Shri Mahesh Gupta vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1608 Del

JUDGMENT

Manmohan Sarin, J.

1. Rule.

With the consent of the parties, writ petition is taken up for disposal.

2. Petitioner has filed this writ petition, assailing the order dated 20.8.2001, passed by the Appellate Tribunal for Foreign Exchange, disposing of the petitioner's application for dispensation of pre deposit of penalty under Section 52(2) of Foreign Exchange Regulation Act, 1973 (in short FERA).

3. Learned counsel for the petitioner in support of his case for waiver of penalty has urged that petitioner has been acquitted by the Chief Metropolitan Magistrate, Bombay. Secondly, he submits that petitioner had given a detailed reply to the show cause notice and also made submissions before the Appellate Tribunal, which have not been considered. He submits that one Mr. Jagdishbhai Maganlal Patel, on whose statement, petitioner was implicated, was not an employee but a friend. Learned counsel further submits that petitioner is having cash liquidity problems and it is a case of financial hardship.

4. Learned counsel for the respondent, Mr. Jayant Bhushan, opposes the prayer for this concession. He submits that the impugned order has taken all relevant factors into consideration. The acquittal in a criminal case would not be binding on the adjudicating authority or the tribunal. He further submits that the statement of the petitioner recorded under Section 40 of the FERA, which is admissible in evidence, clearly brings out petitioner's active involvement in the offence.

5. I have perused the impugned order as well as heard counsel for the parties. It is correct that the findings of the criminal court are not binding on the adjudicating authority or determinative of the matter. Learned counsel for the petitioner nevertheless has rightly urged that this is a factor, which may be taken into account. Considering the submissions and facts, as urged by the counsel for the petitioner as also the submission of the respondent and the findings, as recorded in the impugned order, in my view, no ground is made out for complete waiver of the penalty, as imposed. However, taking into account the petitioner's acquittal and, in particular, the plea of lack of cash liquidity and financial hardship, the impugned order deserves to be varied. Let the petitioner deposit 50 per cent of the penalty amount i.e. Rs. 50,000/- and furnish security in the form of immovable property or other security to the satisfaction of the respondent for the balance of Rs. 50,000/-. The penalty of Rs. 50,000/- and security be furnished within four weeks from today.

The writ petition is disposed of in above terms.