9911796707
TMI Blog1996 (2) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... Pound 78000 by mortgaging all the assets of Ms. Kaleidoscope Films, Bombay. A further penalty of Rs. 10,000 has been imposed on the appellant for contravention of section 9(1)(a) of the Act, on the allegation that the appellant made payments of the said foreign exchange of Pound stg. 1,03,000 (Pound stg. 25000 + Pound 78000) to various persons in the UK during March, 1990 to August, 1990. Yet another penalty of Rs. 10,000 has been imposed on the appellant for contravention of section 14 of the Act on the allegation that he failed to surrender to an authorised dealer in India the said foreign exchange of stg. Pound 1,03,000 within 3 months of becoming holder thereof. 2. This Board had disposed of the appellant s dispensation application by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Kaleidoscope Films, covenants with the lender that it will repay the sum of 78000 pounds together with all additional sums which the lender shall in its absolute discretion pay to Kaleidoscope Films on or before 31-3-1991. It is further stated that for the aforesaid consideration Kaleidoscope Films assigns to the Lender of the capital assets of Kaleidoscope Films, and all its profits and covenants that all its income will be applied towards repayment of this loan in priority to other debts. It is further stated that the lender will continue to lend money to Kaleidoscope Films, for the production of the said film provided that its Board are satisfied with the progress being made by Kaleidoscope Films, and its use of the moneys advanced. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that section has legal connotation. Mere handling of any foreign exchange does not amount to acquisition thereof. It cannot be disputed that the shooting expenses of the film were required to be met by A.S. Gaur, but that does not mean that he himself, physically, will make the payments for meeting the said expenses. There is nothing on record to indicate that the appellant had used the amount of 25,000 pound or any part thereof for his personal expenses. He had admitted that the amount was given to him by Dr. Gaur for meeting the expenses of the film and he spent the entire amount for the said purpose. Mere use of the word acquired in the appellant s statements, even if it were chosen by him, would not amount to acquisition in law of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a partner because the other partner was Dr. Gaur himself and it would have looked odd if Dr. Gaur were to sign this deed on behalf of Kaleidoscope Films, because he was signing on behalf of Gaur Developments Ltd., the other party. He submitted that the transaction in reality was not that of borrowing, this was merely a formal way of arranging the finance for shooting of the film by Dr. Gaur through his company Gaur Developments Ltd. and that it was Dr. Gaur s obligation to provide that fund as the appellant was not required to spend any funds of his own. In the circumstances, the appellant submitted that he cannot be said to have borrowed the said sum of pound 78000 and he has not committed any contravention of section 8(1). 7. I find a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principal money which includes all additional sums which the lender shall in its absolute discretion pay to Kaleidoscope Films ; it is uncertain because the principal sum is uncertain; it is unenforceable because the quantum of the amount agreed to be lent cannot be at the discretion of the lender; obviously a lender cannot force a loan on the borrower. For the reasons herein before mentioned, I am of the opinion that the charge that the appellant borrowed a sum of pound stg. 78000 in contravention of section 8(1) cannot be sustained against him. 8. I also find it difficult to sustain the charge of section 9(1)(a) on the part of the appellant as it could not be said in law that the appellant acquired the said sum of pound stg. 25000 or b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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