Special Court (Trial of Offences relating to Transactions in Securities) Act, 1992 – The miscellaneous applications were filed by the respondent-Custodian in the year 2008 seeking to recover the amounts of Rs.50 lakhs from appellant-S towards the dues of respondent Nos. 6 and 7 and amount of Rs.25 lakhs from appellant-L towards the dues of respondent No.8 – The Income Tax Department, vide letter dated 05.05.1998 informed the Custodian about respondent No. 2 being the benami owner of the companies (respondent Nos. 4 to 8 herein) – Special Court in its separate judgments directed appellants to pay the respective amounts due to the respondent Nos. 6, 7 and 8, being benami companies of respondent No. 2 – Propriety: Held: Respondent No. 2 was notified under the Act of 1992 on 06.10.2001 and thus, by virtue of s.3(3) of the Act of 1992, all properties belonging to him stood automatically attached from the date of such notification – The appellants herein had borrowed the amounts in question from respondent Nos. 6, 7 and 8, way back in the years 1996-1997 – By that date, there could not have existed any justifiable reason for the appellants herein to have entertained a belief that these were the benami companies of respondent No.
2 or that there was any breach of the provisions of the Act of 1992 by respondent no.2 or the respondent companies – The foundation behind the assertion made by the Custodian that the appellants herein were garnishees of respondent No. 2 through respondent Nos. 6,
7 and 8 is based entirely on a communication dated 05.05.1998 purportedly issued by the Income Tax Department – No witness from the Income Tax Department was examined in evidence before the Special Court in miscellaneous applications for recovery – Even the communication forwarded by the Income Tax Department and relied upon by the Custodian was not proved by proper evidence – Also, a bare perusal of ss.3 and 9A, it would become clear that the properties of the person notified u/s. 3(2) would stand attached automatically with effect from the date of notification by virtue of s.3(3) – Since respondent No.2 was notified (as being a debtor of the originally notified company FFSL) with effect from 06.10.2001, a fortiori, his properties would be deemed to be attached with effect from that date and not prior thereto – The applications for recovery having been filed by the Custodian with the allegation that the appellants herein were the debtors of the benami companies of the notified person, the primary onus of proving this assertion would be on the Custodian by virtue of s.101 of Evidence Act – It is only after the Custodian discharged this primary burden and established the existence of the debt, then by virtue of s.102 of the Evidence Act, perhaps, the onus could be shifted on to the appellants to rebut the same – The appellants herein took a categoric stand in their depositions that they had returned the amounts borrowed from respondent Nos. 6,
7 and 8, but the books of accounts were not available because of lapse of time – It was neither a requirement in law nor could it be expected from the appellants herein to retain the books of accounts after more than a decade of the alleged suspicious transactions – Therefore, the conclusions drawn and the findings recorded in the impugned judgments passed by the Special Court that the appellants herein failed to prove the fact that the amounts had been repaid to the benami companies of the notified person-respondent no.2 do not stand to scrutiny and cannot be sustained as being contrary to facts and law. [Paras 32-39]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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