S.K. Jain vs Union Of India & Another
2010 Latest Caselaw 3741 Del

30
$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A. 937/2010
       S K JAIN                           ..... Appellant
                           Through: Mr.Pawan Narang with Mr.Anish
                                    Dhingra and Mr.Puskal Gogi, Advs.
                    versus
       UOI & ANR                                  ..... Respondents
                           Through: Mr. Atul Nanda and Mr.Nikhil Kohli,
                                    Advs.
       CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
              ORDER

% 11.08.2010

1. Learned counsel for the appellant submits that the learned tribunal has erred

in relying upon the retracted statement given by Mr. J.K. Jain and therefore, a

substantial question of law arises for consideration.

2. Mr. J.K. Jain is an employee of the present appellant. From his residence in

a search on 3rd May, 1991 foreign currency and travelers cheques were seized by

the Central Bureau of Investigation. He had stated that the foreign currency and

travelers cheques belonged to and were entrusted to him by his employer Mr. S.K.

Jain, the appellant herein. The Central Bureau of Investigation referred the matter

to Enforcement Directorate in January, 1995 in view of the foreign currency and

travelers cheques which were seized in the raid conducted on 3rd May, 1991.

3. The Enforcement Directorate issued notice to both Mr. S.K. Jain, the

appellant and Mr. J.K. Jain. Mr. S.K. Jain, the appellant in his statement recorded

on 14th April, 1995 admitted that Mr. J.K. Jain was his employee and even after

the raid on 3rd May, 1991, he had continued to be his employee. He had further

stated that Mr. J.K. Jain had never cheated or misappropriated his funds. Mr. S.K.

CRL.A.937/2010 Page 1 Jain however refused to answer other questions claiming immunity and protection

under Article 20 (3) of the Constitution on the ground that Central Bureau of

Investigation had already initiated prosecution against him.

4. On 17th April, 1995 nearly four years after the date of search, statement of

Mr. J.K. Jain was recorded under Section 40 of the Foreign Exchange Regulation

Act, 1973 (hereinafter referred to as FERA). Thus before the statement of Mr.

J.K. Jain was recorded he had substantial time to deliberate and think. Statement

of the appellant Mr. S.K. Jain was recorded a few days earlier on 14 th April, 1995.

Even on 17th April, 1995, Mr. J.K. Jain was an employee of the appellant. In his

statement Mr. J.K. Jain had stated that the seized foreign currency was given to

him in an envelope by Mr. S.K. Jain, appellant for keeping with him. It is the

contention of the appellant Mr. S.K. Jain that the entire statement was retracted by

Mr. J.K. Jain on 18th April, 1995 when he was produced before the Metropolitan

Magistrate. This aspect has been dealt with and considered by the learned tribunal

in the order dated 17th March, 2010. It has been pointed out that both Mr. J.K. Jain

and Mr. S.K. Jain were represented by the same counsel in the proceedings before

the adjudication officer. It has been also pointed out that both Mr. J.K. Jain and

Mr. S.K. Jain did not submit their reply and adjudication officer had passed an ex-

parte order. Reference can be made in paragraph 7 of the impugned order dated

17th March, 2010.

5. With regard to retraction by Mr. J.K. Jain it is pointed out in the impugned

order that Mr. J.K. Jain was taking contradictory stands. In paragraph 15 of the

impugned order, it is mentioned that in the written submission, Mr. J.K. Jain had

CRL.A.937/2010 Page 2 relied upon his statement dated 17th April, 1995 that the foreign currency belonged

to Mr. S.K. Jain, the appellant herein. In view of the factual matrix of the present

case and the detailed factual discussion by the learned tribunal in the order dated

17th March, 2010 no substantial question of law arises and the appeal is dismissed.

SANJIV KHANNA, J.

       AUGUST 11, 2010
       J/VKR




CRL.A.937/2010                                                                Page 3