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2015 (8) TMI 1381
Contravention of Sections 18(2) and 18(3) of FERA, 1973 r/w notifications of Central Government dated 1-1-1974 - Held that:- Adjudicating Authority was at liberty to appreciate the evidence on record in accordance with law according to its wisdom independently. However, as a principle of law it cannot be said that judgments in all criminal appeals will ipso facto result in quashing the adjudication proceedings under FERA alike disciplinary proceedings in matter in which the accused (employee) is honourably acquitted. There cannot be any jacket cast formula in this respect. However, we are of the view that findings of the Hon’ble High Court even in a criminal matter on the same set of facts as involved in adjudication proceedings cannot be ignored or overlooked and brushed aside causally and will carry weight and in the eventuality of the Hon’ble High Court recording either clean acquittal in appeal or quashing of the complaint/proceedings on the ground of insufficiency of evidence or failure to establish the contraventions, the findings of the Hon’ble High Court shall prevail over the findings of Adjudicating Authority unless a distinction on some factual and legal grounds can be made to show that the findings of the Hon’ble High Court are not applicable and have no effect at all, in other words our interpretation is that the order of the Hon’ble High Court will have definite persuasive and binding effect in the matter of interpreting the findings of adjudicating proceedings based exactly on the same set of facts subject to being clearly not being distinguished on facts or law.
In view of the above, we are of the view that no contravention of Sections 18(2) and 18(3) of FERA, 1973 r/w notifications of Central Government dated 1-1-1974 is made out against the appellants and since the appellants appear to have taken all reasonable steps to receive or recover the payments for goods and they cannot be presumed to have contravened the said provisions r/w Central Government notifications.
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2015 (8) TMI 1112
Money laundering - res judicata in the criminal complaint - Attachment of property - appellant admitted that property is not owned by her but by the company - Held that:- The action of attachment is not in relation to a person as such but essentially to freeze the proceeds of the crime. The fact that the respondents could have acted only if there was reason to believe that a person is in possession of proceeds of crime does not mean that the authorities at this stage are obliged to prove the fact beyond reasonable doubt that the property in possession in fact was proceeds of crime. All that the authority is required to show is that there was “substantially probable cause” to form an opinion that the property under attachment is proceeds of crime.
Perusal of Chapter III of PMLA also reveals that the orders passed under it are interlocutory in nature and such order do not decide finally whether an offence has been committed by an accused under Section 3 of the Act for Money Laundering nor such orders passed under said chapter decide what punishment is to be imposed on such accused for money laundering. Any observation made while passing orders under said chapter are not the findings for the purpose of alleged offense committed under Section 3 nor observations are the findings in the Criminal matters pending against such accused.
It is also well settled that the principle of res judicata does not apply to interlocutory orders like order of stay, injunction or appointment of receiver which are designed to preserve the status quo pending litigation to ensure that the parties may not be prejudiced but the normal delay which the proceedings before the Court usually take.
On the basis of the observation made in the impugned order, the appellant cannot be convicted and sentenced in the criminal cases. - Appeal disposed of.
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2015 (8) TMI 1105
Contravention of Section 18 (2) of the Foreign Exchange Regulation Act, 1973 - non-realization of export proceeds - Held that:- Although Section 68 FERA is in the nature of a deeming provision, the proviso thereto contemplates rebuttal of such presumption by a person who is able to show that the contravention took place without his or her knowledge. - memorandum is a cyclostyled form and the averments as regards all the directors is identical. There is no specific mention of the precise role of the Appellant in managing the day-to-day affairs of the company. The case of the Appellant is different from that of Mr. Dinkar Dogra. Prior to Mr. L.R. Sridhar taking over the management of the company, Mr. Dinkar Dogra was the managing director. The order dated 4th June 2008 passed by this Court dismissing Mr. Dinkar Dogra's Criminal Appeal [2008 (6) TMI 579 - DELHI HIGH COURT] discusses in detail the evidence showing Mr. Dogra to be incharge of the day-to-day affairs of the company. There is no evidence to show in what manner the present Appellant, Mrs. Kavita Dogra was responsible to the company for the conduct of its business. As already noticed, neither the adjudication order nor the impugned order of the AT discusses the facts peculiar to the Appellant. - Court is, therefore, satisfied that the DoE failed to make out a case of contravention of Section 18 (2) FERA as far as the Appellant was concerned. Neither the adjudication order nor the order of the AT in her case are sustainable in law. - Decided in favour of appellant.
