CRL.A./937/2010 of S K JAIN Vs UOI & ANR

* IN THE HIGH COURT OF DELHI AT NEW DELHI+ CRL.A. 937/2010 S K JAIN ..... Appellant

Through: Mr.Pawan Narang with Mr.Anish Dhingra and Mr.Puskal Gogi, Advs.

versus

UOI & ANR

..... Respondents

Through: Mr. Atul Nanda and Mr.Nikhil Kohli,

Advs.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

% 11.08.2010

1. Learned counsel for the appellant submits that the learned tribunal has erred in relying upon the retracted statement given by Mr. J.K. Jain and therefore, substantial question of law arises for consideration.

2. Mr. J.K. Jain is an employee of the present appellant. From his residence in search on 3[rd] May, 1991 foreign currency and travelers cheques were seized by the Central Bureau of Investigation. He had stated that the foreign currency and travelers cheques belonged to and were entrusted to him by his employer Mr. S.K. Jain, the appellant herein. The Central Bureau of Investigation referred the matter to Enforcement Directorate in January, 1995 in view of the foreign currency and travelers cheques which were seized in the raid conducted on 3[rd] May, 1991.

3. The Enforcement Directorate issued notice to both Mr. S.K. Jain, the appellant and Mr. J.K. Jain. Mr. S.K. Jain, the appellant in his statement recorded on 14[th] April, 1995 admitted that Mr. J.K. Jain was his employee and even after the raid on 3[rd] May, 1991, he had continued to be his employee. He had further stated that Mr. J.K. Jain had never cheated or misappropriated his funds. Mr. S.K.

Jain however refused to answer other questions claiming immunity and protection under Article 20 (3) of the Constitution on the ground that Central Bureau of Investigation had already initiated prosecution against him.

4. On 17[th] April, 1995 nearly four years after the date of search, statement of Mr. J.K. Jain was recorded under Section 40 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA). Thus before the statement of Mr. J.K. Jain was recorded he had substantial time to deliberate and think. Statement of the appellant Mr. S.K. Jain was recorded few days earlier on 14[th] April, 1995. Even on 17[th] April, 1995, Mr. J.K. Jain was an employee of the appellant. In his statement Mr. J.K. Jain had stated that the seized foreign currency was given to him in an envelope by Mr. S.K. Jain, appellant for keeping with him. It is the contention of the appellant Mr. S.K. Jain that the entire statement was retracted by Mr. J.K. Jain on 18[th] April, 1995 when he was produced before the Metropolitan Magistrate. This aspect has been dealt with and considered by the learned tribunal in the order dated 17[th] March, 2010. It has been pointed out that both Mr. J.K. Jain and Mr. S.K. Jain were represented by the same counsel in the proceedings before the adjudication officer. It has been also pointed out that both Mr. J.K. Jain and Mr. S.K. Jain did not submit their reply and adjudication officer had passed an ex-parte order. Reference can be made in paragraph 7 of the impugned order dated 17[th] March, 2010.

5. With regard to retraction by Mr. J.K. Jain it is pointed out in the impugned order that Mr. J.K. Jain was taking contradictory stands. In paragraph 15 of the impugned order, it is mentioned that in the written submission, Mr. J.K. Jain had

relied upon his statement dated 17[th] April, 1995 that the foreign currency belonged to Mr. S.K. Jain, the appellant herein. In view of the factual matrix of the present case and the detailed factual discussion by the learned tribunal in the order dated 17[th] March, 2010 no substantial question of law arises and the appeal is dismissed.

SANJIV KHANNA, J.

AUGUST 11, 2010 J/VKR