1 IN THE HIGH COURT OFJUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FERA APPEAL NO. 26 OF 2009 FERA APPEAL NO. 26 OF 2009 FERA APPEAL NO. 26 OF 2009 Dr. Salman Poothaala, ) an Indian Inhabitant ) residing at Room No.10, IInd ) Floor, Hasina Building, 70-Clare ) Road, Byculla, Mumbai - 400 008. )..Appellant (Org.Appellant) Versus Union of India ) Through Special Director, ) Enforcement Directorate, Mumbai. )..Respondent (Orig. Respondent) Mrs. Aisha Zubai Ansari for the appellant. Mr. S.M.Shah with Mrs. N.V.Masurkar for the respondent. CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND J.H.BHATIA,JJ. J.H.BHATIA,JJ. J.H.BHATIA,JJ. DATE: 23rd April, 2009. DATE: 23rd April, 2009. DATE: 23rd April, 2009. 2 JUDGEMNT (PER J.H.BHATIA,J.) JUDGEMNT (PER J.H.BHATIA,J.) JUDGEMNT (PER J.H.BHATIA,J.) 1. Heard the learned Counsel for the parties. Perused the relevant documents. 2. The appellant is a partner in M/s. Safar Travels and Tours, a partnership firm, which had obtained necessary licence from the Reserve Bank of India to operate as Full Fledged Money Changer (FFMC). Besides the present appellant, there were three more partners in the said firm. According to the respondents, Enforcement Directorate, on the basis of information received from DRI Mumbai, to the effect that M/s. Safar Travels and Tours were indulging in large scale of foreign exchange misuse under the guise of money changer business had taken search of the residential premises of one of the partners of the said firm viz. Anis Ahmed Aboobaker under Section 37 of the Foreign Exchange Regulation Act, 1973 (FERA) on 26.2.1998. On 15.6.1998, the statement of the present appellant was recorded under Section 40 of the Act and his statement revealed that the partners of the firm used to purchase foreign currencies from other FFMCs and authorised dealers and then they used to sell the same to unauthorised persons 3 at a premium. They also used to forge documents to maintain record as per rules. As per their statements submitted to Reserve Bank of India, they had purchased and sold certain foreign exchange to wit US Dollars, Sterling Pounds, UAE Dhirams and Saudi Riyals equivalent to Rs.7,30,80,012/-. In the presence of the present appellant, the business premises of the firm were searched on 16th June, 1998 and seized documents which revealed that they had actually purchased and sold much more foreign currencies, total value of which was Rs.9,41,68,990/-. As per the records prepared by them, they had sold the foreign exchange to certain persons. Their names and addresses were found on the said record. Many of them could not be found at the given addresses and the notices sent to them were returned with postal remarks "Not known". Only 5 persons were served and they responded that they had never purchased any foreign exchange from this firm. As such, the firm and its partners had committed contravention of the provisions of Section 8(1) and (2) and Section 7 read with Section 64 of FERA. Accordingly. show cause notices ere issued to the firm as well as the partners. Inspite of service, remaining partners did not appear. The present appellant was however arrested and his statement as recorded. On the basis of the material collected during 4 the investigation, action was initiated and the penalty of Rs.73 lakhs as imposed on the firm and penalty of Rs.7 lakhs was imposed on each of the four partners, including the present appellant. That order was passed by the Special Director of Enforcement on 12th June, 2003. 3. The present appellant preferred Appeal No.251 of 2003 challenging the order of the Special Director. His application for dispensation of the condition of pre-deposit was rejected by the appellate Tribunal by order dated 24.12.2004. Inspite of that the appellant failed to fulfill the condition of predeposit. He repeatedly got extension of time to make the deposit, but deposited only an amount of Rs.80,000/-. Again on 21.1.2009, he made an application before the appellate Tribunal for modification of that order which was rejected. As the appellant had failed to fulfill the condition of pre-deposit for hearing the appeal, his appeal came to be dismissed by the impugned order dated 27.1.2009 4. Section 52(2) of FERA provides that any person aggrieved by the order of the adjudicating officer imposing any penalty, may after depositing the sum 5 imposed by way of penalty under Section 50 prefer an appeal, to the Appellate Board within 45 days from the date on which the order is served. The second proviso to sub-section (2) provides that if the Appellate Board is of opinion that the deposit to be made will cause undue hardship to the appellant, it may, in its own discretion, dispense with such a deposit either unconditionally or subject to such conditions as it may deem fit. In the present case, the appellate Tribunal had refused to dispense with the condition of deposit as per its order dated 24.12.2004. That order was never challenged by the present appellant and he simply went on seeking further time for depositing the same and he failed to fulfill that condition. It is difficult to find any fault with the dismissal of the appeal by the appellate Tribunal on the ground that the appellant had failed to fulfill the condition of pre-deposit prescribed under Section 52(2) of FERA. 5. On perusal of the record and material collected by the Enforcement Directorate, it is difficult to find fault with the order passed by the Special Director holding the present appellant guilty along with the firm and other partners and taking into consideration the huge quantity of foreign exchange unauthorisedly 6 purchased and sold by the firm and its partners, it is difficult to find any fault with the imposition of penalty of Rs.7 lakhs on the present appellant. In view of this, no question of law is involved in the present appeal and therefore this Appeal cannot be entertained. 6. For the aforesaid reasons, the Appeal stands dismissed. (J.H.BHATIA,J.) (F.I.REBELLO,J.) (J.H.BHATIA,J.) (F.I.REBELLO,J.) (J.H.BHATIA,J.) (F.I.REBELLO,J.)