9911796707
TMI Blog1996 (3) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing eye sight coupled with financial problems. A copy of the medical certificate is also attached to the application. It is also brought out that the appellant had filed another Appeal No. 257 of 1994 against another adjudication order, though it is seen that the charges under Appeal Nos. 257 of 1994 and 308 of 1994 were the result of the same investigation. 2. Appeal No. 255 of 1994 came up for hearing today. Since Appeal No. 255 of 1994 is connected with Appeal No. 257 of 1994 for the reason that the evidence in both the appeals is common. I called for the record of Appeal No. 257 of 1994 also. After hearing the parties in Appeal No. 255 of 1994, I found that that appeal could be disposed of independently of Appeal No. 257 of 1994. I, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 40 of the Act, the letter dated 17-8-1988 seized from his premises, statements of Sujit Karan and Sambhu Dev, both dated 18-8-1988 recorded under section 40. It is seen from the appellant's reply dated 18-9-1989 to the SCN as also from the memorandum of appeal that the appellant has not disputed the evidence relied on in the SCN and in the impugned order. During investigation he has made a clean breast of the whole matter and gave all informations about his role in handling the amounts referred to in the SCN. Even in the memorandum of appeal, he has pleaded that he fully explained how and under what circumstances he became involved in the case matter, that he had no knowledge about the implications and complications of FERA and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in defence, a greater degree of care was, therefore, required on the part of the learned Adjudicating Officer, while examining the evidence against him. The appellant has been found guilty of contravention of section 9(1)(b) for having received a total amount of Rs. 2,16,000 from Asif Abdul Razak by order or on behalf of Mustaq Ali of Bangladesh. He has been found guilty of contravention of section 9(1)(d) for making payment of the total amount of Rs. 1,35,000 out of the said amount of Rs. 2,16,000 to Sujit Karan and the remaining amount of Rs. 81,000 to Annamalai. As regards the amount of Rs. 81,000, the appellant had clearly stated in section 40 - statement, which has been relied on to sustain the charge, that this amount was collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant allegedly told him and is not based on any personal information of Sujit Karan. This evidence is not adequate to sustain the charge of contravention of section 9(1)(d) in respect of the amount of Rs. 65,000. The appellant, therefore, has to be given benefit of doubt in respect of the charge of contravention of section 9(1)(b) and 9(1)(d) in respect of this amount. 8. I am now left with the examination of the finding in respect of the remaining amount of Rs. 70,000. The receipt of this amount and delivery thereof to Sujit Karan on instructions of Mustaq Ali is admitted by the appellant in his statement dated 17-8-1988. Sujit Karan has confirmed that the said amount was handed over to him by the appellant for onward payment to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alings were tainted but after having known he continued in expectation of regular employment. Considering all the facts and circumstances and the personal financial position of the appellant as also the fact that the two contraventions are in respect of the same Act and are in the nature of two faces of the same coin, in my view a penalty of Rs. 5,000 will meet the ends of justice. While reducing the quantum of penalty, I have kept in view that the contravention of those provisions in respect of the amounts of Rs. 65,000 and Rs. 81,000 cannot be sustained and that the appellant has already faced 57 - proceedings. I have also taken note of the fact that the department has separately proceeded against Annamalai, the ultimate recipient and ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument which clearly established that the appellant was due to receive a payment of Rs. 15,000 towards charges of telephone bills from Mustaq AU. It is to be further seen that the appellant has been guilty of contravention of section 16(1)(b) while there is no finding as to how the right to receive the payment had ceased to be receivable by him. In my opinion, the learned Adjudicating Officer has erred in law in not appreciating that the question of contravention of section 16(1) could arise only if the appellant had acquired a legally enforceable right to receive the payment contemplated in that section. The evidence relied on in the impugned order does not disclose more than a moral expectation that since the bill was in respect of use of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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