Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

ARVIND KHANNA Versus CENTRAL BUREAU OF INVESTIGATION

2015 (12) TMI 1294 - DELHI HIGH COURT

Violation of Section 23 (1) read with Section 4 (1) FCRA, 1976 - Petitioner received funds without obtaining prior permission of the Central Government - Held that:- Foreign entities through whom such funds were sent were holding the same on behalf of his father. To this effect, Mr. Vipin Khanna made a statement dated 11.07.2006, whereby stated that these funds were sent on his instructions to the petitioner. Moreover, vide statement dated 13.04.2007, New Heaven Nominees’ stated that the funds s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t similar gifts or funds were given to other siblings mentioned above by father of the petitioner.

Investigating and prosecuting the petitioner for an offence for lack of prior permission from the Central Government as per Section 8 (e) FCRA, 1976, has now a complete exemption under Section 4 (e) FCRA, 2010 Act and continuation of the same would amount to an action taken under the FCRA, 1976 which is now rendered “inconsistent with the provisions of this Act” contained in Section 54 F .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

20.08.2011 passed by learned Additional Sessions Judge which is impugned in Criminal M.C. No.3342/2011 is without jurisdiction and a nullity. Moreover, in terms of Sections 397, 399 and 401(2) Cr. P.C., no order can be passed in exercise of revisionary jurisdiction without notice to the accused person, as was done by the learned Sessions Court in this case, thus, on this ground also the order is bad in law. - In view of the material placed on record by the prosecution, ingredients of offence und .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

reign source’ has been defined separately and categorically under Section 2 (1) (e) FCRA, 1976.

As far as companies are concerned, only those which are the companies within the meaning of Section 591 of the Companies Act, 1956 where more than 50% of nominal value is held by the government or citizen of a foreign country or a corporation or trust, the society registered in a foreign country would come under Section 2 (1) (e) FCRA, 1976. As far as trusts are concerned, it is those forei .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

om and hence, they are foreign sources. However, in my considered opinion, this is not the definition of a foreign source under the Act.

Contribution made by a citizen of India living in another country (Non-Resident Indian), from his personal savings, through the normal banking channels, is not treated as foreign contribution. However, while accepting any donation from such NRI, it is advisable to obtain his passport details to ascertain that he/she is an Indian Passport holder. Admi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

os. 10129/2011 and 6144/2012 - Dated:- 30-11-2015 - MR. SURESH KAIT, J. For The Petitioner : Mr. Arvind Nigam and Mr. Atul Nanda, Senior Advocates with Ms. Rameeza Hakeem, Mr. Sandeep Kapoor, Ms. Apoorva Pandey and Mr. Rajat Brar, Advocates. For The Respondent : Mr. Narender Mann, Special Public Prosecutor with Mr. Manoj Pant and Ms. Utkarsha Kohli, Advocates. JUDGMENT SURESH KAIT, J. 1. Vide Crl. M.C. No.2784/2011, the petitioner seeks quashing of FIR bearing No.RC-AC-1-2007-A-0003 dated 02.04. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nal Court in Criminal Revision No.02/2011 filed by the Central Bureau of Investigation (CBI). While allowing the said revision petition, order dated 05.07.2011 was substituted providing that deemed cognizance has been taken under Section 23 read with Section 4 of the Foreign Contribution (Regulation) Act, 1976 (hereinafter shall be called FCRA, 1976 ). 3. Since the issues raised in both the petitions are inter-related, therefore, both these petitions were heard together and are decided together .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

