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2013 DIGILAW 2714 (MAD)

Super Duper TV v. Chief Enforcement Officer

2013-07-29

C.S.KARNAN

body2013
ORDER The short facts of the prosecution case is as follows:- The respondent herein / the Chief Enforcement Officer, attached to the Enforcement Directorate, Government of India, Chennai has filed E.O.C.C.No.411 of 2002, against the three accused on the file of Additional Chief Metropolitan Magistrate and Economical Offices Court-II, Egmore, Chennai, stating that on the basis of intelligence report received, the premises of M/s.Super Duper TV Pvt. Ltd.,, situated at Wellington Plaza, No.90, Mount Road, Chennai was searched on 12.07.1995 and certain incriminating documents were seized by the Officers of the Enforcement Directorate. Mr.Sudhakaran (A1) was questioned. A-1 subsequently, while replying to directives, disclosed about the imports made in the name of the Proprietary concern, viz., M/s.Super Duper TV. The report indicated the import of certain items like Betacom Record Player, Betacam Video Cassette Player, Audio Mixers, Colour camera, Zoom Lens, Betacam Dockable records, AC adopter, cable battery pack and Battery Changer covered by Bill of Entry No.19882 dated 10.04.1995, the supplier being M/s.Tai Yang Electronics, 163, Tras Street 10-15, Lian Huat Building Singapore-0207. The value of the said import was S$44,040/- as per invoice No.TYE/1004/95, dated 05.04.1995 of M/s.Tai Yang Electronics, Singapore. 2. On reconnaissance, the residential premises of one Shri Anandaveloo, situated at door No.AD/90, Anna Nagar, Chennai, who was having Palani Andavar Lodge at Door No.76, Coral Merchant Street, Chennai, were searched on 26.08.1996 and certain incriminating documents were seized. These included a fax dated 30.07.1996, a gift deed and invoice received from one Mr.Kanesan of Penang and the fax copy of invoice referred to earlier. The gift deed recovered was to the effect that the subject goods were gifted by one Mr.Manickam of Singapore to Vn.Sudhagaran of M/s.Super Duper TV. Shri Anandaveloo in his statement, inter alia, stated that at the instance of Mr.Vn.Sudhagaran whom he knew from college days, he had received certain fax documents and after giving the photocopies of the same to Shri Sudhagaran, the fax copies remained at his residence. 3. The statements recorded from Mr.K.Ramachandran, who incidentally happened to be the partner of M/s.Tay Yang Electronics on 11.11.1996 and 12.11.1996 indicated that besides acting as a conduit for not only in respect of certain payments by M/s.J.Jay TV Chennai to M/s.Rimsat, Inter Sputnik etc. 3. The statements recorded from Mr.K.Ramachandran, who incidentally happened to be the partner of M/s.Tay Yang Electronics on 11.11.1996 and 12.11.1996 indicated that besides acting as a conduit for not only in respect of certain payments by M/s.J.Jay TV Chennai to M/s.Rimsat, Inter Sputnik etc. for unlinking facilities but also for procuring equipments from Singapore for the purpose of sending to India out of the funds made available by Mr.Bhaskaran i.e., the brother of Sudhagaran, in an unauthorized manner. As far as the goods in this case is concerned, Mr.Ramachandarn had procured them on his own Tan Yang Electronics out of the funds made available by Mr.V.Bhaskaran through carriers and that the goods were sent in the name of Mr.Vn.Sudhagaran of M/s.Super Duper TV. Mr.Manickam of Singapore, in his letter dated 24.11.1996 addressed to the Deputy Director, Enforcement Directorate, Chennai had denied that he had made any such gift valued at S$44,040/-, to Mr.Vn.Sudhagaran and that he had signed the gift deed at the instance of one Mr.Annamalai of Malaysia who is a close relative of him. He even denied having known Mr.Sudhagaran. Mr.Manickam confirmed the same facts in his statement made on 23.06.1997 before the Officers of Enforcement. 4. Further, it was observed during investigation that Mr.V.Bhaskaran, former Director of J.Jay T.V. Pvt. Ltd., was an authorized signatory to the Bank account of M/s.Super Duper TV at Indian Bank, Abiramapuram Branch, Chennai and was taking part in the activities of the company. Mr.K.Ramachandran of M/s.Tai Yang Electronics, Singapore, in his statements dated 11.11.1996 and 12.11.1996 given before the officers of the Enforcement Directorate, Chennai stated that the foreign currency for sending the goods was provided/made available to him by Mr.V.Bhaskaran of Jay T.V., who is the brother of Vn.Sudagaran. From the foregoing, it is clear that Mr.Vn.Sudagaran, Proprietor of M/s.Super Duper TV and his authorized signatory, Mr.V.Bhaskaran, persons resident in India had contravened the provisions of Section 8(1) in as much as they had otherwise acquired the foreign exchange to the tune of S$44,040/- from the persons other than authorized dealers as well as made payment of the said amount of S$44,040/- to Mr.K.Ramachandran of Singapore who is a person resident outside India in contravention of Section 9(1)(a) of FERA 1973 and thereby rendered themselves punishable under Section 56(1) of the FERA 1973. 5. 5. The complainant further stated that an opportunity Notice No.T.9/41/CHN/56/2001, dated 03.05.2002 have been issued to them requiring them to furnish the permission from RBIC if any, obtained by them in respect of the contraventions alleged, in the notice. No reply had been received till date from Mr.Sudhagaran, Mr.Bhaskaran. In his reply dated 10.05.2002, he denied the allegations besides raising some legal points. However, they did not produce any copy of the permission from the RBIC in respect of the transaction referred to in the Opportunity notice. Hence, the above case had been levelled against the accused. The prosecution has listed two witnesses supporting their complaint. 