TMI Blog2014 (3) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... tion noted by the SD that corroborative evidence is needed “to make the retraction meaningful and worthy of credence” is also erroneous. In fact, since the said admissional statements were retracted even the admissible portion, if any, of the said statements would require corroboration by other independence evidence. This legal position was entirely missed by both the SD as well as the AT What is also striking in the present case is that while the Indian currency was recovered from the residence and dicky of the scooter, no foreign exchange was recovered. The mere fact that Indian currency was recovered does not establish the violation of the FERA by the Appellants. It had to be shown that the said money was related to illegal transactions falling within the ambit of FERA. For all the aforesaid reasons, the AO dated 30th August 1990 passed by the SD and the impugned order dated 15th June 2007 passed by the AT are hereby set aside. - Decided in favor of appellant. - CRL.A. 241 of 2008, CRL.A. 264 of 2008 - - - Dated:- 11-3-2014 - S. Muralidhar,JJ. For the Petitioner : Mr. Abhishek Vikram, Advocate for Mr. Viraj R. Datar, Advocate. For the Respondent : Mr. Sachi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal Mehta at stall No. 14, Shankar Market, Connaught Place, New Delhi, Bhim Sain, the Manager at stall No. 14, Shankar Market, Connaught Place, New Delhi, Shri Om Prakash Mehta, the elder brother of Shri Ram Lal Mehta, Shri Sunil Kumar Gogia and Smt. Chander Mehta. 5. The SCN alleged that the documents recovered contained entries relating to illicit sale and purchase of foreign exchange from and to unknown persons. The SCN referred to all the above statements and charged Shri Praveen Kumar Mehta with having acquired and sold foreign exchange of (i) US Dollar ( USD ) 4,17,762; (ii) UK 63,442; (iii) other various foreign currencies of 25,03,721 and (iv) foreign exchange equivalent to Indian Rupees 4,21,74,898 from and to unknown persons other than the authorised dealers at rates other than the rates of exchange authorised by the RBI without the previous general or special permission of the RBI. The SCN further stated that Shri Ram Lal Mehta and Shri Rikhab Chand Jain had assisted Shri Pawan Kumar Mehta in otherwise acquiring and selling the aforementioned foreign exchange without the general or special permission of the Reserve Bank of India ( RBI ), thereby, also violating Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosed that Shri Parveen Kumar Mehta was indulging in the sale and purchase of foreign exchange. Dealing with the retractions again, the SD observed that they were mere denials and all the basic facts enumerated in their own statement have not been rebutted with any corroborative evidence to make the retraction meaningful and worthy of credence. The plea of the Appellants that there was no evidence revealing any particular transaction of foreign exchange was rejected by holding that it is not necessary in cases of such clandestine dealings to prove a case with mathematical precision to a demonstrable degree. It was held that recovery of Indian currency from the dicky of the scooter and from the residential premises was another vital factor in this case. 8. The AT has, in the impugned judgment, relied on the decision in Naresh J. Sukhwani v. Union of India 1966 SCC (Cri) 76 to the effect that the statements recorded by the ED officials was a material piece of evidence which can certainly be used against a co-noticee when the person giving statement is also tarnishing his image by making admission of guilt. The AT held that in these appeals admittance of guilt clearly f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said scooter from Shri Rikhab Chand Jain. He confidentially told me that some foreign exchange that is US Dollars and other currencies were lying in the dicky of the said scooter which foreign exchange he has to dispose off to some persons of Chandni Chowk and after doing so he would give the scooter back to me in the evening of 5th May 1985. I agree with him. Naturally therefore, the currency of Rs. 1,50,000 belonged to Shri Rikhab Chand Jain, I have nothing to do with this seized currency. 12. When confronted with the diplomat spiral note book containing written pages 1 to 19 from the Shop No. 57, Shri Parveen Kumar Mehta stated that Shri Rikhab Chand Jain had requested him to keep his business as secret. He further stated that I was writing accounts of foreign exchange in this diary as per directions of Mr. Rikhab Chand Jain. I may state that I have no interest of my own in writing account as per directions of Shri Rikhab Chand Jain. I could not resist obliging him because of our relationship with him. I never knew that writing this account on the directions of Shri Rikhab Chand Jain could implicate me. He then explained the entries made in the diary but maintained that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement made before the customs officials under Section 108 of the Customs Act is admissible evidence. While that proposition is unexceptionable, and would apply to statements made to the ED officials under Section 40 FERA, the question really is how far such statement can be used as evidence against the co-noticee. The law as explained in Union of India v. Bal Mukund is very clear that unless the statement inculpates the maker of the statement, apart from the co-noticee, it cannot be used against the co-noticee. 16. The statement of Shri Parveen Kumar in the present case does not inculpate him at all. Even when he admits to making the entries in the diaries, he seems to wriggle out by explaining that he did it at the instance of Shri Rikabh Chand Jain. He also does not seem to have been aware of the implications of making of those writings as is clear from his statement that I never knew that writing this account on the directions of Shri Rikhab Chand Jain could implicate me. Therefore, it is futile for the department in the present case to rely on the statement of Shri Parveen Kumar Mehta as substantive evidence to hold him and the co-noticee guilty of contravention of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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