by an entity known as CI Law Trust . The Ministry of Home Affairs by letter dated 18.12.2006 had sanctioned investigation in terms of Section 28 FCRA, 1976 alleging that the petitioner received funds without obtaining prior permission of the Central Government. Accordingly, the Central Bureau of Investigation (CBI) on 02.04.2007, registered the FIR mentioned above for violation of Section 23 (1) read with Section 4 (1) FCRA, 1976, against the petitioner for receiving the contribution from forei .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t these funds were sent on his instructions to the petitioner. Moreover, vide statement dated 13.04.2007, New Heaven Nominees stated that the funds sent to the petitioner by way of gifts were from funds standing to the credit of petitioner s father Mr. Vipin Khanna with them. It is further stated that similar gifts or funds were also given to the petitioner s siblings, namely, Mr. Aditya Khanna, Mr. Naveen Khanna and Ms. Vineeta Singh by Mr. Vipin Khanna. The statement dated 10.08.2007 made by C .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ies vide order dated 11.12.2010 passed by the Commissioner of Income Tax (Appeals) in proceedings under Section 147 of the Income Tax Act, 1961. The said order stands confirmed by the order dated 15.04.2014 passed by the Income Tax Appellate Tribunal in ITA Nos.1915 to 1917/DEL/2010. 7. Learned senior counsel further submitted that CBI had filed an application for issuance of Letters Rogatory (LRs), which was allowed by the learned ACMM vide order dated 10.12.2007 for the purpose of collection o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on of Section 8 (e) FCRA, 1976, i.e., receipt of funds from a relative but without prior permission of the Central Government. 9. The learned senior counsel further submitted that CBI filed the chargesheet on 13.12.2010 alleging violation of Section 4 read with Section 23 FCRA, 1976. The incomplete execution of LRs has been stated in para 16.9 of chargesheet, whereby stated as under:- In order to verify the nature of these remittances, Letters Rogatory (LR) issued by this Hon ble Court u/s 166 A .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y in turn intimates it that the same has been credited as desired. 10. In Para 16.15, it is stated as under:- The sanction for prosecution in terms of Section 27 of FCRA, 1976 to prosecute Shri Arvind Khanna in the Court of law has been received vide letter no. II-21022/52(43)/2009-FC.II(MU) dated 26.11.2010 and is attached in original along with this charge-sheet. For the time being, photocopies of all documents as received from UK Central Authority through official channel as a result of execu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he Central Government. Accordingly, the petitioner is completely exempted from any charge under Section 3 FCRA, 2010, as no prior permission is required. Moreover, Section 41 FCRA, 2010, now made such offences as compoundable. 12. Learned senior counsel further submitted that the learned ACMM vide order dated 05.07.2011 proceeded to take cognizance of offence under Section 35 read with Section 3 FCRA, 2010, and accordingly, issued summons against the petitioner. The above order dated 05.07.2011 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ned ACMM had taken cognizance of offence under FCRA, 2010, and summoned the petitioner. However, vide order dated 24.08.2011 passed in Crl. M.C. No.2784/2011, this Court stayed the proceedings pending before the learned ACMM. 13. Being aggrieved by order dated 20.08.2011 passed by the learned Revisional Court, the petitioner filed a second petition bearing Crl. M.C.No.3342/2011 under Section 482 of the Code of Criminal Procedure, 1973, wherein while issuing notice, proceedings pending before the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

.07.2014, this Court directed that a fresh hearing be given to the petitioner. Accordingly, the same was granted to the petitioner in the said compounding proceedings on 09.03.2015, which is still pending for decision. 15. Mr. Nigam, submitted that case of the prosecution is that the sanction for investigation under Section 27 FCRA, 1976, and sanction for prosecution under Section 28 FCRA, 1976, were based on lack of prior permission and violation of Section 8(e) FCRA, 1976, i.e., receipt of gif .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

etitioner was investigated and then prosecuted was the alleged violation of Section 8(e) FCRA, 1976 on account of receipt of funds from a relative without prior permission from the Central Government. Thus, whole case of the petitioner moves around Section 8(e) FCRA, 1976, and accordingly, Ministry of Home Affairs sanctioned investigation on the ground that no prior permission was obtained from the Central Government for receipt of funds from a relative. Even the chargesheet filed by the CBI is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

provisions of FCRA, 1976, but also FCRA, 2010, would be outside the realm of both these Legislations as the transaction being between an Indian father and Indian Son. 16. Mr. Nigam further submitted that without prejudice to the proposition mentioned above, assuming applicability of some legislation, since Section 4 (e) FCRA, 2010, provides a complete exemption when such funds are received from a relative, (without the need for any prior permission), provisions of FCRA, 1976, would not be appli .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t in the case of T. Barai v. Henry Ah Hoe & Anr., (1983) 1 SCC 177, the Hon ble Supreme Court held so, notwithstanding Section 8(1)(c), (d) & (e) of the Bengal General Clauses Act, 1899, which is pari material with Section 6 of the General Clauses Act and relied upon by the Prosecution. In Paras 17 and 22 to 25, the Apex Court observed as under: 17. ......................................................................... ..........The submission is that in view of Clause(c), (d) and (e) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Amendment Act and Section 8 of the Bengal General Clauses Act, 1899 preserved the continued operation of the repealed West Bengal Amendment Act for imposition of that punishment. The contention is that where rights and procedure are dealt with together by the repealing Act, then, the intention of the legislature is that the old rights are still to be determined by the old procedure. In support of the contention, reliance is placed on the decision of the Sargant, J. in Re Hale's Patent. We a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e punishable under Section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense. This finds support in the following passage from Craies on Statute Law, 7th edn. at pp. 338-89: …….it is a good general rule that a law should h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

