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TMI Blog1989 (12) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the appellant that he being a person resident in India received payment of Rs. 87,000 in July 1984 and another payment of Rs. 2 lakhs in September 1984 from some persons in India on instructions from or on behalf of a person residing in Pakistan without the general or special permission from RBI and that the appellant made payment of the amount of Rs. 74,000 to one Shri Khalid, a Pakistan national on his visit to India in September; 1984 and two payments of Rs. 87,000 and Rs. 1 lakh to one Shri K.P. Yousuf of Kerala in July 1984 and on or about 1-9-1984 respectively on instructions from a person resident outside India without the general or' special permission from RBI in contravention of section 9(1)(b) and 9(1)(d) of the Act. Reliance in respect of this charge has been placed on the appellant's statement dated 5-9-1984 and 6-9-1984, statement of Shri Khalid dated 5-9-1984, 6-9-1984 and 13-9-1984 and statement of Shri Yousuf dated 4-9-1984 and 13-9-1984 and that of Shri P. Basheer dated 5-9-1984. 2. After receiving a reply from the appellant and affording him an opportunity of hearing during adjudication proceedings, Additional Director, Enforcement passed the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... havan, 1st floor, Bombay were searched by the Enforcement Officers on 4-9-1984 resulting in the recovery and seizure of some documents and Indian currency of Rs. 36,000. The statement of Shri P. Basheer, owner of the said travel agency was recorded in which he denied having received either Rs. 1 lakh or any other amount from any person on the instructions a non-resident person but stated that one Shri Khalid of Karachi of Pakistan had come to his office for taking ticket of Indo- Arab Travels Bombay to Tellicherry; that said Shri Khalid had contacted one Azizbhai at Tel. No, 864159 that said Shri Azizbhai came to his premises at 5.30 p.m. on 3-9-1984 and in his presence handed over a chit to Shri Khalid and in turn Azizbhai handed over a paper packet to Khalid; that the said packet must be the amount of Rs. 1 lakh received by Khalid since he had so inferred from the discussion that took place in his presence between the two. Further investigations led the Enforcement Officers to the appellant, Shri Z.Z. Palla. Further investigation by the Enforcement Officers led them to search the premises of Karmali Alibhai Co. at 159 Bara Imam Road, Bombay on 5-9-1984 resulting in the recovery a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Prakash Gandhi and was given to the appellant for safe custody. He had placed the said amount in the nearby shop and had no claim or personal interest therein. Even Shri Prakash Gandhi when examined, owned the ownership of the said amount and there is nothing to show that the appellant ever acquired any interest whatsoever in the said foreign exchange. Had this foreign exchange been acquired by the appellant for his own purposes as alleged on behalf of the respondents, he could have used the said amount which had admittedly been kept only in a safe place for more than two weeks prior to its recovery. The phrase otherwise acquiring used in section 8(1) does not contemplate mere possession or custody of the foreign exchange. It necessarily includes some proprietary interest of the person from whose possession it is recovered. 7. Section 8(1) provides that no person resident in India other than an authorised dealer in foreign exchange shall outside India purchase or otherwise acquire or borrow from, or sell, or otherwise transfer or lend to or exchange with, any person not being an authorised dealer any foreign exchange without the previous general or special permission of RBI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipso facto amount to acquisition. The Explanation thus read in the context of the substantive clause makes the concept of deposit quite clear. Therefore, it is not permissible to accept the interpretation that by merely handing over the currency notes to another, just for instance, to a carrier, who holds on behalf of the master, it cannot be said that the notes have been deposited with him inasmuch as the mode of the 'lending' is missing while what is in existence is the bare physical possession of the articles State of Maharashtra v. Mahesh P. Mehta [1983] 1 Bom. CR 606. Accordingly, I am unable to agree that the appellant can be said to have contravened section 8(1) simply because he kept the said amount of foreign exchange belonging to Shri Prakash Gandhi for a short while for safe custody. The finding to the contrary in respect of show-cause notice No. I is set aside. 8. As regards show-cause notice No. II, there is ample evidence to show that the appellant had received payment of Rs. 87,000 in July 1984 and another Rs. 2 lakhs in September 1984 on instructions and on behalf of a non-resident person. It is further proved that he had made payment of Rs. 74,000 to Shri K ..... X X X X Extracts X X X X X X X X Extracts X X X X
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