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The Assistant Director, Directorate of Enforcement, Govt. of India, Ministry of Finance Versus Smt. T.T.V. Dinakaran

2017 (2) TMI 518 - MADRAS HIGH COURT

Complaint under Sections 8(1), 9(1)(a) and 14 of the Foreign Exchange Regulation Act, 1973 - Acquirng foreign exchange without previous general or special permission from the Reserve Bank of India during the year 1994/95 from persons not being authorised dealers in foreign exchange and deposited the amounts in a bank account outside India - Held that:- On perusal of the letter written by the respondent, the contention of the respondent that he is not the citizen of India and he will not come und .....

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rials available in this case in prima facie for framing charges under Section 8(1) of FERA & 9(1)(a) of FERA. Hence, the impugned order passed by the trial court is liable to set aside and accordingly, the same is set aside. - Crl. R. C. No. 937 of 2015 - Dated:- 1-2-2017 - G. Chockalingam, J. For the Petitioner : Mr.G.Rajagopalan, for Mr.M.Dhandapani For the Respondent : Mr. B. Kumar ORDER This revision is directed against the order passed in Crl.M.P.No.379 of 2014 in E.O.C.C.No.27 of 1996 on t .....

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had acquired foreign exchange without previous general or special permission from the Reserve Bank of India during the year 1994/95 from persons not being authorised dealers in foreign exchange and deposited the amounts in a bank account outside India. 3. The trial court, after considering the evidences adduced on both sides and documents produced on the side of the complainant, passed an order on 18.05.2015 on the application filed by the respondent under Section 245(2) Cr.P.C. by discharging h .....

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l citizens of India, outside India and that learned Magistrate erred in coming to the conclusion that the funds were of M/s.Dipper Investments Ltd., U.K., and failed to note that M/s.Dipper Investments Ltd., U.K, M/s.Banyan Tree Enterprises Ltd and M/s.Turnkey Industries Ltd, which were only shell companies, wherein the accused is only the sole Director of the companies and that the learned Magistrate failed to note that funds were deposited into the Bank account of M/s.Dipper Investments, by th .....

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note that the notarized bank documents received from abroad indicated the receipt of US $1,04,93,313/ by Barclays Bank Plc for depositing into M/s.Dipper Investment Bank a/c, which the respondent/ accused had forwarded by forwarding notes under his signature and that the learned Magistrate had failed to note that the stand of the respondent/accused that the 13 drafts forwarded by him to the Barclays Bank were given to him by Shri Nainesh Desai were false as the entries in his passport does not s .....

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itted that the learned Magistrate failed to note that the transcripts of the Bank account No.7047-2689 of M/s.West Back Ltd duly authenticated by Ms.Valerie Jane Blean and duly certified by the High Commissioner of India, London, shows a receipt of #1,00,000/- and #90,000/- from M/s.Dipper Investments Ltd on 14.07.1994 and 17.08.1984 indicating acquisition and transfers of the said amounts by the accused through M/s.Dipper Investments Ltd and that the learned Magistrate failed to note that in th .....

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the Reserve Bank of India and thereby had contravened the provisions of Section 8(1) and 9(1)(a) of FERA. The learned Magistrate, without considering the above facts, discharged the accused from the case. Hence, the order passed by the learned Magistrate has to be set aside and the revision has to be allowed. 6. Per contra, the learned Senior counsel appearing for the respondent would submit that the learned Magistrate, after considering entire case records, has come to the conclusion that the .....

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the learned Magistrate in rejecting the evidence of the persons outside India, is perfectly valid in law. Hence, he prayed that the order of the learned Magistrate has to be confirmed and the revision has to be dismissed. In support of his contention, the learned counsel appearing for the respondent has relied upon the following decisions:- 1. (1986)2 SCC 716 [R.S.Nayak Vs. A.R.Antulay] wherein it has been held that: 43. As pointed out by the Constitution Bench in the judgment to which reference .....

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when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Caper, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. The Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it cases instituted up .....

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ccused to be groundless. The power discharge is exercisable under Section 245(1) when the magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrubutted would warrant his conviction . It is a fact that Section 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents .....

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framing of charge under Section 245(1) is a preliminary one and the test of prima facie case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial court is satisfied that a prima facie case is made out, charge has to be framed. 2. 2002 SCC On Line Mad 913 [Karam Chand Thaper and Brothers (Coal Sales) Ltd. vs. T.G.Vasanth Gupta], wherein, it has been held as follows:- 7. The counsel for the respondent argued that since the com .....

