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TMI Blog2009 (6) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Indian Penal Code where section 107 has stated. It is well-settled that in order to constitute the offence of abetment the abettor must be shown to have done acts or omissions of (1) intentional aiding or (2) instigating someone to do prohibited acts or (3) engaging in a conspiracy in the commission of the crime. Mere association or general advice or mere advancing of loans is not insufficient. The second appellant has taken a plea that SCN or notice of hearing is served on him by affixation under rule 10(c), Adjudication Proceedings and Appeal Rules, 1974, and he has brought the deposited foreign currency in a lawful manner from USA where he is residing. Firstly, the SCN is required to be served and there is no illegality if the same is served by affixation when appellant is not ready to face the adjudication. His address given of C-108, South Extension, Part II, New Delhi, is served by affixation which is permitted under the Adjudication Proceedings and Appeal Rules, 1974. Moreover, he has not brought out any CDF through which he has brought the deposited foreign currency in India. The burden under section 71, FER Act, 1973, lies on him. Moreover, the factum of bringing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, due to the fact that both are connected appeals, for further decision. 2. Learned counsel Shri Rajiv Virmani argued that the deposits were made on different dates in 1993 but show-cause notice is issued in March, 2002, after a considerable delay. The appellant-bank, after a period of 8 years, is not supposed or allowed to keep the old records which they have to destroy as per the provisions of Banking Regulations Act, 1949, and Rules framed thereunder. Though appellant-bank has deposited different amounts on 9 occasions of foreign currency in cash after duly following the instructions issued by RBI but they cannot be asked to produce CDFs at this belated stage which are not preserved and maintained after expiry of 8 years. Moreover, production of CDFs is not obligatory if the different deposits are made by separate transactions of less than US dollars 10,000 which is the factual position in these appeals. Also, the show-cause notice does not identify which of the instructions of RBI are violated by the appellant-bank, hence, SCN is quite vague, whereafter the appellant-bank cannot be held guilty under the impugned order. Moreover, NRE account even if maintained in different oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 992 10,000 7. 25-1-1992 300 8. 25-1-1992 10,000 9. 31-1-1992 10,000 From above, it is clear that second appellant deposited total amount of US dollars 72,800 on 9 different occasions starting from 24-1-1992, till 1-2-1992. This fact should have being glare, put the appellant-bank on query as reasonable person who is having an authorization from RBI to deal with foreign currency. 5. Thus, the appellant-bank has failed to conduct its business with good faith, i.e., without due care and retention which is sinequanon of every permission or licence under the statute. The words to the effect that licensee shall act reasonably so as not to lead to contravention of statute are found incorporated in section 6(5) which by themselves create a duty to act in good faith. Also the implicit duty residing with the licence as discussed above conveys nothing less than good faith. Though, the words good faith is not defined in FER Act, 1973 nor expressly included in section 6(4) and 6(5), but this word is defined by section 52 of Indian Penal Code as well as by section 3(22) of the General Clauses Act. According to definition in Indian Penal Code 'good faith' is only when an individual acts w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the standard envisaged for a reasonable person. The foreign currency reserve of the country cannot be lost in the way a fraudster manages and manipulates to cause harm without active role played by an authorized dealer to catch the defalcation. 8. Though authorization under section 6 to the appellants is still available and renewed from time-to-time, as argued by learned counsels, but this fact by itself cannot wipe out the contravention, if any of the provisions of the statute. The RBI enjoys grant of power by the Parliament to permit authorization or licence who can also revoke the authorization either under general power as a commitment of grant under General Clauses Act or under the specific power available under section 6(3) of the statute. It is legally correct here to say that violation of conditions of authorization may lead to revocation of authorization but any revocation or renewal of authorization cannot be construed to wipe out a contravention if otherwise proved of the statute or rules, orders or directions made thereunder. 9. The Show-Cause Notice No. T-4/47-DE/02/DD/SCN-I, dated 5-2-2002 is issued to the appellant-bank asking it to show cause why adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument advanced by ld. counsel contains no substance. The words 'take notice of' cannot be expanded to mean making service of the show-cause notice. Law on this aspect is quite clear and this Tribunal cannot recast the legislative enactment as held in Nasiruddin v. Sita Ram Agarwal [2003] 2 SCC 577. 12. In CREF Finance Ltd. v. Shree Shanthi Homes (P.) Ltd. JT 2005 (8) SC 87, the conceptual meaning of the words taking cognizance of is discussed where complaint under section 138 of the Negotiable Instruments Act, 1881 was filed before 14th Additional Chief Judicial Magistrate who on the date of filing wrote; presented on 19-4-2000. Cognizance taken . . . . Register and put up on 1-6-2000 . The question relating to the time when cognizance was taken and if issuance of process is a condition precedent for taking cognizance is lucidly discussed as follows : In the instant case, thc appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of statement of the complainant on 1-6-2000. Even if we assume, though that is not the case, that the words cognizance taken were not to be found in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... klal v. Kishore 2009 (3) SCALE 9 while dealing with the concept of violation of principles of natural justice by not giving a notice to the complainant before grant of bail in a bailable offence to the accused held that argument of complainant of violation of principles of natural justice will not held because principles of natural justice is otherwise not a mantra to be applied in vacuum in all cases but depends on facts and circumstances of each case. It is legally well-settled that compliance of principles of natural justice is not to be emphasized whenever empty formality is the outcome. (Ref. State Bank of Patiala v. S.K. Sharma [1996] 3 SCC 364; and (2) Karnataka State Road Transport Corpn. v. S.G. Kotturappa [2005] 3 SCC 409). 14. Another argument taken by learned counsel Shri Rajiv Virmani is that after delayed issuance of show-cause notice on 15-3-2002, when deposit transactions are of 1992, the appellant-bank is not in a position to produce the records of different deposits in NRE accounts because the records are destroyed by that time in compliance of Banking Regulation Act, 1949. Despite this argument, it is brought out on facts that investigation in these appeals start ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as follows : The standard of care and caution must be judged according to the capacity and intelligence of the person whose conduct is in question. It is only to be expected that the honest conclusion of a calm and philosophical mind may differ very largely from the honest conclusions of a person excited by sectarian zeal and untrained to the habits of reasoning. The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acts . . . . The law does not expect the same standard of care and attention from all persons regardless of the position they occupy. What is due care and attention depends on the position in which a man finds himself and varies in different cases. (AIR 1940 Rang. 129 at p. 132) 19. The Orissa High Court in State of Orissa v. Ram Bahadur Thapa AIR 1960 Ori. 161, while discussing the factual situation of an accused who caused death in the belief that he is attacking ghost, observed on the question of applicability of good faith that he being a Nepali uneducated fellow, he was not expected to be extra careful. But in the present case, the appellant-bank being an authorized dealer from whom higher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. 23. From above definition, it is well-settled that in order to constitute the offence of abetment the abettor must be shown to have done acts or omissions of (1) intentional aiding or (2) instigating someone to do prohi-bited acts or (3) engaging in a conspiracy in the commission of the crime. Mere association or general advice or me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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