G.S. Chandini v. E.P. Ashraf and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943 CRL.A NO. 1111 OF 2007 AGAINST THE ORDER/JUDGMENT IN CC 11/2001 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM ## APPELLANT/COMPLAINANT: G.S.CHANDINI, ENFORCEMENT OFFICER ENFORCEMENT DIRECTORATE, CALICUT. BY ADV SRI.P.K.RAMKUMAR ## RESPONDENT/S: 1 E.P.ASHRAF, S/O.LATE KUNHUMON, ELAYEDATH PUTHAN VEETTIL, THIRUVATHRA P.O., CHAVAKKAD, THRISSUR DISTRICT. 2 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. FOR R1 BY ADV SRI.M.K.ABOOBACKER FOR R2 BY SRI.RANJITH GEORGE, PP THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 25.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.1111 of 2007 2 ## JUDGMENT The complainant in C.C.No.11/2001, who is an Enforcement Officer, Enforcement Directorate, Calicut, is the appellant herein. The appeal is filed challenging the judgment passed by the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam by which the 1[st] accused herein was acquitted of the charges imposed upon him for the offences punishable under Sections 9(1)(b),9(1)(d) and 9(3) of Foreign Exchange Regulation Act, 1973 (Hereinafter referred to as ‘FERA’). The case of the complainant is as follows: When the 1[st] accused reached at the International Airport at Karipur for going to Abudabi, he was intercepted by the customs officials and upon conducting a search of his bag in the presence of independent witnesses, certain note books containing the details of certain transactions were found. As it was suspected that the transactions referred to in the aforesaid note books were pertaining to illegal foreign exchanges, he was arrested and the articles were seized. On the basis of the same, an Crl.Appeal No.1111 of 2007 3 investigation was conducted and the pursuant to the same, this complaint was submitted. 2. In support of the prosecution, the complainant examined PWs.1 to 9 and marked Exts. P1 to P36. After completion of prosecution evidence, the 1[st] respondent was examined under Section 313 of the Code of Criminal Procedure (Cr.PC) and incriminating materials brought out during the course of trial were put to him which he denied and pleaded not guilty. On the part of the defence, Exts. D1 and D2 were marked. 3. After conclusion of the trial, the learned Additional Chief Judicial Magistrate arrived at the finding that, the complainant failed to establish the offences alleged against the accused and therefore he was acquitted of all the charges levelled against him. The said order of acquittal is challenged in this appeal. 4. Heard Sri. P.K.Ramkumar, the learned counsel for the appellant, Sri. M.K.Aboobacker, the learned counsel for the 1[st] respondent and Sri. Ranjit George, the learned Public Prosecutor for the State. ## Crl.Appeal No.1111 of 2007 4 5. The learned counsel for the appellant submits that the only reason based on which the trial court arrived at the conclusion that the 1[st] respondent is not guilty of the offence, is that the person named Kunju of Abudabi, upon whose instructions the transactions were made, was not traced out by the prosecution. It is pointed out that, the statements recorded by the department under Section 40 of the FERA, from the 1[st] respondent-accused as well as the other persons who allegedly had transactions of the amounts referred to in the aforesaid note books would clearly establish the charges against the 1[st] respondent. It is also pointed out that, out of 8 persons, who had transactions as above, 3 persons were examined as PWs.7 to 9 and the 1[st] respondent also given a statement under Section 40 of the FERA which is marked as Ext.P14. It is pointed out that, the order of the finding of the learned Magistrate is liable to be interfered with on account of the aforesaid materials. 6. On the other hand, the learned counsel appearing for the 1[st] respondent opposes the aforesaid contentions. It is pointed out that, apart from mere Crl.Appeal No.1111 of 2007 5 statements, no other evidence were produced by the prosecution for establishing any link between the 1[st] respondent and the transactions which allegedly reflect in the note books seized from his possession. With respect to the statements recorded under Section 40, it is pointed out that, even if it is accepted, there is nothing in the said statements linking the 1[st] respondent with those transactions. In such circumstances, it is not at all safe to interfere with the finding of acquittal entered into by the trial court by merely accepting uncorroborated statements made under Section 40 of the Act, contends the learned counsel. 7. The only question that arises here is as to whether any interference in the order of acquittal passed by the trial court is warranted or not. The specific case put forward by the learned counsel for the appellant is that the statements recorded under Section 40 of the FERA are to be acted upon for the purpose of arriving at the conclusion of the appellant herein. The learned counsel for the appellant relies the judgment in Muhammed Kunhi v. Special Director, Crl.Appeal No.1111 of 2007 6 Enforcement Directorate [2005(3)KLT SN Page 77]. However, on going through the aforesaid judgment, it can be seen that, it does not lay down a proposition that, mere statements under Section 40 of the FERA should form the basis of conviction, without any corroboration. That was a case where, in addition to the slips indicating the transactions, huge amounts of money was also found. The conclusion arrived at by this Court in the said case was mainly on the reason that, the accused therein failed to offer any plausible explanation for the unaccounted money with him. As far as this case is concerned, apart from the note books containing the endorsement indicating certain transactions, no other amounts or articles linking the appellant with the said transactions were found out. It is discernible from the records that even though a search was conducted in his residence, nothing could be seized from his possession. Therefore, what is available at the moment is only the note books containing certain endorsements as to certain transactions which claims to be in connection with some illegal foreign exchange. On Crl.Appeal No.1111 of 2007 7 examining the statements made by the persons who were parties to the transactions, it can be seen that, none of them have mentioned the name of the 1[st] respondent herein. The aforesaid evidence of the said witnesses do not indicate the involvement of the 1[st] respondent with respect to the transactions. Therefore, the materials that can be deduced from those statements would not render any assistance to the appellant herein for establishing a link between the 1[st] respondent and the alleged illegal transactions. The only other evidence, which prosecution relies on is the statement of the 1[st] respondent which is recorded under Section 40 of the FERA. It is evident from the records that, the aforesaid statements were recorded while the 1[st] respondent was in the custody of the department. It is also evident from the records that the 1[st] respondent retracted from the statements which is recorded under Section 40 of the FERA. There are absolutely no materials corroborating the aforesaid statement of 1[st] respondent. In the absence of any corroborative piece of evidence, a conviction is not possible solely upon such a statement, as it is Crl.Appeal No.1111 of 2007 8 not all safe to convict a person upon such very vague evidence. In such circumstances, in the absence of any corroborative materials, no interference is warranted in the finding of acquittal entered by the trial court. In such circumstances, I do not find any merit in this appeal and this appeal is accordingly, dismissed, confirming the finding of acquittal as per judgment dated 27.2.2007 in C.C.No.11/2001 passed by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk