TMI Blog1988 (9) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... n the 8th July 1986 the petitioner paid to the respondent No.3 Bank an equivalent amount of rupees for the purchase of foreign exchange (F.T.S.) for the first group of 200 passengers after receiving the said amounts from them. He submitted their passports, A-2 and F.T.S. forms duly certified by I.A.T.A. to the respondent No. 3 Bank along with their air-tickets. The passports were duly endorced for the purpose of obtaining Visa. On the morning of the 18th July, 1986, respondent No. 3 Bank issued foreign exchange (F.T.S) to 118 of the 200 passengers of the first group at Kutchi Memon Jamat Musafir Khana where these up country passengers has arrived and were staying. On the afternoon of the said date Shri Sandeep Naik. A representative of the respondent No.3 Bank came to the office of the petitioner to distribute foreign exchange to the remaining 82 passengers of the first group who had arrived the same morning but wer staying at various places. After foreign exchange was distributed to 28 passengers, the officers from the Enforcement Directorate came for search and seixed from Shri Sandeep Naik, while in the process of delivering foreign exchange to the passengers, foreign exchange a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by the respondent No.3 Bank to the Enforcement Directorate under the order dated the 8th Sept. 1986. This recovery had been made by the Enforcement Directorate without even issuing a show cause notice to the petitioner. The petitioner therefore on the 3rd Oct. 1986 filed the present petition. He challenged the legality of the order and prayed for refund of that amount. 6. Pending this petition, the Enforcement Directorate issued show cause notice dated the 17the July 1987 for initiating adjudication proceedings under Section 51 read with Section 63. Pending adjudication proceedings, this petition came up for hearing before my learned brother Kurdukar J. on the 11th Jan. 1988. By order dated the 13th Jan. 1988 the respondents were directed to complete adjudication proceedings expeditiously and the petition was adjourned for being taken up after completion of those proceedings. The petitioner by his reply dated 2nd April 1986 and 6th May 1988 denied the charges contained in the show cause notice. On the 20th June 1988 the Enforcement Directorate passed the second impugned order, inter alia, holding the petitioner guilty of all the charges and imposing a penalty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der viz., the order of adjudication dated 20th June 1988Mr. Andhyarjina submitted that it was not even the case of the respondent No. 2 that either the petitioner or the respondent No.3 Bank had fraudulently collected foreign exchange and not paid over the same to the bona fide passengers. The only fault found was that the FERT.S forms as well as A-2 forms for the release of foreign exchange under the F.T.S. scheme were not signed by the passengers themselves and instead they were signed by the employees of the petitioner. According to Mr. Andhyarjina, even though it is true that the said forms were not signed by the passengers but by the employees or representatives of the petitioner, the same had no bearing and did not infringe any of the provisions of FERA as long as it has not been shown that the foreign exchange obtained had not gone to the bona fide passengers but had been misappropriated. Singing of the forms by the passengers themselves was an inconsequential formality as the forms themselves permitted the signatures of the Head of the family or the leader of the group. In any event, according to Mr. Andhyarjina, the petitioner could not be held liable with the aid of S. 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated the 20th June 1988, it may be convenient to reproduce the relevant findings arrived at by the respondent No.2 for passing the impugned order of confiscation:-. It is an admitted fact that FTS forms as well as A-2 forms were not signed by the applicants. And. In stead, these forms were signed by the employees of M/s. al Saya Nasser Travels. It has also been noticed from the seized A-2 forms that some of the A-2 forms were not signed at all. It has also been noticed that wherever the employees of M/s. Al Nasser Travels had signed FTS and A-2 forms or put thumb impression they had not done so on behalf of the original applicants, but in fact, they made signatures/thumb impressions so as to look as if they were of original applicants. The provisions of S. 6(4) 6(5) read with S. 49 of the Foreign Exchange Regulation Act , 1973 very clearly indicate that the authorised dealer is to scrupulously follow the directions and guidelines of the Reserve Bank of India for issue of any Foreign Exchange and wherever, such guidelines have not been followed, it will be treated as contravention of the provisions of the Act and whosoever aids or abets in not following t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can have no application to the facts found by the respondent No. 2. It is nobody's case that the respondent No.3, the authorised dealer had required any person to make any declaration or to give information for the purpose of being satisfied that the transaction would not involve and was not designed for the purpose of contravention of any provision of the Act , Rule. Notification or direction or order. It is also nobody's case that any person refused to comply with such requirement or had made any unsatisfactory compliance. Hence, in my judgment, on a plain reading of sub-s. (5) of S. 6 the same is wholly inapplicable to the facts of the