MOHD. MUSLIM Vs. ENFORCEMENT DIRECTORATE

JUDGEMENT

(1.) BY the impugned order dated 16th July, 2009 Appellate Tribunal for Foreign Exchange has disposed of the application filed by the petitioner for waiver of pre -deposit of penalty amount of Rs. 3 crores (1.5 crores in two cases) with a direction to deposit 10% of the penalty amount, i.e., Rs. 30 lacs.

(2.) LEARNED Counsel for the petitioner submits that the petitioner has been acquitted in the criminal case. He further states that the petitioner has retracted his statement and the diary relied upon and referred to in the adjudication order is inadmissible in evidence and does not justify imposing the huge penalty of Rs. 3 crores. It is stated that no recovery was made from the petitioner. Learned Counsel for the petitioner has also drawn my attention to the income tax returns as well as statement of bank accounts of the petitioner and his wife which were filed pursuant to the direction issued by this Court.

(3.) THE case against the petitioner is that he was involved in hawala transactions and had violated the provisions of the Foreign Exchange Regulation Act, 1973. His statement was recorded on 09.09.1998. In his statement he had stated that he had visited Pakistan in 1990 -91 and at that time he got in touch with Mr. Rijwan of Lahore who introduced him and inducted him into the hawala trade. He used to earn profit of Rs. 200 per transaction for a transaction of Rs. 1 lac. The petitioner admitted that he knew Mr. Jasvinder Singh and one Mr. Qazi who had introduced him with Mr. Jasvinder Singh. In his statement, the petitioner gave details of various transactions in which he was involved and the name of persons with whom he had entered into hawala transactions. No doubt that the petitioner has retracted his statement but this aspect has to be examined in the appeal keeping in view the facts stated in the statement and corroborative evidence otherwise available to support the admissions. The criminal case against the petitioner and others was on account of recovery of Rs. 47 lacs made from a truck. The allegation was that the said money had link with terrorist organizations. Discharge or acquittal in the said case per se does not make the adjudication order passed under the Act as void and bad. It is well settled that standard of proof and parameters involved in criminal cases and civil cases are different. Prima facie some material exists against the petitioner and the adjudication order is not per se illegal. Of course merits and the question of quantum of penalty imposed is pending before the appellate tribunal. On the question of quantum of penalty, learned Counsel for the petitioner has drawn my attention to the averments in the adjudication order that the petitioner was entitled to small commission on the entire value of the transaction and states that his financial status is not such that he can make payment of Rs. 30 lacs. It is submitted that the petitioner will not be able to deposit Rs. 30 lacs and thus will be deprived to his right to appeal. In this regard it may be appropriate to reproduce para 8 of the judgment of the Supreme Court in Monotosh Saha v. Special Director, Enforcement Directorate and Anr. : 2008 (11) Scale 603: