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TMI Blog2019 (6) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be produced for cross-examination. In the present case, the main accused as per respondent is Thlabik who is absconding. It was the duty of the respondent to trace him out. Despite of prayer of the appellant for cross-examination allowed, the witness was not produced for cross examination. Thus, merely on the basis of presumption, the inference can be drawn against the appellant without clinching evidence. The benefit of doubt under these circumstances goes in his favour. The submission of the respondent does not help the case in view of peculiar facts and circumstances of the matter. In the light of the above, the appeal is allowed. The impugned order against the appellant is set aside. - FPA-FE-18/KOL/2011 - - - Dated:- 17-6-2019 - Justice Manmohan Singh Chairman For the Appellant : Mr. N. K. Chowdhury, Advocate, Mr. Arijit Chakrabarti, Advocate For the Respondent : Mr. Pankaj Yadav, Legal Consultant JUDGEMENT FPA-FE-18/KOL/2011 1. By this order this Tribunal proposes to decide the present appeal filed by Shri Sachin A. Mehta. The petitioner received on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Show Cause Notice, reliance, inter-alia, is placed on the documents mentioned in Annexure B of the Complaint. The said duly Authorized Legal Practitioner / Chartered Accountant, if they so desire on any working day during office hours, with prior appointment with the Deputy Director, Directorate of Enforcement, Kolkata Zonal Office, CGO Complex, 3rd MSO Building, 6th Floor, DF-Block, Salt Lake City, Kolkata- 700064; IV. As per to Rule 4 of the Foreign Exchange Management (Adjudication Proceedings Appeal) Rules, 2000, whereby to appear either in person or through their duly authorized legal petitioner/chartered accountant to explain and produce such documents or evidence as may be useful for or relevant to the subject matter of enquiry. V. In case they fail, neglect or refuse to appear on the appointed day, the adjudication proceedings shall proceed against the Noticee exparte. 5. The case of the appellant in the present appeal is that pursuant to recover of US $ 3,30,400 at Aizwal Airport on 27.10.2006 from a person by name Shri Thlabik and subsequent recording of statement of Shri Thlabik, who had take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the principles of natural justice and penalty has been imposed without any strict proof of violation of Sec. 3(a) of FEMA, 1999. 6. The submissions on behalf of the respondent:- The statement of the Appellant, which is a substantial piece of evidence dated 4.5.2007 and 7.5.2007 is sufficient one to establish the contraventions of the Appellant. The statement recorded u/s 40 of FERA cannot be doubted. Counsel for respondent has referred the decision of Hon‟ble Supreme Court in the case of Naresh J Sukhawani vs. Union of India AIR 1966SC522 . The relevant extract is reproduced hereafter:- 4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani s sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewellery from Sh. Sachin, Noticee No. 2 or made any payments to him on that account. I do not find any merit in defense plea that without their cross-examination their denial cannot be relied upon. Since, it was Sh. Sachin A. Mehta, Noticee No. 2 who had on his own given their names. d) The date wise accounts reflected in the seized Note Book from Noticee No. 1 discussed in foregoing para in a tabulated from depicts transaction in foreign currency which Noticee no. 1 had undertaken from June to September 2006. 9.5.14 Therefore, the plea taken by Noticee NO. 2 that he dealt in gems, stones diamonds with Aizawl customers is false and misleading as both Sh. Biaka and Ms. Thuamuii had denied any transaction of gems/stones/diamonds with Sh. Sachin, Noticee No. 2 as discussed in foregoing paras. As regards (Noticee No. 2) denial of having link with the impugned transaction in foreign exchange with Raj of Kolkata and Thlabik of Aizawal is devoid of any merits for the reason that name of the Noticee No. 2 was disclosed by Sh. Thlabik in his Statement and the impugned amount and name of Noticee No. 2 figured in the said seized Note Book. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o conclude as to whether said witnesses are making the correct statement or not because both were allegedly purchased the jewellaries in cash and it may be difficult to explain such a huge money of cash. At the best, Indian Currency recovered from him at the time of search for a sum of rupees thirty five lakhs may be unaccounted money against which the Income Tax Office was to take action against him. 10. The entry of Note Book maintenance by Thlabik cannot be treated as valid and admissible evidence as per settle law: a). Hon‟ble High Court in L.K. Advani Vs. CBI (1997) CrI. LJ 2559 wherein, it was held that the diaries relied upon by the prosecution are inadmissible in evidence and cannot be called book of accounts. Further CBI approached the Hon‟ble Supreme Court by filing a SLP against the said judgment. But, the Supreme Court upheld the order of the High Court in the matter of CBI vs. V.C. Shukla Ors. (1999)3 SCC 410 , where after all the accused persons were discharged. b). It is a settled law that the rulings of the Supreme Court are binding under Article 141 of the Constitution of India, wherein a high ..... X X X X Extracts X X X X X X X X Extracts X X X X
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