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TMI Blog2024 (6) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... case on transfer of the amount from NRE account where Foreign Exchange was deposited, thus the first legal argument raised by the appellant cannot be accepted. If the argument of the appellant is accepted, it would hit sub-section (2) of Section 8 of FERA, 1973. Though the appellants have not alleged for contravention of the aforesaid provision but reference of the said provision has been given to show the argument of the appellant, if accepted, then would offend other provisions of FERA, 1973. Thus, first ground raised by the appellant cannot be accepted. Proceedings before the Adjudicating Authority are of quasi-judicial and otherwise summary in nature. Cross-examination in such proceedings cannot be claimed as a rule. It may be required in Courts dealing civil or criminal cases. This is apart from the fact that cross-examination can be allowed when statement is recorded. In this case, statement could not be recorded in absence of presence of Akbar Veerji. The cross-examination cannot be sought of a person who never deposed statement before the Court or the authority. It is a fact that AkbarVeerji could not be produced before the Adjudicating Authority and thereby there was no qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e necessary for the court to accept the finding recorded by the Adjudicating Authority and it would be vice-versa. It would all depend on the facts of the case and, therefore, rigidly it cannot be held that as and when prosecution case fails necessarily the adjudication case should also fail. It is when the standard of proof in two proceedings are different. - JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN And SHRI BALESH KUMAR : MEMBER FINAL For the Appellant : Mr. Pavan Narang, Mr. Manish Shukla, Mr. HimanshuSethi, Advocates For the Respondent : Mr. Varun Mishra, Advocate For the Appellant : Mr. Santosh Chaurihaa, Ms. Suman Mishra, Ms. Pratiksha Ms. Divya, Advocates For the Respondent : Mr. Varun Mishra, Advocate ORDER FPA-FE-77 311/DLI/2005 By these two appeals, a challenge is made to the order dated 30.11.2004 passed by the Adjudicating Authority imposing penalty of Rs.5 lakhs on appellant Prakash Chandra Yadav and Rs.10 Lakhs on Vikram Singh, the other appellant. It is finding contravention of Section 8(1) of the Foreign Exchange Regulation Act, 1973 (for short `FERA,1973 ) for receipt of the NRE cheque of Rs.30 lakhs by Prakash Chandra Yadav from AkbarVeerji, an NRI. The penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants have been acquitted in the prosecution case, the impugned order would deserve to be set aside on the strength of the order of the court which tried the prosecution case. The ACMM Court recorded reasons to decide the case in favour of the appellants. It is on the ground that AkbarVeerji did not appear before the ED or before the Court either for the purpose of investigation or as a witness. Since AkbarVeerji was not made witness, thus nothing can suggest that accused Prakash Chandra Yadav or Vikram Singh had received foreign exchange in contravention and without the permission of the Reserve Bank of India. It is also that the amount was received by them in Indian currency and otherwise complainant failed to show that the amount was credited from the NRE Account. It is also on the ground that the evidence could not be brought to show as to how deposit of foreign exchange was made in the NRE Account. All these grounds are available in this appeal also thus even in reference to the order of ACMM Court, the impugned order deserves to be set aside. 6. The appellants have not raised any other argument than referred to above. 7. The appeal has been contested by the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts in India and, therefore, Rs.30 lakhs was given towards the house construction in personal capacity. The amount was received through cheque in Indian rupees and was declared in his Income Tax Returns showing it to be a personal loan. The statement of said Prakash Chandra Yadav was thereupon recorded under Section 40 of FERA, 1973 on 11.12.1996. It was stated that he was knowing Chandraswamy for the last 10 years and he met AkbarVeerji for the first time at the residence of Chandraswamy. It was also stated that he had taken loan of Rs.30 lakhs from AkbarVeerji though it was admitted that the amount was never repaid. The amount was for construction and kept till the construction is to be completed within 3-4 years. 