IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FOURTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.253 OF 2003 Between: The Enforcement Directorate, Government of India, III Floor, Damayanthi Chambers, Adarshnagar, Hyderabad. ..... Appellant/Complainant AND Shri Adla Bhoomaiah & another ..... Respondents/Accused Nos.1 & 3 The Court made the following: JUDGMENT: The Criminal Appeal, under Section 378 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 19.12.2002, in C.C.No.155 of 2002, on the file of the learned Special Judge for Economic Offences, Hyderabad, whereunder and whereby the Respondents/Accused Nos.1 and 3 were not found guilty of the contravention of Sections 9 (1) (b), 9 (1) (d) and Sections 9 (1) (b) and 9 (1) (d) read with 64 (2) and 9 (3) punishable under Section 56 of the Foreign Exchange Regulation Act, 1973 (for short, “the Act”). The case against Accused No.2 was split up as he was absconding. 2. The brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows. The complainant received a letter, dated 29.02.2000, from the Inspector of Police, C.I.D., S.D.T.-I, Hyderabad, along with some photocopies of the confessional statements of the accused therein and other persons in respect of a case registered by Dichpally Police of Nizamabad District in Crime No.17 of 2000 under Sections 489B and C and 420 I.P.C., whereunder it is mentioned that during the course of investigation, they found violations under Section 9 of the Act and another letter was also received on 03.03.2000 along with some other original documents forwarded to the Enforcement Directorate. It is stated that on 11.02.2000, the police raided the residential premises of Accused No.1, which resulted in seizure of counterfeit currency notes and documents consisting of account books, fax messages, hand writing sheets, envelopes containing receipts and I.S.D. Telephone bills, thereby indulging in receiving and making payments in India avoiding violation of the provisions of Section 9 of the Act. Summons have been issued to Accused No.1 and his statement was recorded by the Enforcement Officer. The allegation against Accused No.3 is that he remitted Rs.1,90,55,750/- during the year 1998 through authorized dealer in foreign exchange without any previous general or special exemption of the Reserve Bank of India from Dubai to India to Accused No.2. Hence, the complaint. 3. The case was taken on file under Section 56 of the Act against accused. 4. Accused No.1 was charged for the offence under Sections 9 (1) (b) , 9 (1) (d) of the Act punishable under Section 56 of the Act. Accused No.1 was also charged for the offences under Sections 9 (1) (b) and 9 (1) (d) read with 64 (2) of the Act and Accused No.3 was charged for the offence under Section 9 (3) of the Act. 5. To substantiate the case of the complainant, P.Ws.1 to 4 were examined and Exs.P1 to P110 were marked and in addition, Exs.P16(a), P17(b), P21(a) and (b) were also marked. 6. After closure of the prosecution evidence, the Accused Nos.1 and 3 were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of Accused Nos.1 & 3, no evidence either oral or documentary was adduced. 7. The trial Court, after considering the evidence on record, came to the conclusion that the witnesses and the person who effected seizure of incriminating documents from the possession of Accused No.1 were not examined and that the statements of Accused No.1 recorded under Section 40 of the Act can be used to corroborate the prosecution evidence; that Accused Nos.1 and 3 cannot be convicted solely basing on those statements and accordingly, they were acquitted. Challenging the same, the present Criminal Appeal, is filed. 8. Now the point for determination is whether the complainant proved its case beyond all reasonable doubt against Accused Nos.1 & 3 for the charges under which they were charged and whether the judgment of the trial Court is correct, legal and proper? 9. The learned counsel appearing for the appellant contended that the documents, Exs.P15 to P21, were seized from the house of Accused No.1; that those documents revealed about the incriminating facts which clearly show the violations under Sections 9 (1) (b) and 9 (1) (d) of the Act; that the statements of Accused No.1 recorded under Section 40 of the Act can be used as evidence against him, and therefore, he prays to set aside the order of acquittal. 10. On the other hand, the learned counsel appearing for the respondents herein contended that there is no legal evidence to show that Exs.P15 to P21 documents have been seized from the possession of Accused No.1; that the statements of Accused No.1 recorded under Section 40 of the Act can only be used to corroborate the prosecution evidence in view of the fact that they are retracted, and that the trial Court, after an elaborate consideration of the evidence on record, rightly acquitted the respondents herein and there are no grounds to interfere with the order of acquittal and, hence, he prays to dismiss the Criminal Appeal. 11. There cannot be any dispute that in dealing with the appeal against the order of acquittal, the Appellate Court has got full power to reappreciate the evidence available on record, but it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt and that presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 12. Exs.P15 to P21 are said to be the incriminating documents seized from the house of Accused No.1 which contains loose sheets, counterfeit currency notes and documents consisting of account books, fax messages, hand writing sheets, envelops containing receipts and I.S.D. telephone bills. Admittedly, none of the prosecution witnesses speaks about the seizure of those documents from the residential premises of Accused No.1. They were seized under the original of Ex.P14 by Dichpally Police of Nizamabad District on 11.12.2000 allegedly from the house of Accused No.1. Therefore, with regard to the proof of Ex.P14, the person who effected the seizure and the persons who acted as Mediators have to be examined. Though the complainant filed an application to summon the Dichpally Police to prove the original of Ex.P14, it was not pressed by the complainant. Therefore, there is absolutely no evidence to show that Exs.P15 to P21 documents were seized from the house of Accused No.1. 13. The other evidence available on record is the statements of Accused No.1 recorded under Section 40 of the Act, which are said to be the confessional statements, marked as Exs.P27 to P32. Under Section 40 of the Act, the Enforcement Officer can summon any person or summon any document either to secure evidence during the course of investigation. Even assuming for a moment that these statements are confessional statements admissible under law, but in view of the retraction by Accused No.1, confessional statements are required to be corroborated on material particulars. No doubt, there is no rule of law that a retracted confession should be corroborated on the material particulars, but the Courts, as a matter of prudence, insist for corroboration on material particulars. The trial Court has given a cogent reason for not placing any reliance on Exs.P27 to P32. Some of the hand writings found in the disputed documents have been sent to the Government Expert for comparison with the admitted hand writings of Accused No.1. After comparison, the Government Hand Writing Expert opined that the person who wrote the sample writings is not the author of the disputed writings. Therefore, the contents of Exs.P27 to P32 are not shown to have been written by Accused No.1. Therefore, Accused No.1 was found not guilty of the offences levelled against him. 14. Insofar as Accused No.3 is concerned, no such statement under Section 40 of the Act has been recorded. Except the confessional statements of Accused No.1, there is no other evidence to show that Accused No.3 remitted an amount of Rs.1,90,55,750/- to Accused No.2 without there being an authorization in accordance with law. There cannot be any dispute that the confessional statements of Accused No.1 is not an evidence against the co-accused, within the meaning of Section 30 of the Indian Evidence Act, 1872. Therefore, the trial Court, after elaborate consideration of evidence on record, rightly acquitted the Respondents/Accused Nos.1 and 3 and there are no compelling or substantial reasons to interfere with the same. The Criminal Appeal is devoid of merit and is liable to be dismissed. 15. The Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 19.12.2002, in C.C.No.155 of 2002, on the file of the learned Special Judge for Economic Offences, Hyderabad. _______________ (K.C. BHANU, J) Date: 14th December, 2009 KL