Enforcement Directorate vs Syed Sikander Ali
2022 Latest Caselaw 4704 Tel

           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

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

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

(2013) 11 supreme court Cases 688

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 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

THE HON'BLE SRI JUSTICE K.SURENDER

Crl.A.No.1594 of 2009

Dated:16.09.2022

kvs