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TMI Blog2018 (5) TMI 1531X X X X Extracts X X X X X X X X Extracts X X X X ..... PMLA") on the basis of the scheduled offences mentioned in the FIR. Appellant appeared before the ED and give his statement under PMLA on 4.12.2012. 3. Second Summons issued by the ED on 13.05.2014 to the Appellant u/s 37(1) & (3) FEMA, S. 131(1) IT Act and S.30 CPC. Statement of Appellant recorded on 29.05.2014 by ED under FEMA, wherein he stated that he had spent about Rs. 10 lakh on foreign travel. 4. On 25.07.2014 complaint under section 16(3) of FEMA seeking issuance of Show-Cause Notice under Section 3(a) of FEMA, filed by the Respondent ED. In Para 4 of the Complaint, it was wrongly alleged that the Appellant in his Statement dated 29.05.2014 "deposed that he had received remaining amount of Rs. 7,59,615/- in foreign currency from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hypothetical statement of the Appellant. 9. The Appellant in his said statementhas stated that he spent about Rs. 10 lakh for travel to certain countries. He has nowhere stated that this entire amount was spent in foreign exchange. 10. In his complaint, it has been incorrectly alleged by the Respondent ED that the Appellant had "received an amount of Rs. 7,59,615/- in foreign currency from unknown persons and the same was spent while he was out of India". This is completely incorrect and patently contrary to the said Statement of the Appellant. The above incorrect allegation in the Complaint has become the basis of the finding of the Adjudicating Authority in para 10-12, and the finding of the Special Director (Appeals) in para 7. 11. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 15. It is evident from the provision of S.103 of Evidence Act, which says that the burden of proof as to proving any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 16. Instances of law providing a "reverse evidentiary" burden are Section 24, PMLA and Section 71 of Foreign Exchange Regulation Act. ("FERA") FERA, i.e., the legislation preceding FEMA,contained a reverse burden clause. Pertinently, the said provision was not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for which he is tried. These cases are Attygalle v. Emperor and Seneviratne v. R." b. In (2008) 16 Supreme Courts Cases 537 in the case of Vinod Solanki v/s. Union of India and another, in para 26, it is held as under:- "26. Submission of Mr. P.V .Shetty that the appellant had special knowledge and that burden of proof would be on him in terms of Section 106of the Evidence Act, in a situation of this nature, cannot be held to have any substance. The initial burden to prove that the confession was voluntary in nature would be on the Department. The special or peculiar knowledge of the person proceeded against would not relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of law. It is submitted that the Consulate General can only certify the identity of the person affixing his signature and can never certify the correctness of any document executed by another person. 22. Both the Adjudicating Authority and the Special Director (Appeals) have placed the burden on the Appellant while passing order(s) and imposing penalty against the Appellant. 23. Six lac penalty was imposed. Having considered the facts and law, I am of the considered view that the present case is not fit for imposition of Penalty because liability to pay penalty does not arise merely upon the proof of contravention of a provision. Being an quasi-criminal proceeding, imposing penalty for contravention of a statutory obligation ought not o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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