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TMI Blog2016 (9) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating Authority. We do not find any latent or patent illegality, irregularity or infirmity in the Adjudication Order. The Revision in our opinion has no merits and is liable to be dismissed. - Revision Petition No. 8/2009 - - - Dated:- 9-9-2016 - Mr. Vinay Kumar Mathur, Chairperson and Dr. H.K. Mudgil, Member Shri Mohmd. Farid, ALA, for the Petitioner. Shri S.K. Kochar, Advocate, for the Respondent. ORDER [Order per : Justice V.K. Mathur, Chairperson]. - We have heard arguments of Sh. Mohd. Fareed, ALA for the Revisionist and Mr. S.K. Kocchar, Advocate representing respondents No. 1, 2, 3 and 6. Proceedings against respondents 4, 5, 7 and 8 were held ex parte as despite service, the respondents failed to appear. 2. Brief facts relevant for the disposal of the instant revision petition are that on the basis of information collected from SBI, Kandla Free Zone Branch - Kutch regarding outstanding export proceeds to the tune of ₹ 9,84,180/- against M/s. Mohan Carpets (India) Ltd. as on 31st March, 1991 investigations were initiated by Ahmedabad Office of Enforcement Directorate on 12-2-1993. Enquiries with the bankers, State Bank of India - Kandla, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also informed that exports in U.K. were under-invoiced creating a margin of 2 pounds which was retained abroad for personal expenses by Sh. Rakesh Mohan including the educational expenses of his sons and similar margins were retained abroad through M/s. Sterling Westminister Inter-continental Ltd., London in some exports made to Germany by M/s. Mohan Meakins Ltd. and some of the foreign funds retained abroad had been routed back to Mohan Carpets in the form of deposits. It was also informed that investment of 1,00,000 pounds in the year 1985 in M/s. Mohan Carpets were made by M/s. Campofina Anstalt, Leichtenstein without the permission of RBI. There were allegations of sale of immovable property in U.K. by Sh. Rakesh Mohan and also regarding maintaining bank accounts in U.K. in his name and in the name of his wife. Statements of the witnesses were recorded. It is contended that Brigadier Kapil Mohan, B.D. Bali, Rakesh Mohan, Comilla Mohan, J.J. Choksey, R.D. Mohan, Jaywant Singh, Rohit Sahu, Rakesh Khosla Somesh Kapahi were directors of the company. It was also found that RBI had not granted permission for receiving advance payments against export orders for 1,00,000 Sterling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the Memorandum. Sh. B.D. Bali was also represented through a counsel and it was contended that he had also resigned as Director in 1988-89. Sh. Jaywant Singh stated that he was not a Working Director of the company and was not involved in the actual running of the affairs and management of the company. The company was granted Amnesty by RBI in 1987-89 and he has ceased to be a Director in 1986. 7. Call notice was also issued to the Official Liquidator. The Adjudicating Authority on the basis of evidence available and the replies of denial by the noticees found that the company M/s. Mohan Carpets had exported goods worth 81,459.76 pounds and F.F. 1,72,834.78 and the export proceeds were yet to be brought back to the country. The Amnesty granted by the RBI to the company was subject to realization of the export proceeds and the Amnesty granted by RBI was against failure to repatriate the export proceeds within six months and RBI had no intention to waive the realization of the export proceeds. The Adjudicating Authority was of the view that the conduct of the notice company and its directors had not been above board since the beginning and Sh. Rakesh Mohan in his statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous illegality by not holding Noticee Nos. 2, 3, 5, 7, 8, 10 and 11 guilty under Sections 18(2) and 18(3) read with Section 58 of FERA, 1973 as they were also associated with the exports in the capacity of Directors and were in-charge and were responsible at the relevant time when the contraventions took place. Further submission is that respondents have failed to explain as to why the export value to the tune of 81,459.76 pounds and FF 172834.78 could not realized within the prescribed period in the prescribed manner. It has also been contended that the impugned order has been passed on the basis of extraneous material. Further submission is that the respondents made attempts to wriggle out of the proceedings by giving false evidence/excuses which did not merit consideration at all. Mere denial has no meaning and no evidence was produced/furnished by the respondents. The matter of the respondents is covered under Section 68(1) of FERA, 1973. The entire defence evidence was an afterthought and was given at a belated stage. The conclusions arrived at in the impugned order are perverse and contrary of all norms and judicial process therefore, it has been prayed that revision may be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 - Umesh K. Modi v. Deputy Director of Enforcement Directorate dated 31-7-2014 and judgment of the Hon ble Supreme Court in National Small Industries v. Harmeet Singh Paintel and Another dated 15-2-2010 in Criminal Appeal Nos. 320 to 336 of 2010. 11. We have considered the submissions of ld. Legal Consultants as well as ld. Counsel for the contesting respondents in National Small Industries v. Harmeet Singh Paintal Anr. (supra), Hon ble Supreme Court while dealing with matter under Negotiable Instruments Act has laid down certain principles emphasizing that the primary responsibility is on the complaint to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability there is no presumption, the Hon ble Court has further held that Section 141 (NI Act) does not make all the directors liable for the offence. The criminal liability can be fastened only those who at the time of the commission of the offence were in charge and were responsible for the conduct of the business of the company. It has been further held that vicarious liability can be inferred against a company registered or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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