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1970 (8) TMI 87

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..... this Court in Criminal Appeal No. 211 of 1969 modified to the extent that the sentence of six months’ rigorous. imprisonment imposed on Girdharilal is set aside. The sentence of fine of ₹ 2,000/- shall, however, stand. - CRL.A. 211 OF 1969 - - - Dated:- 18-8-1970 - SIKRI, S.M DUA, I.D, JJ. For The Appellant : C. K. Daphtary and S. K. Dholakia For The Respondent : V. A. Seyid Muhammad and S. P. Nayar JUDGMENT: The Judgment of the Court on August 18, 1970 was delivered by Sikri, J. These appeals, by special leave, are directed against the judgment of the High Court at Calcutta whereby the High Court (A. K. Das and K. K. Mitra, JJ.) set aside the order of acuittal and convicted the appellants before us under s. 23(1A) of the Foreign Exchange Regulation Act (VII of 1947)-hereinafter refered to as the Act. The appellant Girdharilal Gupta, and the appellant Puranmall Jain, were sentenced to rigorous imprisonment for six months each and to pay a fine of ₹ 2,000/- each, in default, to rigorous imprisonment' for a further period of three months each. The appellant, Bhagwandeo Tewari was sentenced to rigorous imprisonment for three months and .....

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..... s directed to show that this did not happen on October 25, 1958. S. A. D. Moira, Traffic Assistant of the Indian Airlines Corporation, P.W. 2, who checks freight and does other transshipment work in course of his duties at Dum Dum airport, deposed that he received the relevant documents on October 25, 1958, from Calcutta office. H.-, said that the documents were in the handwriting of N. Sen of the Freight Section of the Calcutta Office. Armed with the letter of authority, he took the parcel to the Customs Officer and P.W. 1, B. Roy, asked him to open the parcel and currency notes of the value of ₹ 51,000/-, along, with other things were discovered. R. R. Mukherjee, Traffic Officer of the Indian Airlines Corporation, P.W. 3, is another witness to the recovery of the currency notes. P.W. 4, Ambare Nath Sen, was the Traffic Assistant in the Indian Airlines Corporation, who had typed out the consignment note in respect of this parcel after seeing the shipping bill (Ext. 1). He identified the appellant, Bhagwandeo Tewari, as the, person who had handed over the shipping bill to him and the letter of authority, Ext. 11 He said that he-.calculated the freight and received the f .....

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..... oad. He also applied for a search warrant to search the premises of the partners of the firm at 11-B, Jatindra Mohan Avenue. He did not himself search 11-B, Jatindra Mohan Avenue, but went to execute the search warrant at 191, Mahatma Gandhi Road, where on the identification of P.W.4 he arrested the appellant Bhagwandeo Tiwari. He then conducted the search of the premises in the presence of the witnesses and took into possession one Rokar, one khata bahi, one nakal bahi, the attendance register and three account slips which he marked 8, 9 and 10 (Ext. 9 and 9/1 and 9/2 respectively). We may reproduce his evidence regarding the discovery of these account slips because a great deal of argument has been addressed to us on the recovery of these slips. He stated The three slips, about which I have spoken just now, are in the same condition to-day as I found them on the day when they were seized. The witnesses to the search I conducted are Radhesyam Gupta and Lalit Kumar Chandu Lal Parekh. Here is the search list over my signature and the signature of the witnesses. (Ext. 10). In his cross-examined he stated You are right that Exhibits 9, 9/1 and 9/2 are included in Serial No. 38 o .....

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..... was to send the parcel by Thai Airways but later on for some reasons it was not possible to send that parcel through this airways. The prosecution led evidence to show that as a matter of fact appellant Bhagwandeo Tiwari had approached some body in Thai Airways but we need not dwell on, this part of the case. The prosecution also produced Shridhar Chatterjee, hand- writing expert, who examined the signature reading as Ram Chandra writing in Hindi and in pencil in the two way bills, Ext. 3 and 4, and the specimen writing, He was of the opinion that the writer of the specimen writing was the writer of the signature Ram Chandra appearing in the airway bill. We may mention that Bhagwandeo Tiwari is alleged to have signed as Ram Chandra . The expert also gave the opinion that. the type-written papers, Exts. 11 and IX had been typed on the same machine. Exhibit 9/2, 'one of the seized account slips, is a very im- portant document. The official translation is printed in the records and reads: Translation of EXT.9/2 dated 24-10-58.............. 2/8/-4 cases-Godown A/C 1 - ................ /8/- 3 opened below and goods brought. In Cash (Paper Torn) cases bound (Petti .....