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the case of the petitioner. This argument of the counsel for the revision petitioner is acceptable. It is a case of dishonest representation made by the Managing Director and hence, company need not be an accused. ... 10. A reading of the evidence of P.Ws.1 to 4 clearly makes a prima facie case against the respondent. If this evidence remains unrebutted, a conviction can be sustained. The mere fact that ultimately the accused may be acquitted is not a ground to discharge the accused exercising t .....

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there is no proof to say that the accused made any such promise; such a conclusion can be arrived at only after cross-examining the witness or examining the defence witnesses; that is by way of rebuttal evidence. Therefore, before adducing rebuttal evidence, the Court has to take the evidence on record as a whole. It cannot doubt the statement made in evidence. Therefore, applying the test laid down by the Supreme Court in Antulay's case, the power of the Magistrate under Section 245(1) is .....

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tion is allowed. 3. (2008)2 SCC 561 [Onkar Nath Mishra and others vs. State (NCT of Delhi and another], wherein it has been held as follows:- 11.It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, discharged the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the pro .....

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4.(1996)4 SCC 659 [State of Maharashtra vs. Momnath Thapa & others], wherein it has been held as follows:- 32.The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the .....

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nder Section 244(1) CrPC, the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) CrPC on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate4 has to consider under Section 245(1) CrPC, whether any case against the accused is made out, which, if unrebutted, would w .....

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pin Shantilal Panchal vs. State of Gujarat], wherein it has been held as follows:- 13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then .....

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should the trial prolong like that unnecessarily on account of practices created by ourselves? Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. 14. When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence taking stage regarding t .....

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legality in adopting such a course. (However, we make it-clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed). 15. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to ex .....

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he litigation and would not add to their misery of expenses. 16. We, therefore make the above as a procedure to be followed by the trial Courts whenever an objection is raised regarding the admissibility of any material of any item of oral evidence. 7.1967 SCC Online Cal 19 [In re, K.K.Ray (Private) Ltd., wherein it has been held as follows: 31.The position in made abundantly clear by Section 3 of the DIPLOMATIC AND CONCSULAR OFFICER (Oath and Fees) Act, 1948, which this Court's office misse .....

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rporting to have affixed, impressed or subscribed thereon or thereto the seal and signature of any person authorised by this Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, of the official character of that persons. 32.Now that being the express statute in India, there is no difficulty here. The Notarial Act of .....

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by the Act or by these Rules, the practice and procedure of the Court and the provisions of the Code so far as applicable shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any of the documents which is presented otherwise than in accordance with this rules of the practice and procedure of the Court. 33.As I have said above, admitting this affidavit on the records of this Court will be following the practice and procedure of this Court. That is how .....

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India outside India and to branches and agencies outside India of companies or bodies corporate, registered or incorporated in India. (4)it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf, Provided the different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to this coming into force of that provi .....

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g in foreign exchange. (1)Except with the previous general or special permission of the Reserve Bank, no person other than an authorised dealer shall in India, and no person resident in India other than an authorised dealer shall outside India, purchase or otherwise acquire or borrow from, or sell, or otherwise transfer or lend to or exchange with, any person not being an authorised dealer, any foreign exchange: Provided that nothing in this sub section shall apply to any purchase or sale of for .....

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s for the conversion of Indian currency into foreign currency or foreign currency into Indian currency at rates of exchange other than the rates for the time being authorised by the Reserve Bank. 3)Where any foreign exchange is acquired by any person, other than any authorised dealer or a money changer, for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall not use the foreign exchange so acquired otherwise than for tha .....

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hat where a person acquires foreign exchange for sending or bringing into India any goods but sends or brings no such goods or does not send or bring goods of a value representing the foreign exchange acquired, within a reasonable time or sends or brings any goods of a kind, quality or quantity deferent from that specified by him at the time of acquisition of the foreign exchange, such person shall, unless the contrary is proved, be presumed not to have been able to use the foreign exchange for .....

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h any general or special exemption from the provisions of this sub section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in, India shall- a)make any payment to or for the credit of any person resident outside India: b)receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India. Explanation: For the purposes of this clause, where any person in or resident in India receives any p .....