all be sentence for imprisonment for life, instead of the present sentence of death or imprisonment for life, then it cannot be that the Courts would still award a sentence of death even in pending cases. 24. ………..who delivered a majority opinion, concluded that in considering the question, the rule of beneficial construction required that even ex post facto law of the type involved in that case should be applied to reduce the punishment. 25. It is settled both on authority .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o Smith v. Benabo [1937] 1 All. E.R. 523. In Regina v. Youle (1861) 158 E.R. 311 Martin, B. said in the oft-quoted passage: If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act. 19. Mr. Nigam further submitted that even the International Covenant on Ci .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ition of the lighter penalty, the offender shall benefit thereby. 20. Mr. Nigam submitted that given the above application of law, the petitioner would be entitled to the beneficial application of 2010 Act, being a later and more benevolent legislation which expands the number and width of the exclusions from the Act and also makes all offences compoundable. Section 4(e) completely excludes from the operation of 2010 Act, any foreign contribution received from a relative. This being the position .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s to ascertain the authenticity of documents; however, no documents have been received by the prosecution in execution of such LRs which shows that the above documents are falsified in any manner. In addition, the order dated 11.12.2010 passed by the Commissioner of Income Tax (Appeals) and thereafter confirmed by the Income Tax Appellate Tribunal vide order dated 25.04.2014 have become final, which cannot be disputed by the prosecution. 22. Mr. Nigam, learned senior counsel further submitted th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re to take prior permission from the Central Government for receipt of funds from a relative. The sanctioning authority was thus of the mind that while funds have been received from a relative, no prior permission was taken from the Central Government. 23. Learned senior counsel has referred to the following provisions of law:- Section 40 of FCRA, 2010. Bar on prosecution of offences under the Act: No court shall take cognizance of any offence under this Act, except with the previous sanction of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ch would include sanction orders under the old Act and which are not inconsistent with the new FCRA, 2010 would remain alive and saved. Under Section 4 (e) FCRA, 2010, receipt of funds from a relative is a complete exemption from law, and there is no necessity for prior permission of the Central Government. 25. Section 54 FCRA, 2010 reads as under: Repeal and saving: (1) XXXXXXX (2) Notwithstanding such repeal - (a) anything done or any action taken or purported to have been done or taken under .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ion order stands non-est in the eyes of law. There being no sanction for prosecution, given the bar under Section 40 FCRA, 2010 / Section 27 FCRA, 1976, which prohibits the cognizance by the ld. Trial Court without such a sanction order, no cognizance could have been taken either by the Trial Court under the 2010 Act or by ld. Sessions Court under the 1976 Act. 27. Ld. Sr. Counsel further submitted that the prosecution is incorrect in contending that the 1976 Act would apply to the petitioner as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sel has relied upon a case of State of Punjab v. Mohar Singh Pratap Singh, AIR 1955 SC 84, wherein held as under: 9…………… We agree with the High Court that the expression anything done occurring in the Section does not mean or include an act done by a person in contravention with the provisions of the Ordinance. What the section contemplates and keeps alive are rules, notifications or other official acts done in exercise of the powers conferred by or under the o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

