G SUBRAHMANYAM Vs. H D MUNDHRA

JUDGEMENT

(1.) THIS is an appeal by Shri G. Subramanyam, Officer on special duty, Enforcement, Foreign Exchange Regulation Act, against an order by the Chief Presidency Magistrate, Calcutta, acquitting the respondents Haridas Mundhra and others on three counts under section 23 (1) of the Foreign Exchange Regulation Act, 1947. The respondents are the Directors of Bhahmapootra Tea Co. Ltd. Calcutta. Brahmapootra Tea Co. Ltd. , Calcutta is a company registered in India, but there is a company with the identical name 'brahmapootra Tea Co. Ltd. ' with a sterling capital registered in England, and the respondent No. 1 Haridas Mundhra is also a Director of that company. The Managing Agents of the Brahmapootra Tea Co. Ltd. , Sterling Branch, in England are S. B. Industrial Development Company (U. K.) Ltd. The first charge is that the respondents on 24th December, 1955 sent out of India Foreign Exchange, to wit, a cheque for 9000/- in contravention of section 8 (2) of the Foreign Exchange Regulation Act and so committed an offence under section 23 (1) of that Act. Charge No. 2 is that on 25th December 1955, they sent out of India Foreign Exchange, namely a cheque for 2500/-and so committed a similar offence, and charge No. 3 is that on 3rd January, 1956 they sent out of India Foreign Exchange, namely, a cheque for 1500/- and so committed another similar offence. According to the prosecution case, two accounts were opened in the name of M/s. Brahmapootra Tea Co. Ltd. with the Eastern Bank Ltd. 2 and 3 Grosby Square, London, E. C. e. Respondent No. 1 Haridas Mundhra and respondent No. 2 G. D. Mundhra were the persons authorised to operate that account. A second account was opened on behalf of the company by S. B. Industrial Development Co. (U. K.) Ltd. According to the prosecution case, some cheques drawn by Haridas Mundhra on those London accounts were dishonoured for want of sufficient funds, and therefore Haridas Mundhra along with other Directors arranged to transfer credit to the London accounts of Brahmapootra Tea Co. Ltd. , Sterling branch particularly the second account opened by S. B. Industrial Development Co. (U. K.) Ltd. and it is in that connection that three sterling cheques which are the subject matter of the three charges, were sent from India to England.

(2.) THE accused all pleaded not guilty. Respondent No. 1 Haridas Mundhra admitted in connection with the second charge relating to the cheque for 2500/- that he had sent out the cheque to England, but he gave the explanation that a loan was arranged by S. B. Industrial Development Co. (U. K.) Ltd. agents for the Brahmapootra Tea Co. (U. K.) Ltd. , and a nonresident foreigner in India handed lower a cheque for 2500/- with the request that he should send it to England, and so Haridas Mundhra accepted the cheque and sent it to England and in doing so, he was merely acting as a post office, and did not actually send any currency out of India, as the account of the non-resident foreigner was in London. In connection with the other two cheques for 9000/ and 1500/- Haridas Mundhra slated that he did not remember sending such cheques. The other respondents all pleaded not guilty, and stated that they had nothing to do with the sending of the cheques to England.

(3.) IN connection with the sending of tie cheques, there were some letters-Exts. 3 series purporting to be signed by Haridas Mundhra addressed to the Eastern Bank Ltd. , London, which were proved by P. W. 3, John Henry Ghets, Accountant of the Eastern Bank, Calcutta Branch. This witness could not be tendered for cross examination, as at the time of cross examination which was taken up more than two years after the examination in chief the witness was in the U. K. and was not available for cross examination in India. The prosecution, therefore, applied to the learned Chief Presidency Magistrate for permission to examine another witness K. Conolley to prove the documents over again; but this prayer was rejected by the learned Chief Presidency Magistrate on the ground that the name of the witness was not in the original list of witnesses to be examined and the prosecution therefore, had net right under section 256 of the Cr. P. C. to examine a new witness in place of John Henry Ghets who had been examined originally. The learned Chief Presidency Magistrate then completed examination of the witnesses and examined the accused under section 343 Cr. P. C. and proceeded to deliver his judgment. He held that the charges were not proved against any of the accused, and accordingly, he acquitted all the accused in respect of three charges.