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TMI Blog1999 (8) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... red the charges in the order of SCN-II and SCN-I. I, therefore, propose to examine the findings of the adjudicating authority in that order. 3. At the outset, it is to be observed that the allegation as contained in the first paragraph is that the appellant purchased US $10,000 in the form of travellers cheques. However, later on in the same paragraph, it is alleged that he sold the said foreign exchange to wit US $10,000 and US $3,500. There is no allegation that he purchased the second amount of US $3,500. There is no explanation as to how the appellant sold a total amount of US $13,500 after he had acquired US $10,000 only. However, since the appellant has advanced his defence assuming the charge of sale and purchase to be in respect of the total amount of US $13,500, I propose to say no more on this discrepancy in the SCN. 4. The charge is sought to be sustained on the evidence of Panchnama dated 26-10-1988 recorded at the cabin of the Manager, SBI, Golibar Maidan Branch, Pune, and the statements of the appellant, that of Tahil A. Mirchandani and Kumar Nachnani, the Manager of the SBI, all recorded on the date of search of the cabin of the Manager on 26-10-1988. It is also clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guilty of the charge as there was no corroborative evidence and the sole evidence of Mirchandani s retracted confession uncorroborated by any evidence cannot be the basis of a conclusive finding. 7. Shri Doiphode, the learned counsel for the appellant, filed a copy of the adjudication order passed by Shri Kala in pursuance of SCN T-4/69-B/UPS/89(SCN-I) dated 25-10-1989. He pointed out that the charge against Tahil Mirchandani is based on the same investigation and evidence as in the present case. He contended that in view of the said findings in respect of Tahil Mirchandani, the case of the department against the present appellant also cannot be sustained. Shri Lavande, appearing for the respondent, submitted that apparently the learned Adjudicating Officer in the present case did not have the benefit of the order passed by the Additional Director in the case of Tahil Mirchandani which was separately adjudicated upon. 8. I have gone through the order passed by the Additional Director, Shri A.P. Kala, in the said case I am of the opinion that the argument putforth by Shri Dophode has merit. It cannot be disputed that the conclusions arrived at in the case of Tahil Mirchandani by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears on the travellers cheques. If the travellers cheques are to be credited to a bank account it can be credited only to the account of the person whose name appears on those cheques. No investigation has been made as to how the travellers cheques were lying with the bank manager for such a long time, had the same being tendered to him for obtaining FDRs and in any case, the FDRs could have been issued only in the name of the person whose signature appeared on the travellers cheque. In respect of the amount of US $10,000, the evidence is that of FDRs were held in the name of Murli of Singapore who had a NRI account with the bank. No investigation has been made as to how the amount was remitted and FDR made. The investigator merely chose to record the statements instead of ascertaining the facts from the bank records. 11. In any case it is to be noted that the alleged nexus of the appellant to the said foreign exchange that was recovered in pursuance of the search of Bank Manager s cabin on 26-10-1988 is through Tahil Mirchandani. Since Tahil Mirchandani has been exonerated and his role has not been proved the said foreign exchange cannot be linked with the appellant. 12. Shri Doi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of the appellant by the bank it can be safely assumed that the draft in question were endorsed in his name. In its true nature since the appellant does not have a foreign exchange account, the transaction would amount to remittance of foreign exchange by a non-resident abroad and receipt of the same by the appellant through banking channel. The remittance of any amount in foreign exchange in the aforesaid manner through banking channels is not a violation of any of the provisions of the Act. The point to be made is that de hors the money changer s licence, the appellant was entitled to receive any payment from a non- resident if the same accrues to him through banking channels. No doubt the definition of foreign exchange in section 2(h) includes a draft payable in foreign currency but it has to be noted that the definition is qualified by the words unless the context otherwise requires . In the context of the facts as obtaining in the present case since the appellant could not have obtained foreign exchange by surrendering the draft to a money changer or authorised dealer the draft in question would not be foreign exchange and the appellant could not be said to have acquired f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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