2019 (6) TMI 863 - AT - FEMA

Violation of FERA - penalty imposed against dead person - both alleged accused and abettor have already expired long ago - HELD THAT - 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. 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. 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 Bharat Hansraj Thakkar liable on account of abetment in terms of Section 64 of FERA, sine repealed.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 have already expired long ago. 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.

Summary

Issues Involved:
1. Validity of the penalty imposed on Late Sh. Hansraj Thakkar.
2. Validity of the penalty imposed on Sh. Bharat Hansraj Thakkar as an abettor.
3. Procedural lapses in the adjudication process.

Issue-wise Detailed Analysis:

1. Validity of the penalty imposed on Late Sh. Hansraj Thakkar:
The adjudication order dated 30th August 1998 imposed a penalty of ?10 crores on Late Sh. Hansraj Thakkar. At the time of issuance, Sh. Hansraj Thakkar had already passed away on 27th August 1994. Despite being informed of his death, the Adjudicating Authority disputed the authenticity of the death certificate and proceeded with the order against the deceased. The Tribunal found this action to be a nullity, as imposing a penalty on a dead person is legally unsustainable. The Tribunal noted that the death certificate and related documents were duly submitted, and thus, the penalty against Sh. Hansraj Thakkar was quashed.

2. Validity of the penalty imposed on Sh. Bharat Hansraj Thakkar as an abettor:
Sh. Bharat Hansraj Thakkar was penalized ?5 crores for allegedly abetting the violations committed by his father. The adjudication order, however, lacked any detailed reasoning or discussion on his role in the contraventions. The Tribunal highlighted that the order did not contain any specific findings or evidence to substantiate the charge of abetment against Sh. Bharat Hansraj Thakkar. Furthermore, since the main offender (Sh. Hansraj Thakkar) was deceased and the order against him was nullified, the abettor could not be held guilty in the absence of an adjudged guilt against the main offender. Consequently, the penalty against Sh. Bharat Hansraj Thakkar was also quashed.

3. Procedural lapses in the adjudication process:
The Tribunal observed significant procedural lapses in the adjudication process. The Adjudicating Authority failed to provide valid reasoning for the penalties imposed, especially concerning Sh. Bharat Hansraj Thakkar. The Tribunal noted that the adjudication order lacked proper documentation and logical coherence, rendering it unsustainable in law. Additionally, the Tribunal pointed out that the proceedings continued against a deceased person, which is a fundamental procedural flaw. The Tribunal emphasized that the adjudication should not have proceeded on merits against a dead person, and the subsequent penalties were therefore invalid.

Conclusion:
The Tribunal allowed the appeals, quashing the penalties imposed on both Late Sh. Hansraj Thakkar and Sh. Bharat Hansraj Thakkar. The Tribunal underscored that penalties or convictions passed against deceased individuals are legally untenable and lead to the acquittal of the deceased. Consequently, the penalties imposed were set aside, and the appeals were allowed without any costs.