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ur of any person resident outside India: d)make any payment to or for the credit of any person by order or on behalf of any person resident outside India. e)place any sum to the credit of any person resident outside India. f)make any payment to, or for the credit of, any person or receive any payment for, or by order or on behalf of, any person as consideration for or in association with- (i)to receipt by any person of a payment or the acquisition by any person of property outside India. (ii)the .....

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r unlawful- (a)the making of any payment already authorised either with foreign exchange obtained from an authorised dealer or a money-changer under Section 8 or with foreign exchange retained by a person in pursuance of an authorisation granted by the Reserve Bank; (b)the making of any payment with foreign exchange received by way of salary or payment for services not arising from any business in, or anything done while in, India. (3).Save as may be provided in, and in accordance with, any gene .....

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poses of this section and Section 19, security includes coupons or warrants representing dividends or interests and life or endowment insurance policies . Sec.27 of FERA, 1972 deals with :Restrictions on persons resident in India associating themselves with or participating in concerns outside India. Sec.27 of FERA, 1973 (Rep. by Act 29 of 1993) Sec.56 of FERA, 1973, deals with Offences and Prosecutions (1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if .....

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ths, but which may extend to seven years and with fine; Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, imposed a sentence of imprisonment for a term of less than six months; (ii)in any other case, with imprisonment for a term which may extend to three years with fine or with both . Sec.59 of FERA, 1973, deals with Presumption of culpable mental state Sec.59 of FERA, 1973, (1)In any prosecution of any offence under this Act which requires a culp .....

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es it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. (3)The provisions of this section shall, so far as may be, apply in relation to any proceeding before an adjudicating officer as they apply in relation to any prosecution for an offence under this Act. Sec.61 of FERA, 1973, deals with Cognizable of offences Sec.61 FERA, 1973, (1)Notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 19 .....

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er in rank than an Assistant Director of Enforcement, except with the previous sanction of the Central Government; (b)where the offence is alleged to have been committed by an officer of Enforcement lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Director of Enforcement; or (ii)of any offence punishable under section 56 or section 57, except upon complaint in writing made by- (a)the Director of Enforcement; or (b)any officer authorized in writing .....

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d such permission. Section 68 of FERA, 1973, deals with Offences by Companies - 1)Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time of contravention was committed, was in charge of, any was responsible to, the company for the conduct of business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded again .....

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avention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Explanation For the purpose of this section- (i) Company means any body corporate and includes a firm or other association of individuals; and (ii) .....

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f investigation of any offence under this Act alleged to have been committed by any person, and such document is tendered in any proceedings under this Act in evidence against him, or against him and any other person who is proceeded against jointly with him, the court of the adjudicating office, as the case may be, shall- (a)Presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which t .....

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ontrary is proved the truth of the contents of such document . 9. It is admitted by both sides that the contravention made by the petitioner was proceeded with by the Enforcement Authorities departmentally and levied penalty. Against which, the respondent preferred appeal, in C.M.A.No.914 of 2000 [T.T.V. Dhinakaran Vs. Special Director, Enforcement Directorate] before the High Court and in the said appeal, on 06.01.2017, the Hon'ble 1st Division Bench of this Court has passed order, which re .....

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g found that on evidence, the charges held not proved, can exercise the suo motu powers under Section 52 and reframe the charges sitting in appeal and whether new evidence can be accepted by the Tribunal? (c) Whether the order of the adjudicating authority is vitiated on account of bias, violations of principles of natural justice and fair play as he was a part of the investigating team and a witness in the criminal case initiated by the Department? (d) Whether Section 3(1) of the Companies Act, .....

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dgment had been delayed by one year and two months after the arguments were over and hence the order under appeal is not valid in the eye of law. 8. The learned senior counsel appearing for the appellant further submitted that the appellate authority has not decided the main question, i.e., whether at the relevant period, the appellant was a non-resident Indian or not? The reasons assigned for not deciding this issue is unsustainable and legally impermissible. The appellate authority ought to ha .....

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t in respect of the very same subject matter of the memorandum, a criminal complaint has been launched before the Court of Economic Offences, Egmore, Chennai and the said complaint has been taken on file and numbered as C.C. No. 27 of 1996. In the said complaint, the 14th witness is shown as Shri. A.P. Kala, to prove the documents received from the foreign country, and that investigations were carried out under his instructions. Thus, Shri. A.P. Kala participated in every facet of investigation .....

