Nemichand Jain @ Chandra Swam v. Enforcement Directorate

S. MURALIDHAR, J. FEBRUARY 4, 2008 dn

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of order: 04th February, 2008. CRL. M.C. 2504 of 2006 NEMICHAND JAIN ALIAS CHANDRA SWAMI ..... Petitioner Through Mr. K.K. Sud, Sr. Advocate with Mr. Anish Shrestha, Advocate. versus ENFORCEMENT DIRECTORATE ..... Respondent Through Mr. A.K.Vali, Advocate. CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes Dr. S. MURALIDHAR, J. (open court) Background Facts 1. The Petitioner Shri Nemi Chand Jain @ Shri Chandra Swami filed a suit for defamation in London against Shri Lakhu Bhai Pathak in the Court of the Queens" Bench Division, London. By an order dated 13th January, 1986 the Court in London directed Shri Chandra Swami to deposit a sum of 6,000 Pounds in the Court as security towards the cost of the defendant in the said suit No. 6353 of 1984. On account of the plaintiff"s failure to comply with the orders of the Court in London, the suit was dismissed. By an order dated 1st March 1988 that Court ordered that the said amount together with the accrued interest should be paid to the defendant"s solicitors in partial satisfaction of the costs. Consequently a sum of 6638.29 pounds was paid to the defendant"s solicitors on 16th March 1988. 2. The information regarding this payment was given to the Deputy Director (Enforcement), Directorate of Revenue Intelligence by the Central Bureau of Investigation ("CBI") in August 1988. The CBI also forwarded the statement of one Mr.David Charles Crank a Solicitor representing Lakhu Bhai Pathak to the effect that as per the intimation received by him from M/s. Oswald Hickson Collier & Company, the Solicitors for Shri Chandra Swami, the said amount was deposited in the Court in London. In relation to the above deposit for and on behalf of Shri Chandra Swami without prior permission of the Reserve Bank of India (RBI) in contravention of Section 8(1) of the Foreign Exchange Regulation Act, 1973 ("FERA") one Shri K. N. Aggarwal, Secretary of the Petitioner was questioned. He made a statement in which it was claimed that the said amount was deposited without the knowledge of Shri Chandra Swami by his devotees. 3. A complaint was filed on 31st May 1996 by the Enforcement Directorate against the petitioner under Section 56 FERA in the court of learned Additional Chief Metropolitan Magistrate (ACMM), New Delhi. After the pre-charge evidence was recorded, summons was issued to the petitioner on 5th October 1996 for the offence under Section 8(1) FERA. Application for recording of defence evidence through video conferencing 4. On 27th October 2004, an application was filed by the petitioner seeking permission to file the statement of Shri Adnan M. Khashoggi on affidavit. This application was accompanied by the sworn affidavit of Adnan Khashoggi. On 19th March 2005, in a complete turnaround, the counsel for the petitioner informed the learned ACCMM that he did not "press his application dated 27.10.2004 for seeking permission to file the statement of Adnan Khashoggi by way of affidavit." The said application was accordingly dismissed by the learned ACMM as withdrawn. 5. Simultaneously on 19th March 2005, the petitioner filed another application for recording the statement of Adnan Khashoggi by videoconferencing and for summoning the Additional Director of the Enforcement Directorate as a witness. The case was adjourned to 28th May 2005 for reply of the prosecution to the said application. Between 28th May 2005 and 20th February 2006, there were 7 adjournments before the application for recording the statement of Adnan Khashoggi through videoconference could be heard and disposed of by the learned ACMM. Impugned order of Learned ACMM 6. By the impugned order dated 20th Feb 2006, the learned ACMM dismissed the application recording inter alia the fact that that there was no bilateral treaty arran