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TMI Blog2019 (8) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of statement after two days - HELD THAT:- It is well settled law that a retracted confession can never be the basis of any penalty to be imposed upon a person, unless substantially corroborated by independent sources. In the present case, apart from the retracted confessional statement of the Appellant, there is no independent evidence on record to corroborate the retracted confessional statement of the Appellant - Therefore, the said statement cannot be relied upon to impose any penalty upon the Appellant. Appeal allowed. - FPA-FE-1072/DLI/2007 - - - Dated:- 30-7-2019 - Justice Manmohan Singh Chairman For the Appellant : Shri Madhav Khurana, Advocate, Shri Vignaraj Pasayat, Advocate For the Respondent : Shri Prashant Pandey, Legal Consultant JUDGEMENT FPA-FE-1072/DLI/2007 1. The Appellant has filed the present Appeal under Section 19 FEMA, 1999, against the Order No. SDE(SKP)/III/198/2004, dated 10.09.2004, passed by the Special Director, Directorate of Enforcement (hereinafter referred to as the Impugned Order ), by virtue of which the Special Director imposed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Drafts/ pay orders were issued in favor of several persons from the NRE Accounts, by couching the same as gifts, in order to enable them to avail the benefits of the Immunity Scheme, 1992, in lieu of which he and his employees demanded payment in the form of Cash in Indian currency, covering the value of the gifts‟ and in addition thereto, charged a premium at a fixed percentage of the value of the gifts‟. c. Manjeet Singh was his childhood name. In the above Statement dated 12.12.1995, there is not even a single mention of Sh. Sanjeev Gupta. 8. The Appellant after two days wrote Letter dated 14.12.1995 addressed to the Deputy Director, Enforcement Directorate, informing the Officials of the Respondent searched his Office and Residential premises on 12.12.1995 and thereafter forcibly and illegally detained him at their Office. During the course of his unlawful detention, the Officers of the Respondent including Mr. R.K. Paliwal, Mr. N.K. Katyal and K.C. Abraham beat him up and dictated and forcibly made him write the aforementioned Statement dated 12.12.1995. The Appellant thereafter retracted from the said Statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014, the Hon‟ble Supreme Court had restored the Civil Appeal on an Application moved by the Respondent. By Order dated 24.04.2017, the Registry of the Hon‟ble Supreme Court noted that despite opportunities for filing Affidavit of proof of service by the Respondent, it had failed to do so and hence directed the matter to be processed for listing before the Hon‟ble Judge in Chambers for further directions. Thereafter, the Civil Appeal had not proceeded any further. As per appellant, the respondent may not be interested in prosecution of the same. 12. The Hon‟ble High Court of Delhi has reaffirmed the view it has taken in its Judgment dated 18.12.2009 passed in Standard Chartered Bank V/s Directorate of Enforcement Ors. in similar cases and has quashed the Show- Cause Notices impugned therein by way of Judgment dated 20.09.2010, reported in (2010) 172 DLT 547, the Hon‟ble High Court of Delhi reaffirmed the view as mentioned above, whilst holding as follows: - 5. Similar show cause notices were issued to several banks and persons by the department and a number of writ petitions were filed before this Court to decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid two submissions made by Mr. Chandhiok are concerned, we are of the view that the Division Bench in Union of India v. Citi Bank, N.A (supra), had considered all aspects of the matter before it rendered its decision. Even at the sake of repetition, we may point out that the Division Bench specifically set out the provisions of the circular as well as the amended and unamended provisions of paragraph 13B.22 and then came to conclusion that it did. It is obvious that the said Division Bench did not regard the circular or the amendment as being merely clarificatory. We, therefore, feel that the issue stands entirely covered by the said Division Bench decision. With regard to the submission of alternative remedy, we feel that these writ petitions have been pending before this Court since 2002 and that by virtue of interim orders passed in these writ petitions, the show cause notices were permitted to be proceeded with and adjudication orders were allowed to be passed, however, this Court made it clear that the same would not be implemented. The logic behind this was obvious and, that is, the same were subject to any orders that would be passed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in this Court, thereby challenging the validity and legality of such show cause notices. In Citi Bank v. Union of India Another, W.P(C) 1211/2005, a Single Judge of this Court vide judgment dated 19th April, 2007 held that prior to 31st July, 1995, there was no clear-cut stipulation that deposits/credits could not be made in the NRE accounts of NRI account holders in the absence of the account holders themselves. Review petition filed by the Union of India in the aforesaid matter was also dismissed on 16th January, 2009. Union of India then preferred an LPA bearing No. 117/2009 titled Union of India Others v. Citi Bank before the Division Bench of this Court, thereby, challenging the order passed by the Single Judge. This LPA was, however, dismissed on 26th March, 2009. Division Bench considered the show cause notice and circular/instructions issued by the Union of India on 31st July, 1995 in respect of deposits of foreign exchange in NRE accounts, as also the provisions of Exchange Control Manual and held that prior to 31st July, 1995, there had been no requirement clearly pointing out that deposits in NRI accounts could not be made by a person other than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court is unable to appreciate how the said provisions are at all attracted in the facts and circumstances of the case. The said provisions require a person resident in India having to make any payment for the credit of any person outside India. The allegations in the Memorandum do not make out any such case even prima facie. It is not the case of the ED that Mr. Sethi, who in the facts and circumstances was the only person resident outside India, was the beneficiary of any of the transactions in his NRE account. Consequently, the impugned order cannot be sustained even as regards the question of contravention of Section 9(1) FERA. 15. In the Impugned Order the factum of prior to the Notification dated 31.07.1995, the position was that foreign currency could be deposited in NRE Accounts by power of attorney holders of NRIs. The same was requisite requirement to make out the violations under Sections 8(1), 9(1)(a) and 9(1)(f) of FERA are not made out. 16. In the Impugned Order, the Adjudicating Authority has not taken into account the fact that the Adjudicating Authority has in 52 cases against the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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