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s to be seen whether there is substantial possibility of bias animating the mind of the Judge against the aggrieved party, and such reasonable apprehension must be based on cogent materials and must be in consonance with thinking of a reasonable man and the said principle cannot be attracted in vacuum. 10. The learned senior counsel for the appellant has also contended that the adjudicating authority had materially erred in stating that the judgment of the High Court having been brought to its a .....

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the learned senior counsel appearing for the appellant, the order passed in a habeas corpus proceedings will not form part of the case on hand, and that with regard to preventive detention, no adjudication had happened so far. In other words, it is his contention that for a case relating to violation of Foreign Exchange Regulation Act, placing reliance upon a preventive detention order will not be sufficient and proper. With regard to the finding that M/s. Dipper Investments Limited is in no way .....

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Further, urging that the appellant is a permanent resident of Singapore, the counsel submitted that the offence relating to Income-tax Act in respect of the case on hand have nothing to do with the Foreign Exchange Regulation Act. 11. The learned senior counsel appearing for the appellant further submitted that the appellate authority is primarily concerned with the order of adjudication and if it is found to be erroneous, unreasonable and unsustainable, the only course open to the appellate co .....

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hat long delay in delivery of judgment gives rise to unnecessary speculations in the minds of parties to a case, in which case, the order impugned has to be set aside. (b) Judgments of the Hon'ble Supreme Court in Shivsagar Veg. Restaurant v. Asst. Commissioner of Income-tax and another, reported in 2008 SCC OnLine Bom 1088 and in Devang Rasiklal Vora v. Union of India and others, reported in [MANU/MH/0640/2003 : 2004(2) Mh.L.J. 208], to state that the order passed by the appellate authority .....

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t be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of enquiry. He also relied on the judgment of the Hon'ble Supreme Court in Asia Tobacco Co. Ltd. v. Union of India and another, reported in MANU/TN/0049/1987 : 1988 (33) ELT 279 Mad, in support of his contention that the proceedings initiated by the authorities is purely a bias and it violates the principles of natural justice, since the person who wa .....

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violates the principle of "unconnected persons cannot be permitted to participate in the adjudication proceedings". (e) Judgment of the Hon'ble Supreme Court in Union of India and others v. Sanjay Jethi and another, reported in (2013) 16 SCC 116, in which it has been held that rational approach has to be adopted by the Court keeping in view the basic concept of legitimacy of interdiction in such matters, since challenge of bias, when sustained, makes the whole proceeding or order i .....

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und of bias. In this regard, the learned senior counsel for the respondent relied on the decision of the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal reported in MANU/SC/0115/1992 : AIR 1992 SC 604 and submitted that if the allegations are bereft of truth and made maliciously, and when there are only allegations and recriminations with no evidence, the result of the investigation cannot be anticipated, to render a finding on the question of mala fides on the materials available at .....

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In respect of bias, as put forth by the appellant, the learned senior counsel for the respondent submitted that this aspect was already rejected by the adjudicating authority and therefore the argument of bias is without any substance. In this regard, on the question whether the adjudicating authority investigating the case had participated in the investigation, it is submitted that the adjudicating authority has recorded in its order that it has not issued any summons nor recorded any statemen .....

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does not require any interference. 15. In respect of the issue as to whether the appellant is an Indian citizen or not, it is submitted by the learned senior counsel for the respondent that the appellate authority had correctly relied upon the judgment of the Division Bench of this Court in HCP No. 240 of 1996, wherein it was held that the appellant is a resident Indian. With regard to the so-called transactions referred to in the show-cause notice, and the contention that the said transactions .....

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tu powers under Section 52(4) of the FERA and the appellate authority-Board may consider the charges that could be made and sustain if any on the basis of evidence on record and give its own finding. This submission has been made in respect of the allegation that some materials not referred to in the show-cause notice have been taken into consideration by the appellate authority. With regard to delay and denial of opportunity, as alleged by the appellant, it is submitted that there is no delay a .....

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s of law one by one. 20. The first question of law is as to whether the appellate authority was right in relying upon the judgment made in HCP No. 240/1996 to conclude that the appellant was a resident within India and whether the Appellate Tribunal ought to have decided the legal status of the appellant independently before charging him under Sections 8(1) and 9 of the FERA. In this regard, it has to be noted that the appellant was put under detention under the provisions of the COFEPOSA Act an .....

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e said judgment or finding in the order passed by the adjudicating authority, but the adjudicating authority also came to the conclusion that the appellant was not a person residing outside India. It is only a question of fact. Even though the appellate authority had stated that it relies upon the judgment made by this Court in the Habeas Corpus Petition, the finding given by the adjudicating authority as well as by this Court in the Habeas Corpus Petition, remains one and the same, that too whe .....

