9911796707
TMI Blog2024 (11) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... UM/2003, FPA-FE-596/MUM/2003, FPA-FE-614/MUM/2003, FPA-FE-615/MUM/2003 Sh. V. K. Varghese, Sh. K. S. Mohan, Sh. V. J. Jeseph, Sh. T.V.R. Nair, Ms. Beatrice Rose Paul, Sh. L.R. Chandrashekhharn, Sh. K. Thomas, M/s Indusind Bank &Ors., Sh. P.G. Lyer, Sh. P. Padmanabhan, M/s United Western Bank, Sh. M. Y. Phansalkar, Sh. R. S. Sapra, Sh. M.Y. Ganu, Sh. V. L. Jadhav, M/s Cannara Bank &Ors. Sh. S. M. Thakur, Sh. P. N. Shegokar, Sh. B.G. Pai, Sh. R. G. Ambavane, Sh. R. V. Shanbhag, Sh. S. R. Patil, M/s State Bank of Patiala, M/s SBI Commercial & International Bank Ltd., Sh. Sumit M. Mahajan, Smt. Kiran Changraney, Sh. Tushar Prabhu Versus The Special Director Directorate of Enforcement, Mumbai JUSTICE MUNISHWAR NATH BHANDARI, CHAIRMAN SHRI BALESH KUMAR, MEMBER For the Appellants: Mr. Nirmal Mishra, Mr. R.R. Gavai, Mr. Aman Raj Gandhi, Mr. Vandaan Bajaj, Mr. Ojasvi Sharma, Mr. Manoj Kumar Dubey, Mr. Chandrachur Bhattacharyya, Advocates For the Respondent: Mr. A.R. Aditya, Mr. Anwesha Mishra, Ms. Himani Aggarwal, Advocates FINAL ORDER FPA-FE-561, 562, 564, 567, 568, 570, 589, 592, 593, 563, 577, 578, 579, 580, 581, 582, 586, 591, 590, 572, 574, 566, 569, 571, 573,565,576,583,584, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond Show Cause Notice was issued to the Dravya Industrial Chemicals Ltd. (in short `Dravya') alleging that during the year 1995-98, it acquired foreign exchange to the tune of US $ 3,48,56,069.58 and remitted the same through various Banks in Mumbai to their overseas suppliers for import of goods but failed to bring any goods in India, without the general or special permission of the RBI. It was alleged that the Dravya failed to utilize the foreign exchange for the purpose it was acquired and thereby contravened Section 8(3) and 8(4) of the Act of 1973 along with Paragraphs 7C.1 and 7C.2 of Chapter 7 of the Manual of 1993. It was also alleged that Dravya had acquired foreign exchange to the tune of US $ 21,58,284 and remitted the same through various Banks to overseas suppliers in the guise of Merchanting Trade but failed to import or export any such goods. Therefore, the allegation against Dravya was similar to that was made against Hamco. It was even against its employees in terms of Section 68 of the Act of 1973. SCN-III 6. The third Show Cause Notice was issued to Nariman Point Chemicals Industries Ltd. (in short `Nariman Point') alleging that during the year 1995-98, it acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for it was also made for its employees in terms of Section 68 of the Act of 1973. 10. Apart from the six SCNs referred to above, the respondents issued Addendum to SCN-I to IV. It was to the financial institutions in appeal along with its employees alleging opening of letters of credit and remittance to four companies named in different SCNs and were charged for aiding and abetting those companies in contravention of the Act of 1973 by negligence. The appellants have preferred appeals against the order only in reference to it. However, we have given brief facts of the case in reference to those companies and its employees who were charged for contravention of Section 8(3) and 8(4) of the Act of 1973 along with Paragraphs 7C.1 and 7C.2 of Chapter 7 of the Manual of 1993. The notice was served on the appellants bank and its employees. The reply to the SCN were submitted which would be mentioned while referring to the arguments of the counsel for the appellants. 11. The allegation against the appellant Banks is, however, for the aiding and abetment of the contravention of Section 8(3) and 8(4) read with Section 64(2) of the Act of 1973 and against the employees of the appellant B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not submitted at all. The allegation was made in ignorance of the fact that there exists no provision in the Act or the Rules made thereunder that non-submission of Bill of Entry would be in impediment to effect remittance. 16. The bank, however, remains under an obligation to report non-submission of Bill of Entry for earlier remittance and if there remains pendency of Bill of Entry, the order for blacklisting can be passed by the RBI in its sole discretion which exercise was never taken by the RBI while the appellants were penalized for alleged contravention of the Act of 1973 for the negligence and abetment. 17. It is alleged that the respondents failed to appreciate that the Banks deal with the documents and not with goods and it is otherwise a mandate of Uniform Customs &Practice for Documentary Credits (in short 'UCPDC') to honour the LC for making payment on submission of documents in accordance with the LC. Even Para 7A.1 of the Manual of 1993 requires that the provisions of UCPDC should be followed and reliance has been placed by the appellants on itthus, para 7A.1 is quoted hereunder for ready reference: "7A.1 (i) Import trade is regulated by the office of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) Import of designs and drawings has been made strictly as per the Exim Policy in force. b) The transaction is as per provisions of paragraphs 7A.1(iii), 7A.10, 7A.11, 7A.20, 7A.21, 7A.22 7A.23 & 7A.26 of ECM. c) The entire payment relates to the cost of import of designs and drawings only and does not include any other cost. d) Production of undertaking/certificate regarding payment of Income-tax (cf. Paragraph 3B.10). e) The value of designs and drawings imported has been declared to the Customs authorities and incorporated in the Exchange Control copy of Bill of Entry. f) In terms of Research and Development Cess Act, 1986 a Research and Development Cess has to be paid by Industrial concerns importing technology, drawings and designs, on all payments made by such concerns which will also include payments made locally in Rupees towards fare, living expenses etc. of foreign technicians/personnel who have been deputed to India in connection with the import of technology, drawings and designs. Authorised dealers should, therefore, while allowing such remittances, obtain confirmation/ evidence from the Indian companies that Research and Development Cess has been paid. