TMI Blog2013 (3) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... arged of the charge against him in C.C. No. 252 of 1997 before the Court. Consequently, connected miscellaneous petition is closed. - Crl.R.C.No.1094 of 2010 and M.P.No.1 of 2010 - - - Dated:- 7-2-2012 - MR. C.T. SELVAM J. For Petitioners: Mr. B. Kumar, Senior Counsel for Mr. B. Satish Sundar For Respondent: Mr. M. Dhandapani, Special Public Prosecutor for Enforcement Cases ***** ORDER This revision arises against the order of of the learned Additional Chief Metropolitan Magistrate Egmore, Chennai passed in Crl.M.P.No. 11 of 1998 in C.C. No. 252 of 1997 on 24.08.2010. The petitioner, accused in the case of contravention of the provisions of Section 8(1) of the Foreign Exchange Regulation Act, 1973 (FERA) punishable under Section 56(1)(i) of such Act sought discharge in Crl.M.P.No.11 of 1998 which came to be dismissed. 2. The prosecution case is that on 20.01.1996, the Assistant Director of Income tax (Investigation) informed of a search by the income tax authorities at the residence of the petitioner/accused and forwarded seized materials including US dollar 5061 Singapore dollars 527 and Malaysian ringots 210 which were seized from the premises as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a prima facie case and therefore the petitioner would have to stand trial. The court below found that as the prosecution had closed its preliminary evidence and the case was at the stage of framing of charges, Section 245 Cr.P.C. would not come into play as the evidence under Section 244 Cr.P.C. had been completed. It informed that where the search and seizure were not disputed, the question of whether foreign currency seized belonged to the petitioner or not would have to be decided only at the trial. Informing that the probative value of material could not be gone into the stage of framing charges, the Court below dismissed the petition. 4. Sri. B. Kumar, learned senior counsel for the petitioner submitted that the Court below fell into error in dismissing the petition for discharge. The finding that a petition for discharge would not lie after initial prosecution evidence had been let in under Section 244 Cr.P.C. totally was erroneous. The charge against the petitioner was of having acquired foreign exchange without the permission of the Reserve Bank. As held by the Apex Court in Union of India Vs. Abdul Mohamed (2000 SCC(Crl.) 1223), the expression 'acquire' must indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 8(1) of the Foreign Exchange Regulation Act 1973 except in that instead of the word 'buy' the word 'purchase' was used in the subsequent Act. It has been held as follows: 4. The precondition to attract Section 4(1) would be "buy or otherwise acquiring or borrowing from or sell or otherwise transfer or lend to or exchange with any person not being an authorised dealer any foreign exchange". From the fact that some foreign exchange was recovered from the belonging to the respondent, the only provision which may possibly get attracted is whether the respondent can be said to have "otherwise acquired", inasmuch as all other expressions in sub-Section (1) of Section 4 are totally absent. The expression "acquire" must have a definite connotation and it must indicate something more than mere possession. There is not an iota of material or indicate even that the respondent knew what the packed contained when it was delivered to him or when the packet was recovered from the car being intercepted. He has taken a plea that it was handed over to him at Bombay to be carried to Kasaragod and somebody would come to take it from him at Kasaragod. Such a plea, on the fact of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore his marriage, which is the only ground on which Shivalingayya's nomination has been held to be vitiated in the present proceedings by the High Court, we are of the firm view that the contrary conclusion arrived at in the present proceedings in favour of plaintiff does not deserve to be confirmed. It may be that principle of res judicata has no application, despite what has been stated in Explanation VI of Section 11 CpC, inasmuch as in the earlier proceeding the present plaintiff was not a party and Andanayya (the plaintiff therein) had not claimed possession of the property as Padadayya but as Charanti contending that as the Office of Padadayya was lying vacant because of invalidity in the nomination and the installation of Shivalingayya, he had stepped into the shoes of Padadayya. There is, however, no denial that the foundation of the case of Andanayya was the infirmity in the nomination and the installation of Shivalingayya as Padadayya; and it is precisely this which the Privy Council had not accepted. 9. In the aforesaid premises, the judgment of the Privy Council, even though the same did not bind the plaintiff on the principle of res judicata, was definitely a rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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