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issible under law. In such view of the matter, this Court deems it fit only to hold that the order passed by the appellate authority in this respect does not require any interference. Accordingly the first question of law is answered against the appellant. 21. The second question of law is as to whether the appellate authority, having found that on evidence, the charges held to be not proved, can exercise the suo motu powers under Section 52 and re-frame the charges sitting in appeal and whether .....

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er made by the adjudicating officer. Section 52 of the FERA deals with Appeal to Appellate Board. At this juncture, it would be appropriate to extract Section 52(4) of FERA, which reads as under: "(4) The Appellate Board may, for the purpose of examining the legality, propriety or correctness of any order made by the adjudicating officer under Sec. 50 read with Sec. 51 in relation to any proceeding, on its own motion or otherwise, call for the records of such proceedings and make such order .....

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dicating authority as well as the appellate authority have also been granted powers under Section 53 to exercise any of the powers of the civil Court under the Civil Procedure Code to call for records and documents, summoning of witnesses, collect evidence on affidavits, etc. Therefore, it is well within the domain of the appellate authority to consider the evidence before it. Unlike the powers of the High Court under Section 54 where the scope of the appeal is restricted to questions of law, th .....

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the case of the appellant that the appellate authority has based its findings on some evidence, alien to the adjudication proceedings, without granting any opportunity. In the case on hand, the appellate authority had to proceed with the examination of the evidence in accordance with Section 52, as the findings and conclusions arrived at by the adjudicating authority did not logically follow. The appellate authority has also held that the primary burden of the findings rendered by the adjudicati .....

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der of the appellate authority that the learned counsel for the appellant also rightly admitted that the Board has the authority to consider the matter afresh based on the evidence already collected. Therefore, the appellant cannot now question the authority, which even otherwise, is well protected under Section 52(3) and (4). The reason for such appreciation of the evidence was necessitated because of the failure of the adjudicating authority to give a finding on the acquisition and ownership o .....

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rity is about the so-called meeting between the Directors of M/s. Dipper Investments Limited on 25.06.1994 in Singapore, on which date, the appellant was in India. The modus operandi and the plea of ownership of Mr. Desai over the funds has been negated by the appellate authority by giving its findings in detail at Page Nos. 66 to 74 (Paragraph Nos. 81 to 89), of the order, based on facts culled out from the documentary evidences. In the backdrop of the said observations, this Court deems it fit .....

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th the incident so that he can be impartial and objective in the enquiry. There is also no dispute in the law laid down by the Hon'ble Supreme Court in its judgment in Asia Tobacco Co. Ltd. v. Union of India and another (stated supra), which has been relied on by the learned counsel for the appellant in support of his contention that the person who was the investigating authority should not adjudicate the issue on hand, and if it is otherwise, it would violate the principles of natural justi .....

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aid that the adjudicating authority had some vested interest against the interest of the appellant so as to divert himself from the evidence to decide against the appellant. There is nothing on record to show that the adjudicating officer was prejudiced on the subject matter, which reflected in the adjudication process or in the decision. Upon perusal of the records, we find that the appellant was given a fair opportunity. As found by the appellate authority, the guilt of the appellant was culle .....

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the appellate authority had independently examined the issues based on evidence on record, afresh. Thus, the third question of law is answered against the appellant. 24. The fourth and the final question of law is as to whether Section 3(1) of the Companies Act, which confers a separate legal entity to the company, absolutely dissolves the liability of the Director of a company under every circumstances. The doctrine of lifting the corporate veil is not alien to the process of administration of .....

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n 29(1)(a), the authority can always lift the veil and examine whether the parties have entered into any fraudulent, sham, circuitous device so as to overcome statutory provisions like Section 29(1)(a). It is trite law that any approval/permission obtained by non-disclosure of all necessary information or making a false representation tantamount to approval/permission obtained by practising fraud and hence a nullity. Reference may be made to the judgment of this Court in Union of India v. Ramesh .....

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. In Escorts case, this Court held as follows: "90.... Generally and broadly speaking, we may say that the corporate veil may be lifted where a statute itself contemplates lifting the veil, or fraud or improper conduct is intended to be prevented, or a taxing statute or a beneficent statute is sought to be evaded or where associated companies are inextricably connected as to be, in reality, part of one concern." 45. In Vodafone International Holdings BV v. Union of India [MANU/SC/0051/ .....

