TaxTMI 
TaxTMI 
2017 (2) TMI 656
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....on of the RBI and during search, certain incriminating documents were recovered and after examination of the witnesses, charges were framed against the accused and the present petitioner/A3 filed a petition under Section 245(1) Cr.P.C., to discharge her from the case. After hearing both sides and considering the entire evidence available on record, the learned Additional Chief Metropolitan Magistrate, (EO.I), Chennai-8, has dismissed the discharge petition filed by the petitioner holding that there are incriminating materials available to frame charges against the petitioner. Aggrieved by the same, the present revision has been filed by the petitioner/A3. 3. Mr.B.Kumar, the learned Senior counsel appearing for the petitioner would mainly contend that the learned Judge has not considered the various points raised on the maintainability of the complaint and their right to invoke Section 68 of the FERA and serious injustice has been caused to the petitioner by reason of non-reference to those judgments and others and that the learned Judge failed to see that the complaint as filed against A3 is not maintainable and there is no need to invoke vicarious liability under Section 68 of ....
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....ollowing decisions:- 01.(2005)8 SCC 89 [S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and another]; 2.(2011)1 SCC 176 [Pepsico India Holdings Private Limited vs. Food Inspector and another]; 3.(2012)1 SCC 520 [Anita Malhotra vs. Apparel Export Promotion Council and another]; 4.(1980) 3 SCC 57 [State of Maharashtra vs. Mohd. Yakub and others]; 5.2010(262)E.L.T. 62 (Mad.) [A.Michael vs. Union of India] 6.In an unreported judgment of this court made in Crl.A No.1233 of 2004, dated 06.04.2011 [Union of India vs. Shri A.S.A.Kabir] 7.(2011)2 SCC 532 [Kalyan Comber Gogoi vs. Ashutosh Agnihotri and another]; 8.(1998)7 SCC 337 [Suresh Budharmal Kalani alias Pappu Kalani vs. State of Maharashtra] 9.(1994)3 SCC 440 [Directorate of Enforcement vs. Deepak Mahajan and another]; 10.(2009)6 SCC 65 [Narender G. Goel vs. State of Maharashtra and another] 11.2002 CRL.L.J.3026 [J.Jayalalitha and etc., vs, State and others] 12.1983(4) Delhi Reported Judgments 272 [Smt. Motia Rani Bhatia vs. Addl. Director of Enforcement & others] 13.(2012)5 SCC 661 [Aneeta Hada vs. Godfather Travels and T....
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....ss. The power discharge is exercisable under Section 245(1) when the magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrubutted would warrant his conviction . It is a fact that Section 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under Section 245, on the other hand, is reached only after the evidence referred to in Section 244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of prima facie case has to be applied. In spite of the difference in the language of the three sections, the legal position ....
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....to take the evidence as it is and arrive at a conclusion. Applying this test, the order passed by the Magistrate does not appear to be within the scope of Section 245(1) Cr.P.C. Therefore, the order of the Magistrate is liable to be set aside as it is not warranted for the Magistrate to weigh or assess the evidence. Therefore, the order of discharge is liable to be set aside and accordingly, it is set aside. Revision Petition is allowed. 23.(2008)2 SCC 561 [Onkar Nath Mishra and others vs. State (NCT of Delhi and another], wherein it has been held as follows:- 11.It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, discharged the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the materials on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion found on ....
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....tice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the Appellate or Revisional Court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the Appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves? Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which wo....
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....s administer any oath and take any affidavit and also do any notarial act which any notary public may do within a State; and every oath, affidavit and notarial act administered, sworn or done by or before any such person shall be effectual as if duly administered, sworn or done by or before any lawful authority in a State. (2)Any document purporting to have affixed, impressed or subscribed thereon or thereto the seal and signature of any person authorised by this Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, of the official character of that persons. 32.Now that being the express statute in India, there is no difficulty here. The Notarial Act of Elizabeth Levy has not only been certified under the seal of the County Clerk and Clerk of Supreme Court, New York, but has also been forwarded under the certificate of the Consulate General of India in New York for legislation of the seal of the Clerk of the County of New York. In that context, I see no difficulty whatever, legal ....
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....any and except that, no other evidence is available to show that she ever participated in the affairs of the company in any other manner. 8. On reading of the complaint, it is mentioned that the Chairperson and Director of M/s.J.Jay TV. Pvt. Ltd., as A3. Mere mentioning in the order as Chairman and Director is not a ground to discharge the petitioner in this case. 9. At this juncture, it is relevant to refer Sections 8(1), 9 and 68 of FERA, which reads as follows:- Section 8(1):- Restrictions on dealing in foreign exchange: Except with the previous general or special permission of the Reserve Bank, no person other than an authorised dealer shall in India, and no person resident in India other than an authorised dealer shall outside India, purchase or otherwise acquire or borrow from, or sell, or otherwise transfer or lend to or exchange with, any person not being an authorised dealer, any foreign exchange: Provided that nothing in this sub-section shall apply to any purchase or sale of foreign currency effected in India between any person and a money changer. Explanation: For the purposes of this sub- section, a person who deposits foreign ....
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....with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in, India shall- (a)make any payment to or for the credit of any person resident outside India: (b)receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India. Explanation:-For the purposes of this clause, where any person in or resident in India receives any payment by order or on behalf of any person resident outside India through any other person (including an authorised dealer) without a corresponding inward remittance from any place outside India, then, such person shall be deemed to have received such payment otherwise than through an authorised dealer. (c)draw, issue or negotiate any bill of exchange or promissory note or acknowledge any debt, so that a right (whether actually or contingent) to receive a payment is created or transferred in favour of any person resident outside India: (d)make any payment to or for the credit of any person by order or on behalf of any person resident outside ....
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....f sub-section (3) of section 8, the burden of proving that the foreign exchange acquired by such person has been used for the purpose for which the permission to acquire it was granted shall be on him. (3) If any person is found or is proved to have been in possession of any foreign exchange exceeding in value 1[fifteen thousand rupees], the burden of proving that the foreign exchange came into his possession lawfully shall be on him. 72. Presumption as to documents in certain cases. Where any document (i) is produced or furnished by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or (ii) has been received from any place outside India (duly authenticated by such authority or person and in such manner as may be prescribed) in the course of investigation of any offence under this Act alleged to have been committed by any person, and such document is tendered in any proceedings under this Act in evidence against him, or against him and any other person who is proceeded against jointly with him, the court or the adjudicating officer, as the case may be, shall (a)....