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2015 Supreme(Del) 3384
IN THE HIGH COURT OF DELHI AT NEW DELHI
SURESH KAIT, J.
Arvind Khanna - Petitioner
Versus
Central Bureau of Investigation - Respondent
CRL.M.C. No. 2784 & 3342 of 2011 & Crl. M.A. Nos. 10129/2011 and 6144/2012
Decided On : 30-11-2015
For the Petitioners:Mr. Arvind Nigam and Mr. Atul Nanda, Senior Advocates with Ms. Rameeza Hakeem, Mr. Sandeep Kapoor, Ms. Apoorva Pandey and Mr. Rajat Brar, Advocates
For the Respondents:Mr. Narender Mann, Special Public Prosecutor with Mr. Manoj Pant and Ms. Utkarsha Kohli, Advocates.
Headnote:
Foreign Contribution (Regulation) Act, 2010 - Section 35 R/w Section 3 - Foreign Contribution (Regulation) Act, 1976 - Section 23 R/w Section 4 - Contribution from foreign entities - No prior permission - Contribution made by a citizen of India - Quashing of FIR - Petitioner received a sum of Rs. 9,04,84,770/- through eight foreign entities - Allegation with regard to receiving the contribution from foreign entities without prior permission of the Central Government while he was an MLA - Petitioner has received funds from overseas firms/companies/trusts which are not registered/incorporated anywhere in India - Nature of foreign sources was not discovered - A firm is not even covered under the definition of foreign source - Prosecution has not even adverted to foreign entities from whom the petitioner received the funds are companies or trusts/firms - Barebones reference made in the charge sheet is that bank account of such entities are in United Kingdom and hence, they are foreign sources - Contribution made by a citizen of India living in another country (Non-Resident Indian), from his personal savings, through the normal banking channels, is not treated as foreign contribution - Father of the petitioner is an Indian Passport holder and transaction is through banking channel - Held, material placed on record with charge sheet is not sufficient even to frame charge against the petitioner - FIR is quashed with liberty to the Central Government to compound the case of the petitioner under Section 41(1) FCRA, 2010.
SURESH KAIT, J.
1. Vide Crl. M.C. No.2784/2011, the petitioner seeks quashing of FIR bearing No.RC-AC-1-2007-A-0003 dated 02.04.2007, chargesheet dated 13.12.2010 and the order dated 05.07.2011 passed by the learned Additional Chief Metropolitan Magistrate-01 (ACMM), Patiala House Courts, New Delhi, whereby cognizance under Section 35 read with Section 3 of the Foreign Contribution (Regulation) Act, 2010 (hereinafter shall be called ‘FCRA, 2010) was taken and summons were issued against the petitioner.
2. Vide Crl. M.C. No.3342/2011, the petitioner seeks quashing of the order dated 20.08.2011 passed by the learned Revisional Court in Criminal Revision No.02/2011 filed by the Central Bureau of Investigation (CBI). While allowing the said revision petition, order dated 05.07.2011 was substituted providing that deemed cognizance has been taken under Section 23 read with Section 4 of the Foreign Contribution (Regulation) Act, 1976 (hereinafter shall be called ‘FCRA, 1976’).
3. Since the issues raised in both the petitions are inter-related, therefore, both these petitions were heard together and are decided together by this common judgment.
4. Brief facts of the case are that the petitioner held the office of Member of Legislative Assembly (MLA), Punjab, from 24.02.2002 to 27.02.2007. During holding of said office from 06.03.2002 to 04.03.2006, he received a sum of Rs.9,04,84,770/- (Nine Crores Four Lacs Eighty Four Thousand Seven Hundred Seventy) from his father Mr. Vipin Khanna, albeit, through eight foreign entities, one of which is known as New Heaven Nominees’. The other seven entities are managed by an entity known as ‘CI Law Trust’. The Ministry of Home Affairs by letter dated 18.12.2006 had sanctioned investigation in terms of Section 28 FCRA, 1976 alleging that the petitioner received funds without obtaining prior permission of the Central Government. Accordingly, the Central Bureau of Investigation (CBI) on 02.04.2007, registered the FIR mentioned above for violation of Section 23 (1) read with Section 4 (1) FCRA, 1976, against the petitioner for receiving the contribution from foreign entities without prior permission of the Central Government while he was an MLA.
5. Mr. Arvind Nigam, learned senior counsel appearing on behalf of the petitioner submitted that the aforesaid amount was a gift received by the petitioner from his father Mr.Vipin Khanna, who is an Indian passport holder. The foreign entities through whom such funds were sent were holding the same on behalf of his father. To this effect, said Mr. Vipin Khanna made a statement dated 11.07.2006, whereby stated that these funds were sent on his instructions to the petitioner. Moreover, vide statement dated 13.04.2007, New Heaven Nominees’ stated that the funds sent to the petitioner by way of gifts were from funds standing to the credit of petitioner’s father Mr. Vipin Khanna with them. It is further stated that similar gifts or funds were also given to the petitioner’s siblings, namely, Mr. Aditya Khanna, Mr. Naveen Khanna and Ms. Vineeta Singh by Mr. Vipin Khanna. The statement dated 10.08.2007 made by CI Law Trust, corroborated the fact that funds sent to the petitioner were paid by way of gifts from funds standing to the credit of Mr. Vipin Khanna and stated that similar gifts or funds were given by father of the petitioner to other siblings mentioned above.
6. Learned senior counsel further submitted that the similar income received by the petitioner from the same CI Law Trust (formerly known as West Way) had been treated as a ‘gift’ from the father of the petitioner by the Income Tax Authorities vide order dated 11.12.2010 passed by the Commissioner of Income Tax (Appeals) in proceedings under Section 147 of the Income Tax Act, 1961. The said order stands confirmed by the order dated 15.04.2014 passed by the Income Tax Appellate Tribunal in ITA Nos.1915 to 1917/DEL/2010.
7. Learned senior counsel further submitted that CBI had filed an applicatio
