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TMI Blog2010 (11) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... ruth in the claim of the petitioner and finally having regard to the fact that the petitioner is a chartered accountant by profession, and so, he must have some reasonable income, conditional order in favour of the petitioner to direct him to deposit a sum of Rs. 2,00,000/- (Rupees two lakhs only) within a period of 45 days from the date of receipt of a copy of this order for entertaining the appeal as provided in Section 52(2) of the Act. To that extent the impugned order needs interference. - Writ Petition (MD) No. 6489 of 2008 - - - Dated:- 15-11-2010 - S. Nagamuthu, J. Shri M. Ajmalkhan, for the Petitioner. Shri A. Saravanan, for the Respondent. [Order]. Challenge in this writ petition is to the order of the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which ultimately ended in acquittal by the trial Court. An appeal preferred by the department to the High Court was also dismissed. Thus, he has been proved to be an innocent person. It is further submitted that the original order of the Director was passed ex parte without affording sufficient opportunity to the petitioner. The learned counsel for the petitioner further submitted that there are no materials to show that the petitioner has any wherewithal to deposit the penalty amount. The contrary findings, according to the learned counsel, as made in the impugned order are not correct. He would submit that if the petitioner is insisted to deposit the entire amount of Rs. 10,00,000/-, it would surely cause undue hardship to him. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court. Relying on that, the learned counsel for the respondent would submit that even in respect of any order declining to dispense with the pre-deposit, an appeal lies to the High Court and therefore, the writ petition is not maintainable. 8. I have considered the above submission. Let me, at first, take up the question of maintainability of this petition. Insofar as the FERA Act is concerned under Section 54 of the Act, an appeal shall lie to the High Court only on question of law from any decision or order by the appellate board under sub-sections (3) or (4) of Section 52. But, the order under challenge in this writ petition is the one passed under sub section (2) of Section 52 of the Act. Thus, it is very clear as against such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning to the next contention of the petitioner, the proceeding for confiscation and for imposition of penalty initiated under the Act is independent of the criminal prosecution. Acquittal of the petitioner by the criminal Court may be a circumstance while considering the question of confiscation and such acquittal will not be a bar to proceed further with the confiscation proceedings. 12. Nextly, a perusal of Section 52(2) of the Act would go to show that it gives discretion to the Tribunal to dispense with such deposit, in the event if the petitioner is able to show undue hardship. But such discretion cannot be exercised arbitrarily. Though it is stated that the petitioner has got wherewithal to deposit the said amount, to substantiate th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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