*1* kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FERA APPEAL NO.73 OF 2009 Director, Enforcement Directorate. ..Appellant. -Versus- Babu Lal Umed Mal Jain. ..Respondent. ........... Mr.Rajinder Kumar, for the Appellant. Mr.A.S.Rao i/b Mr.Harsha Fernandes, for the Respondent. .......... CORAM : V.C.DAGA & K.K.TATED, JJ. Date : 28th January, 2010. P.C. 1 Heard. Perused the appeal. 2 The relevant part of the factual aspects pertaining to the Respondent was drawn in the order in original which reads as under:- “Thereafter it was learnt that telephone number 332590 was installed in the premises of M/s. Babulal & Co., 79 Dhanji Street, Bombay 2 and this premises were searched on 1.9.89 and as a result Rs.2 Lacs and one file was seized. The search was carried out in the presence of Shri Sureshkumar Jain, an employee of Babulal Jain. After the search, statement of Shri Sureshkumar Jain was recorded under Sec.40 of FEA 1973 wherein he interalia, admitted that he was working with Shri Babulal Jain for the last two months, that in the premises people came to pay money and receive money; that the seized amount of Rs.2 Lacs was collected by him from an unknown person on the instructions of Shri *2* Babulal Jain with whom he was employed; that the person who paid the money told him that he should inform Babulal Jain that the money was from Dubai and the balance would be paid on the following day and that such amounts were regularly received and paid by Shri Babulal Jain. He also stated that sometimes people came and collected money from the shop and sometimes the money was being delivered at the premises of the recipients. He also stated that there were two telephones in his office numbers 332590 and 343311.” 3 Based on the above material, following finding was recorded by the Deputy Director in the order in original :- “From the above it is clear that the noticees S/Shri Babulal U. Jain and Ahmed A. Kader have received payments totalling Rs. 27,60,000/- and made payments totalling Rs. 25,60,000/- under instructions from abroad. Similarly, it is clearly established that both S/Shri Suresh Kumar Jain and Amir Rizwan have infact aided and abetted S/Shri Babulal Jain and Ahmed A. Kader. It is not the case of these noticees that they are immuned from the operation of Sec.9(1)(b) and 9(1)(d) of the FERA 1973 by the RBI. Therefore, the charges against these noticees are proved beyond a reasonable doubt. Accordingly, I hold them guilty for the aforesaid contraventions.” 4 The aforesaid findings were subject matter of the appeal preferred before the Appellate Tribunal of Foreign Exchange wherein the Appellate Tribunal has recorded the following findings:- *3* “4. There is no controversy that telephone number described by other three co- noticees namely (i) Ahmed Abdul Mohd. Kader, (ii) Suresh Kumar Jain and (iii) Amir Rijwan is installed in the premises of the appellant and co-noticees Suresh Kumar Jain admitted having collected Rs.2 Lakh on the instructions of the appellant. But this admission by itself does not explain the totality of the fact situation. The general statement of Suresh Kumar Jain that he is receiving and making payment on behalf of the appellant; with whom he has stated to have been working only since a month ago in no manner assure that the statement is correct. This is more so when human conduct does not permit a temporary employee having worked only for a month can be entrusted with this much amount of money. 5. The description of telephone number of 332590 which is installed in the premises is also not a clinching fact. The telephone number can be collected from anywhere by anybody including the telephone directory. There is no evidence that messages if any have been received on this telephone number as described in the admission statements of the co-noticees. The investigator could have easily located the evidence of having long or talk between the alleged Dubai telephone and this telephone. In absence of such evidence it is too difficult to believe the whole facts described in the impugned order. The amount mentioned is also abnormally high. This is more so in the year 1989 when money value of Rs.27,60,000/- is too high. In that situation we have to proceed in a cautious manner. We cannot believe the story described in the impugned order when these glaring stances are available without any assurance worth the name of correct depiction. 6. Merely because some recipients of money in India who are accepted payment to them on behalf of their non-resident relations *4* the appellant cannot be held guilty whose identification directly and indirectly is not established. Without proper identification of the appellant we cannot affirm the impugned order whereby the appellant has been held guilty for receiving and thereafter transferring/payment money to Indian persons on the instructions of non-resident Indian. Moreover, the third paragraph of the internal page 4 of the impugned order (where admissional statement of co-noticee Suresh Kumar Jain who is purported employee of appellant is discussed) does not specifically instill confidence of truthfulness. This being a general description we fail to pin down the appellant in this description. Therefore this appeal is required to be allowed and impugned order is required to be quashed and set aside.” 5 Perusal of the aforesaid paragraphs and the findings recorded by the Tribunal would demonstrate that the finding of the original authority is reversed on appreciation of evidence with which no fault can be found. The view taken by the Tribunal is reasonable and possible view in the facts and circumstances of the case. No perversity in the order could be demonstrated by the Appellant. 6 In view of the above, the appeal is dismissed in lamini for want of substantial question of law. No order as to costs. (K.K.TATED, J.) (V.C.DAGA, J.)