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TMI Blog2009 (1) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice filed by Enforcement Directorate is taken on record where notice of hearing is received by sister of respondent No. 1. This revision petition is 11 led on 23.3.04 against adjudication order dated 14.10.03 by Shri T.K. Gadoo DLA, in the name of Union of India through Deputy Legal Advisor. However no authority in favour of the Deputy Legal Advisor is either filed or produced before this Tribunal despite repeated reminders therefore this Tribunal has to take an adverse notice in as much as that Shri T.K. Gadoo, DLA bears no authorization in his favour. The filing of this revision petition has taken about 5 months which cannot be considered as inordinate delay, hence, we have nothing to add in this regard. 3. The respondent Sanjeev Goel has filed written submissions and argued in elaboration staling that he had been charged for contravention of Section 9(1)(b) and 9(1)( d) for receiving money on behalf of NRI Vinod Goyal. Simultaneously he has been charged for received money and handing over the same to one Ramesh Parmar who purchased foreign currency by payment of this very money. As the two charges are contrary to each other so the filing of revision petition is bad in law. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revisional powers so that purity course of justice is maintained. 7. It is correct, as contended that appellate jurisdiction and revisional jurisdiction do not resemble each other. The revisional jurisdictional can only be exercised where there is a jurisdictional error or disregarding of an evidence otherwise requiring consideration or giving a different meaning to a material evidence a contrary to settled legal position. Generally, revisional jurisdiction is not exercised to disturb finding of facts but where there are exceptional grounds to interfere, the Appellate Tribunal or High Court can exercise in the interest of the justice its revisional jurisdiction. The revisional jurisdiction is also available where lower authority/court approaches the case from a wrong point of view and evidence produced when not received due consideration. In contrast, the appellate jurisdiction is more wider and the powers of this Tribunal are much wide as that of the adjudicating officer where finding fact can also be disturbed for good reasons. 8. Next argument is that only pending appeals with the FERA Board are transferred by Section 49 FEM Act, 1999, but this Tribunal neither can have jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no merit and is liable to be rejected. 10. The language employed by Section 49(4) FEM Act, 1999, clearly stipulates that all offences committed under the repeal Act shall continue to be governed by the provisions of the repealed Act as if that Act has not been repealed. It is clearly available on the scene that adjudication order is passed under FER Act, 1973. The question here is of filing of a revision petition against an order passed under Foreign Exchange Regulation Act, 1973, which is always in continuation of original proceeding, hence, the revision petitions shall also go only under this Act which otherwise is permissible as discussed herein above. 11. It is well-settled in law that whenever law is altered during the pendency of any action, the remedy or the rights of the parties arc decided according to law as it existed when the action began unless new statute shows clear intention to vary such rights. There is no contrary explicit, or implicit, intention found in Section 49 FEM Act, 1999. Rather, a saving is specifically incorporated in Sub-Section (6) of Section 49 stating that repeal shall not affect or prejudice the application of Section 6 General Clauses Act, 1897, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the re-enacted enactment has to be inferred and gathered whether it intended to reserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether. 14. It is well-settled in law that the legal proceedings validly instituted are not affected by amended law though insofar as foram is concerned, the substituted forum shall automatically apply. In Purshotam Singh v. Narain Singh AIR 1955 Rajasthan 203 at 106 it was observed by Chief Justice Wanchoo (as his Lordship then was) that : - Section 6(e) has nothing to do with the forum where the investigation, legal proceeding or remedy has to be pursued. If the repealing Act provides a new forum where a legal proceeding coming on from before the repealing Act came into force can be pursued thereafter, the forum must be as provided in the repealing Act, and no party can insist that the forum of the repealed Act must continue. 15. Therefore, filing of these revision petitions is permissible under Section 52(4) despite repeal of FER Act, 1973. In the same vain though express language is not available for filing of these revision petitions after dissolution of FERA Board the appeals or revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made of contravention of Section I 9(1)(d) read with 64(2) FER Act. Despite aforesaid evidence the impugned order has exonerated the respondents against which Enforcement Directorate has come to file this revision petition. 18. On merits of this revision petition we have scan through circumstantial evidence especially when no oral or documentary evidence is available explaining the deal of receipt of 2 cheques from a NRE account of non-resident person who is not related to respondent 1 and 2. It is not always necessary to find proof from documentary or oral evidence when circumstantial evidence is available. In a recent judgement of Trimukh Maroti Kirkan v. State of Maharashtra 2006(10) Scale 190 Hon'ble Supreme Court has held the husband guilty of murder despite absence of occular evidence when husband and wife slept together in a room but next morning that body of the wife was found inside the room in a pool of blood because injury on the body of wife are not explained by husband. The court made the following observations : If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are as under : It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167 to which Section 1 78-A docs not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due-regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - all exactness is a fake . EI Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may on its basis, believe in the existence of the fact in issue. Thus, legal proof is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bihar Ors. AIR 1997 SC 1830 where a married woman had committed suicide on account of ill-treatment meted out to her by her husband and in-laws on account of demand of down and being issueless. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in Slate of West Bengal v. Mir Mohammad Omar Ors. (2000) 8 SCC 382. In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and look him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affection without any natural connection between two individuals have raised certain questions. These questions have not been answered by the respondents whose burden squarely lies on the respondents. Moreover long association even from childhood will also fail to permit gift of high value in common human conduct unless the recipient is in total penun and financial doldrums which is not the case here. We have heard that Lord Krishna gifted away the valuables to his old friend Sudama duo to lalter's poverty. But that is not the case here. Therefore, the adjudication order is faulted because payment to or for the credit of non-resident totally falls outside the scope of Act 1991 which has only covered receipt of foreign exchange and oilier way round. There is a serious error pointed out in the impugned order. Therefore, the respondents arc wrongly exonerated from violation of 9(1)(d) and 9(1)(b) read with 64(2) FER Act. Hence respondents 1, 2 and 3 are required to be held guilty for contravention of FER Act 1973. 20. Admittedly respondent 1 and 3 received two gift cheques through respondent 2 of Rs. 1,28,01 3/- each against a payment the circumstantial evidence. The Act of 1991 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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