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the appellants submitted that the Banks and its employees followed the prescribed limit for sanctioning credit limits during the relevant period from 1995 to 1998. The LCs were established and the bill collection facility was operated in accordance with the prevalent guidelines under the Manual of 1993 issued by the RBI under the Act of 1973. A reference of Paragraph 7A.1 (ii) of the Manual was given to indicate the obligation said to have been performed. As per Paragraph 7A.I (ii), the appellants were under an obligation to follow normal banking procedures and UCPDC provisions, etc. The letter of credit should, in particular, stipulate a condition for Bill of Lading. Remittances for imports under the letters of credit or otherwise should be made against the shipping documents/lorry/railway receipts/exchange control copies of Bills of Entry/postal/courier wrappers, etc. which was followed by the appellants/banks and its employees. 20. Para 7A.21 of the Manual, 1993 has been relied upon by the appellants and is quoted hereunder for ready reference: "7A.21 Authorised dealers should exercise due care while handling import documents on collection basis on behalf of importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligatory on the part of the importers to submit Exchange Control copies of the Bills of Entry/postal/courier wrappers to the authorized dealer through whom relative remittance was made as evidence that the relative goods for which the payment was made have actually been imported in India. The authorized dealer is liable to ensure that it is submitted in all cases including the cases of advance remittances. The counsel for the appellants admitted that Hamco group of Companies being the purported importer of the goods failed to submit the Exchange Control copies of Bills of entry to the appellant banks. The main allegation of the respondent appears to be that the appellants were negligent in opening the LCs and remitting funds despite non-submission of the Exchange Control copies of Bills of Entry by Hamco group. The respondents failed to appreciate that the appellants otherwise followed the mandate of the Act and the rules made thereunder. 22. It is further submitted that in case importer does not furnish copies of Bill of Entry within three months from the date of remittance, the authorized dealer should issue a reminder to the importer asking him to produce it forthwith. If there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and date (wherever applicable) (c) Bank's reference of letter of credit number etc., if any. (d) Number and date of Exchange Control copy of bill of entry/postal wrapper and the amount of import. (e) Particulars of goods imported. (iii) Internal inspectors or auditors (including external auditors appointed by authorised dealers) should carry out 100% verification of all the Exchange Control copies of bills of entry/postal/wrappers and a certificate to that effect should be forwarded, on half-yearly basis, to the office of Reserve Bank under whose jurisdiction the authorised dealer is situated. (iv) In case an importer does not furnish the Exchange Control copy of Bill of Entry within three months from the date of remittance (or within prescribed period as provided in paragraph 7A.10), the authorised dealer should issue a reminder to the importer asking him to produce it forthwith. If there is still no response, a reminder by registered post with acknowledgement due should be issued not later than one month from the date of the first reminder. (v) Authorised dealers should forward to Reserve Bank a statement as at the end of each calendar quarter in form BEF furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s vehemently contested all the appeals. The counsel submitted that no doubt the main allegation for contravention of Section 8(3) and 8(4) of the Act of 1973 read with Section 64 (2) exists against the Hamco Group of Companies but the notices were given subsequently to the appellant Banks finding a case of abetment for contravention of Section 8(3) and 8(4) read with Section 64 (2) of the Act of 1973 and against the employees of the appellant Banks for contravention of Section 8 (3) read with Section 64(2) and Section 68 of the Act of 1973. 