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TMI Blog2009 (6) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... ange Regulation Act, 1973 as per the allegations contained in, SCN-II and Rs. 4 crores against the appellant (in brief M/s. STAR) in appeal No. 131/1999 for contravention of the provisions of Section 9 read with 49(1)(a) of the Foreign Exchange Regulation Act, 1973 as per the allegations contained in SCN-I. 3. While disposing of application for dispensation of pre-deposit, this Tribunal by order dated 25.9.2008 allowed these three appellants to furnish unconditional bank guarantee of the amount of their respective penalty initially valid up till six months but extendable from time to time without any demand till disposal of these appeals. The appellant in appeal no. 144/1999 furnished unconditional bank guarantee in compliance of pre-deposit order of this Tribunal dated 25.9.2008 but the other two appellants challenged the pre-deposit order of this Tribunal before Hon'ble Delhi High Court when Hon'ble Delhi High Court by order dated 9.1.2009 modified the pre-deposit order of this Tribunal and directed these two appellants to furnish bank guarantee of Rs. 2 crores each. The appellants have complied with pre-deposit order as modified by order dated 9.1.2009 of Delhi High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1973 because when the principal can do something himself then an agent can also be appointed by principal for doing the same thing. 7. Ld. Counsel Shri Amit Singh Chadha on behalf of M/s. Credit in appeal No. 144/99 argued that the appellant is a banker who has opened NRO account after looking at the permission from RBI. Thereafter, no inflow or outflow of remittance of foreign exchange ever happened, hence violation of FER Act is never committed. Further arguments are made that the appellants have neither added nor instigated contravention of FER Act, 1973, so abetment by M/s. Credit can never occur. In this regard reliance is placed on the judgments in (1) Kishori Lal v. State of Madhya Pradesh, AIR 2007, SC 2457; (2) Sanju Alias Sanjay Singh Sengar v. State of M.P. [2002] 5 SCC 371 para 12 and (3) Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [2005] 5 SCC 294 para 25. Attention is also invited to the definition of word 'abet' in Blacks Law Dictionary (8thEdition) page 4. 8. Per contra Shri A.C. Singh, DLA on behalf of Enforcement Directorate supported the impugned order. 9. There is no controversy that RBI by letter dated 15.12.1993 allowed M/s. STAR to op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a is permitted to violate restrictions on payment as envisaged by Section 9 of FER Act, 1973. Even a person who is resident outside India if commits violation of this restriction in Indian territory, the person can be prosecuted for such violation. Also FER Act extends to whole of India according to sub-section (2) of Section 1 of the statute, hence violation of statute can be punished even when the person is neither a citizen or resident of India. Therefore, it is not possible to agree that M/s. STAR being person resident outside India is not covered under the: restrictions propounded by Section 9 of FER Act, 1973. 12. The provisions of Section 9(1)(b) places restrictions without permission of RBI upon anybody in receiving otherwise though authorized dealer any payment by order or on behalf of any person resident outside India. Similarly Section 9(1) (d) makes restrictions against making of payment to or for the credit of any person by order on behalf of any person resident outside India. It is absolutely clear that restrictions are against receiving of any payment or making of any payment on behalf of person resident, outside India. In the present appeals an amount of 81026331 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which permission is granted. The interpretation clause incorporated in Section 49 (i) is quite clear in this regard and by its application, the contravention of provisions of section 9 becomes vivid and clear. 16. Coming to the appeal No. 144/99 of M/s. Credit who acted as a banker for opening NRO account, it is plainly clear that NRO account is opened after perusal of the RBI permission dated 15.12.1993. As the banker is resident of India so he is required to abide by the law passed by the Legislature. The legal duty of the baker is to abide by the legal provisions s well as RBI's permission. Thereafter taking of any favorable advice from reputed professional can hardly help M/s. Credit whose duty is not restricted to due elegance by binding law has to be abided. This appellant has to take not only steps for abiding of law but has to really do it. There is no controversy that M/s. Credit has transferred an amount of Rs. 84026331 by crediting this amount in favour of M/s. News Television. In this way intentional aid is absolutely clear and it is not possible to agree that the intentional aiding of an act can violative of statute does not amount to abetment. The judgments cit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttor is not enough compliance with the requirements of Section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and, therefore, active complicity is the gist of the offence of abetment under the third paragraph of Section 107. 20. The transfer of Rs.81026331 by crediting to M/s. New Television by M/s. Credit is nothing less than aiding the act of receiving payment by order or on behalf of non-resident M/s. STAR totally contrary to legislative scheme in absence of RBI's specific permission. This act can be done by M/s. STAR but only after specific permission from RBI and not without it. Here, the act of giving information to RBI can hardly help the appellants in absence of a deeming provision. 21. Therefore, these appeals are required to be dismissed having no merits. The penalty imposed against the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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