apply unless a different intention appears from the new Act. The different intention is to be established from an overall reading of the provisions of the new FCRA Act, 2010, and if they manifest an intention contrary to Section 6 as held in the case of Mohar Singh (Supra). There is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the pu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ct applicable in a particular case. So far as the criminal proceedings are concerned, "Institution" does not mean filing; presenting or initiating the proceedings, rather it means taking cognizance as per the provisions contained in Cr.P.C. 30. Learned senior counsel has submitted that this is clearly a different intention from that of saving all offences, investigations and legal proceedings as contemplated by Section 6(d) and (e) of the General Clauses Act. On the date FCRA 2010 came .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, learned senior counsel submitted that even if provisions of Section 6 of the General Clauses Act, 1897, were to be treated as being applicable, Section 6(d) only saves as penalty, for the forfeiture or punishment incurred in respect of any offence committed. 32. Similarly, in Section 6(e) of the aforesaid Act, it is not every investigation or legal proceedings which is saved rather investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as not yet incurred any penalty, forfeiture or punishment and consequently there can be no saving of such penalty, forfeiture or punishment or of any proceeding in respect of such penalty, forfeiture or punishment which he has incurred. Prior to the repeal of the 1976 Act, the prosecution had only filed the charge sheet on 31.12.2010 and can at best could expect or hope for a conviction and penalty/punishment which may follow. Section 6 does not save such abstract rights or possibilities or expe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s of the repealed Ordinance, is not a right accrued. Sub-section (2) of Section 31 of the Act was not intended to preserve abstract rights conferred by the repealed Ordinance ….. 14. What were the "things done" or "action taken" under the repealed Ordinance? The High Court rightly observes that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub-clause (3) to clause 20. The employees of the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in R.P. Sablok, Manager, Syndicate Bank Vs. Kaushalya Devi, 21 (1982) DLT 364 held as under: "14. Before, however, parting with this case 1 may note that while going through the record of the Additional Sessions Judge's Court I have found that in the revision petition no notice was issued to the petitioner herein, R.P. Sabiok. The order sheet shows that the impugned order was passed after hearing only the complainant's counsel. 15. Mr. Tiger Singh, learned counsel for respondent Sm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d by any order to be passed by the Court is not in accordance with law. It appears to me that the amended provision of sub section (2) of Section 401 of the Criminal P.C. 1973, was not brought to the notice of the learned Additional Sessions Judge. The said sub section reads as follows: "(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence". (empha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as references to the Sessions Judge." 17. It is thus clear that it is mandatory for the Sessions Judge while exercising his powers of revision not to make any order which would prejudice the accused or other person unless he had been given an opportunity of being heard." 36. Also in Bal Manohar Jalan Vs Sunil Paswan (2014) 9 SCC 640 Hon'ble Supreme Court held as under:- "5. The main contention of the learned counsel for the appellant is that though Section 401(2) of the Crimi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ce with law treating the protest petition as the complaint, to the prejudice of the appellant herein and hence the impugned order of the High Court is liable to be set aside. In support of his submission he relied on the decision of this Court in Manharibhai Muljibhai Kakadia v Shaileshbhai Mohanbhai Patel. We also heard the learned amicus curiae on the submissions made by the learned counsel for the appellant. 6........................... 7. The right of hearing given to the accused under Secti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence. 47................... 48. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203-although it is :at preliminary stage-nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed the crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or the Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get the right of he .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post-process stage." 8. In the present case challenge is laid to the order dated 4-3-2009 at the instance of the complaina .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aside and the matter has to be remitted". 37. In Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters (P) L & Anr., (2009) 2 SCC 363, the Hon'ble Supreme Court held as under: "12. Section 397 of the Code empowers the. High Court to call for records of the case to exercise its power of revision in order to satisfy itself as regards correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

an opportunity of being heard either personally or by pleader in his own defence." 14. Submission of Mr.Jaspal Singh that by reason of the impugned order the appellant was not prejudiced and in any event at the presummoning stage, he was not an accused, cannot be accepted. Sub-section (2) of Section 401 of the Code refers not only to an accused but also to any person and if he is prejudiced, he is required to be heard. 15. In Makkapati Nagaswara Sastri v. S.S. Satyanarayan, 1989CrlLJ617, th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eed with the same in accordance with law. 5. In our opinion, this order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order." 38. Learned senior counsel submitted that an order issuing summons to an accused is an interlocutory order and the only remedy against such an order i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ch an order made at a preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the Code for review of an order by the same court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order........ xxxx xxxx xxxx 17. As observed by us in Adalat Prasad s case the only remedy available to an aggrieved accused to challenge an or .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

