EXCEL & CO. Vs. A. K. MENON

JUDGEMENT

(1.) The challenge in this appeal is to an order passed by the Special Court (Trial of Offences Relating to Transactions in Securities).

(2.) It is not in dispute that the appellant is a notified party under that Act. According to the impugned order, the appellant had made certain statements in his affidavit affirmed on 1.12.1999 from which the Court deduced that the appellant had admitted that an amount of Rs. 3,11,75,000.00 had been received by the appellant from M/s Dhanraj Mills Pvt. Ltd., Respondent 2 herein, who was also a notified party. The Court went on to consider a subsequent affidavit filed by the appellant to the effect that the appellant had made payment to some third parties who were the associates and sister concerns of Respondent 2. However, the Court rejected the submission on the ground that there was no documentary evidence produced either to show such payments made or to show that those payments were made by the appellant at the command or at the behest of Respondent 2. The Court also rejected the submission of the appellant that the appellant's bank account had been merely credited by an entry by Respondent 2 as if the appellant had received the aforesaid amount but these credit and debit entries had been made in the appellant's account without his consent. The Court was of the view that since the entries had been made over a period of time and that the appellant, who was appearing in person before the Court, had admitted before the Court that he was regularly operating the account, the explanation was not credible. It found that the documentary evidence on record as also the affidavit filed on behalf of the appellant established that the appellant was liable to pay an amount of Rs. 3,11,75,000.00 to Respondent 2. Accordingly, a decree was passed in favour of the respondents against the appellant for a sum of Rs. 3,11,75,000.00 together with interest thereon at 15% per annum from 5.8.1992 till the realisation of the sum.

(3.) Learned counsel has submitted that the very affidavit on which the Court had relied in the impugned order, had been considered by the Special Court earlier when the Court had directed that the original cash book, general ledger and bank statements of Respondent 2 should be produced. As it was submitted that these books were in the custody of CBI, time was granted to produce the originals. The matter was accordingly adjourned. CBI was also directed to deposit the originals with the officer on special duty attached to the Court and the parties were given liberty to inspect the documents so deposited. This order which was passed on 10.3.2003 had not in fact been complied with. No such documents were produced nor did CBI file the originals with the officer on special duty.