony are written. In Ex. P4 the date has been put as 15-2-1982. Ex. P4 contains the address of the said Anthony as follows :- A. Antonie No. 1, A. Clifford Road, Kualalumpur, Malaysia". 24. Ex. P5 is the statement given by the respondent/accused on 23-11-1982. Some of the relevant portions relating to the resident of Anthony as found in Ex. P5 are as follows :-25. If these documents alone de hors the other documents like Ex. P7 are taken into consideration, the contents of the same would be sufficient to establish that Anthony was a resident outside India, in the light of Section 72 of the Act. Even, according to the trial court, under Section 72 of the Act, the contents of the documents Exs. P3 coupled with Ex. P5 could be an admitted evidence. 26. The search was made on 23-11-1982. The show cause notice Ex. P6 was issued on 2-11-1983. The reply, Ex. P7 of the respondent/accused was given on 29-11-1983, nearly a year after the seizure of Ex. P3 letter. Even in Ex. P7 reply, the respondent/accused said that Shri A. Antonie, Kualalumpur, is my close friend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eover, subsequent to Ex. P7 reply, dated 29-11-1983, the respondent through his representative filed a written statement, admitting the receipt of the payment from Anthony, pleaded guilty and seeking to take a lenient view. So, the argument of Mr. Panchapagesan, cannot be accepted as a valid one. 30. In the light of the above discussion, I am of the considered opinion, that the trial court has taken a wrong view of the settled position of law in relation to the appreciation of evidence, concerning the cases under FERA, while acquitting, the respondent/accused. The principals referred to above, has also been expressed by a Division Bench of this court in A.A.O. No. 830 of 1982, decided on 2-11-1995 (M/s. Sarathas By Its Managing Partner Mr. T. Manavalan v. The Asstt. Director, Enforcement Directorate, Madras). Thus, I find that the offences with which the accused had been charged by the trial court, have been committed by the Accused/respondent. 31. The Apex Court in State of Gujarat v. Mohanlal Jitmalji Porwal and Another - 1987 (29) E.L.T. 483 (SC) = (AIR 1987 S.C. 1321), while dealing with the analogous provisions of the Customs Act, has taken into consideration, the scope o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple enunciated by the Supreme Court, as referred to above, I am not able to persuade myself to agree with the learned Counsel for the respondent/accused, to show sympathy on the respondent. 34. On the basis of the foregoing analysis of the various aspects of these cases, I am of the view, that the Judgments of acquittal, dated 24-3-1986 rendered in E.O.C.C. Nos. 1252 to 1255 of 1985, by the learned Additional Chief Metropolitan Magistrate (E.O. II), Egmore, Madras, are liable to be set aside, as the respondent/accused is found guilty of the charges under Sections 9(1)(c). 9(1)(a) and 9(1)(d) of the Act punishable under Section 56 of the Act. As such the appeals are allowed and the respondent accused is convicted for the above charges in all this 4 cases. Regarding the question of sentence, Mr. K.A. Panchapagesan, learned Counsel for the respondent submits that under Section 248(2) of Criminal Procedure Code, the respondent could be asked about the question of sentence through his counsel. For this course, there is no objection on the part of the appellant. Mr. K.A. Panchapagesan, submitted that there are totally seven cases, out of which three cases were ended in conviction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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