authorities and it is now well-settled that an order which does not decide any matter in issue or put an end to the litigation between the parties cannot be said to be final order. In other words, an order which does not bind and affect the rights of the parties of its own force is not deprived of its interlocutory character. Framing of a charge cannot be said to be finally determining the matter in issue, setting at rest the controversy between the parties. It only formulates specifically as t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lty of the offence complained of. It only requires the accused person to appear before the Court and face and answer the allegations made by the aggrieved party........ 13. An order framing a charge against or issuing summons to an accused person is simply procedural in nature and does not terminate the matter finally before the Court; such an order leases the rights of the parties to be determined by the Court on adducing evidence. Howsoever, important or vital issue may have been decided in fr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o the cause and must terminate the proceedings and not keep it alive to be terminated by a subsequent final order. xxxx xxxx xxxx 20. A Bench of our own Court in Amrik Singh v. State, ILR (1975) II Delhi 69 (7) held that when process is issued under section 204 of the Code the proceedings commence by way of an interlocutory order requiring the attendance of the accused so that the Court on hearing both the parties may reach its ultimate decision. The issue of the process does not signify that th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t with the above view, the same is in consonance with the judicial consensus on the question under consideration". 41. Learned senior counsel submitted that learned Trial Court while taking cognizance had not applied its judicial mind and as such non application of mind vitiates the order of summoning. The Magistrate is mandated to apply his judicial mind to the facts of the case at the time of issuing process / summons and such application of judicial mind must be reflective from the order .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

te of Karnataka & Anr. v. Pastor P. Raju 2006CriLJ4045 and Pawan Kumar Sharma v. State of Uttaranchal." 43. Also in SMS Pharmaceuticals Ltd Vs. Neeta Bhalla & Anr., (2005) 8 SCC 89, it was held: "5................ Even Section 204 of the Code starts with the words "if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding". The words "sufficient ground for proceeding" again suggest that ground should be mad .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r and the learned Sessions Judge could not have substituted its own satisfaction as to the commission of an offence under the provisions of FCRA, 1976 and directed deemed cognizance, as had been done in the present case. 45. Further to another question, whether the donation given by an individual of Indian original and having foreign nationality is treated foreign contribution ? It is replied in the affirmative by stating that every donation from an Indian, who has acquired foreign citizenship, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d with Section 23 FCRA, 1976, however, it is an offence under Section 3 read with Section 35 FCRA, 2010. The FIR was registered on authorization by the Ministry of Home Affairs, Government of India, vide letter dated 18.12.2006, by which CBI was authorized under Section 28 FCRA, 1976, to investigate receipt of foreign funds amounting to ₹ 9.6 Crores by the petitioner, the then MLA from Punjab, in his saving account from eight overseas companies without obtaining prior permission of the Cen .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ion to presume that it is a foreign contribution as contemplated in Section 2 (1)(c) FCRA, 1976, and further fortified by the explanation to the said provision. The foreign source(s) (eight entities/companies are registered in Untied Kingdom) had transferred the foreign currency through their Bankers to the account of petitioner maintained by him with his Bank, i.e., Standard Chartered Bank, and such transfer amounts to transfer/delivery of currency by a foreign source as contemplated under the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

24.02.2002 to 27.02.2007 and during this period he received foreign contribution to the tune of USD 19,52,735.20 equivalent to INR 9,04,84,770.33 in his Saving Bank Account No.522-002-002126-4 maintained with Standard Chartered Bank, New Delhi, from eight overseas companies/entities. It is also not in dispute that these eight entities are not registered/incorporated in India and none of them has been exempted from the definition of "Foreign Source", as defined in FCRA, 1976. It is also .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ith explanation, creates a deeming fiction, that if the transfer of currency is received from a foreign source, it shall be deemed to be a foreign contribution. In other words, if the origin of the currency which has been remitted lies in a foreign source, it is a foreign contribution. The documents relied upon by the petitioner and the plea that the money was a gift from his father, is contrary of the documents/material collected by the CBI during the course of the investigation. 51. Mr. Mann f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t entities in United Kingdom. Though investigation pertaining to 30 transactions was carried out but during the course of the investigation the documents pertaining to 24 transactions were received as part of the execution report and a charge sheet was filed before the learned Trial Court with regard to the 24 transactions only. The plea of the petitioner that these remittances were sent as gift was not found tenable during the course of the investigation because the remittances have emanated fr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er dated 03.02.2010 enclosed with a file containing details of 24 remittances and these documents relate to instructions given by the remitting entity (C I Law Trust, Tiffany International, Baccano Holdings Ltd. etc.) to the remitting Bank to transfer the stipulated sum to the account of the petitioner. The intimation by their Bank that the sum has been credited as desired, would reveal that there were specific instructions to the remitting Bank to include the reference as part of the transfers .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eques issued from his account for almost equal/approximate amounts corresponding to the remitted amount, to the Companies, viz., M/s Clan Morgan Holdings Private Limited, M/s Dynamic Sales and Service International Private Limited, Tiger Corporation Private Limited and TSL Defence Technologies Private Limited, wherein the petitioner is neither a director nor shareholder. The entire transactions would reveal that the remittances were received by the petitioner as per the directions/instructions/r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the "basic document/Certificate" by a title such as a letter of confirmation, which title does not even find mention on the "basic document/Certificate". The signatures of the Notary Public are in turn attested by the Indian High Commission with clear rider that the attestation is merely with respect to the signatures and not in respect of the contents. It is submitted that the attesting Notary only certifies the signature of an authorized signatory on the annexed document wi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ocuments that the remittance is for a specific purpose, i.e., "TSL Budget requirement etc." and the petitioner has used the remitted amount as per the directions/reference, now the petitioner cannot be allowed to take a contrary plea that it was a gift from his father. It is submitted that when language used in a document is plain and unambiguous and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. 56. The cha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s unless a different intention appears and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. It is further submitted that Sections 54(1) and 54(2) FCRA, 1976, stipulates that notwithstanding such repeal, anything done or any action taken or purported to have been taken under the repealed Act shall, in so far as it is not inconsistent .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