26. The learned counsel for the respondents made elaborate arguments on each issue to support the order of the Special Director. The arguments would be referred by us while dealing with the arguments of the counsel for the appellants to avoid repetition of the same facts to make the order bulky. Therefore, we would not be referring to the rival arguments, rather would be considered while dealing with the arguments of the appellants. Findings of the Tribunal: 27. The appellants are the financial institutions and its employees and the allegation against the Banks is for the abetment in reference to Section 8(3) and Section 8(4) apart from Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nging into India any goods but sends or brings no such goods or does not send or bring goods of a value representing the foreign exchange acquired, within a reasonable time or sends or brings any goods of a kind, quality or quantity different from that specified by him at the time of acquisition of the foreign exchange, such person shall, unless the contrary is proved, be presumed not to have been able to use the foreign exchange for the purpose for which he acquired it or, as the case may be, to have used the foreign exchange so acquired otherwise than for the purposes for which it was acquired. (5) Nothing in this section shall be deemed to prevent a person from buying from any post office, in accordance with any law or rules made thereunder for the time being in force, any foreign exchange in the form of postal orders or money orders. 64. Preparation, attempt, etc .- (1) Whoever makes preparation to contravene any of the provisions of this Act other than section 13, clause (a) of sub- section (1) of [section 18, section 18-A], clause (a) of sub- section (1) of section 19, sub-section (2) of section 44 and sections 57 and 58 or of any rule, direction or order made thereunde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f companies and its employees. So far as the appellants are concerned, they were served with addendum to SCNs I to IV. The replies to it were filed by the employees, apart from the financial institution and considering those replies and their submissions, the Special Director discharged many of the employees while imposed penalties on those who were found involved. The penalty has been imposed on the financial institutions who made elaborate arguments to challenge the impugned order. 29. We would first deal with the issues raised by the appellants but before that it needs to be indicated the period of contravention of the provisions of the Act of 1973 in the hands of the Hamco Group of companies. It was not of few months or year, rather it was for three years between year 1995 to 1998. The fact aforesaid would be relevant for dealing with the issues raised by the appellants to claim a clean chit from the allegations. 30. According to the appellants, the opening of LCs and bill collection facility was operated in accordance with the prevalent guidelines under the Manual of 1993 issued by the RBI under the Act of 1993. A reference of Paragraphs 7C.1 and 7C.2 of Chapter 7 of the Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-13. Standard for Examination of Documents: a. Banks must examine all documents stipulated in the Credit with reasonable care, to ascertain whether or not they appear, on their face, to be in compliance with the terms and conditions of the Credit Compliance of the stipulated documents on their face with the terms and conditions of the Credit, shall be determined by international standard banking practice as reflected in these Articles. Documents which appear on their face to be inconsistent with one another will be considered as not appearing on their face to be in compliance with the terms and conditions of the Credit. Documents not stipulated in the Credit will not be examined by banks. If they receive such documents, they shall return them to the presenter or pass them on without responsibility. b. The issuing Bank, the Confirming Bank, if any, or a Nominated Bank acting on their behalf, shall each have a reasonable time, not to exceed seven banking days following the day of receipt of the documents, to examine the documents and determine whether to take up or refuse the documents and to inform the party from which it received the documents accordingly. c. If a Credit c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co Group of Companies had opened a large number of Letters of Credit in eight banks for the purpose of importing goods, following which foreign exchange had been remitted abroad through the collecting bankers without genuine documents of title and though the goods did not arrive in India. In the first notice to show cause it was alleged that during the period between 1995-1998 Hamco Mining and Smelting Ltd. made a total remittance of US $ 11.80 Crores and D.M. 20,036 and received back a total amount of US $ 5.69 Crores as purported insurance claims and that the company had fabricated documentary evidence showing Merchanting Trade, remitting foreign exchange worth US $ 7.56 Crores without the actual shipment of goods. In the second show cause notice it was alleged that Dravya Industrial Chemicals Ltd. obtained a remittance of US $ 3.48 crores for the import of goods but failed to make any import. Instead of importing the goods a purported insurance claim of US $ 1.29 crores was received. It was alleged that the company had fabricated documentary evidence showing Merchanting Trade and that it remitted foreign exchange worth US $ 21.58 lacs without actual shipment of goods. In the thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have exercised care and caution while dealing with the noticee companies. Had the documents been carefully scrutinised before making remittances, the bankers would have noticed the fact that the Bills of Lading did not contain the container numbers. By omitting to scrutinise the documents submitted and by allowing the noticee companies to