PIYUSH SAXENA Vs. ENFORCEMENT DIRECTORATE

JUDGEMENT

(1.) By this common order I shall dispose of the above-said two revision Crl.Rev.P.557-558/2007 Page 1 of 11 petitions filed under Section 401 r/w Section 397 Cr.P.C. r/w Section 482 Cr.P.C. against the order dated 30.05.2007 passed by learned ACMM, Patiala House, New Delhi, whereby the learned ACMM framed charges against the petitioners under Section 56 of the FERA for the alleged violation under Section 9(1)(f)(i) and Section 8(1) of FERA r/w Section 64(2) of FERA, 1973.

(2.) Briefly stating the allegations against the present petitioners are that the petitioner, Piyush Saxena had made export of ball pen valued at US $ 6,11,200.90 to M/s Triwood Limited, Hongkong, under 24 GRS Forms. The whole case of the prosecution is based upon the statement of Sudesh Saxena dated 9.7.98 which was recorded under Section 40 of FERA, 1973, who deposed that the total value of export was US $ 6,00,000, out which US $4,00,000 were realised and the balance amount of US $ 2,00,000 is pending realization. The total export value which was shown as US $ 6,00,000 for numbers of ball pens of 1714285 approximate exported to M/s Triwood Limited, Hongkong was not a correct value. The real value was US $ 3,00,000. The difference between the real value and inflated value is US $ 1,00,000 and the said amount was paid back to the overseas buyer through hawala. The petitioner received remittances to the tune of US$ 2,07,232.90 equivalent to Rs.77,80,807 against the said export which were adjusted by the authorized dealer against the GR Forms in question. According to the petitioner, this indicate that the export value of the consignment was US $ 6,11,200.90 as declared by the petitioner in the GR Forms and other relevant documents whereas the actual value of the said shipment was US $ 3,03,968.00 and thus, the shipments were over invoiced by an amount of US $ 6,11,200.90. It is also alleged against the petitioners that during the year 1995 the petitioner has made a payment of Rs.31,50,000/- to a person in India which was otherwise transferred to M/s Triwood Limited, Hongkong. In the year 1998-99 the petitioner received further payment to the tune of US $ 2,07,232.90 equivalent to Rs.77,80,807/- in the guise of balance proceeds of exports, but they had no right to receive the said amounts as the actual value of the exports had already been realized from the foreign buyer in the year 1994-95 which clearly indicated that the petitioner has otherwise acquired US$ 2,07,232.90 outside India from a person other than an authorized dealer and otherwise transferred the same to M/s Triwood Ltd., Hongkong, without the general or special permission of the RBI.

(3.) It is also alleged that by making payment totaling to Rs. 31,50,000/- in the manner as aforesaid and by otherwise acquiring and otherwise transferring foreign exchange to wit US $ 3,07,232.90 equivalent to Rs.109,30,807/- the petitioner contravened the provisions of the FERA. Further an opportunity notice dated 23.8.2001 and 26.11.2001 under Section 61(2) of FERA, 1973 were given to the petitioners to state in writing whether they had in terms of Section 9(1)(f) and (i) and 8(1) r/w Section 64(2) of FERA, 1973 obtained any general or special permission of the RBI for the said transaction. Since both the petitioners were not found available at their address, therefore, the notices were served upon them through affixation. The petitioners failed to produce such permission despite service of notices. In order to prove its case, the complainant examined seven witnesses at the pre-charge stage. Thereafter, the learned ACMM framed charges against the petitioners as aforesaid.