oses of computing the period of limitation under Section 468 Cr.P.C., the relevant date is the initiation of process or the date when cognizance is taken by the Court, has been decided by the Constitution Bench of the Apex Court in the case of Mrs. Sarah Mathew Vs. The Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian & Ors., (2014) 2 SCC 62. The relevant portion of the same is reproduced below:- 37. We are inclined to take this view also because there has to be some amo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

elevant point for computing limitation would be the date on which the Magistrate takes cognizance. The complainant or the prosecuting agency would be entirely left at the mercy of the Magistrate, who may take cognizance after the limitation period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides it must be noted that the complainant approaches the court for redressal of his gr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

vision which would help sustaining the validity of the law by applying the doctrine of reasonable construction rather than applying a doctrine which would make the provision unsustainable and ultra vires the Constitution. (U.P. Power Corporation Ltd. v. Ayodhaya Prasad Mishra). xxxx xxxx xxxx 39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale, Japani Sahoo and Vanka Radhamanohari (Smt.). The object of the cr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 of the Indian Penal Code, which have lesser punishment may have serious social consequences. Provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim 'actus curiae neminem gravabit' which means that the act o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that for the purpose of computing the period of limitation under Section 468 of the Code of Criminal Procedure the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relev .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re sent on his instructions to the petitioner. Moreover, vide statement dated 13.04.2007, New Heaven Nominees stated that the funds sent to the petitioner by way of gifts were from funds standing to the credit of petitioner s father with them. Moreover, similar gifts or funds were also given to the petitioner s siblings, namely, Mr. Aditya Khanna, Mr. Naveen Khanna and Ms. Vineeta Singh by Mr. Vipin Khanna, i.e., their father. The statement dated 10.08.2007 made by CI Law Trust, corroborated tha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Law Trust (formerly known as West Way) had been treated as a gift from the father of the petitioner. The above order stands confirmed by order dated 15.04.2014 passed by the Income Tax Appellate Tribunal in ITA Nos.1915 to 1917/DEL/2010. 62. It is further important to note here that the Ministry of Home Affairs by order dated 28.04.2014, rejected the compounding application of the petitioner. Accordingly, the petitioner challenged said rejection order vide W.P. (Crl.) No. 1168/2014, which was se .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

prior permission. Accordingly, the Ministry of Home Affairs sanctioned investigation on the ground that no prior permission was obtained from the Central Government for receipt of funds from a relative. Even the chargesheet filed by the CBI is only based on lack of prior permission from the Central Government. 64. As per the definition of foreign source in Section 2 (1) (e) FCRA, 1976, only citizens of a foreign country or territory come under this category. Therefore, being an Indian, no foreig .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

here has been an amendment in the law which modifies the severity of the law or reduces the rigors of the law, then the accused is entitled to the benefit of such subsequent beneficial amendment in the law. 67. In the case of T. Barai (supra), the Apex Court agreed upon the ratio of foreign judgments referred to para 27, which reads as under:- 27. It is settled both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a differe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he oft-quoted passage: If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act. 68. In State through CBI, Delhi Vs. Gian Singh (1999) 9 SCC 312, the Apex Court held as under: 30. …………..In TADA Act 1985 (during the subsistence o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

