TMI Blog2019 (6) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... . Against the accused, when the order was passed he was no more and against abettor there are no discussion and reasons for imposing the penalties. The order of penalty or conviction passed against a dead person leads to acquittal of deceased person with consequence of acquittal as presumption of innocence continues till finding of guilt on account of death of main offender, the proceedings get abated and abettor cannot be thus held guilty. The order against Sh. Bharat Hansraj Thakkar is liable to also be set aside on this ground also. - FPA-FE-36/MUM/2000, FPA-FE-37/MUM/2000 - - - Dated:- 14-6-2019 - Justice Manmohan Singh Chairman For the Appellants : Mr. R.K. Handoo, Advocate For the Respondent : Mrs. Aagam Kaur, Legal Consultant JUDGMENT FPA-FE-36 37/MUM/2000 1. By this order, I propose to decide the above mentioned two appeals filed by appellants against the order dated 30th August, 1998. One of his own behalf and another as a legal representative on behalf his father Late Hansraj Thakkar. During pendency of appeal, Bharat Hansraj Thakkar also expired, his wife is impleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proprietor of M/s. Stamford Agency which started functioning around Jan, 1987 from 3, 14, Jalaram Nagar, Ghatgopar till May, 1998 when his office was shifted to Nariman Point, Bombay. The nature of business as stated by him, is indenting, importing and sale of technical education books from M/s Supreme Technies Industries, 5, Coleman St., B1-13 Excelsior Shopping Centre, Singapore 0617. He stated that the books work ₹ 9 crores had been indented. These books are imported under OGI, through parcels. He even when asked could not however give the names of any of his so called customers who paid him cash for the purchase of the imported books. He could not give the name and address of a single agent/canvasser/ dealer who was canvassing for the sale of the books. He could not explain the huge cash deposits in the Bank accounts that are standing in the name of M/s. Stamford agency (e.g. ₹ 5 lakhs, ₹ 10 Lakhs, ₹ 16.25 Lakhs etc) of course the debits are mainly for remittance to Singapore for payment towards the imported books. Sh. Hansraj M. Thakkar has denied that he has over invoiced the prices of the books imported by him in spite of he being sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cience Laboratory, Kalina, Bombay. D. This Directorate had sent certain invoices together with typed material typed on the typewriter seized from the office of M/s. Stamford Agency to the Forensic Science Laboratory, Kalina. The invoices bearing Nos. Date 01792 27.10.87) 1790 27.10.87) 1789 27.10.87) exhibit 1-6 1787 27.10.87) 1767 26.10.87) 1766 26.10.87) of M/s. SIT, Singapore were got typed once again as (Exhibit 7-12) with the typewriter seized from the office of M/s. Stamford Agency and the Results of Analysis dated. 28.02.89 of Forensic Science laboratory reads Similarly of dimension of types and absence of any characteristic defects in typed matter of Exhibit 1 to Exhibit 6 and Exhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India only represent a portion of SH. Hansraj Thakkar s earnings on account of the sham import of books. It is obvious that he was only a conduct for remitting funds abroad of persons in India who needed foreign exchange abroad. Hence, the so called inward remittances received by him and his son as gifts are nothing but a small portion of the funds originally transferred out of India. I. Sh. Hansraj M. Thakkar has stated in his statement that if at all his son has committed any mistake (since there are documents to show that Sh. Bharat Thakkar also had been singing as Proprietor Thakkar) takes the responsibility for the same. Since, Sh. Hansraj N. Thakkar is the actual Prop. (and his son has also signed in the bank documents as Prop. As well as the has also credited cash amounts into the accounts of Stamford Agency) only he can be charged as Prop. Or the firm of M/s. Stamford Agency can be charged. However, due to the fact that SH. Bharat Thakkar should also be charged at least in term of Section 68(2). There are many more allegations against the Hansraj Thakkar and his son allegedly abettor. Finding of Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh Sandhu Himmat Singh Sandhu were staying in USA. Both the persons (being father son) had jointly bought owned property at E-10, Defence Colony, New Delhi. 