11. The respondents recorded the statement of others as well. They had collected the bank details of AkbarVeerji and the appellant. A case was found for violation of Section 8(1) of FERA, 1973. It was submitted that AkbarVeerji had deposited foreign currency in his account and thereupon the cheque book was given to Chandraswamy and used by the appellant for taking money in the name of gift or loan but the fact remains that the amount was received by them in Indian curre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied which otherwise was supported by the documents and material collected by the Enforcement Directorate to substantiate the allegation. In view of the above, firstly the cross-examination could not have been given of a person whose statement was not recorded before the authority and was out of India whose presence could not be secured,thus denial of cross-examination in those circumstances would not vitiate the impugned order. It is more so when sufficient material was available to substantiate the charges against the appellant. It is thus submitted that the second argument of the appellant may also be rejected. 15. The learned counsel for the respondents further submitted that the order of ACMM dated 30.11.2017 would not prevail upon the Tribunal when the respondents have placed on record complete material to prove the case which may not be before the ACMM Court. In the prosecution case, the witness may be required to prove the case beyond doubt which may not be condition in the adjudication case. It is also submitted that when the respondents have placed on record all the documents collected by them during the course of investigation sufficient to prove the case, any lacuna in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/-. (iv) 12.08.92 By Cheque No. 484 Favouring VishwaDharmayatan Rs.5,00,000/-. 19. The deposits and withdrawals of Foreign Exchange is proved by the documents and the respondents have further referred to the statement of Vikram Singh recorded under Section 40 of FERA, 1973 which is considered to be judicial statement binding on the noticee. The statement of Shri Prakash Chandra Yadav was also recorded under Section 39 followed by Section 40 of FERA, 1973. The perusal of their statements would reveal admission for the receipt of amount in their account in UCO Bank and ANZ Grindlays Bank. The material aforesaid would prove not only opening of a NRE Bank account but deposit of Foreign Exchange and its withdrawal. The statement of Akbar Veerjiwould not be material when the facts are proved by the documents itself. It is apart from the fact that AkbarVeerji was called by the respondents by sending letter through the Indian Embassy. It was to secure his presence but he had sent the response on 13.03.1999 but did not appear for his statement. It was, however, informed that he visited India in the year 1992 and prior to leaving India, an envelope was delivered to Chandraswamy. He admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Indian currency and transferred it in favour of the appellants so as to exclude from the purview of Section 8(1) of FERA, 1973. The ingredients of Section 8(1) are satisfied in this case on transfer of the amount from NRE account where Foreign Exchange was deposited, thus the first legal argument raised by the appellant cannot be accepted. If the argument of the appellant is accepted, it would hit sub-section (2) of Section 8 of FERA, 1973. Though the appellants have not alleged for contravention of the aforesaid provision but reference of the said provision has been given to show the argument of the appellant, if accepted, then would offend other provisions of FERA, 1973. Thus, first ground raised by the appellant cannot be accepted. 23. The appellants have admitted that they had received the amount as a Gift or loan. It is with further admission that no repayment to clear the loan was made. The fact aforesaid is relevant because it shows admission of the appellants for receipt of the amount from NRE account of AkbarVeerji though it was received in Indian currency but out of the Foreign Exchange. In the light of the aforesaid admission and even the documents collected by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asoning for deciding the case in favour of the appellants. The case was decided against the prosecution in absence of production of AkbarVeerji though he was not available. It is also on the ground that AkbarVeerji was not made witness which, in fact, could not have been in absence of his availability. The Court is required to examine the matter in reference to the evidence produced before it. The ACMM Court has, however, recorded a finding that there is no material to prove transfer of an amount from NRE account whereas the respondents before us have submitted complete material to show and prove that an NRE account was opened by Akbar Veerji. The documents and the information received from Canara Bank produced before the authority was sufficient to prove transfer of Foreign Exchange in NRE account. The documents of two other Banks proved transfer of money in the account of the appellants. They even admitted it in their statement recorded under Section 40 of the Act and can be relied being judicial statement. The transfer of money in the account of the appellants was out of Foreign Exchange. Thus, the conclusion drawn by the ACMM Court cannot be made binding when the respondents ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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