TMI Blog1992 (2) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... on 27th July, 1986. (c) On 8th July, 1986, the petitioners paid to the original 3rd respondent Bank an amount in Indian Rupees equivalent to foreign exchange of 200 passengers of the first group with requisite documents viz. passports, A2 forms, FTS forms duly certified by I.A.T.A., agents and tickets to passengers. However, the foreign exchange was not collected by the petitioner. (d) On 18th July, 1986 (in the morning) for the first group of passengers the Bank issued foreign exchange to 118 out of 200 passengers of the first group at Kutchi Memon Jamat Musafir Khana, Kambekar Street, Bombay. This amount came to be disbursed in the morning of 18th July, 1986 by the Bank at Musafir Khana, Bombay. According to the petitioner firm, at the instance of the Bank Shri Sandeep Naik representative of the said Bank came to the office of the petitioner firm on 18th July, 1986 in the afternoon to give exchange to the remaining 82 passengers out of the said group of 200 passengers. While Shri Sandeep Naik was in the process of delivering the requisite foreign exchange to the passengers after identifying each passenger through Passport and after obtaining their signatures or thumb impress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange for the remaining 267 passengers, the Bank refused to give the said exchange. Despite the repeated requests, the Bank did not give foreign exchange nor returned to the petitioner firm the said amount of Rs. 16,87,397/-. This was, according to the Bank in view of the orders passed by the Enforcement Directorate stopping the Bank from making the said payment in respect of 267 passengers out of 269 passengers belonging to the second group. In other words, in respect of the second group of the passengers, the amount which was paid by the petitioner firm to the Bank was not returned to the petitioner firm. (i) As mentioned above, since the Bank did not release foreign exchange about 267 passengers left without paying to the petitioner firm for tickets and the petitioners, therefore, called upon the Bank to return the amount of Rs. 16,87,397/-. (j) By letter dated 9th September, 1986 addressed by the said Bank to the Advocates of the petitioners, the petitioners were informed that the Bank had received from the Enforcement Directorate an order under Section 33(2) of the FERA Act, dated 8th September, 1986 directing the Bank to surrender Rs. 17,00,057/- to the office of the Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alleged contravention of the above provisions of the Act, the petitioners as well as the Bank were called upon as to why the amounts mentioned in the said show cause notice should not be confiscated. (n) Pursuant to the said show cause notice dated 17th July, 1987, the Enforcement Directorate completed the adjudication proceedings on 20th June, 1988. By the order of adjudication dated 20th June, 1988 the Assistant Director found that the Bank was guilty of contravention of the provisions of the FERA Act. As regards the petitioners it was found that the petitioners and their employees were guilty of the charge of abetment and accordingly the adjudication order proceeded to confiscate the foreign currency amounting to 1,32,000 U.S. Dollars, 26,500 U.S. dollars seized from the Bank, Rs. 17,00,057 obtained under Section 33(2) of the Act which came to be confiscated, Rs. 60,000/- was penalty imposed on the petitioners and similar penalty of Rs. 10,000/- was also imposed on the employees of the Bank as also on the partners of the petitioner firm. It may be clarified at this stage that the Bank has not filed any proceedings in this Court challenging the order of adjudication. The empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the signatures of the Head of the family or the leader of the group, and therefore, the learned Single Judge came to the conclusion that the petitioners could not be held liable under Section 49 of the Act for aiding or abetting the Bank for contravention of the provisions of the FERA Act. Accordingly, the learned Single Judge quashed the order of adjudication dated 20th June, 1988. (q) Against the said impugned judgment of the learned Single Judge dated 23rd September, 1988, the present appeal has been filed by the Government. 3. Mr. Shah, the learned Counsel appearing on behalf of the Government, submitted that the learned Single Judge was not right in setting aside the entire order of adjudication. According to Mr, Shah, the Bank has not filed the writ petition challenging the order of adjudication. According to Mr. Shah for the Government, the show cause notice and the order of adjudication indicate that the Bank was found guilty of the contravention of various provisions of the Act and accordingly various penalties have been imposed on the Bank, as well as employees both of the Bank and the petitioner firm. Mr. Shah pointed out that the petitioner firm has been imposed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners were guilty of the offence of contravention of the provisions of the Act by the Bank, which was also found guilty of contravention of the provisions of the above Act. At the outset it may be stated that the show cause notice issued by the Department as well as the affidavits filed by the Department in the present proceedings show that the tickets were sold by the IATA agent in respect of the passengers to the petitioners only after processing and approving the FTS and A2 forms submitted by the petitioners to the IATA agent. The evidence on record also shows that the foreign exchange came to be distributed by Mr. Sandeep Naik the employee of the Bank. The evidence further indicates that the passengers had authorised the petitioner firm s employees to sign on their behalf the requisite forms. It is not the case of the Department that the amount has been misappropriated. It is not the case of the Department that the passengers have not received the foreign exchange. There is no finding even in the order of adjudication to the effect that the amount has been misappropriated. It may also be mentioned that 90% of the passengers came to Bombay for Haj from up-country. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld result in an offence. In other words, mere breach of condition would not ipso facto result in contravention. In the present case as mentioned hereinabove the evidence indicates irregularity or a breach but nonetheless it would not constitute contravention by the petitioners and therefore, the learned Single Judge was right in coming to the conclusion that the petitioners were not guilty of aiding or abetting the contravention of the provisions of the Act as found against the Bank. In the circumstances, as mentioned hereinabove, the confiscation of Rs. 17,00,057/- and imposition of penalty of Rs. 60,000/- by the Department on the petitioners was not legal and justified and to that extent we agree with the learned Single Judge. In view of our setting aside the order of confiscation and the penalty of Rs. 60,000/-, it is not necessary for us to go into the question as to whether in the present case the order dated 8th September, 1986 was an order of confiscation or not. 6. However, the learned Single Judge was wrong in setting aside the entire order of adjudication. As mentioned hereinabove the order of adjudication covers various penalties imposed on the Bank, their employees as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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