Venkatasubramanian, Chairman - This appeal arises out of an order passed by the learned Deputy Director of Enforcement, Madras, finding the appellant Shri Valliappan guilty of an attempt to contravene the provisions of section 5(1)(aa) of the Foreign Exchange Regulation Act, 1947 and imposing on him a penalty of Rs. 5,000 on that account.
2. By the Boards direction of 24-2-1976, it was ordered that in view of the financial position of the appellant it would be sufficient if he deposited a sum of Rs. 300 on account of penalty. This having been done, judgment is now pronounced on the merits.
3. At the outset, it is necessary to deal with the question of limitation. The memorandum of appeal was received in the Registry of the Board on 1-8-1974. The order under appeal purports to have been despatched on 27-4-1974. The appellant had filed an affidavit to the effect that the order was not served on him personally though it indicates that it was to be sent to him. However, a copy of the order was served on the learned advocate for the appellant on 30-4-1974. Excluding this date, the memorandum of appeal was received in the Registry of the Board on the 91st day.
4. Under sub-section (2) of section 52 of the Act, an appeal is required to be filed within 45 days from the date on which the order is served on the person committing the contravention. Under the first proviso thereto, the Board may entertain the appeal after the expiry of the said period of 45 days, but not after 90 days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
5. It was contended by the learned advocate for the appellant that the section requires the computation of the period of limitation from the date of service of the order on the appellant as it refers to service on the person committing the contravention.
6. As against this, it was possible to take the view that service on a duly authorised agent is equivalent to service on the individual himself and, consequently, the limitation should be reckoned from the date on which the order was served on the advocate.
7. It was submitted that the advocate concerned was under the impression that the order had been served on his client and that it was later on that action was taken to obtain his instruction and to file the appeal.
8. While this might be sufficient cause, it would not enable the Board to entertain the appeal if it was filed after 90 days in view of the express prohibition contained in the first proviso to sub-section (2) of section 32. However, for the purposes of the present appeal, it is not necessary to decide the issue finally whether service on the advocate would constitute service on the appellant, for, even assuming that it is so, after having heard the parties, I consider that in any event this is a proper case for the Board to exercise its powers of examining the legality, propriety and correctness of the impugned order under sub-section (2) of section 32. This power can be exercised even after the expiry of the period of 90 days.
9. I turn now to the facts. The case for the department is as follows. On the basis of certain information, the premises of the appellant were searched and two foreign aerograms addressed to him were seized. These were from one Nagappan of Malaysia. On interrogation, the appellant stated that the instructions contained in one of the letters to the appellant to collect money was actually a direction to receive Rs. 10,000 from one Ali. Accordingly, the appellant telephoned the said Ali with the intention of collecting the sum of Rs. 10,000 after showing him another letter from the said Nagappan which contained certain coded words. He was told by Ali that the money was not ready and was asked to contact him again. But before the appellant could do so, he was searched and interrogated. In his statement, the appellant also promised to ask the said Nagappan to remit Rs. 10,000 to India through banking channels.
10. Later on, when proceedings commenced, the appellant denied that the statement was not voluntary. His explanation was, however, rejected and an order was passed finding him guilty of an attempt to receive a sum of Rs. 10,000 otherwise than through an authorised dealer by order of a person resident outside India.
11. Shri R. Subramanyam, the learned advocate for the appellant, argued in this appeal, as he had done in Appeal No. 372 of 1974 which was heard at the same time, that the retracted statement of the appellant was not corroborated and referred to certain number of authorities in support of the proposition that a retracted confession should not be made the basis of a finding of guilt.
12. In the present case, however, the appellants statement is fully corroborated by the two letters seized from his premises. They were addressed to the appellant and recovered from his residence. It is not possible to accept the suggestion that they had been planted upon him. The reference to the 10 kailies, the telephone number and the coded instructions are consistent only with the appellant having been asked to receive money from an unknown person. No other possible explanation of the letters has been attempted. The question as to the person in whose name the telephone number in question actually stood is immaterial and by itself would not establish that the appellants statement was not genuine.
13. I see no reason for not accepting the correctness of the facts contained in the appellants statement of 14-11-1972 made to the Enforcement Officers. This, however, does not necessarily establish that the appellant had attempted to receive money in contravention of the provisions of section 5(1)(aa). No doubt, he had intended to receive the money, but the question would still remain as to whether the overt acts attributed to the appellant would constitute an attempt.
14. In support of the argument that this would not constitute an attempt, the learned advocate for the appellant referred to the decision of the Supreme Court in Abhayanand Mishra v. State of Bihar AIR 1961 SC 1698.
15. This decision only lays down that a person commits the offence of attempting to commit a particular offence when he intends to commit that offence having made preparations and with the intention to commit an offence does an act towards its commission. The Court further observed that such an act need not be the penultimate act towards the commission of it but it must be the act during the course of committing that offence.
16. But the decision itself does not lay down the test for distinguishing between preparation and attempt, though it recognises that the line between the two is a thin one. In this connection, reference might be made to the subsequent judgment of the Supreme Court in Malkiat Singh v. State of Punjab AIR 1970 SC 713. Therein, the following test was laid down by the Supreme Court for distinguishing between the preparation and an attempt. Ramaswamy, J. speaking for the Court observes :
âThe test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless...â (at p. 715). Reference in this connection might also be made to the recent judgment of the Court of Appeal in Palogh v. Crown Court at St. Albans  3 All ER 283 (Sic).
17. Applying this test, it is clear that the activities attributed to the appellant had not gone beyond the stage of preparation. The only overt act attributed to him is that of telephoning the said Ali and enquiring whether the money was ready. The answer being in the negative, no further action was taken by the appellant before the Officers of the Enforcement Directorate intervened. It is not as though the appellant had gone to the said Ali in person and returned back on the ground of lack of funds. It was open to him to change his mind and not contest the said Ali again. While the appellant might well have intended to receive the money on the instructions of the said Nagappan and even made preparations for that purpose, the acts attributed to him fall short of an attempt to receive payment.
18. In the result, the impugned order is set aside. The amount deposited on account of penalty would be refunded.