1981 (9) TMI 300 - HC - FEMA

Court sets aside penalties for alleged foreign exchange violation; emphasizes lack of evidence and nexus

K. Narayanaswamy Versus Deputy Director, Enforcement Directorate, Madras and Ors.

The court ruled in favor of the appellant, setting aside the penalties imposed by the authorities for violating Section 5(1)(aa) of the Foreign Exchange ... - Issues:Violation of Section 5(1)(aa) of the Foreign Exchange Regulation Act, 1947 - Contravention established based on appellant's statement - Imposition of personal penalty and confiscation of funds.Analysis:The case involved an appeal against the order of the Foreign Exchange Regulation Appellate Board, upholding the Deputy Director of Enforcement's decision that the appellant contravened Section 5(1)(aa) of the Foreign Exchange Regulation Act, 1947. The appellant was apprehended with a sum of money, and statements were taken from him and another individual. The appellant contested the proceedings, claiming his statement was taken under duress. The authorities held that the statements established the appellant's involvement in foreign exchange violations, leading to the imposition of a personal penalty and confiscation of funds.The appellant challenged the decision, arguing that even if his statement was considered, an offense under Section 5(1)(aa) could not be established. The appellant's statement referenced receiving instructions from a person in India, and it was contended that the person instructing him was not a resident outside India. The appellant also claimed his statement was taken under duress and required further corroboration to be relied upon.The court noted that the case relied solely on the statements given by the appellant and the other individual, with no additional evidence. The crucial issue was whether the statements provided sufficient basis to establish a contravention of Section 5(1)(aa) of the Act. The court analyzed the wording of the Act, emphasizing that the offense required receiving funds on behalf of a person resident outside India. The statements indicated receipt of funds on the instructions of a person in India, not outside India, which did not constitute a violation of the Act.Furthermore, the court highlighted that the department failed to establish a connection between the appellant and a person resident outside India who allegedly instructed the transactions. The absence of evidence linking the appellant to a person outside India led the court to conclude that the contravention of Section 5(1)(aa) had not been proven. As a result, the court allowed the appeal, setting aside the orders of the Enforcement Directorate and the Appellate Board, with no costs imposed.In conclusion, the court ruled in favor of the appellant, emphasizing the lack of evidence connecting the appellant to a person residing outside India as required by Section 5(1)(aa) of the Act. The court's decision overturned the penalties imposed on the appellant, highlighting the importance of establishing a clear nexus between the accused individual and the alleged foreign resident involved in the transactions to prove a violation of the Act.