make huge remittances overseas, the noticee banks and their officers were alleged to have aided and abetted contravention of the provisions of the FERA. The Bank officials, it was found, ignored the failure on the part of the notices to file Bills of Entry for which remittances had been effected while at the same time allowing them to open fresh Letters of Credit in favour of the very same parties to whom remittances were made under earlier Letters of Credit for which Bills of Entry had not been filed. In other words, it was evident that the officials of the banks who authorised the opening of the LCs ought to have exercised proper care and vigilance in the opening of fresh LCs, especially when the noticee companies who had opened the LCs had failed to submit proof of import evidencing the import of goods into India. Letters of Credit were open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir officials guilty of an act of abetment within the meaning of Section 64(2) on the basis of a detailed consideration of the facts and circumstances; (3) On a difference of opinion arising between the two Members of the Appellate tribunal, a Third Member was called upon to decide the points of difference; (4) Ex facie, the order of the third Member dated 7 October 2009 would indicate that the material on record has not been considered. The third Member has erroneously proceeded on the basis as if a criminal offence had to be established on a charge of abetting the commission of an offence within the meaning of Section 107 of the Penal Code. Moreover, it has been submitted that both the reasons which have been indicated in the order of the third Member are ex facie specious. The third Member has held that the receipt of a Bill of Entry could only happen after the remittance of foreign exchange, which was an act which had happened after the commission of contravention and not before. Similarly the purported insurance claims were received after the remittances and not earlier. On this basis it has been concluded that these later acts cannot result in a finding of abetment since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was carried in appeal before the Appellate Tribunal, the Chairperson of the Tribunal took the view that the circumstances which were relied upon by the Adjudicating Officer were remote and were not closely connected with the act of confirmation of the LCs against whom payment of foreign currency was made. The Chairperson was of the view that payment could not have been avoided without inviting a breach of a binding contract in international trade. The Chairperson was of the view that the discrepancies in the Bill of Lading could hardly invite the attention of anyone except at a later stage when things became absolutely clear. The Bankers according to the Chairperson, were bound to take a reasonable care, but nothing more. No intentional omission was, in this view, made out. The second Member of the Tribunal, who took a different view of the matter, inter alia, relied upon the provisions of Article 23 of the Uniform Customs & Practice for Documentary Credits (UCPDC) under which a banker is required to accept a document, if a credit calls for a bill of lading covering a port to port shipment which appears on its face to indicate the name of the carrier and which indicates that goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India that the third Member before whom the matter was placed for resolving the points of difference has completely failed to consider in its entirety the material on record and the charges that were levelled against the banks and their officers. The order passed by the third Member, besides being cryptic, does not take note of all the materials which were on the record of the adjudication proceedings and from which the Appeals were filed before the Tribunal. Each of the circumstances which weighed with the Adjudicating Officer have already been noted earlier. While according to the Chairperson those circumstances were of a remote nature, the other Member who differed held that there was a serious and consistent violation on the part of the banks and their concerned officials in the discharge of their duties as prudent bankers. With respect, the third Member has failed to apply his mind to the entirety of the material on record. In this view of the matter, we are of the view that the ends of justice would require that the impugned order of the Tribunal dated 12 October 2009, which is based on the decision rendered by the third Member on the points of difference, should be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " or similar qualification in relation to the vessel, loading on board a named vessel must be evidenced by an on board notation on the bill of lading which, in addition to the date on which the goods have been loaded on board, also includes the name of the vessel on which the goods have been loaded, even if they have been loaded on the vessel named as the "intended vessel". If the bill of lading indicates a place of receipt or taking in charge different from the port of loading, the on board notation must also include the port of loading stipulated in the Credit and the name of the vessel in which the goods have been loaded, even if they have been loaded on the vessel named in the bill of lading. This provision also applies whenever loading on board the vessel is indicated by pre-printed wording on the bill of lading, and iii) indicates the port of loading and the port of discharge stipulated in the credit, notwithstanding that it: (a) indicates a place of taking in charge different from the port of loading, and/or a place of final destination different from the port of discharge, and/or (b) contains the indication "intended" or similar qualification in relation to the port o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how the necessary ingredients of bill of lading and to address the arguments of the appellants that there was no necessity to refer the name of vessel in the bill of lading. 