2018 (5) TMI 1530 - AT - FEMA

Identity of the offender - appeal filed mainly on the ground that ED had booked a case against them on a wrong presumption and was a case of mistaken identity - Held that - it is clear that ED has not been able to prove that the appellant and Shri Farooque Memon, who seems to be the offender, are one and the same person. This is strengthened by the order of the Additional Chief Metropolitan Magistrate at Ahmedabad in the bail application. All evidences on record point that Shri Farooque Mithawala and Shri Farooque Memon are two different people - Shri Farooque Mithawala the appellant has been wrongly implicated. Appeal allowed.

Summary

Issues:
1. Alleged contravention of Section 9 (1) (b) of FERA - Receipt of foreign exchange remittance without authorization.
2. Identity issue - Mistaken identity leading to wrongful implication.
3. Evidence evaluation - Reliability of documents and statements in establishing the offender's identity.

Analysis:

Issue 1: Alleged contravention of Section 9 (1) (b) of FERA
The case involved a show cause notice issued for contravention of Section 9 (1) (b) of FERA against the appellant, alleging receipt of foreign exchange remittance without authorization. The charge was based on fax messages and statements suggesting receipt of payments in India from unknown sources. The adjudicating authority relied on these documents to substantiate the charge.

Issue 2: Identity issue - Mistaken identity
The appellant contended that the case was a result of mistaken identity, as the documents referred to a different individual, Farooque Memon of Navsari, Gujarat, not Farooque Mithawala of Dungari, Gujarat. The appellant highlighted that the ED failed to establish any connection between them and wrongly implicated him. The bail order also questioned the identification clarity between the two names, emphasizing the lack of evidence linking the appellant to the alleged offenses.

Issue 3: Evidence evaluation - Establishing the offender's identity
The tribunal analyzed the evidence, including the Panchnama, voters' lists, and statements, to determine the offender's identity. It noted discrepancies in the documents and lack of clarity in establishing whether Farooque Memon and Farooque Mithawala were the same person. The tribunal found that the ED failed to provide concrete evidence linking the appellant to the hawala transactions, as the seized documents did not implicate the appellant. The tribunal concluded that the appellant and Farooque Memon were distinct individuals based on the available evidence.

In the final judgment, the tribunal ruled in favor of the appellant, holding that the ED had wrongly implicated him due to mistaken identity. The tribunal emphasized the lack of evidence connecting the appellant to the alleged offenses and concluded that the appellant, Farooque Mithawala, was not the same person as Farooque Memon. The appeal was allowed based on the findings of mistaken identity and lack of conclusive evidence against the appellant.