1 FERA APPEAL NO.13 OF 2010 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAE JURISDICTION FERA APPEAL NO.12 OF 2010 Mr.Kaushik Shrimanker of Mumbai : Appellant. versus The Appellate Tribunal of Foreign Exchange and anr. : Respondents. WITH FERA APPEAL NO.13 OF 2010 Smt.Manjula Shrimanker of Mumbai : Appellant. versus The Appellate Tribunal of Foreign Exchange and anr. : Respondents. Mr Ashwin Shete a/w Mr. A Vibhutye i/by M/s. Khaitan and Jayakar for the Appellant. None for the Respondents. CORAM :- V.C.DAGA & R.M.SAVANT,JJ. DATE :- 09th September ,2010 P.C. Heard. Perused the Appeals. 2 These Appeals are directed against the orders both dated 09th October, 2009 passed by the Appellate Tribunal for Foreign Exchange, New Delhi, wherein the orders passed by the Special Director, Enforcement Directorate, Mumbai have been confirmed. 3 There are concurrent findings of fact against both the Appellants recorded by the Special Director Enforcement Directorate, Mumbai as well as the Appellate Tribunal for Foreign Exchange which were appreciated on the 2 FERA APPEAL NO.13 OF 2010 basis of the material available on record by the authorities below with which no fault can be found. The Apex Court in the case of N. Rangachari Vs. Bharat Sanchar Nigam Limited reported in JT 2007(6) SC 292, held as under:- “A person in the commercial world having a transaction with a company is entitled to presume that the directors of the company are incharge of the affairs of the company. If any restrictions on their powers are placed by the memorandum of articles of the company, it is for the directors to establish it at the trial.” “Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not incharge of the affairs of the company.” On the above settle position of law, it was obligatory on the part of the appellants to disprove the allegations made against them. 3 FERA APPEAL NO.13 OF 2010 4 The Appellants have not brought any material on record as to what extent financial benefits were derived by them from the company as the Directors. There is no positive statement that they did not get any financial assistance and/or remuneration from the company in which they were working as a Directors or that there were certain restrictions on their powers to act as active Directors. These facts were well within the knowledge of the Appellants. The Appellant, being a Director of Company were getting some benefits out of the business of the company. One has to presume that they were responsible for the business of the company unless contrary is proved or established. Reliance placed on the judgment of the Apex Court in case of Girdhari Lal Gupta v/s. D N Mehta and anr. reported in AIR 1971 SC 2162 is misplaced. There is no substance in these Appeals and the same are dismissed. No order as to costs. (R.M.SAVANT,J.) (V.C.DAGA,J.)