H.H. Kantharia, J.
1. The State of Maharashtra by this criminal revision application challenges an order dated September 27, 1982 passed by the learned Additional Chief Metropolitan Magistrate, 32nd Court, Esplanade, Bombay in Case No. 37/w of 1981, discharging respondents Nos. 1 and 2 under section 245 of the Criminal Procedure Code, 1973 (hereinafter referred to as the 'Code').
2. The facts giving rise to this revision application are that the officers of the Enforcement Directorate, Bombay, on certain information, took house search of room No. 32, 2nd floor, Phataka Manzil, Bhendi Bazar, Bombay- 400003 on April 30, 1975. Shaikh Sayyed Ahmad Haji Basir Ahmed (P.W. 3) and his wife Shanaz Fatima Sayyed (P.W. 2) resided in the said room. During the search officers recovered U.S.A. Dollars 16, 400. Australian dollars 7,000 and Canadian dollars 6,100 in the form of currency notes equivalent to about rupees two lakhs from a steel cup-board. At that time statement of Shanaz Fatima was recorded when she admitted the fact regarding recovery of foreign currency from her room and further stated that the said currency had been kept with her on April 28, 1975 by respondent No. 2 (accused No. 2) who resided in room No. 46 in the same building. The statement of Shaikh Sayyad was also recorded. He admitted the recovery of the foreign currency from the steel cup-board kept in his room No. 32 but the claimed that he had no knowledge that his wife Shanaz Fatima had kept the said foreign currency in the steel cup-board. The Enforcement Officers also visited room No. 46, in the same building and took search of the premises. The search revealed recovery of certain documents pertaining to bank accounts involving huge sums of money. At that time respondent No. 1 (accused No. 1) was not present. Statement of respondent No. 2 was recorded when she stated that the seized foreign currency had been given to her by her husband some days ago and on April 28, 1975 she had given the said currency to Shanaz Fatima. She also identified the bundles of foreign currency as the same which she had kept with Shanaz Fatima. Statement of respondent No. 1 was recorded on May 14, 1975. He denied having given the seized foreign currency to his wife-the respondent No. 2 at any time.
3. On these allegations O.N. Chattopadhyaya Assistant Director of Enforcement Directorate, Government of India, Bombay filed a complaint against respondents Nos. 1 and 2 in the Court of the learned trial Magistrate, charging them for offence punishable under section 8(1) r/w sections 56(1)(i) and 64(2) of the Foreign Regulation Act, 1975 (hereinafter referred to as the 'Act').
4. The learned trial Magistrate proceeded to inquire into the said case and recorded evidence of five prosecution witnesses before charge. These witnesses included M.N.L. Sastry, Superintendent in Customs Office (P.W. 1), Shanaz Fatima Sayyed (P.W. 2) and her husband Shaikh Sayyed Ahmed Haji Bashir Ahmed (P.W. 3) and her nephew Shaikh Mustaque Ahmed (P.W. 4) and lastly Johnson George, Assistant Enforcement Officer (P.W. 5). The evidence of Sastry revealed the search of room No. 32 on the 2nd floor in Phatka Manzil, Bhendi Bazar, Bombay-3 and recovery of the foreign currency and that in pursuance of the statement by Shanaz Fatima, Room No. 46 of respondent No. 1 and 2 was searched and statement of respondent No. 2 was recorded, as state hereinabove. Shanaz Fatima Sayyed deposed regarding search of her room, seizure of foreign currency and the confessional statement made by respondent No. 2, Evidence of Shaikh Sayyed Ahmed Haji Bashir Ahmed pointed out that the bundles were recovered from a steel cup-board in his room but claimed that he did not see what was in those bundles and the officers had told him that they were of foreign currency. Shaikh Mustaque Ahmed deposed that he had noticed officers recovering foreign currency from the steel cup-board in the house of Shanaz Fatima and Shaikh Sayyed Ahmed. He further stated that Shanaz Fatima who is his Aunt had told the officers that the foreign currency was given to her by respondent No. 2 and that thereafter he accompanied his Aunt with the officers to the room of the respondent when respondent No. 2 made a confessional statement regarding keeping of foreign exchange with Shanaz Fatima. The last witness Johnson George gave evidence that a letter was received in the office of the Additional Directorate of Enforcement from advocate of respondent No. 2 which was accompanied by an affidavit of respondent No. 2 retracting from her confessional statement. It may be noted here that the prosecution witness were cross-examined on behalf of the respondents. After this evidence was recorded the learned trial Magistrate went into the merits of the matter and by a reasoned order discharged both the respondents under section 245 of the Code. Feeling aggrieved, the State has come to this Court in revision.