37. However, elaborately the issue would further be discussed by us but before that it is necessary to narrate certain important issues relevant to the case. The conduct of different financial institutions is not only to abet contravention of Section 8(3) and Section 8(4) of the Act of 1973 by opening the LCs but to effect remittance of foreign exchange despite the series of contraventions by Hamco Group of Companies. The fact aforesaid is fortified by the materials available on record which includes the admission of the financial institutions and its employees that the bills of entry were not furnished by the appellants. However, the defence has been taken that if the bills of entry was not tendered by the appellants, then it was for the RBI to take action and blacklist the Hamco Group of Companies because the appellants had sent quarterly reports informing non-submission of bills of entry. The burden or the default of the RBI cannot be shifted on the appellants. 38. The argument of the financial institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Addendum issued in pursuance thereto: "1) SCN I: Issued to HMSL and the persons in charge of the company under sec. 8(3) of FERA 1973 for their failure to import goods against foreign exchange to the tune of US $. 11,80,48,700.33 & D.M.20,036.54 remitted abroad through various banks, the details of which are as under: - Name of banks though which remittance effected. Total amount remitted where no B/E filed (US $.) 1. Canara Bank, against LC 24634662.29 2.-do- Against Collection bills 17465.70 3. Vijaya Bank 17605540.45 4. Federal Bank 20390900.42 5. SBI Commercial 2033770.00. 6. United Western Bank 5436520.35 7.SB of Patiala 37810497.33 8. Oman Irtl. Bank 2340883.29 9. Indusind Bank 7059283.70 10. IDBI 719176.80 Total 118048700.33 11. Canara Bank DM 20036.54 ii) The HMSL and the persons in charge of the company are also charged under sec. 8(3) read with paragraphs 7C.1 and 7C.2 of Chapter 7 of the Exchange Control Manual, 1993 in SCN I for failure of import / export goods against the remittances made in Merchanting Trade transactions as under: - Sr. No Bank's Name Company Name Amount remitted in US$. 1. United Bank Western HMSL 34809212.77 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs were sent. It can be ignored for first remittance but cannot be for subsequent to first failure and that too for years together. The argument that submission of bills of entry is subsequent to remittance but ignoring that after one remittance if bills of entry was not submitted then the appellants should not have opened LC but it remained for years and till matter was taken up by the Government agencies. The fact aforesaid is enough to prove a case against the appellants. 42. The argument of the learned counsel for the appellants that the financial institution was not under obligation to examine the truthfulness of the documents regarding import while making remittance. It is also that they were not required to see the name of vessels and the container numbers, rather they were under obligation to remit the foreign exchange once LC is opened. It was further argued that they were required to open LCs based on the documents submitted by the Hamco Group of Companies and if they submitted fraudulent documents to show import of goods without its actual import, the appellants were not under obligation to find out the truth of the aforesaid. The argument is on the pretext that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill of lading, the name of the vessels and the container number was not mentioned. The plea has thus been made in ignorance of the matter taken up for bankruptcy by few financial institutions. 44. The facts given above are referred to analyze as to whether there was negligence on the part of the appellants/banks for opening of the LCs and remittance of the foreign exchange despite non-submission of bills of entry and reminders and a report to the RBI. It does not absolve the financial institutions and its employees to ignore non-submission of bills of entry despite reminders and even thereafter allow further remittance. We may infer that a case of abetment would not be made towards first remittance where bills of entry were not submitted despite reminder but once it came to the notice of the appellants, they were under obligation not to allow further LCs and remittance despite reckoned default of the Hamco Group of Companies. In fact, the appellants could not have acted as a post office i.e., whatever documents are given for remittance, they were required to remit the foreign currency as if they were not under obligation to comply the mandate under UCPDC and the Manual of 1993. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants that they were not under obligation to see whether the bill of lading mentions name of vessels or containers number for making remittance of the foreign currency fails. The aforesaid argument shows utter disregard to the direction man date dunder Article 23 of the UCPDC and sufficient to make out a case of abetment by causing negligence for contravention of Section 8(3) and Section 8(4) read with 64(2) of the Act of 1973. 