reater than that which might have been inflicted under the law in force at the time of commission of the offence. It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribed, and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would downgrade the harshness of the sentence for the same offence, it would be a salutary principle for administration of criminal ju .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ccordingly, the exclusivity of the extreme sentence contained in Section 3(2) of TADA Act 1987 must stand superseded by the corresponding benevolent provision in TADA Act 1987. It is a permissible course and the express prohibition contained in Article 20(1) of the Constitution is not a bar for resorting to the corresponding Sub-section in TADA Act 1987. 69. Moreover, the International Covenant on Civil and Political Rights, 1966, Article 15, Clause-1, ratified by India states, no one shall be h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s from the operation of FCRA, 2010, if any foreign contribution received from a relative. This being the position, receipt of such funds by the petitioner from his father, would neither be a violation under the law nor the subject matter of prosecution. 71. Even otherwise, there is material to show that the funds were indeed a gift from the father of the petitioner. The prosecution has neither disproved this fact as false nor alleged as a matter of certainty that the funds in question did not be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ructions stated therein such as TSL budget requirement etc. and other like instructions pertaining to companies owned and controlled by the petitioner. The prosecution has taken this position in Para 10 and 11 of its reply. 73. The petitioner in his rejoinder dated 09.05.2012 replied that if contention of the prosecution is that the funds were transmitted for business purposes, then this clearly came within another exclusion clause contained in both Sections 8 (b) FCRA, 1976 and Section 4 (b) FC .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

under the FCRA, 1976 which is now rendered inconsistent with the provisions of this Act contained in Section 54 FCRA, 2010. Thus, it amount to removing such action from the ambit of protective saving provided by Section 54 FCRA, 2010. The prosecution has relied upon Section 6 (d) and (e) of General Clauses Act, 1897 and contended that the repeal shall not affect offences, investigations, legal proceedings which were commenced under the FCRA, 1976. This argument has been rejected by the Supreme .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd hence order dated 20.08.2011 passed by learned Additional Sessions Judge which is impugned in Criminal M.C. No.3342/2011 is without jurisdiction and a nullity. Moreover, in terms of Sections 397, 399 and 401(2) Cr. P.C., no order can be passed in exercise of revisionary jurisdiction without notice to the accused person, as was done by the learned Sessions Court in this case, thus, on this ground also the order is bad in law. 76. In case of Mohd. Afzal Vs. Noor Nisha Begum (1997) 40 DRJ 825, t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in the course adopted by the learned Additional Sessions Judge. xxxx xxxx xxxx 9. Section 399 of the Code of Criminal Procedure deals with the powers of revisions of a Court of Sessions. Hence the provisions of the said section can be adverted to with profit. It is in the following words. "In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Sessions Judge has got all the powers which the High Court has under Section 401 of the Cr P C and the powers of the Sessions Judge are subject to the same limitation which has been put on the powers of the High Court. The powers of the High Court have been dealt with under Section 401 of the Cr. P.C. It lays down :- In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s own defence." 12. It is abundantly clear from the relevant provisions of law reproduced above that no order to the prejudice or an accused or any other person can be made unless the said accused or the said person had been given an opportunity of being heard. 13. Admittedly in the instant case an order to the detriment of the petitioners was passed by the learned Sessions Judge inasmuch as the learned Magistrate was directed to summon them under Sections 323/452 of the IPC, yet the said o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g heard." 77. In view of the material placed on record by the prosecution, ingredients of offence under Section 4 FCRA, 1976, are not made out as foreign source , as defined under Section 2 (1) (e) FCRA, 1976, or the offence under Section 4 of the 1976 Act has attended by the prosecution. The prosecution has alleged violation of Section 4 read with Section 23 FCRA, 1976, by the petitioner. In order to do so, the prosecution has failed to contend that the petitioner has received all foreign .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re reading of charge sheet, specially para (16.4) (16.5) shows that the prosecution merely states that the petitioner has received funds from overseas firms/companies/trusts which are not registered/incorporated anywhere in India, without specifically finding the nature of foreign sources in order to bring them within the ambit of definition foreign sources , as prescribed in Section 2 (1) (e) FCRA, 1976. In fact, a firm is not even covered under the definition of foreign source. As far as compa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

m whom the petitioner received the funds are companies or trusts/firms. The charge sheet has simply lumped on these entities by labelling them as overseas firms/companies/trusts whether these are collectively treated under Section 2 (1) (e) FCRA, 1976. The only barebones reference made in para 16.14 of the charge sheet is that bank account of such entities are in United Kingdom and hence, they are foreign sources. However, in my considered opinion, this is not the definition of a foreign source .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version