Delhi High Court
Bimal Kumar Jain vs The Directorate Of Enforcement on 29 January, 2018
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 287/2018 & CM No.1197/2018
BIMAL KUMAR JAIN ..... Petitioner
Through: Mr Naveen Malhotra,
Advocate.
versus
THE DIRECTORATE OF
ENFORCEMENT ..... Respondent
Through: Mr Amit Mahajan, CGSC for
UOI with Ms Mallika,
Advocates.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 29.01.2018
VIBHU BAKHRU, J
1. The petitioner has filed the present petition, inter alia,
impugning the order dated 03.01.2018 (hereafter „the impugned
order‟) passed by the Special Director, Directorate of Enforcement
(FEMA) in the case of Assistant Director, Enforcement Directorate
(FEMA) v. Naresh Kumar Jain & Ors (bearing file no. T-
4/04/FEMA/DLZO/SDE(CR) dated 11.01.2016 (SCN) and file no. T-
3/CP/34/DZ/2009/AD (SB) (complaint)).
2. By the impugned order, the respondent (Special Director, the
Directorate of Enforcement) has rejected the petitioner‟s application
for cross-examination of Mr Manoj Garg (the Investigating Officer),
the complainant, Mr A.K. Verma, Mr Mohan Singh, Mr Preetam
Singh and Satbir Singh, Assistant Director who were signatories to the
Panchnama. The petitioner had also sought an opportunity to cross-
examine Mr V.K. Gogia and Mr S. Bhatnagar who had witnessed the
Panchnama. The relevant extract of the impugned order reflecting the
reasons for denying the petitioner‟s request for cross-examination,
reads as under:-
"I find that the grounds mentioned by the noticees no.
1, 2 & 3 for cross-examination pertain to substantive
nature of transactions as revealed during the course of
investigation and all these transactions are based on
documents seized during various search operations as
mentioned in the complaint. Merits and demerits of the
allegations contained in the SCN/Complaint and replies
filled by noticees are duly taken into account at the
stage of Adjudicating Proceedings, besides providing
adequate opportunities to the noticees for making oral
and written arguments/submissions during the course of
personal hearings.
Therefore, the request of the noticees to seek the cross-
examination is required to be considered having regard
to provisions contained in the said adjudication rules as
elaborated above and it cannot be considered as a
matter of right."
3. The learned counsel appearing for the petitioner contended that
the cross-examination of witnesses is an integral part of the principles
of natural justice and the same could not be denied. He relied on the
decision of the Division Bench of this Court in Shahid Balwa v. The
Directorate of Enforcement: LPA 79/2013 and another connected
matter decided on 29.05.2013.
4. Mr Amit Mahajan, the learned counsel appearing for the
respondent contended that the decision of the Division Bench of this
Court in Shahid Balwa v. The Directorate of Enforcement (supra)
was carried in appeal before the Supreme Court and by an order dated
10.09.2013, the said decision has been stayed. He submitted that in the
given circumstances, the said decision has no precedent value. He
further submitted that without prejudice to the aforesaid contention,
the facts in the present case did not warrant cross-examination of any
individual.
5. I have heard learned counsel for the parties.
6. The Assistant Director, Enforcement Directorate had filed a
complaint dated 08.01.2016 under Section 16 (3) of the Foreign
Exchange Management Act, 1999 (hereafter „FEMA‟) alleging
contravention of certain provisions of FEMA read with Regulations
made thereunder. Subsequently, a Show Cause Notice dated
11.01.2016 was also issued to the petitioner as well as other noticees,
inter alia, calling upon them to show cause as to why adjudication
proceedings as contemplated under Section 16 of FEMA not be held
against them.
7. It is the petitioner‟s case that there is no evidence or any
material on record, which implicates the petitioner in any manner. A
plain reading of the application filed by the petitioner seeking cross-
examination of certain individuals named above also indicates that the
petitioner had reiterated its contention that the material or evidence on
record does not substantiate the allegation made against him. At the
outset, the petitioner had denied all the allegations made against him
in the complaint filed against him. The only reason provided by the
petitioner for seeking cross-examination of Mr Manoj Garg,
Investigation Officer and the complainant is that they can be
confronted with the documents in question.
8. As stated above, according to the petitioner, the documents do
not implicate or establish any offence on the part of the petitioner. The
documents referred to by the petitioner are not documents that have
been created or initiated by the investigating officer or the
complainant; the documents have been found during the search and
seizure operations conducted by the concerned officers. In the
circumstances, this Court is not persuaded to accept that there is any
ground to permit cross-examination as sought for by the petitioner.
Similarly, there is also no ground to permit cross-examination of
signatories to the Panchnama and the Panch witnesses either.
9. In the case of Shahid Balwa v. The Directorate of
Enforcement (supra), the Division Bench after referring to various
decisions had observed as under:-
„„29. The legal position that would follow is that
normally if the credibility of a person who has testified
or given some information is in doubt or if the version
or the statement of the person who has testified is in
dispute normally right to cross-examination would be
inevitable. If some real prejudice is caused to the
complainant, the right to cross-examine witnesses may
be denied. No doubt, it is not possible to lay down any
rigid rules as to when in compliance of principles of
natural justice opportunity to cross-examine should be
given. Everything depends on the subject matter. In the
application of the concept of fair play there has to be
flexibility. The application of the principles of natural
justice depends on the facts and circumstances of each
case.‟‟
10. In the facts of the present case, it is apparent that the case set up
against the petitioner is not based on any testimony of the
investigating officer but on documents. In the aforesaid circumstances,
this Court finds no infirmity with the decision to reject the petitioner's
application for cross-examination.
11. The petition and the pending application are, accordingly,
dismissed.
VIBHU BAKHRU, J
JANUARY 29, 2018
pkv