47. The facts available on record further shows receipt of the foreign currency against fake insurance claims which was never made by the Hamco Group of Companies with the Insurance Companies and was otherwise to be routed through the banks. The default by the appellants was realized and for that reason alone they subsequently wrote letters to insurance companies to find whether claims for insurance have been made. It was then informed that no claim was reported towards the insurance and specific reply of it has been given for Solo Industries Ltd. Al Sagar National Insurance Company, Dubai addressed the facts on 15.03.1999 that there was no claim reported by Solo Industries Ltd. or any of their consignees or settled by the said Company. The insurance comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o utter negligence of the appellants. It shows and proves to make out a case of abetment for contravention of Section 8(3) and Section 8 (4) of the Act of 1973. At this stage and before we take up the matter further, it would be relevant to deal with the argument of the appellants in reference to Section 107 of IPC. The provision aforesaid is quoted hereunder for ready reference: "107. Abetment of a thing.--A person abets the doing of a thing, who-- (First) -- Instigates any person to do that thing; or (Secondly) --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) -- Intentionally aids, by any act or illegal omission, the doing of that thing. ExplanationI.--A person who, by wilful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this condition is fulfilled that a person can be guilty of abetment by instigation." 54. The law does not permit the abettor to escape punishment for abetment even if the actual player who commits the offence is not criminally liable for the actual act which results in the commission of an offence (See in this regard, the situation contemplated in illustrations in Explanation III of Section 108 of the IPC). Equally, there need not be meeting of minds between all the persons involved in a conspiracy and it is sufficient if a person is engaged in the conspiracy following which the offence is committed (Explanation V to Section 108 of the IPC). This means that it is not even necessary that the persons who are engaged in the conspiracy, to even know the identity, leave alone physically meet the other players. There can be any number of persons depending on their guilty mind and acts or omissions which may render them liable." 50. The judgment of the Apex Court (supra) is on the issue and applies to the facts of this case and if independently the matter is examined, the case of abetment within the framework of law is made out. 51. The appellants have pleaded that they were not under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved US $ HMSL 2 17465.70 DICL 11 1226876.45 NPCIL 11 3442168 HICL 2 256365.00 The above statement shows that no bill of entry was submitted by the Hamco group of companies yet bank continued to open LCs and remitted amount by way of collection bills. The appellant bank has provided further details qua the transactions pertaining to the Hamco group of companies wherein advances against export performances have been adjusted by the bank. Further, the appellant bank in the case of Dravya received an inward remittance of Rs. 35,02,00,000 for which no purpose was explained rather the bank treated it just like an inward remittance without any explanation. In the case of Nariman Point, an inward remittance of Rs. 15610922 was received without any reason assigned to it. Thus, the appellants are liable for abetment and negligence in terms of Section 8(3) and Section 8(4) read with Section 64(2) of the Act of 1973. The appellant officers processed LCs and issued remittances are liable for abetment under Section 8(3) read with Section 64(2) read with section 68 of the Act of 1973. Vijaya Bank 55. The appellant bank has opened 24 LCs on behalf of Hamco though bill of entry wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable for abetment and negligence in terms of Section 8(3) and Section 8(4) read with Section 64(2) of the Act of 1973. The appellant officers processed the LCs and issued remittances are liable under Section 8(3) read with Section 64(2) read with section 68 of the Act of 1973. Indusind Bank Ltd. 58. The appellant bank has opened LCs and made remittances on behalf of the Hamco group of companies in the same manner thus, abet contravention of Section 8(3) read with Section 64(2) of the Act of 1973. The details of the remittances are reproduced hereunder: Name of the company Total LCs opened No. of LCs where no B/E filed No. of remittances where no B/E filed Amount involved US $ HMSL 20 8 21 7059283.70 DICL 7 3 6 3145504.00 HICL 2 2 5 1885218.00 The above data would show that no bill of entry was submitted by the Hamco group of companies in continuity and despite therein fulfillment of the mandatory obligation on part of the Hamco group of companies, the bank continued to open LCs and remitted amount by way of collection bills. Thus, the bank is liable for abetment and negligence in terms of Section 8(3) and Section 8(4) read with Section 64(2) of the Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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