IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.07.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.Nos.694 to 697 of 2006 Swamy Premananda ... Petitioner in all Crl.R.Cs. Accused-1 vs. The Enforcement Officer, Enforcement Directorate Chennai 600 006. ...Respondent in all Crl.R.Cs./ Complainant PRAYER IN CRL.R.C.NO.694 OF 2006: Petition filed under Section 397 and 401 of Cr.P.C. against the conviction and sentence passed by the Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai 8 in E.O.C.C.No.114 of 2001 convicting the petitioner under Section 8 (1) of the FERA, 1973 punishable u/s 56(1)(ii) of FERA Act 1973 and sentenced him to undergo one year R.I. as confirmed by the Principal Sessions Judge, Chennai in C.A.No.282 of 2005 by its judgment dated 25.04.2006. PRAYER IN CRL.R.C.NO.695 OF 2006: Petition filed under Section 397 and 401 of Cr.P.C. against the conviction and sentence passed by the Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai 8 in E.O.C.C.No.115 of 2001 convicting the petitioner under Section 8 (1) of the FERA Act and punished 56(1)(ii) of FERA 1973 and sentenced him to undergo three years R.I imprisonment and also to pay a fine of Rs.10,000/- and in default to undergo three months S.I as confirmed by the Principal Sessions Judge, Chennai in C.A.No.283 of 2005 by its judgment dated 25.04.2006. PRAYER IN CRL.R.C.NO.696 OF 2006: Petition filed under Section 397 and 401 of Cr.P.C. against the conviction and sentence passed by the Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai 8 in E.O.C.C.No.116 of 2001 convicting the petitioner under Section 9 (1)(f)(i) of the FERA Act and sentenced him to undergo one year R.I. under Section 14 of FERA 1973 r/w Notification No.F1/3/EC/73 dated 15.6.77 (GSR 839) as amended by Notification No.1/42/BC/78 (GSR 996) dated 6.7.1978 to undergo one year R.I. And under Section 31(1) FERA 1973, to undergo three years R.I. and to pay a fine of Rs.10,000/- in default to undergo three months S.I., as confirmed by the Principal Sessions Judge, Chennai in C.A.No.284 of 2005 by its judgment dated 25.4.2006. PRAYER IN CRL.R.C.NO.697 OF 2006: Petition filed under Section 397 and 401 of Cr.P.C. against the conviction and sentence passed by the Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai 8 in E.O.C.C.No.117 of 2001 convicting the petitioner under Section 8 https://hcservices.ecourts.gov.in/hcservices/ (1) of the FERA Act and punished under Section 56(1)(ii) of FERA 1973 to undergo three years R.I. imprisonment and also to pay a fine of Rs.10,000/- and in default to undergo three months S.I. as confirmed by the Principal Sessions Judge, Chennai in C.A.No.285 of 2005 by its judgment dated 25.4.2006. For Petitioner : Mr.S.Shunmugavelayutham,Sr.Counsel for Mr.T.Vijayaraghavan For Respondent : Mr.R.Dhanapal Raj, Spl.P.P. For Enforcement Directorate O R D E R Animadverting upon the judgments passed in C.A.Nos.282 to 285 of 2005 by the Principal Sessions Judge, Chennai dated 25.04.2006 confirming the judgment made in E.O.C.C.Nos.114 to 117 of 2001 by the Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai - 8 dated 24.06.2005, these criminal revisions are focussed. 2. A 'resume' of facts which are absolutely necessary and germane for the disposal of these revisions would run thus: (a) The Enforcement Officer, Enforcement Directorate, Government of India, Southern Zone, Madras, filed the complaints as against the two accused, namely, (1) Swamy Premananda and (2) Dhamayanthi, for the offences under Section 8(1) of FERA, 1973 r/w Section 49(3) & (4) of F.E.M.A, 1999 punishable under Section 56(1) (ii) of FERA 1973 and they were numbered as E.O.C.C.Nos.114 to 117 of 2001. (b) Out of two accused, A2 confessed and gave the statement incriminating herself as well as A1, whereupon joint trial was conducted. During trial, on the prosecution side, P.Ws.1 to 4 were examined and Exs.P1 to P2.6 were marked. No oral or documentary evidence was adduced on the side of the defendant. (c) Ultimately, the Additional Chief Metropolitan Magistrate Court convicted and imposed sentence as under as against A1 and A2: Case No. Accused Offence Punishment imposed E.O.C.C.No.114 of 2001 A1 A2 U/s 8(1) of the FERA, 1973 punishable u/s 56 (1)(ii) of the FERA Act U/s 8(1) of the FERA, 1973 punishable u/s 56(1)(ii) of the FERA Act Rigorous imprisonment for one year. Fine amount of Rs.10,000/-, in default to undergo one month S.I. https://hcservices.ecourts.gov.in/hcservices/ Case No. Accused Offence Punishment imposed E.O.C.C.No.115 of 2001 A1 A2 U/s 8(1) of the FERA, 1973 punishable u/s 56 (1)(i) of the FERA Act U/s 8(1) of the FERA, 1973 punishable u/s 56(1)(i) of the FERA Act Rigorous Imprisonment for three years and also to pay a fine of Rs.10,000/- and in default to undergo three months S.I. Imprisonment till the rising of the Court and fine amount of Rs.10,000/-, in default of payment of fine, three months S.I. E.O.C.C.No.116 of 2001 A1 A2 U/s 9(1)(f)(i) of FERA, 1973, punishable u/s 56(1)(ii) of the FERA Act. U/s 14 of FERA, 1973 r/w Notification No.F.1/3/EC/73 dt. 15.6.77 (GSR 839) as amended by Notification No.1/42/EC/78 (GSR 996) dt.6.7.1978 punishable u/s 56(1) (ii) of the FERA, 1973 U/s 31(1) of FERA, 1973, punishable u/s 56(1)(ii) of the FERA 1973 -- One year R.I. One year R.I. Three years R.I. and a fine amount of Rs.10,000/-, in default in payment of fine to undergo three months S.I. -- E.O.C.C.No.117 of 2001 A1 A2 