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TMI Blog2008 (8) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... nand, Advocate on behalf of the appellant and Shri A.C. Singh, DLA for the respondent and gone through the record, relevant law and judicial pronouncements carefully. A show-cause notice No. T-4/77/B/SDE/PKA/98, dated 5-8- 1998 was issued against the appellant along with co-noticees M/s. Varun International Trading Corpn., Brij Mohan Sood, D.C. Shah, Rajnikant Kedia and B.K. Katodia for contravention of the provisions of sections 8(3), 8(4), 9(1)(a), 9(1)(b ), 9(1)(d), 9(1)(f)(i ) read with section 64(2) of the Foreign Exchange Regulation Act, 1973 where the appellant was charged for having contravened the provisions of section 9(1)(b) and 9(1)(d), 9(1)(f )(i) and for contravention of the provisions of sections 8(1), 9(1)(a), section 8(3) and 8(4) read with section 64(2) of the Foreign Exchange Regulation Act, 1973. The appellant was held guilty for having made payment of Rs. 36,00,000 to D.C. Shah by order on behalf of Rajnikant Kedia, a person resident outside India. Thus, the penalty of Rs. 1,80,000 was imposed against the appellant under section 9(1)(d) where another penalty of Rs. 9,000 was imposed against the appellant for having abetted M/s. Varun International Trading Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the said consignment was not utilized for the purpose for which it was acquired. Investigations in this case were conducted by Customs Authorities at Kandla with the arrival of second consignment at Kandla against the co-noticee firm where adjudication proceedings were conducted by the Collector of Customs, Kandla and a penalty of Rs. 3,00,000 was imposed on the co-noticee firm M/s. Varun International for mis-declaration of quantity, quality and value of subject goods. 7. It is argued by Ld. Advocate, Shri Akshay Anand that there is no evidence to implicate the appellant for the said charges. The appellant never admitted the non-resident status of Rajnikant Kedia nor it is borne out from records. It is a question to be decided on the basis of facts and evidence and there is no question of admission or denial on the part of the appellant. In fact, Rajnikant Kedia was not a person resident outside India during relevant period, i.e., from June to July, 1993. Moreover, no instructions were given by Rajnikant Kedia to the appellant for payment of subject money. His statement dated 26-2-1998 was involuntary and given under coercion and duress which was promptly retracted by him in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant is fully corroborated by the statement of the co-noticee, documentary as well as attended circumstantial evidence of the case. 10. The retracted confessional statement of the appellant is fully corroborated by the documentary as well as statements of co-noticees D.C. Shah, B.M. Sood, B.K. Katodia and attended circumstantial evidence of the case. In Naresh J. Sukhawani v. Union of India 1996 SCL (Cri.) 76, the Apex Court observed that where statement made by a co-noticee inculpates not only himself but also another person, it can be used as substantive evidence against that another person connecting him in contravention of the provisions of the Act. The retraction of the confessional statements is thus nothing but an afterthought without any basis. These statements contain wealth of information and minute details which were within exclusive knowledge of the appellant and could not be a result of tutoring or compulsion. 11. It is argued that Rajnikant Kedia was not a person resident outside India at the relevant time which is not agreeable. Rajnikant Kedia deposed in his statement that in the year 1992 he came to India to do some business who wound up his business i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in his statement that he did not import the subject consignment which were arranged by D.C. Shah and others but he was to receive 10 per cent commission as per prior mutual agreement with D.C. Shah and others on the subject consignments and he had to do nothing with subject imports. 14. It is worth noting here that D.C. Shah admitted in his statement that he approached M/s. Varun International with the proposal to import subject consignments and seek clearance through Kandla Custom Port where he was having good contacts. D.C. Shah opened a bank account with IOB by asking his uncle B.K. Katodia, who represented himself to be the Proprietor of M/s. Varun International. Accordingly the account was opened in the name of M/s. Varun International with IOB, Ahmedabad in the name of B.K. Katodia. The whole affairs were managed as per the admission of D.C. Shah on instructions of Rajnikant Kedia where the deposits and withdrawal from the said bank account were made by the persons authorised by Rajnikant Kedia. B.K. Katodia in his statement admitted that he opened the said account as Proprietor of M/s. Varun International at the instance of D.C. Shah and gave blank cheques duly signed by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mukesh 2006 (10) SCALE 346, are worth mentioning here : A person, it is trite, abets by aiding, when by any act done either prior to, or at the time of, the commission of an act, he intends to facilitate and does in fact facilitate, the commission thereof would attract the third clause of section 107 of the Indian Penal Code. Doing something for the offender is not abetment. Doing something with knowledge so as to facilitate him to commit the crime or otherwise would constitute abetment. 18. Any communication or association of the abettor which has nexus with the commission of organized crime would come within the purview of abetment. In Ranjitsingh Brahmajeetsingh Sharma v. State of Maharashtra AIR 2005 SC 2077, the Supreme Court explained the expression 'abet' under MCOCA in the light of the definition of these words under sections 107 and 108 of the Indian Penal Code as under : 30. . . . However, having regard to the cognate meaning, the term may be read in the light of the definition of these words under sections 107 and 108 of the Indian Penal Code. The inclusive definition although expansive in nature, 'communication' or 'association' must be read to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kant Kedia where Rajnikant Kedia did not cross examine the appellant and D.C. Shah on their statements implicating him. He tried to explain the situation by stating that the confessional statements were retracted by them, which cannot benefit the appellant. There was a direct nexus between the assistance given by the appellant and the said contraventions of the FERA which is proved which comes within the purview of the charge of abetment. 20. The appellant has not denied his acquaintance with D.C. Shah and Rajnikant Kedia where from his own admissions made by him in his statement, which is duly corroborated by the statement of co-noticees and other evidence available on record, it is found established that the payment of Rs. 36 lakhs was made by the appellant to D.C. Shah on instructions of Rajnikant Kedia, a person resident outside India. I find no force in argument of Ld. Advocate that the payment was made in due course of business activities where it was immaterial that the payment was made on instructions of Rajnikant Kedia. Section 9(1)(d) of the Foreign Exchange Regulation Act, 1973, does not permit any person in India to make any payment to any person by order of a person re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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