IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 MFA.No. 651 of 2003() --------------------- (APPL.449/1997 of APPELETTE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI) .................... APPELLANT(S): COMPLAINANT ------------------------- THE DIRECTOR OF ENFORCEMENT, ENFORCEMENT DIRECTORATE, GOVT. OF INDIA. BY ADV. SRI.K.C.SANTHOSH KUMAR, ADDL.CGSC RESPONDENT(S): ACCUSED ---------------------- K.K.ABDUL REHIMAN, S/O. KOYAKUTTTY, KATILAPEEDIKAYIL, P.O.CHAMAKKALA, (VIA),CHANDRAPPINI, TRICHUR DISTRICT. ADV. SMT.PREETHY KARUNAKARAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2008, THE COURT ON 16/12/2008 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. .................................................................... M.F.A.(FERA) No.651 of 2003 .................................................................... Dated this the 16th day of December, 2008. JUDGMENT Ramachandran Nair, J. Heard counsel for the appellant and counsel appearing for the respondent. Appeal is filed against the order of the Tribunal vacating the order issued in adjudication confiscating the seized currency and by levying penalty under Section 9(1)(d) read with Section 64(2) of the Foreign Exchange Regulation Act, 1973. On going through the orders of adjudication and that of the Tribunal and after hearing the parties, we feel the order of the Tribunal deserves to be interfered with. In the first place, the Tribunal does not appear to have read even the adjudication order in full. Respondent originally admitted distribution of cash at the request of his brother-in-law stationed abroad and in fact other persons whose names were obtained from the slips carried by him confirmed the case of the department. He shifted the stand later and stated that the cash represents sale proceeds of gold. In fact, it is seen from the adjudication order that the counsel appearing for the respondent did not try to substantiate the story later put forward by him 2 i.e. sale of gold. On the other hand, only improbabilities of the department's case were argued by him. Since the statement of the respondent recorded is corroborated by atleast three of the persons examined by the department whose names were also obtained from the chits seized from the respondent, the Tribunal was bound to consider the same. On the other hand, the Tribunal without understanding the admissibility of statement given, cast the burden on the department to prove the source of cash recovered from the respondent. We, therefore, find that the Tribunal committed a basic mistake in shifting the burden of proof to the department. We, therefore, allow the appeal by setting aside the order of the Tribunal and restore the matter back to the Tribunal for reconsideration after considering the statement and evidence relied on by the adjudicating officer. The Tribunal is directed to pass fresh orders after hearing the parties, within a period of four months from date of receipt of copy of this judgment. C.N.RAMACHANDRAN NAIR Judge HARUN-UL-RASHID Judge pms