6. Under these circumstances, the first and second accused, viz., M/s.Super Duper TV and the second accused Mr.Vn.Sudhagaran, Proprietor of first accused company have filed a petition in Crl.M.P.No.348 of 2004, to dismiss the complaint filed by the complainant or otherwise discharge the first and second accused from the said prosecution case. The complainant had filed a counter statement and resisted the said discharge petition. The learned Magistrate after hearing the arguments of the learned counsels for the accused 1 and 2 and learned Special Public Prosecutor for the complainant and on considering the averments of both parties, dismissed the said petition in Crl.M.P.No.348 of 2004 filed by the accused seeking discharge. 7. Against the said order, the accused has filed the above revision and challenged the impugned order passed by the learned Magistrate. 8. The highly competent counsel for the revision petitioners argued that the learned Magistrate was inconsistent and there was no sufficient materials to implicate them in the said case. Further, the first petitioner is a sole proprietary concern and as such, it has no separate entity and it cannot be distinguished from that of its proprietor. Therefore, the inclusion of the petitioner concerned as one of the accused along with its proprietor is not maintainable in law. The second petitioner is the sole proprietor of the first petitioner's concern and during the course of his business, he received a gift from Manickam of Singapore comprising of various electronic goods used in the communication channels for his concern, therefore, the inclusion of the name of the petitioners in the above criminal case is an abuse of process of Court. The second petitioner has shown that he has not confiscated any foreign exchange and has not violated FERA and made any payments to any persons outside India towards any act prohibited by law. The ingredients of offences under Sections 8(1), 9(1)(a) r/w 68 of the Foreign Exchange Regulation Act, 1973 punishable under Section 56(1)(i) of the said Act r/w Sub Sections 3 and 4 of Section 49 of the Foreign Exchange Management Act, 1999, is not made out against the petitioners herein and therefore, it is erroneous. Actually, the goods were legally acquired by the petitioner, as such, no prosecution could be proceeded against them, the same was not considered by the trial Court. Further, as the alleged transaction did not exceed Rs.25,00,000/-, therefore, as per the prosecution guidelines of the complainant Department, the present complaint is not sustainable under law. The learned counsel further submits that the complainant had proceeded to Singapore and recorded the statements of Manickam and another and relied on their statements for filing the complaint against the petitioners and since the complainant has not resorted to the proceedings under Section 166A of Cr.P.C. to obtain letter from the court, therefore, such statements could not be relied upon by the complainant since it is not legally valid. The learned Magistrate failed to consider that there is no material on record to substantiate that the petitioners have contravened the Act. therefore, there is no prima facie case made out against the petitioners, hence, the very competent counsel entreats the Court to allow the revision. 9. From the above discussions, this Court is of the view:- (i) The prosecution had recovered gifted deed and invoice, which discloses that the subject goods were gifted by one Mr.Manickam of Singapore to the petitioners 1 and 2 herein. The said Manickam in his written letter dated 24.11.1996 addressed to the complainant had denied that he had made any such gift valued at S$44,040/- to the second petitioner herein and that he signed the gift deed at the instance of one Mr.Annamalai of Malaysia who is a close relative of him. He even denied having known the second petitioner, and he had confirmed the same fact in his statement dated 23.06.1997 given before the Officers of the Enforcement. He even denied having known the second petitioner, and he had confirmed the same fact in his statement dated 23.06.1997 given before the Officers of the Enforcement. This Court's view is that this is one of the main issues to be decided to verify the veracity of the transaction and therefore, trial is of paramount importance. (ii) The second petitioner has not given crystal clear statements and has not furnished documentary fact regarding the said transaction since the goods had been received by him on behalf of the first petitioner. (iii) It is seen that the third accused who is the authorized signatory for the bank account of the first petitioner herein at Indian Bank, Abiramapuram Branch, Chennai had made the said payment through carriers and as such, his presence is essential in the instant case. Therefore, regarding the said transaction adjudication is necessary. Besides this, in the said prosecution case two other issues have to be decided and hence, trial is necessary. The first and second petitioners are involved in the said case as per the ingredients of the complaint and therefore, the petitioners cannot be discharged from the proceedings. 10. On considering the facts and circumstances of the case and arguments advanced by the learned counsel for the petitioner and on scrutinizing the impugned order of the trial Court and this Court's view listed above, this Court does not find any infirmities in the said impugned order. However, the case is pending against the petitioners for more than 10 years and as such, the delay is causing hardship to the petitioners. Therefore, the second petitioner, viz, Vn.Sudhagaran's presence is dispensed with unless his appearance is absolutely necessary as desired by the learned Magistrate. This Court directs the learned Magistrate to dispose the main case on merits without being influenced by the discussions of this Court on topmost priority basis. 11. In the result, the above revision in Crl.R.C.No.173 of 2007 is dismissed with the above observations. Consequently, the order passed in Crl.M.P.No.348 of 2004, in E.O.C.C.No.411 of 2002, on the file of Additional Chief Metropolitan Magistrate-II, Egmore, Chennai, dated 21.12.2006 is confirmed.