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..... ity or principle in support of it. It all depends on the facts in each, case. At any rate here we have the corroborative evidence of P.W. 8, who signed the search document and also the entries themselves in the account books and their tallying with the slips. It was urged on behalf of the defence counsel that these slips could not be taken into consideration at all because they are not evidence. We are unable to appreciate why they are not evidence. These are part of the things discovered during search and if the entries therein are carried into the account books there is no reason why these things could not be looked at. The learned counsel has taken us through the judgments of the Chief Presidency Magistrate and the High Court. We are in agreement with the conclusions arrived at by the High Court. We have ourselves gone into the evidence as the High Court had reversed the order of acquittal and in one or two places made minor mistakes. Mr. Chagla, while arguing on behalf of the partners, said that there was evidence that one, partner was not in Calcutta on the 24th or 25th October, 1958,as he was in Japan. But even if we take this fact into consideration, which fact was not .....

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..... ivered on February 18, 1971 by] Sikri, C.J. We disposed of Criminal Appeals Nos. 211 and 212 of 1959 by our judgment dated August 18, 1970, whereby the appeals of Girdharilal Gupta, and Bhagwandeo Tewari against. their convictions were dismissed. Girdharilal Gupta put in this review petition stating that the counsel had omitted to bring to our notice the provisions of s. 23C(2) of the Foreign Exchange Regulation Act, 1947-hereinafter referred to as the Act-which has a vital bearing on the case. The judgment in Criminal Appeal No. 211 of 1959 has, therefore, been re-opened. We may mention that Bhagwandeo Tiwari has not filed a review petition against his conviction, upheld by this Court. Mr. Daphtary contends that on the facts, as found by us, the appellant, Girdhari Lal Gupta, does not come within the purview of s. 23C(1) or s. 23C(2) of the Act. Sections 23C(1) and 23C(2) read as follows 23C. (1) If the person committing a contravention is a company, every person who, at the time the contravention was committed, was in-charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contra .....

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..... then does the expression a person in-charge and responsible for the conduct of the affairs of a company mean' ? It will be noticed that the word 'company includes a firm or other association and the same test must apply to a director in-charge and a partner of a firm in-charge of a business. It seems to us that in the context a person 'in- charge' must mean that the person should be in over all control of the day to day business of the company or firm. This inference follows from the wording of s. 23C(2). It mentions director, who may be a party to the policy being followed by a company and yet not be in-charge of the business of the company. Further it mentions manager, who 75 9 usually is in charge of the business but not in over-all- charge. Similarly the other officers may be in charge of only some part of business. In State v. S. P. Bhadani(A.I.R. [1959] Pat.9.), Kanhaiya Singh, J., in construing a similar provision of the Employees Provident Fund Act (1952). Section 14A-held that the first sub- section would be confined only to officers in the immediate charge of the management of the company. Later he observed that it is, therefore, manifest that all th .....

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..... it cannot be held that the appellant was in-charge of the conduct of the business. We are unable to agree with him on this point. The appellant has himself stated that he alone, looked after the affairs of the firm. This means that the is in charge of the business of the firm within the meaning of the section though there may be a Manager working under him. The question then arises whether the appellant was in charge of the conduct of the business of the firm at the time the contravention was committed. He was not physically present, in Calcutta at the time of the commission of the offence and the prosecution evidence shows that one Jagdish Prasad. was the manager of the firm. It is true that the onus of proving that the appellant was in charge of the conduct of the business of the company at the time the contravention took place lies on the Prosecution, but when a partner in charge of a business proceeds abroad it does not mean that he ceases to be charge, unless there is evidence that he gave up charge in favour of another person' Therefore, we must hold that the appellant was in charge of the business of the firm within the meaning of sec. 23C(1). But while imposing sentenc .....

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