6.2. Regarding the amount of US $ 40,430 acquired by the noticee (SCN-VI) on or about 10.05.88 in the form of Bankers cheque payable in USA discussed above pages 113-116 of seized documents bunch P) from M/s. STI, Singapore, it has seen earlier from discussions as above that since M/s. STI, Singaore was a sham concern, the question of his actual receipts form the said Sham firm did not arise. Thus, the only inescapable conclusion is that the said sum of US $ 46430 was part of his own money siphoned off to Singapore through the above discussed mechanism of so called imports of books by him. In respect of the impugned SCNs IX X the documents relied upon inter alia are page 7 of E , 19/16 of G , 77/76 of P , 105/96 of G and 27/29 of I . These documents go to indicate that SH. Hansraj Thakkar had also become Director of another company in Singapore namely M/s. Silk and Svnthetic Pvt. Ltd. Singapore on 28.3.87 by contributing S $ 7000 towards the initial capital of S. $ 10,000 (The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the reported death of Sh. Hansraj Thakkar. As opportunity to prove the genuineness of said fact has not been availed by the noticees Smt. Bharati Thakkar of hers/heir advocate. The hearing officer had declined to agree to the reported demise of Sh. H.M. Thakkar as evidenced from facts on record, rather he pointed out the discrepancies in the death certificate and proceeded with the matter on merits against the dead person. 9. Bharat Hansraj Thakkar, the son of Sh. Hansraj Thakkar was also arraigned as a notice in one of the 12 notices/show cause notices as abettor to Late Sh. Hansraj Thakkar and the adjudication order was passed against him imposing a penalty of ₹ 5 crores. 10. As already mentioned that originally two appeals were filed by Sh. Bharat Hansraj Thakkar against the Adjudication Order. One appeal, as the legal representative of his father Late Sh. Hansraj Thakkar and other appeal for himself, against imposing a penalty of ₹ 5 crores 11. Unfortunately, during the appeal proceedings, Sh. Bharat Hansraj Thakkar also expired and thereafter wife of Sh. Bharat Hansraj Thakkar stepped into the shoes as appellant as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputed the death of Sh. Hansraj Thakkar and proceeded to impose the penalty. While deciding the matter on merits, when it was pointed out to the ld. counsel for the respondent. She agreed that the matter ought not to have been proceeded on merit against the dead person. 16. It has come on record that the penalty was imposed on a dead person rendering the adjudication order a nullity and liable to be setaside only on this short grounds itself as argued by the counsel for the appellants. This contention was conceded by the Ld. counsel appearing for the Department during the course of hearing on 27.03.2019. 17. Sh. Bharat Hansraj Thakkar was impleaded in the show cause notice (I) as an abettor. The show cause notice no. V. appears to have been marked to him but without any allegation or narration of any allegation in the body of show cause notice Sh. Bharat Hansraj is only mentioned in the said SCN. 18. The adjudication order against Sh. Bharat Hansraj Thakkar is not tenable, inasmuch as, the Adjudication order does not contain any reasoning for holding Sh. Bharat Hansraj Thakkar guilty of the contravention for the said abetment . It can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be missing from the impugned order, another photocopy was compared with connected appeal no. 37/2000 which was tallying with the impugned order filed along with main file of the appeal, where the clean copy is available. 23. Thus, rendering the order against Sh. Bharat Hansraj Thakkar without any valid findings pertaining to penalties is not sustainable in law. As far as Hansraj Thakkar is concerned, the penalty was imposed against the dead party despite of having the knowledge about his death. 24. In view of facts and circumstances, the appeal is allowed in the case of Sh. Bharat Hansraj Thakkar of a penalty of ₹ 5.00 crores and the impugned order against him is quashed as there is no reasoning in the Adjudication Order. 25. The show cause notice seeks to hold the Sh. Bharat Hansraj Thakkar liable on account of abetment in terms of Section 64 of FERA, sine repealed. Once the order passed against Sh. Hansraj Thakkar, the main offender, is a nullity, being passed against a dead person abettor cannot be held guilty in the absence of guilt adjudged against main offender. The matter is 32 years old. Both alleged accused and abettor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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