9911796707
TMI Blog2009 (9) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with 42 FEM Act 1999) and remanding back the matter for reconsideration by Adjudicating Authority after taking into consideration of observations made in para 10 of the impugned orders by Special Director (Appeals) FEMA. This Tribunal while disposing off application for dispensation of pre-deposit of penalty directed the appellant, to make pre-deposit of 50 per cent amount of penalty by order dated 12-1-2007. The appellants complied with this pre-deposit order. 3. This Tribunal by order dated 27-6-2007 affirmed the order dated 15-12-2005 of Special Director (Appeals) FEMA whereby these appeals were remanded back to the adjudicating authority for reconsideration of the matter. Against order dated 27-6-2007 of this Tribunal the appellants approached Madras High Court when Hon ble High Court by order dated 22-12-2008 quashed and set aside the order of this Tribunal and further directed this Tribunal to dispose off these appeals on merits. Thus these appeals are restored back and are further taken up for final disposal on merits. 4. The appellants are full-fledged money changer having a license tinder section 10 FEM Act who have released foreign currency twice of US Dollar 25000 ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Hari Radha Krishnan, Advocate, is that the appellants, who are holder of license by RBI as FLM, so cannot contravene the provisions of sections 10(4) 10(5) read with section 42 FEM Act 1999. The conclusion of contravention of section 10(5) and 10(6) read with Section 42 cannot be committed by the appellants whose license by RBI is renewed from time to time and they are in possession of valid license till date. As RBI has not made a positive finding of violation of the Foreign Exchange Management Act, 1999, so license of FLM held by appellants is renewed. Thereafter, the Enforcement Directorate is devoid of any power not only to investigate but adjudicating authority also cannot hold them guilty. Also, it is argued that contravention of the Foreign Exchange Management Act, 1999, when not found by RBI under the powers granted under the statute is sufficient to prove innocence of the appellants. 9. The relevant provisions are contained in Sections 10(4) and 10(5) FEM Act are reproduced as under : 10. Authorized persons (1) The Reserve Bank may ....... (2) ** ** ** (3) ** ** ** (4) An authorized person shall, in all his dealings in foreign exchange or foreign security, comply with s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information as will reasonably satisfy him that the transaction will not involve, and is not designed for the purpose of, any contravention or evasion of the provisions of this Act or any rule, notification, direction or order made thereunder, and where the said person refuses to comply with any such requirement or makes only unsatisfactory compliance therewith, the authorized dealer shall refuse to undertake the transaction and shall, if he has reason to believe that any such contravention or evasion as aforesaid is contemplated by the person report the matter to the Reserve Bank. 11. The Foreign Exchange Management Act, 1999, has created regulatory mechanism and the contravention thereof can be nicknamed as regulatory measure. As the statute deals with regulatory measures, so construction of the enactment of the Parliament must be purposive construction i.e., according to its purpose, so far as wording may reasonably permit. The resolution of ambiguity, if any shall be in favour of implementing the statutory object of protecting Indian economy, which otherwise, can be termed as protecting public interest. The purposive construction is well recognized by Lord Griffths in Pepper v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant. The mens rea need not be proved by Enforcement Directorate as has been held in State of Maharashtra v. Mayer Hans George AIR 1965 SC 722. 15. The golden rule of interpreting a statute is to ascertain the intention of the legislature and such intention is primarily to be gathered from the language used which means that attention should be paid to what has been stated and also to what has not been stated. As a consequence any construction which requires addition or substitution of words or rejection of words as meaningless has to be avoided. Rules of interpretation do not permit courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. The courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Vemareddy Kumaranswamy Reddy v. State of Andhra Pradesh JT 2006 (2) SC 361). 16. In Raghunath Rai Bareja v. Punjab National Bank 2006 (13) Scale 511 the Apex Court accepted that literal rule of interpretation is the golden rule after referring to the Raghunath Rai Barjea case (supra) and recalled the Latin Maxim dura lex Sed Lex which means law is hard but it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect 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) 20. 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 appellants are themselves authorized dealers from whom higher standard of care and caution is the expectation of the society which cannot be belied. Without this higher standard of care and caution, it is safe to say that appellants acted, if not carelessly, without due care and caution. The appellants failed to adhere to the legal duty imposed on them. 21. Therefore, these appeals do not contain any merit and are required to be dismissed. The appellants have not performed the expected duty of due care and attention while making sale to different persons on overlapping dates within ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
