TILAK RAJ Vs. JOINT DIRECTOR OF ENFORCEMENT DIRECTORATE

JUDGEMENT

(1.) This order shall dispose of a bunch of three petitions bearing CWP Nos. 20932, 21024 and 21026 of 2015 as according to learned counsel for the petitioners, the issues involved herein are identical. For brevity, the facts are being extracted from CWP No. 20932 of 2015.

(2.) In this petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari for quashing the order dated 23.7.2015 (Annexure P -9) passed by the Appellate Tribunal for Foreign Exchange, New Delhi (in short "the Tribunal") in appeal No. 23 of 2014 directing the petitioner to deposit 15% of the penalty amount and to furnish a security for the balance amount of 85% within 30 days from the date of communication of the order as a pre -deposit.

(3.) The facts, in brief, necessary for adjudication of the present petition as narrated therein are that the officials of the Enforcement Directorate, Jalandhar searched the residential premises of various persons including the petitioner and recovered documents from the petitioner regarding distribution of compensatory payment. The petitioner in his statement recorded under Sec. 40 of the Foreign Exchange Regulation Act, 1973 (in short "the FERA") denied any payment in India by order or on behalf of a person resident outside India. But the recipient mentioned in the seized documents admitted being received payments from unknown person under the instructions of their relations outside India. As per the documents, the payment of Rs. 6,59,000/ - has been made in India to different persons. On completion of investigation, a memorandum dated 20.8.1996 (Annexure P -1) was issued to the noticee including the petitioner. The petitioner submitted reply dated 30.10.1996 (Annexure P -2) to the said memorandum. Thereafter, opportunity notice dated 21.2.2002 (Annexure P -3) to all the noticee including the petitioner was issued to show cause as to why legal proceedings under Sec. 56 of the FERA be not initiated against them. A complaint dated 29.4.2002 (Annexure P -4) was filed by the respondent in the court of Chief Judicial Magistrate, Jalandhar against Som Nath Sikka, Raj Kumar and Tilak Raj Chadha (petitioner herein) only. The petitioner was afforded an opportunity of personal hearing on 16.1.2004 and the petitioner submitted his written submissions dated 12.2.2004 (Annexure P -5). However, no action was taken thereon. The Chief Judicial Magistrate, Jalandhar vide order dated 3.7.2010 (Annexure P -6) acquitted all the accused. The adjudicating authority vide order dated 27.3.2014 (Annexure P -7) held that Ramesh Kumar and Som Nath Sikka have contravened Ss. 9(1)(b) and 9(1)(d) of the FERA to the tune of Rs. 1,71,11,000/ -, Raj Kumar has contravened FERA to the tune of Rs. 5,87,000/ - and Tilak Raj -petitioner has contravened FERA amounting to Rs. 6,59,000/ -. The adjudicating authority imposed the penalty of Rs. 1,30,000/ - upon the petitioner and directed to deposit the said amount by way of demand draft drawn in favour of Assistant Director, Directorate of Enforcement, Jalandhar in the office of respondent. Feeling aggrieved, the petitioner filed an appeal along with an application (Annexure P -8) for staying the operation of the order dated 27.3.2014 (Annexure P -7) before the Tribunal. Another application for dispensing with prior deposit of the penalty amount was filed on 12.5.2014. The Tribunal vide order dated 23.7.2015 (Annexure P -9) directed the petitioner to deposit 15% of the penalty amount and a reasonable surety to the rest of the penalty amount. Hence, the present writ petition.