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TMI Blog2024 (8) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... d not on mere designation. It cannot be that all Directors irrespective of their role and responsibilities shall be deemed to be guilty of the contravention. From the record, it is obvious that Shri S.R. Subba was the main person in-charge of the affairs of the company and was responsible to the company for the conduct of its business. Moreover, Shri S.R. Subba has clearly stated before the Enforcement Directorate, that he was looking after the affairs of the company including its day-to-day activities during the relevant period and the respondents were not actively involved in the affairs of the company. Shri S.R. Subba vide his letter dated 09.10.2006 addressed to the Ld. Adjudicatory Authority, reiterated that he was looking after the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Enforcement, Enforcement Directorate, New Delhi whereby, no penalty was imposed on Smt. Tara Subba, Shri Chander Bahadur Subba, Shri Ajay Subba, and Smt. Jyoti Limboo, who were the Directors at M/s. Subba Microsystems Ltd., New Delhi. However, penalty was imposed on M/s. Subba Microsystems Ltd. and on its Chairman and a retired Director. 2. The Respondents were charged with Sub section (a) and (b) of Section 3 and Section 4 of Foreign Exchange Management Act, 1999 (FEMA) read with Regulation 3 of the Foreign Exchange Management (Foreign Currency Accounts by a Person Resident in India) Regulations 2000, and with Section 8 of FEMA read with Regulation 3, 4 and 5 of the Foreign Exchange Management (Realisation, Repatriation, and Surrender o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, which had sufficiently proved the involvement of the Respondents in the conduct of the business of the company. He prayed to allow the Revision Petition. 5. None appeared for the Respondents in spite of service of Notice and having been given more than one opportunity to do so. 6. We have carefully considered the rival submissions and the material on record. We observe that the liability under Section 42(1) depends on the role one plays in the affairs of the company, and not on mere designation. It cannot be that all Directors irrespective of their role and responsibilities shall be deemed to be guilty of the contravention. The Hon ble Supreme Court in the judgment dated 27.07.2020 of Shailendra Swarup versus Deputy Director, Enforcemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aborating the ambit and scope of Section 141 of Negotiable Instruments Act has already laid down above in paragraph 10 of the judgment as extracted above. 7. Ld. Adjudicating Authority has categorically observed in the impugned Order dated 25.01.2008 the following with respect to Shri S.R. Subba, Chairman of the Company: All these facts revealed that he was the main person incharge of and was responsible to the company for the conduct of the business of the company as well as the company, as all the facts regarding investments transactions etc. of the Noticee Company were effected by him. The notice company through their Chairman, Shri Sanjay Raj Subba, vide letter dated 09.10.2006 submitted that the Counsel had explained during the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not actively involved in the policy and decision making activities of the Company. The respondents were neither in-charge of the affairs of the company nor responsible for its conduct. There are no statements recorded by the Enforcement Directorate with respect to the Respondents as to their role in the company. Revisionists have failed to produce any evidence, which shows as to how and in what manner the Respondents were responsible for the conduct of the business of the Company. In the Revision Petition as well as in the pleadings nothing has been put forth as to lead us to draw conclusions otherwise. 11. We therefore, find no merit in the Revision Petition and do not interfere with the impugned order. Revision Petition bearing No. RP-FE- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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