5. Now, Mrs. Keluskar, learned Public Prosecutor appearing on behalf of the State took me through the entire original record of the trial Court and urged that there was sufficient evidence on record to frame a charge against the respondents and that the order of discharge passed by the learned trial Magistrate is bad in law. On going through the record and proceedings carefully I am satisfied that the evidence which the prosecution adduced in the trial Court under section 244 of the Code, was prima facie sufficient to frame a charge against the respondents. I have narrated hereinabove, in short the evidence that was produced by the prosecution before charge and in my opinion it is crystal clear from the said evidence that a prima facie case was made out by the prosecution against the respondents to proceed further in the matter of the alleged criminal acts committed by them contravening the relevant provisions of the Act. The learned Magistrate could discharge the respondents under section 245(1) of the Criminal Procedure Code only if upon taking all the evidence which the prosecution had adduced under section 244 of the Code, he found that no case was made out against the respondents which, if unrebutted, would warrant convictions of the respondents. What appears from the record in this case is that the learned trial Magistrate went into the merits of the matter and weighed the prosecution evidence so as to find out whether a conviction was possible. While acting under section 245(1) of the Code it is none of the duty of the trial Magistrate to weigh the evidence, as if he had reached the final stage of the trial, in his endeavour to find out whether a conviction could be sustained. All that he was required to find out at that stage was to see whether a prima facie case was made out to enable him that to frame a charge and not to find out whether acquittal or conviction would be the ultimate result. Of course prima facie case means that if the evidence goes unrebutted it would result in conviction. In fact in the instant case the learned trial Magistrate has gone to the extent of appreciating the evidence and concluded that there was no independent corroborative evidence as regards the retracted confessional statement of respondent No. 2. He also observed that the prosecution should not have relied upon the interested witnesses. This is where the learned Magistrate fell in error. What he did could be done only at the final stage of the trial and not at the stage of finding out whether a prima facie case is made out or not to frame charge. I am constrained to observe that in a case involving economic offence like that the present one which shakes the fiscal fibre of the nation, the learned trial Magistrate should not have so lightly discharged the respondents.
6. We have usefully refer to a Karnataka High Court judgment in the case of Hakimchand Devkisan Sarda and others v. Ratanlal Rupchand Heda and others, , wherein it was observed :
'The learned Magistrate was only required to consider the evidence prima facie with the pointed view before him as to whether the evidence, if remained unrebutted, would result in conviction. He was not required to consider the entire pros and cons of the evidence which was yet to be adduced inasmuch as the witnesses were to be produced for further cross-examination and perhaps defence witnesses might also be examined. The learned Magistrate, it appears, balanced the entire evidence as if he had reached at a final stage in the trial. He was not recording an order of acquittal as if the trial was over. He was merely required to consider the case under section 245 to find if the accused could be discharged or not and if a charge against was to be framed under section 246 of the Code. The learned Magistrate decidedly fell into error while considering the case of the accused for acquittal which he could only do after the trial was over.'
These observations made by the learned Single Judge of the Karnataka High Court fairly and squarely fit into the facts and circumstances of the instant case. In this view of the matter the impugned order of the learned trial Magistrate discharging the respondent cannot be sustained in law.
7. In the result, the revision application succeeds. The impugned order passed by the learned trial Magistrate is set aside. He is directed to frame proper charge against the respondent and further proceed with the matter in accordance with law. Rule is accordingly made absolute.