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of any statutory authorisation to that effect." FERA (Amendment) Act 29 of 1993 has no effect on the principle of lifting the corporate veil and the question as to whether it was established so as to circumvent the provision of Section 29(1)(a) can always be examined." Therefore, the protection given to a company is not an absolute bar to proceed against the directors and it is to be decided on the facts of the each case put to test. In this regard, the appellate authority, after analy .....

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that there is no evidence that these were done in the course of company's business. It has also been further held that all acts of a corporate entity are to be done in the name of that entity, but does not necessarily follow that whatever has been done in the name of a corporate entity must be held to be the acts of that entity. After a threadbare analysis of the evidence on record, the appellate authority has held that there is no evidence of any concrete proposal, much less of commencement .....

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assumed as Department's case in the show-cause notice is only a narration of the transactions, as appearing on the face of the documentary evidence, and the view that the Department has taken on that evidence is reflected in the charges made against the appellant and their proposal to proceed against the appellant on those charges. Even though the show-cause notice does not spell out as to how the charges can be made out on the basis of the evidence as narrated, that has been done in the in .....

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inst the appellant and in favour of the revenue. The impugned order passed by the Foreign Exchange Regulation Appellate Board in Appeal No. 51/98 dated 05.05.2000 is confirmed and the Civil Miscellaneous Appeal stands dismissed. No costs. 10. From the perusal of the above judgment, the Hon'ble 1st Division Bench of this court has answered the questions of law raised holding that present respondent is a citizen of India and he is liable to be prosecuted under FERA, if any contravention made b .....

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follows:- 166-A.Letter of request to competent authority for investigation in a country or place outside India.- (1) Notwithstanding anything contained in this Code, if, in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority in that country or pl .....

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The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf. (3) Every statement recorded or document or thing received under sub- section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter. Letter of request from a country or place outside India to a Court oran authority for investigation in India. 13. Further, it is useful to refer Sections, 39 and 71 of the Foreign Exchange Regulation Act, 1 .....

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) Where any person is prosecuted or proceeded against for contravening any of the provisions of this Act or of any rule, direction or order made thereunder which prohibits him from doing an act without permission, the burden of proving that he had the requisite permission shall be on him. (2) Where any person is prosecuted or proceeded against for contravening the provisions of sub-section (3) of section 8, the burden of proving that the foreign exchange acquired by such person has been used for .....

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respondent is not at all maintainable and the trial court has correctly come to the conclusion that no charge can be framed against the respondent. Admittedly, the present respondent is a citizen of India and the alleged companies mentioned in the investigation are not registered in India and only incorporated outside India. Though the companies are incorporated outside India and they will not come under the preview of FERA, the respondent, who is a resident of India, is liable to be punished f .....

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of the FERA, who is residing in India or outside India. Further, in this case, the duly authorised officer alone has recorded the statements of persons residing outside India and placed the materials to show that the witnesses were examined outside India by the duly authorised officials. Whether the documents collected and the statements of witnesses recorded, outside India are true or not, cannot be decided in the present stage, since there are sufficient materials produced on the side of the e .....

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Delhi. Through The Superintendent, Central Prison, Madras. Sir, Ref: Detention order passed by the Joint Secretary in F.No.673/6-96-CUS.VIII dated 5.2.1996 settlement of dispute and revocation of the detention order. ***** The detention order has been passed against me on the ground that by my activity I have caused prejudice to the augmentation of foreign exchange resources of the country. It is my claim that I am a non-resident Indian having obtained that status and complied with all the forma .....

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ow cause notice had been issued in respect of this occurrence in the adjudication proceedings and I had replied to the same and explained my stand. I have suffered deeply on account of detention under COFEPOSA. Unable to stand the mental strain caused by there detention proceedings against he, my wife who was then in the advanced stage of pregnancy had an abortion and the dead child was taken out of the womb. My mother has also become seriously ill on account of my incarceration and the conseque .....

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be set up and for a length of time. This would, however, require such time. However, I have interest of the revenue in mind and I am making this proposal of a matter of settlement with the only plea that the order of detention under COFEPOSA be revoked, as I am willing to reach a lawful settlement of the dispute. As regards other matters, namely adjudication and prosecution proceedings, the same may have to be dealt with in accordance with law. It is requested that the fullest consideration wou .....

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