S DHANAPALAN Vs. CHIEF ENFORCEMENT OFFICER CHENNAI

JUDGEMENT

(1.) THIS revision has been preferred against the Judgment in C.A.No.193 of 1998 on the file of the Principal Sessions Judge, Chennai. The Chief Enforcement Officer, Enforcement Directorate, Madras-6 has filed a complaint againsnt the accused for contravening the provisions of Section 8(1) r/w 56(1)(i) of FERA, 1973.

(2.) THE short facts in the complaint relevant for the purpose of deciding this revision are as follows: On intelligence received by the Enforcement Directorate against the accused that he had unauthorisedly opened a firm by name M/s Gross Machinery and Equipment at No.14, Garden Street, Darfield, Barnslay, U.K and agreed to supply printing machinery to M/s Deccan Security Press, Coimbatore at Door No.100,4th Street, Abhirampuram, Madras-18. When a search was conducted by the Officer of Enforcement Directorate on vigilance on 6.11.1987 nothing incriminating was seized. THE accused was examined by Enforcement Officer, Madras on 6.11.1987 and 9.11.1987. In his statement, he would depose that he was a Diploma Holder in Printing Technology and that one Mr.James Dennis D'saa, a specialised in the sale equipment was functioning from his house that M/s Deccan Security Press No.120, West Ponnurangam Road, R.S.Puram, Coimbatore-2 wanted to import certain printing machinery from London but they wanted his help in procurement of these machines, that the matter was discussed with the said Mr.James Dannis D'sa and M/s Deccan Security Press. In pursuance of the discussion with said James Dannis D'saa and M/s Deccan Security Press, the accused left for London on 12.3.1985 to clinch the deal for M/s Deccan Security Press and that during April 1985, he was not released any foreign exchange and his expenses was borne out by Mr.James Dannis D'sa through the office of M/s Gross Machinery and Equipment(GME). THE said office was opened at London and the proforma invoice for import of machineries to M/s Deccan Security Press were printed in his office at Madras as requested by Mr.James Dannis D'sa. He signed the papers relating to GME as its Proprietor, that letter of credit was opened through Canara Bank,Madras by M/s Deccan Security Press in favour of GME, London. THEre were seven machineries were selected but when the letter of credit was opened, there were no machinery available with GME, London and it was opened with a hope to procure machinery worth 2,90,000 pounds. M/s Deccan Security Press had requested Canara Bank, Madras to open the letter of credit for 2,80,085 pounds in favour of GME,London for the import of reconditioned printing machines and Canara Bank, had opened Letter of credit No.905/229/85 dated 28.2.1985 on GME,London through Grindlays Bank, London for the said amount. M/s Deccan Security Press, Coimbatore had rejected the goods as the machineries arrived at Madras Port were not as per the specification in the letter of credit and the goods were reshipped with the permission of the Reserve Bank of India. M/s Grindlays Bank, London had advised M/s GME, London about the opening of letter of credit favouring them for 2,80,805 pounds which was a transferable letter of credit. THE accused had advised M/s Grindlays Bank London by letter dated 4.4.1985 to transfer UK 2,50,000 pounds to M/s Lawrance martin Press Service Limited, London and M/s Grindlays Bank, London had transferred 2,50,000 pounds to M/s Lawrance Martin Press Service Ltd., and 29,789 pounds to M/s GME on 22.5.1985. M.s Grindlays Bank had filed a suit in the London Court against M/s GME and Lawrance Martin Press Service Ltd., for the recovery of the amounts paid. Since the machineries supplied were not inconformity with the letter of credit conditions.M/s Lawrance Martin Press Service Limited, London in his affidavit filed in the suit had interalia stated that 2,49,980 pounds paid by M/s Grindlays Bank, London to M/s Lawrance Martin Press Service Limited under the letter of credit referred in the affidavit of M/s John JamesScullian of M/s Grindlays Bank, London. THE bank statements of M/s Lawrance Martin Press Service Limited account maintained with Midland Bank showed that they have received 2,49,980 pounds from M/s Grindlays Bank, London on 22/23rd May 1985 and also there was a debit of 1,00,000 pounds on 28.5.1985, M/s Lawrance Martin Press service had in their certificate date 3.6.1986 about the distribution of 2,49,990 pounds received from Grindlays Bank stated that " amount paid to GME 1,00,000 pounds ie., an amount debited in their account with Midland Bank as above. A directive under Section 33(2) of FERA,1973 was issued by the Assistant Director of Enforcement Directorate on 20.6.1993 to the Chief Manager, Grindlays Bank, Madras-1 to produce the necessary documents, affidavit before the Queen's bench Division, London in the matter of suit filed by M/s Grindlays Bank, London against the accused and M/s Lawrance Martin Press Service. A show cause under Section 8(1) of the FERA, 1973 was issued to the accused on 10.7.1992 requesting him to show cause as to why adjudication proceedings as contemplated under Section 51 of the FERA 1973 should not be held against him for the said contravention. Since there was no reply received from the accused for the call notice for personal hearing of the case, the case was adjudicated by the Special Director, New Delhi finding the acused guilty imposing a total penalty of Rs.10,00,000/- vide Adjudication order No.SDE(R)IV/34/93 dated 7.7.1993. THE accused, a person resident in India acquired 29,789.91 pounds on 22.5.1985 from M/s Grindlays Bank, London and 1,00,000 pounds from M/s Lawrance Martin Press Service Ltd., London on 28.5.1985 totalling 1,29,789,91 pounds without the previous general or special permission from the Reserve Bank of India in contravention of Section 8(1) of FERA 1973 which is punishable under Section 56(1)(i) of the FERA 1973.

(3.) AFTER going through the oral and documentary evidence available before the trial Court, the learned trial Judge has held that the charge against the accused has been proved beyond any reasonable doubt and accordingly convicted the accused under Section 8(1) r/w 56(1)(i) of FERA 1973 to undergo six months rigorous imprisonment and also slapped a fine of Rs.75,000/- with default sentence. Aggrieved by the findings of the learned trial Judge, the accused has preferred an appeal in C.A.No.193 of 1998 before the Court of Sessions, Chennai. The learned first appellate Judge after giving due deliberation to the argument advanced by both the learned counsels has held that there is no merit to interfere with the findings of the learned trial Judge and accordingly dismisised the appeal thereby confirming the Judgment of the trial Court which necessitated the accused to prefer this revision.