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2015 (8) TMI 236
Waiver of pre deposit - contravention of Section 3(b) and 6(2) of FEMA read with Regulation 5 of Foreign Exchange Management (Permissible Capital Account Transactions) Regulations, 2000 read with para 8 of Schedule I to Regulation 5(1) of Foreign Exchange Management (Transfer of Issue of Security by a person resident outside India) Regulations, 2000 - Imposition of penalty - Amount remitted for franchisee in IPL, reached BCCI through concerns abroad rather than the Indian subsidiary without making compliance with the Regulations under the Foreign Exchange Management Act, 1999.
Held that:- Once the Appellants claim that there is no revenue or financial loss and that the remittance to India has come through proper channels, namely through the banks, then, whether obtaining of permissions and approvals subsequently and whether incorporation of an Indian subsidiary later on would enable the Appellants to claim any benefit or seek any relief are other core questions involved in the Appeals. The Appellants would have to satisfy the Tribunal that monies may have been remitted by certain companies or concerns abroad to BCCI, but reached it not through an Indian subsidiary is something which should not invite penal consequences. Once the monies have reached the beneficiary through appropriate banking channels, then, there is no violation or breach of law is the case put up by the Appellants in these Appeals.
Chairman was required to apply his mind to the differences that were noted by him. It was open for him to find out as to whether the Appellants having made out a prima facie case, could any relief be granted and in terms of the legal provisions. If the legal provisions enable the Tribunal to consider the case of “undue hardship”, whether that term is to be given a restricted meaning, namely, financial hardship alone or whether that should take in its import a prima facie case being made out and the point being arguable, a party would suffer unless the condition of pre-deposit is waived totally or partially.
Prima facie case in favour of appellant.
Appellants would have to satisfy the Tribunal that monies may have been remitted by certain companies or concerns abroad to BCCI, but reached it not through an Indian subsidiary is something which should not invite penal consequences.
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2015 (8) TMI 187
Violation of provisions of Sections 47(1) & (2), 9(1)(c) and 8(1) - Permission from RBI for advertisement of ‘Kingfisher’ brand name on racing cars during Formula-I World Championships - Failure to appear against the summon issued - Held that:- Complaint is maintainable if there is default in not carrying out summons lawfully issued. The averments in the complaint show that the summons dated 21st December, 1999 were refused by the appellant and earlier summons were not carried out deliberately. - From the tenor of the letter, it appears that it was not a case of mere seeking accommodation by the appellant but requiring date to be fixed by his convenience. Such stand by a person facing allegation of serious nature could hardly be appreciated. Obviously, the enormous money power makes him believe that the State should adjust its affairs to suit his commercial convenience.
The fact that the adjudicating officer chose to drop the proceedings against the appellant herein does not absolve the appellant of the criminal liability incurred by him by virtue of the operation of Section 40 read with Section 56 of the Act. The offence under Section 56 read with Section 40 of the Act is an independent offence. If the factual allegations contained in the charge are to be proved eventually at the trial of the criminal case, the appellant is still liable for the punishment notwithstanding the fact that the presence of the appellant was required by the adjudicating officer in connection with an enquiry into certain alleged violations of the various provisions of the Act, but at a subsequent stage the adjudicating officer opined that there was either insufficient or no material to proceed against the appellant for the alleged violations of the Act, is immaterial.
An appeal against the conclusion of the adjudicating officer that the proceedings against the appellant herein for the alleged violation of the various provisions of the FERA Act are required to be dropped has not even attained finality. Admittedly, such an order of the adjudicating officer confirmed by the statutory appellate authority is pending consideration in an appeal before the High Court. Though, in our opinion, the result of such an appeal is immaterial for determining the culpability of the appellant for the alleged violation of Section 40 read with Section 56 - entire approach adopted by the appellant is a sheer abuse of the process of law - Decided against Appellant.
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