9911796707
TMI Blog1987 (2) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... nt books, diaries, etc., were seized. The appellant was interrogated with reference to the seized documents on that very day and subsequently also. On the basis of these statements, seized documents and further enquiries made from various quarters, the appellant was issued the following three memos : (1)Memo No. III(12) of 1971 (SCN-I), dated January 6, 1972, for having received Rs. 3,68,000 in contravention of section 5(1)( aa ) of the Foreign Exchange Regulation Act. (2)Memo No. III(12) of 1971 (SCN-II), dated January 6, 1972, for making 51 payments amounting to Rs. 2,54,700 in contravention of section 5(1)( c ) of the Foreign Exchange Regulation Act. (3)Memo No. III(12) of 1971 (SCN-IU), dated January 1, 1972, for placing to the cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Act are admitted to be correct, the authorities below could not have imposed a penalty of more than Rs. 5,000 for each memo, inasmuch as only one charge was framed for having received the amount of Rs, 3,68,000 and the disbursement of Rs. 2,54,700 to 51 persons. There is no averment in the first charge nor is there any evidence to show that this amount was received in 9 instalments. Similar is the case with regard to the second charge. In fact, without examining the persons to whom the alleged payments were made, the appellant could not have been held liable for excess penalty. Furthermore, the authorities below went wrong in relying on the entries in the books of account without any corroboration from any independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents, the authorities below were justified in imposing the penalty of Rs. 5,000 for each receipt/transaction. For the second charge, a similar situation prevails, except one distinction that along with the memo, the Department also filed the annexures showing the payment of various amounts to 51 persons. This list allegedly was prepared from the entries found in the diary. The finding of fact given by the courts below to my mind is in conformity with law and the facts proved on the record. Even though the appellant has challenged the correctness of the procedure adopted in the recovery of the account books, learned counsel has not been able to overcome the convincing evidence of the panch witnesses who not only admitted their signatures o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontravening any of the provisions of this Act or any rule, direction or order made thereunder, which prohibits him from doing an act without permission, the burden of proving that he had the requisite permission shall be on him. Similarly, presumption of correctness of the documents recovered/seized from the custody or control of any person can also be raised. Heavy onus lay on the accused to prove the contrary. In this case, no attempt has been made by learned counsel for the petitioner to show as to how the Department, was under an obligation to abide by the strict rules of evidence or for that matter on adverse presumption can be raised against the Department. In fact, the statement of the accused coupled with the entries in the account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumption against the appellant. No interference in this finding is called for. Learned counsel then submitted that the charge being for a consolidated amount, the penalty under the Act could be imposed on one count, even though the receipts and disbursements are alleged to have been made to different persons. Reliance in this behalf is placed on the unreported Division Bench judgment of the Madras High Court in K. Ganapathy v. Director, Enforcement Directorate (Writ Appeal No. 278 of 1968 decided on July 13, 1973). In that case, in the charge under section 5(1)( aa ), only the amount of Rs. 60,000 was mentioned. The Department, however, proved the receipt of this amount in two instalments of Rs. 30,000 each. Hence, the Department le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, learned counsel contended that the amount of penalty imposed on the appellant is very much on the high side. He pointed out that in the memo annexed with the second charge, many of the recipients are in the range of Rs. 1,000 to Rs. 2,000. There was no justification for imposing the maximum penalty of Rs. 5,000 for each of the disbursements. According to learned counsel, it is a fit case in which at least the penalty be. reduced to a- minimum. Learned counsel for the respondent has opposed the prayer by alleging that under section 50 of the Act, for every contravention, the accused is liable to such penalty not exceeding three times the amount or value involved in any contravention or Rs. 5,000, whichever, is higher. No discretion is le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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