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TMI Blog2017 (10) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of Section 68 are not applicable in penalty proceedings under Section 50 and 51 of the Act. Thus the impugned order is liable to be quashed/set aside. 3. The allegations against the Appellant, which were mentioned in the show cause Notice dated 24.05.2002 was that the said notice was issued to the Appellant in his purported capacity as a Director of M/s Advanced Computers & Software (P) Ltd., having its registered office at 321, South Ex. Plaza - II, 209, Masjid Moth, NDSE - II, New Delhi and Adjudication proceedings were held which resulted in passing of the impugned order, as the Company failed to submit the Exchange Control Copy of the relative Bill of Entry or postal wrapper to the Authorised Dealer through whom the corresponding remittance(s) towards import of goods into India was made. It was alleged that directives were issued to the Company to submit the proof for utilization of the remittance but the Company failed to furnish the requisite proof. Therefore the Appellant being a Director at that time had contravened the provisions of Section 8(3) & 8(4) of the FERA read with Section 68 of the Act and Chapter 7A, 20(i) of the ECM. It was contended that the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany, dated 06.10.1999, seeking a formal acceptance of his resignation. However as he did not receive any reply to the aforesaid letter, pursuant thereto the Appellant wrote a letter dated 21.12.1999 to the Registrar of Companies, Delhi & Haryana, CGO Complex, New Delhi, informing them of his resignation from the Company and the same was accepted on 09.02.2000. 6. As per the allegation of the respondent in the SCN No. T- 4/211/DZ/2002/DD dated 24.05.2002 that on 04.12.1998, the company claimed remittance of US $ 170,000/- against imports through HDFC Bank, K.G. Marg, New Delhi and thereafter failed to submit the documentary evidence in the form of Bill(s) of Entry for imports made against the said remittance. Due to the aforesaid failure of the Company, HDFC Bank, K.G. Marg, New Delhi allegedly Complained to the Reserve Bank India [hereinafter referred to as "RBI"], who in turn filed a complaint with the Enforcement Directorate [hereinafter referred to as "ED"), dated 03.04.2001. 7. In furtherance of the said Complaint, the ED allegedly issued a letter dated 26.07.2001 to the Company asking them to submit the relevant Exchange Control Copy(s) of the Bill(s) of Entry to prove imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Regulation Act as the Appellant has s in fact neither signed the document claiming the remittance or utilized the same. For that the learned adjudicating officer failed to consider that Section 68 of FERA has no application whatsoever to adjudication proceedings under the Act as held by the Division Bench of the High Court of Bombay. There is no other provision in FERA, which can be invoked to initiate the proceedings under Sections 50 and 51 of the Act against the officers of the Company. He submits that the appellant is pressing the prayer only in respect of penalty imposed upon him as he is not responsible for same. If the respondent has any case on merit, the respondent may take the action against the persons/company for recovery as per law. 13. After filing the appeal, the stay application was decide in the following terms:- Ms. Smriti Sinha, advocate argued that the appellant was merely a manager working in the company but Director when he was not taking any part in the administration of the company. This nomination occurred for the benefit of the owners of the company and appellant being an employee of the company could not say no. However, statutory scheme contain in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory period of limitation of 45 days, or even within 90 days, on account of the fact that the appellant, during his employment with Unicorp Overseas Limited, was appointed as a Director of the said Company. The violation of FERA pertained to the said Company and the appellant was fined on the ground that the appellant was one of its Directors. The appellant claimed that he had tendered his resignation on 29.07.1999 to the Chairman of the said Company, and sent another letter on 06.10.1999 seeking formal acceptance of his resignation. He claimed that he had also sent a communication to the Registrar of Companies, Delhi and Haryana on 21.12.1999 informing the Registrar of Companies of his resignation from the said Company. That communication was accepted on 09.02.2000. The appellant claims that, thereafter, he shifted to Malaysia to serve another Company, namely, NetLink Ranve Infotech Sdn. Bhd. At Kuala Lumpur, Malaysia. His claims is that notices sent to him by the respondents at his address in India were not received by him, since he was out of the country. Learned counsel submits that the aforesaid background shows that the appellant was not liable to be panalised, and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for the last more than two years. In the matter of Tej Pal Singh & Ors. Vs. State of U.P., Criminal Appeal no. 2402 of 1981 decided on 02.12.2015 by the High Court of Allahabad. Para no. 16 reads as under: 16. In view of the aforesaid discussion, considering the judgment of the Apex Court, since inspite of best efforts neither reconstruction of record is possible nor re-trial is possible, hence, the criminal appeal cannot be decided on merit in absence of relevant prosecution papers including the statement of witnesses and as such there is no option but to set aside the impugned judgment of conviction. In view of the fact, the judgment and order of conviction and sentence dated 16.10.1981 passed by 5th Additional District and Sessions Judge, Bijnor in Session Trial No. 350/79, under sections 147, 148, 302/149 IPC, P.S. Chandpur, District Bijnor, is hereby set aside. 18. On 14.12.2016 last opportunity was granted to the respondent to supply the document. The said order is read as under:- "Sh. Alam Nijjar, Advocate appeared for the appellant while Sh. Pankaj Yadav, Legal Consultant is present on behalf of the respondent, Enforcement Directorate. On several consecutive dates, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was issued for reconstruction of the lower court record. Subsequently, the information was given that the witness Smt Naraini Devi had expired and the direction was issued on 3.1.2014 to obtain report in respect of another witness Balbir. On 17.11.2015, the information was given that the other witness Balbir had died on 14.07.2014. Hence, learned AGA was given time to obtain instruction regarding death of witness Balbir. Today, Mr. Chandrajeet Yadav, learned AGA informed that as per instruction received in his office, the information regarding death of witness Balbir is correct. 5. In view of the fact, neither reconstruction of the complete relevant record specially statement of witness is possible nor the retrial for deciding the appeal. Hence, in view of the judgment of the Apex Court as well as of this Court in Criminal Appeal No. 466 of 1980, Sukhlal & Others Vs. State of U.P., there is no option but to allow this appeal. 16. In view of the aforesaid discussion, considering the judgment of the Apex Court, since inspite of best efforts neither reconstruction of record is possible nor re-trial is possible, hence, the criminal appeal cannot be decided on merit in absence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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