2018 (3) TMI 1136 - AT - FEMA

Calling of witness Mr. Chokshi whose cross examination was already conducted on 20/09/2017 was rejected - Held that - It is the interest of justice, equity and fairplay, let Mt. Chokshi be further cross-examined on this aspect. The argument of the respondent has no forced that the appellant has covered entire case on 20.09.2017 if when the question of 41-45 were put to Mr. Chokshi. Thus, the findings given in the impugned orders are contrary to facts and law and are not sustainable. The prayer for recall of witness ought to have been allowed in view of peculiar facts of the matter. The appeal is liable to be allowed. The impugned order is set-aside.

Summary

Issues Involved:
1. Maintainability of the appeal under Section 19 of FEMA.
2. Recall of witness Mr. Mitil Chokshi for further cross-examination.
3. Cross-examination of the Investigating Officer, Mr. D.K. Sinha.

Detailed Analysis:

1. Maintainability of the Appeal:

The respondent argued that the appeal is not maintainable under Section 19 of FEMA, as appeals can only be filed once the Adjudicating Authority passes a final order imposing a penalty. The respondent cited various Supreme Court judgments asserting that tribunals must adhere strictly to statutory provisions and cannot interpret or exceed their jurisdiction. The appellant countered by stating that the words "an order" in Section 19 should be given a wide interpretation to include any order affecting valuable rights, not limited to final orders. The appellant cited multiple judgments supporting the interpretation that "any order" includes interlocutory orders affecting substantive rights. The Tribunal agreed with the appellant, stating that orders affecting substantive rights are appealable under Section 19, and thus, the appeal is maintainable.

2. Recall of Witness Mr. Mitil Chokshi:

The appellant sought to recall Mr. Mitil Chokshi for further cross-examination, arguing that a crucial document (Assumption Sheet) was handed over at the culmination of the proceedings on 20th September 2017, leaving no opportunity to question the witness about its contents. The appellant contended that the cross-examination was incomplete and that the document contained discrepancies requiring clarification. The respondent argued that the document was provided earlier and that the appellant had already covered all relevant questions during the initial cross-examination. The Tribunal found that the document was indeed handed over on 20th September 2017 and that the appellant did not have the opportunity to question the witness about it. The Tribunal emphasized the importance of fair trial principles and allowed the recall of Mr. Mitil Chokshi for further cross-examination.

3. Cross-Examination of Investigating Officer Mr. D.K. Sinha:

The appellant requested the cross-examination of the Investigating Officer, Mr. D.K. Sinha, arguing that his report was the foundation of the adjudication proceedings and contained discrepancies. The appellant asserted that cross-examination was necessary to address these discrepancies and ensure a fair trial. The respondent opposed the request, stating that the investigation report was provided to M/s. Chokshi & Chokshi for their opinion and that the appellant was attempting to delay the proceedings. The Tribunal referred to various judgments emphasizing the right to cross-examine witnesses as part of the principles of natural justice. The Tribunal found that cross-examination of Mr. D.K. Sinha was necessary to address the discrepancies in his report and ensure a fair hearing. The Tribunal allowed the appellant to cross-examine Mr. D.K. Sinha.

Conclusion:

The Tribunal allowed both appeals, setting aside the impugned orders. The Tribunal directed that Mr. Mitil Chokshi be recalled for further cross-examination and that the appellant be allowed to cross-examine Mr. D.K. Sinha. The Tribunal emphasized the importance of fair trial principles and the right to cross-examine witnesses to ensure justice. The Tribunal also addressed procedural objections raised by the respondent, affirming the maintainability of the appeal under Section 19 of FEMA.