HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1594 OF 2009
JUDGMENT:
1. The Enforcement Directorate, Government of India preferred the present appeal aggrieved by the acquittal of the 1st respondent/accused for the offence under Section 8(1), 9(1)(f)(i) of Foreign Exchange Regulation Act, 1973 vide judgment in CC No.154 of 2002, dated 03.10.2007 passed by the Special Judge for Economic Offences, Hyderabad.
2. Briefly, the case of the complainant/ED is that ED was conducting investigation on the case of import of Urea by M/s.National Fertilizer Limited (NFL). In a statement of one D.Malleshan Goud, it is stated that one Sambashiva Rao met Rajender Babani and requested Rajender Babani to help him in bringing 4 million dollars secretly from abroad and that Rajender Babani requested to transfer the said amount to M/s.Edible Food Stuff and only thereafter, the amount can be transferred to India. It was further revealed during enquiry that US $ 5 lakh was transferred from the account of M/s.Edible Food Stuff to M/s.Sembi Jewelleries, Dubai on the 2 instructions of the 1st respondent/accused. The 1st respondent/accused in turn made payments of Rs.1.85 Crores with respect to the said transaction. During search, incriminating documents were seized from the premises of the accused. For the reason of the said transaction, the ED has prosecuted the 1st respondent/accused for the alleged violations.
3. Learned counsel for the appellant/ED submits that the trial Court erred in acquitting the 1st respondent when the evidence of P.W.5, when taken into consideration makes out violations which are committed by the 1st respondent and prayed that the order of acquittal should be reversed.
4. On the other hand, learned counsel for the 1st respondent would submit that according to P.W.1, the Investigating Officer during the course of cross-examination, he stated that US $ 5 lakh was not transferred to M/s.Sembi Jewellers from the account of M/s.Edible Food Stuffs, Dubai. He further stated that the said M/s.Sembi Jewellers gave explanation that the said remittance was received from its customs towards sale 3 consideration of gold and customer namely Rahumath Hussaini of Al Bushara Trading Company.
5. Learned Special Judge found that the evidence of P.W.5 is that of an accomplice and same is unworthy of credence in the absence of his evidence being corroborated in material particulars. Further, according to P.W.5, one Anil Kumar Agarwal introduced the respondent to him. The statement of said Anil Kumar Agarwal was not recorded, for which reason, the Court held that no credibility can be given to the evidence of P.W.5 when P.W.5 admitted that the respondent was a stranger. Further, there was no evidence to establish that the respondent had paid Rs.1.85 crores to P.W.5 in consideration of transfer of US $ 5 lakhs. There is no evidence to establish that P.W.5 has received the said amount of Rs.1.85 crores and he distributed to the other persons.
6. The Hon'ble Supreme Court in the case of Radhakrishna Nagesh v. State of Andhra Pradesh1 held that under the Indian criminal jurisprudence, the accused has two fundamental 1 (2013) 11 supreme court Cases 688 4 protections available to him in a criminal trial or investigation. Firstly, he is presumed to be innocent till proved guilty and secondly that he is entitled to a fair trial and investigation. Both these facets attain even greater significance where the accused has a judgment of acquittal in his favour. A judgment of acquittal enhances the presumption of innocence of the accused and in some cases, it may even indicate a false implication. But then, this has to be established on record of the Court.
7. The findings of the learned Special Judge are based upon the circumstantial evidence adduced by the prosecution. P.W.1, who is the Investigating Officer has specifically stated that he was not aware about US $ 5 lakh and the same was not transferred to M/s.Sembi Jewellers from M/s.Edible Food Stuffs. However, the said amount of US $ 5 lakh was accounted towards sale of gold from a customer namely Rahumath Hussaini. Further, the very witness of the prosecution i.e., P.W.5 has not given any evidence to establish that he was paid Rs.1.85 crores towards consideration of US $ 5 5 lakh. The transaction pertaining to US $ 5 lakh into M/s.Sembi Jewellers account was by a customer and the same could not be linked to the 1st respondent/accused.
8. In the said circumstances, when the prosecution has failed to link the transfer of US $ 5 lakh to the 1st respondent/accused and also to establish that Rs.1.85 crores was given to P.W.5, the allegations leveled against the 1st respondent/accused cannot be sustained. In the said circumstances, the learned Special Judge has not erred in any manner to interfere with the well reasoned judgment, which is based on oral and documentary evidence. The prosecution has failed to make out a case for reversal of the judgment of the learned Special Judge.
9. Accordingly, the Criminal Appeal is dismissed.
_________________ K.SURENDER, J Date:16.09.2022 kvs 6 THE HON'BLE SRI JUSTICE K.SURENDER Crl.A.No.1594 of 2009 Dated:16.09.2022 kvs 7