R S SRIKANTHA RAO Vs. SPECIAL DIRECTOR ENFORCEMENT DIRECTORATE FOREIGN EXCHANGE REGULATION ACT GOVERNMENT OF INDIA NEW DELHI

JUDGEMENT

(1.) THIS Appeal under S. 54 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as Act) is by one R.S. Srikantha Rao, a Director of Bharal Travels Services Private Limited. He failed before both the authorities below. A penalty of Rs. 50,000/ - has been concurrently levied on him by them on the footing that he has contravened S. 8(1) and (2) of the Act read with S. 68(1) and (2) of the Act. The impugned order of the first appellate Board dated 30.1.1989 is a common order in three appeals before it which are connected as will be seen presently.

(2.) The said appeals are Appeal Nos. 213, 214 and 280 of 1986 preferred respectively by the abovesaid company Bharat Travel Services Private Limited, yet another Director of the said company by name K. Sriram and the appellant herein. In the abovesaid common order of the first appellant Board, actually speaking, the penalties levied by the first authority to the extent of Rs. Two Lakhs on the abovesaid Company, to the extent of another sum of Rs. 50,000/ - on the abovesaid Director Sriram and the above referred to sum of Rs. 50,000/ - on the appellant herein, were confirmed. But it appears, the said common order in so far as it levied penalties on the abovesaid company and the Director Sriram has become final, since even according to the learned counsel for respondent, there seems to be no further appeal under the abovesaid S. 54 of the Act by them. Thus, there is only this appeal by the appellant, that is, is so far as the levy of the above referred to Rs. 50,000/ - on him. Before actually seeing the relevant facts, we may first mention the material portions of the said Ss. 8 and 68 of the Act. According to S. 8(1), except with the permission of the Reserve Bank, "no person resident in India other than an authorised dealer shall outside India, purchase or otherwise acquire or borrow from any person not being an authorised dealer, any foreign exchange." The material portion of S. 8(2) says that except with the permission of the Reserve Bank, "no person shall enter into any transaction which provides fro the conversion of Indian currency into foreign currency or foreign currency into Indian currency, at rates of exchange other than the rates for the time being authorised by the Reserve Bank." The material portion of S. 68(1) of the Act says, "where a person committing contravention of any of the provisions of this Act . is a company, every person who, at the time the contravention was committed, was in charge of and was responsible to, the company in the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished according; provided nothing contained in this sub section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention". The material portion of S. 68(2) says,

(3.) NOW, we shall see the relevant facts to see how actually charge is made against the appellant under the abovesaid section. The abovesaid company in which the said Sriram and appellant are also Directors, is doing business of travel agent. The office premises of the said company and the residential premises of the said two Directors were searched by the officers of the Enforcement Directorate, resulting in recovery and seizure of incriminating documents. 3 -A) The Statement of the abovesaid Sriram was recorded on 11.10.1983 wherein he has stated that the said company had conducted a tour inclusive tour (GIT) to Europe and U.S.A. during July, 1983 with 33 passengers including himself, that the Reserve Bank of India had allowed US $ 600 as M.C.C. and permission to utilise US $ 300 from out of FTS Quota of each passenger, that the passengers did not agree to part with their FTS allowance of US $ 300 and were not agreeable to join the tour unless some arrangement is made in this behalf, that therefore, the said Sriram discussed the matter with the appellant who contacted with one of his friends in Singapore named Mr. Nizam to send the foreign exchange from Singapore to Chartered Bank, London, that the said Sriram left, with other passengers, for the proposed tour, but that after reaching London, he could not get necessary amount in foreign exchange from the Chartered Bank, that therefore he had a telephonic talk with the appellant who was at Madras and learnt that whether the requisite amount was sent to Swiss Bank, London, that thereafter he contacted the Swiss Bank, London and received US $ 13000 and that he also contacted one of his other friends Devandra in London for some financial assistance and borrowed Stg. $ 3000 from him with a view to conduct and complete the said foreign tour without financial difficulties. The said Sriram on examination referred to the entries made by him in his diary which had been seized from the office premises of the abovesaid company.