Kerala High Court
Asst.Director,Directorate Of ... vs M/S.National Spices on 27 March, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947
CRL.A NO. 422 OF 2006
AGAINST THE JUDGMENT DATED 17.10.2005 IN CC NO.323 OF
1994 ON THE FILE OF THE COURT OF THE ADDITIONAL CHIEF JUDICIAL
MAGISTRATE, ECONOMIC OFFENCES, ERNAKULAM.
APPELLANT/COMPLAINANT:
THE ASSISTANT DIRECTOR,
DIRECTORATE OF ENFORCEMENT,
GOVERNMENT OF INDIA, C.V.RAMAN PILLAI ROAD,
THYCAD, THIRUVANANTHAPURAM-14.
BY ADVS.
SRI.P.K.RAMKUMAR
JAISHANKAR V.NAIR
RESPONDENTS/ACCUSED:
1 M/S.NATIONAL SPICES,
VI/27,JEW TOWN, KOCHI-2.
2 MAHENDRAKUMAR PALEJA
XII/1173/A CHULLICKAL ROAD,
PANAYAPPALLY, KOCHI-5.
3 SATISH KUMAR DHARAMSEY,
XII/1173/A CHULLICKAL ROAD,
PANAYAPPALLY, KOCHI-5.
4 RAJESH KUMAR DHARAMSEY,
XII/1173/A CHULLICKAL ROAD,
PANAYAPPALLY, KOCHI-5.
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BY ADVS.
SRI.ANIL K.MOHAMMED
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.MANU TOM
SRI.B.RAMAN PILLAI
SRI.SUJESH MENON V.B.
SRI.SHYAM ARAVIND
SRI.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.03.2025, THE COURT ON 27.03.2025 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
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Criminal Appeal No.422 of 2006
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Dated this the 27th day of March 2025
JUDGMENT
In this appeal filed under Section 378(4) Cr.P.C., the
complainant namely, the Assistant Director, Directorate of
Enforcement, Government of India, in C.C.No.323/94 on the file of
the Court of the Additional Chief Judicial Magistrate, Economic
Offences, Ernakuam, challenges the acquittal of respondents 1 to
4/accused nos.1 to 4 under Section 248(1) Cr.P.C. of the offence
punishable under Section 56(1) of the Foreign Exchange Regulation
Act, 1973 (the Act).
2. The aforesaid case was initiated on the basis of a
complaint of the Assistant Director, Directorate of Enforcement,
Government of India, Thycaud, Trivandrum. The first accused (A1)
is a Firm by name M/s. National Spices, Jew Town, Kochi and
accused nos.2 to 4 are the partners of the Firm. According to the
complainant, as per letter dated 17/02/1986 received from the
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Reserve Bank of India, Kochi, accused nos.1 to 4 (A1 to A4) are
involved in the violation of Section 18(2) of the Act. The first
accused Firm, engaged in the export of spices to U.S.A. refused to
repatriate the full amount of export proceedings during the financial
years 1983-84 and 1985-86. Pursuant to the receipt of the aforesaid
letter, a search under Section 37 of the Act was conducted by the
Enforcement Directorate at the office of A1. In the search, two files
containing documents were seized and the statement of the second
accused (A2) was recorded under Section 40 of the Act. The scrutiny
of the documents seized revealed that A1 Firm had exported various
spices to New York and that various amounts were outstanding to be
repatriated. Deductions were seen made from the accumulated
undrawn balance towards the claims of the overseas buyers without
the approval of the R.B.I. During the year 1980-85, A1 Firm had
effected shipment of pepper and turmeric valued at $626240.82 to
U.S.A. However, A1 failed to repatriate the value of goods within
the prescribed period without the permission of the R.B.I., thus
violating Section 18(2) of the Act. During the year 1985, A1
transferred without the previous general or special permission of the
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R.B.I., foreign exchange of $133942.67 from M/s.Ludwig Mueller
Co., New York, to M/s.Man Production, Rotterdam. During 1983, A1
made two shipments of turmeric goods valued at $24323.04 and
$6406.19. All the documents were negotiated through the Andhra
Bank, Cochin. The Manager of the said bank allowed free release of
the documents allowing the exporters to adjust payment with the
overseas buyers resulting in loss of foreign exchange of $24323.04
and $6406.19. A1 to A4 have contravened the provisions of
Sections 8(1), 16(1) and 18(2) of the Act. A2 to A4 are the main
partners of A1 F.0irm and hence they are also liable to be proceeded
for contravention in terms of Section 68(1) of the Act. Thus, the
allegation in the complaint is that A1 to A4 have committed the
offence punishable under Section 56(1) of the Act.
3. On appearance of the accused persons before the
trial court, copies of all the relevant records were furnished to them.
A charge under Section 56(1) of the Act was framed, read over and
explained to the accused persons to which they pleaded not guilty.
4. PW1 and PW2 were examined and Exts.P1 series to
P6 series were marked on the side of the complainant. After the close
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of the prosecution evidence, the accused persons were questioned
under Section 313(1)(b) Cr.P.C. regarding the incriminating
circumstances appearing against them in the evidence of the
prosecution. The accused persons denied all those circumstances and
maintained their innocence. DW1 to DW4 were examined and
Exts.D1 to D5 were marked on the side of the accused persons.
5. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court found that the
complainant had failed to establish the allegations against the accused
persons and hence they have been acquitted under Section 248(1)
Cr.P.C. Aggrieved, the complainant has come up in appeal.
6. The only point that arises for consideration in this
appeal is whether the finding of acquittal by the trial court calls for
any interference by this Court.
7. Respondents 2 and 4 were reported to be no more
and hence as per order dated 19/11/2024 the appeal stood abated
against respondents 2 and 4 under Section 394(1) Cr.P.C. Heard the
learned counsel for the appellant and the 1st and 3rd respondents.
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8. I was taken through the entire judgment of the trial
court. The trial court on examination of the oral and documentary
evidence found that the complainant was unable to adduce any
evidence to show as to when the shipments were actually made, the
outstanding balance and the amount that was required to be
repatriated. Also no evidence was produced to show the amounts that
were outstanding as undrawn balance and the deductions that were
made to settle the claim. No material was found to apply Rule 8 of
the Foreign Exchange Regulation Rules, 1974. The trial court noticed
that the complainant had even failed to bring in evidence to show as
to who all were the partners of A1 Firm at the relevant time. It was
noticed that no proper investigation had been conducted to ascertain
as to who all were the partners, who had prepared the documents and
how much amount was actually outstanding and adjusted in each
shipment. Though the authorized dealer of the transactions, was
stated to be the Andhra Bank it was found that the complainant had
not even made an attempt to contact the authorities concerned of the
Bank and make necessary enquiries regarding the transactions
alleged. Thus, the trial court concluded that there was no proper
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investigation to ascertain who all were the actual partners of A1 Firm;
who had prepared the documents; how much amount was outstanding
and adjusted; on what date the shipments were made and the amounts
repatriated through the R.B.I. The learned counsel for the
appellant/complainant has been unable to show in what manner the
findings of the trial court are wrong. That being the position, I find no
grounds for interference into the impugned order.
In the result, the appeal sans merit is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ak