U/s 8(1) of the FERA, 1973 punishable u/s 56 (1)(ii) of the FERA Act U/s 8(1) of the FERA, 1973 punishable u/s 56(1)(i) of the FERA Act Three years R.I. and a fine amount of Rs.10,000/- and in default in payment of fine to undergo three months S.I. Imprisonment till the rising of the Court and fine amount of Rs.10,000/-, in default of payment of fine to undergo three months S.I. https://hcservices.ecourts.gov.in/hcservices/ 3. Animadverting upon such recording of conviction and imposition of sentence, A2 alone filed C.A.Nos.282 to 285 of 2005 for nothing but to be dismissed, confirming the judgments of the lower Court in toto. 4. Impugning and challenging the judgment of both the Courts below, A1 filed these revisions on the following grounds, the gist and kernel, the pith and marrow, and the warp and woof of them would run thus: Both the Courts below failed to consider that at the time of seizure of the foreign currencies, materials and the like under the Income Tax Act by the Income Tax officials, A1 was in jail in connection with one criminal case and as such, he had not been in possession of those currencies and articles allegedly seized from his Ashram. The statement given by A2 cannot be pressed into service in the absence of any corroborative evidence or incriminating independent evidence as against A1. The lower Court properly understood the fact that for seven days foreign currencies, cheques could be retained by an individual and within that time, he should surrender the same to the parties concerned and in this case, since A1 did not have had seven days time as a free citizen to hand over those alleged cheques, the materials and the like to the authorities concerned, he was acquitted from that charge. As such, applying the same logic, both the Courts below should have exonerated A1 from all criminal allied offences. 5. Heard both sides. 6. The point for consideration is as to whether there is any perversity or non-application of law in recording the conviction and imposing sentence as against A1. 7. The learned counsel for the revision petitioner/A1 by inviting the attention of this Court to the various portions of the evidence would set forth and put forth his argument to the effect that A1 no doubt was the head of the said Organisation, but he had nothing to do with the day to day administration and as to what was going on at the lower level; his birthday was celebrated on 17.11.1994, whereas on 19.11.1994 itself he was arrested in connection with a murder case and he was kept in judicial custody. In the meanwhile, on 29.11.1994, the Income Tax Officials raided his premises and conducted search and seized the travellers' cheques, Demand Drafts and also foreign currencies from the Ashram premises belonging to A1 and in such a case, he cannot be fastened with vicarious liability under the criminal law; A2's incriminating statement cannot be pressed into service as against A1, as A1 disowned his liability and there is no independent evidence to fasten him with criminal liability. 8. Whereas, the learned Special Public Prosecutor would by way of torpedoing and pulverising the arguments as put forth on the side of the revision petitioner would develop his argument to the effect that A2 is none, but the person acting under the direction of A1 who https://hcservices.ecourts.gov.in/hcservices/ got all his affairs managed through A2, in addition to A1 himself managing the Ashram; the very fact that he received as per his own statement the said items seized by the Income Tax Officials were given by foreigners during his birthday, and were not received by him, but by the Ashram would clearly indicate and exemplify that he was fully responsible for it and that any cheque etc. received by Ashram, would tantamount to A1 having received it and consequently he received it and in such a case, he cannot wriggle out of his liability under Section 8(1) of the FERA Act. Section 8(1) of the Act is reproduced hereunder for ready reference: "8. Restrictions on dealing in foreign exchange.- (1) Except with the previous general or special permission of the Reserve Bank, no person other than an authorised dealer shall in India, and no person resident in India other than an authorised dealer shall outside India, purchase or otherwise acquire or borrow from, or sell, or otherwise transfer or lend to or exchange with, any person not being an authorised dealer, any foreign exchange: Provided that nothing in this sub-section shall apply to any purchase or sale of foreign currency effected in India between any person and a money-changer." (emphasis supplied) A plain reading of the said Section would exemplify and demonstrate that no person in India can accept or receive any such item as found set out in the complaint without the permission of the authority concerned. Here it is clear from the cumulative reading of the evidence of the witnesses as well as the statement given by A2 and also A1, that Ashram was in receipt of those items and A1 being the head of that Ashram cannot wriggle out of his criminal liability by dishing out a theory that the lower grade officials might have received it without his knowledge or some foreigners who have come to visit his place might have left it there etc. 9. The pertinent question arises as under; but for the seizure of those items by the Income Tax Officials on 29.11.1994, what would have happened to those items; it is that A1 would have simply