2007 (9) TMI 724 - AT - FEMA

Tribunal Reduces Penalty Due to Age, Confirms Violation of FER Act; Appellant's Coercion Claim Dismissed.

Omer A. Vahedna Versus Director, Enforcement Directorate

Omer A. Vahedna Versus Director, Enforcement Directorate - TMI Issues:Violation of FER Act - contravention of section 9(1)(b)Admissibility of confessional statementBurden of proof regarding coercion in making the statementCorroboration of evidence in a retracted confessional statementIdentification of person resident outside IndiaAnalysis:The appeal was filed against an Adjudication Order imposing a penalty for contravention of section 9(1)(b) of the FER Act, where the appellant received a payment without RBI permission. The appellant admitted receiving Rs. 22 lakhs in India on behalf of his brother from Dubai without proper authorization. The appellant's counsel argued that the impugned order was based on a retracted confessional statement lacking independent evidence. However, the respondent contended that there was sufficient evidence to prove the charges against the appellant.The Tribunal found that the appellant was identified based on information from another individual and admitted to receiving the payment. The Tribunal dismissed the appellant's argument that the identity of the person from Dubai was not established, stating that there was enough evidence to prove the violation under section 9(1)(b) of the FER Act. The burden of proving coercion in making the statement was on the appellant, which was not discharged.Referring to legal precedents, the Tribunal emphasized that a retracted confessional statement can be the basis of conviction if proven voluntary and corroborated. In this case, the confessional statement was supported by documentary and circumstantial evidence. The Tribunal found the appellant failed to discharge his burden, and the charges were proved by the respondent.The Tribunal decided to partly allow the appeal, reducing the penalty from Rs. 1 lakh to Rs. 70,000 due to the appellant's age. The appellant was directed to deposit the reduced penalty within 15 days. The judgment highlighted the importance of corroborating evidence in establishing guilt and the burden of proof on the accused regarding coercion in making statements.