9911796707
TMI Blog2008 (12) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... he Foreign Exchange Regulation Act, 1973 for having received amount of Rs. 1,00,000 on instructions of her husband, Mustafa, a person resident outside India, through a local person, without the permission of the Reserve Bank of India. The penalty amount of Rs. 34,000 has been adjusted from the amount blocked in the account of the appellant where presently this appeal is taken up for final disposal on merits. 3. The appellant did not appear in this case despite sufficient service of notice. A report is submitted by Shri A.C. Singh, DLA in this regard intimating that the notice has been served on the appellant. It is a very old appeal of the year 1990 where having no option, this appeal is decided on the basis of facts and evidence available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional statements was obtained under duress and threat was on the appellant himself. KTMS Mohd. v. UOI [1992] 197 ITR 1961 can be referred here wherein the Supreme Court observed as follows : We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement, made either before the Customs authorities or the officers of Enforcement Directorate under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficient ground for the conviction of the offender provided there is sufficient corroboration to prove the charge against the offender. To quote the relevant para : (25) It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from the Reserve Bank of India. In the instant case, the charge against the appellant is fully proved who received an amount of Rs. 1,00,000 in two instalments of Rs. 50,000 each on instructions of her husband, a person resident outside India, without the permission of the Reserve Bank of India. 10. The defiance of substantive provision in this appeal of section 9(1)(b) is established against which the penalty is imposed under the impugned order. Now coming to the argument that the act was done in good faith and there was no mala fide and that violation is technical offence and it is difficult to accept that the contravention created by FERA, 1973 being regulatory in nature where mens rea is presumed against the appellant under the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n our view, the impugned judgment of the Securities Appellate Tribunal has set a serious wrong precedent and the powers of the SEBI to impose penalty under Chapter VI-A are severely curtailed against the plain language of the statute which mandatorily imposes penalties on the contravention of the Act/Regulations without any requirement of the contravention having been deliberated our contumacious. The impugned order sets the stage for various market players to violate statutory regulations with impunity and subsequently plead ignorance of law or lack of mens rea to escape the imposition of penalty. The imputing mens rea into the provisions of Chapter VI-A is against the plain language of the statute and frustrates entire purpose and object ..... X X X X Extracts X X X X X X X X Extracts X X X X
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