present case. 12.Sub-Section (4) of S. 6 requires an authorised dealer in all his dealings in foreign exchange to comply with such general or special directions or instructions as the Reserve Bank of India may from time to time think fit to give and an authorised dealer is forbidden from engaging in any transaction involving any foreign exchange which was not in conformity with the terms of his authorisation under the said Section. Now the question that arises for determination is whether the petitioner or his representatives by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy transferred in the name of he minor daughter by signing her (minor's) name and also received compensation for the claims made by her in regard to the two accidents to the car. The claims were true claims and she received the moneys by signing in the claim forms and also in the receipts as N. the accused in fact and in substance put through her transactions in connection with the said motor car in the name of her minor daughter. N was in fact either a benamidar for the accused, or her name was sued for luck or other sentimental considerations. On the facts found, either the accused got any advantage either pecuniary or otherwise by signing the name of N in any of the said documents nor the Insurance Company incurred any loss, pecuniary or otherwise, by dealing with the accused In the name of M. the Insurance company would not have acted differently even if the car had stood in the name of the accused and she had made the claims and received the amounts from the insurance company in her name....... Held, that the accused certainly was guilty of deceit, for though her name was V she signed in all the relevant papers as N and made the insurance company believe that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order to constitute in point of law and intent to defraud, there must be a possibility of some person being defrauded by the forgery, or there must be a possibility of some person being not only deceived but injured by the forgery. 18. It must be remembered that proceedings of adjudication under FERA are in the nature of quasi-criminal proceedings and unless the infringement is absolute, it would not be permissible to take resort to such proceedings. In the case of Shanti Prasad Jain v. Director of Enforcement , Foreign Exchange Regulation Act , the Supreme Court while dealing with FERA was pleased to observe that it is only right to observe that the proceedings under the Act are quasi-criminal in character and it is the duty of the prosecutor to make out beyond all reasonable doubt that there has been a violation of the law. 19. In the case of Union of India v. Shreeram Durga Prasad (P) Ltd. Reported in , the Supreme Court in a challenge to a show cause notice under FERA observed as under (at page 1612);- It we are to hold that every declaration which odes not state accurately the fully export value of the goods exported is a contravention of the rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits. 22. IN the case of Tata Engineering v. Asstt. Commr, of Commercial Taxes , it was held that the jurisdiction of the High Court under Art. 226 of the Constitution is extra-ordinary and has to be used sparingly. In spite of the very wide terms in which this jurisdiction is conferred there are certain recognised limitations on this power. The jurisdiction is not appellate and it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence. The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed. To these, there are certain exceptions. One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly'. To the same effect are also the observations of Lord Pearce at page 233, R. v. Fulham, Hammersmith and Kensington Rent Tribunal (1953) 2 All Er 4, it yet another decision of a tribunal properly embarking on an enquiry, that is, within its jurisdiction, but at the end of it making an order in excess of its jurisdiction which was held to be a nullity though it was an order of the kind which it was entitled to make in a proper case. The principle thus is that exclusion of the jurisdiction of the civil courts Is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which It confers jurisdiction and provides for adequate remedy to do what the courts would normally do in such a proceedings before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fit case for involking interference in the extra-ordinary discretionary jurisdiction under Art. 226 of the Constitution of India. In my judgment, there is no merit in the aforesaid contention. The petitioner has not been proceeded on this ground and no case has been made out on that basis. It would not be permissible to refuse to entertain the present petition on grounds which were not the subject matter of the inquiry or the charge before the respondent No.2. Since I am of the view that the impugned proceedings lack the very basic jurisdiction, it would be unfair not to exercise the jurisdiction, it would be unfair not to exercise the jurisdiction under Art. 226 and to leave the petitioner with the departmental appeal which cannot be equated with the expeditions remedy of a writ petition. It needs to be observed that Mr. Parkh, the learned Counsel appearing on behalf of the respondent No. 3 has supported the petitioner and adopted the submissions advanced by Mr. Andhyarujina on behalf of the petitioner. In this view of the matter. In find the aforesaid submissions of Mr. Bhatia devoid of any merit. 27. Mr. Bhatia finally submitted that ever if the order of confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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