disowned his claim over it altogether, for which the learned counsel for the revision petitioner would submit that criminal liability is different as there is no vicarious liability under those circumstances. Here if in an over all manner the matter is visualised, it would be clear that the said offence is based on strict liability theory. Had his subordinates manipulated those items, before those items having been seized by the Income Tax Officials, certainly A1 would have had the right to press into service Section 409 of IPC. At that time, the logic would be whatever amount, whatever items received by the Ashram from others for and on behalf of the Ashram belongs to the Ashram and if any one misappropriated it, A1 could file a complaint and press into service Section 409 IPC. It has to be seen what is the logic behind Section 409 of IPC. There it emphasises and indicates that any article or item received by a person's clerk would be deemed to have been https://hcservices.ecourts.gov.in/hcservices/ received by the employer/principal himself, when such is the position as exemplified supra even in respect of IPC offences which is normally concerning the traditional offences, in the case of socio - economic offences, presumption under the strict liability theory would be more. Over and above that the learned Special Public Prosecutor also pressed into service Section 71 of the FERA Act and it is extracted hereunder for ready reference: "71. Burden of proof in certain cases.- (1) Where any person is prosecuted or proceeded against for contravening 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. (2) Where any person is prosecuted or proceeded against for contravening the provisions of sub-section (3) of section 8, the burden of proving that the foreign exchange acquired by such person has been used for the purpose for which the permission to acquire it was granted shall be on him. (3) If any person is found or is proved to have been in possession of any foreign exchange exceeding in value [fifteen thousand rupees], the burden of proving that the foreign exchange came into his possession lawfully shall be on him." 10. As such, it is also clear that the burden of proof is on A1 to get himself disencumbered of the criminal liability, by establishing that the offence was carried out without his knowledge etc. Over and above that, Sections 105 and 106 of the Indian Evidence Act also are extracted hereunder for ready reference: "105. Burden of proving that case of accused comes within exceptions:- When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. 106. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 11. A plain reading of those provisions would evince and exemplify that if there are certain facts within the exclusive knowledge of the accused and once the burden as per Section 71 of the FERA Act is on him to explain, certainly, he must explain himself. As such, it is not a simple case of theft or other traditional crime, https://hcservices.ecourts.gov.in/hcservices/ wherein barely a statement of co-accused alone is relied on for conviction; here the totality of the circumstances along with the statement of A2 if viewed, it is clear that unerringly it points towards the guilt of A1, who happens to be the head of the Ashram and the evidence also reveal the same. As such, understanding the true purport of the penal Section, both the Courts below correctly found A1 guilty, warranting no interference by this Court. 12. At this juncture, my mind is redolent and reminiscent of the following decisions of the Hon'ble Apex Court: (i) 2002(6) SCC 650- Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another; an excerpt from it would run thus: "13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus: "22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice." A plain reading of the above precedents would display and indicate that the revisional jurisdiction of the Court is restricted only to find out as to whether there is any perversity or non-application of https://hcservices.ecourts.gov.in/hcservices/ law and adhering to the said dictum only this revision is being disposed of. 13. So far Crl.R.C.No.696 of 2006 is concerned, along with Section 8(1) of FERA, 1973, r/w RBI Notification No.FERA 47/77 dt.24.11.77 punishable under Section 56(1)(i) of the FERA 1973, Section 9(1) (f) (i) of FERA, 1973 also is found invoked for the reason that A1 along with one Divya deposited foreign Demand Drafts which were seized by the Income Tax Officials in his own account and as such, it also proves his guilt mind. In this factual matrix, I could see no perversity or non-application of law in the judgment of both the Courts below. Accordingly, these criminal revisions are dismissed. 14. The learned counsel for the revision petitioner would submit that the substantive sentence of imprisonment imposed was also underwent by the accused as he was undergoing life imprisonment in the murder case and the trial Judge also gave set off in that connection as per law. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar Gms To 1. Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai 8 2. -do- Thro The Chief Metropolitan Magistrate, Chennai-8. 3. The Principal Sessions Judge, Chennai 4. The Public Prosecutor, High Court,Madras. +1 cc to Mr.S.Shunmugavelayutham, Advocate, SR.No.33098 Crl.R.C.Nos.694 to 697 of 2006 KS {CO} TP/22.8.2009. https://hcservices.ecourts.gov.in/hcservices/