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Pandharinath Kishtiah Renguntawar Vs. Deputy Director of Enforcement, Foreign Exchange Regulations, and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1189 of 1976
Judge
Reported in(1980)82BOMLR367; [1981]51CompCas163(Bom); 1979MhLJ176
ActsForeign Exchange Regulation Act, 1947 - Sections 4(1)
AppellantPandharinath Kishtiah Renguntawar
RespondentDeputy Director of Enforcement, Foreign Exchange Regulations, and ors.
Appellant AdvocateM.D. Pathak, Adv.
Respondent AdvocateV.N. Damle, Adv. for the State
Excerpt:
foreign exchange regulation act (vii of 1947), section 4(1) - 'otherwise acquire......foreign exchange' -- whether gift of foreign exchange is excepted from the purview of the expression 'otherwise acquire'.;the provisions of section 4 of the foreign exchange regulation act, 1947 enact restrictions on the persons with regard to dealings in foreign exchange. once it is shown that the person of the category mentioned in the section has acquired the foreign exchange not from the authorised dealer then as the width and amplitude of the section stands the only defence available is the previous general or special permission of the reserve bank. by the very intent the section is drafted in such a language to cover all types of acquisition of foreign exchange. it is significant that the process..........deputy director as well by the appeal court to have contravened the provisions of s. 4(1) of the foreign exchange regulation act, 1947. 3. now for the purposes of the present appeal certain facts have not been in dispute. the present appellant in the capacity of vice-chancellor went abroad on july 29, 1973, and returned to india on september 28, 1973. he had an invitation to attend the commonwealth universities conference at edinburgh. he visited the german democratic republic as well as the u.s.s.r. and it is not in dispute that these countries acted as host to him and covered his expenditure. the appellant then was on foreign and went to the united states. one mr. mhaisekar is his brother and is stationed at chicago. it is not in dispute that the appellant was in the united states.....
Judgment:

Masodkar, J.

1. This appeal is directed against the appellant order made in adjudication proceedings under the provisions of the Foreign Exchange Regulation Act, 1947.

2. The facts leading to this appeal are not very happy and one has to read the same with somewhat uneasiness particularly because the appellant happened to be, during the relevant period, the Vice-Chancellor of the Marathwada University in the State of Maharashtra and is found concurrently in the adjudication proceeding by the Deputy Director as well by the appeal court to have contravened the provisions of s. 4(1) of the Foreign Exchange Regulation Act, 1947.

3. Now for the purposes of the present appeal certain facts have not been in dispute. The present appellant in the capacity of Vice-Chancellor went abroad on July 29, 1973, and returned to India on September 28, 1973. He had an invitation to attend the Commonwealth Universities Conference at Edinburgh. He visited the German Democratic Republic as well as the U.S.S.R. and it is not in dispute that these countries acted as host to him and covered his expenditure. The appellant then was on foreign and went to the United States. One Mr. Mhaisekar is his brother and is stationed at Chicago. It is not in dispute that the appellant was in the United States for a period of two weeks and travelled in that country. It is further not in dispute for the purpose of the present appeal, and even it cannot be disputed, as it had been the case of the appellant himself, that for the purpose of stay and travel within the United States his brother had paid him cash in the United States. The appellant's statement of May 9, 1975, filed with the Deputy Director of Enforcement goes to show the amount of U.S. dollars in the sum of $ 1,914.03 having rupee value of Rs. 15,503.70 as the cost of air fare, transportation, meals and other incidentals. It states the expenditure incurred to the reply at annex. B in clear terms styles all these items as expenditure incurred by the Vice-Chancellor. The Deputy Director as well as the appeal court have found that the obtaining of foreign exchange i.e., U.S. dollars, from the brother was culpable within the meaning of s. 4(1) of the Foreign Exchange Regulation Act, 1947.

4. What transpired after the appellant returned from his foreign tour must be referred to at this stage. It appears from the file maintained with the Deputy Director, which was requisitioned at the request of the appellant and of which the appellant took inspection in this court, that the Executive Council of the Marathwada University had passed a resolution on March 15, 1974, because the appellant submitted the details of the expenditure incurred by him during his visit to the U.K., the U.S.S.R., Germany and the United States of America and sought sanction for the expenditure incurred by him from the University funds. By that resolution the excess amount in the sum of Rs. 26,298 was sanctioned by the executive council, with a direction that the break-up of the expenditure incurred by the Vice-Chancellor in the United States should be placed before the meeting of the executive council. It is not in dispute that the break-up, which was filed before the Directorate, was also filed with the University and eventually the appellant got the sanction on the basis of that break-up in a sum of Rs. 26,298 as an excess expenditure. For all purposes the appellant did make a representation to the University that it was the amount of expenditure incurred by him during his visit to the United States. After this amount was so sanctioned by the University on the representation of the appellant, who was then the Vice-Chancellor, it appears that the appellant moved the Reserve Bank of India presumably for the purpose of remitting the amount in foreign exchange to his brother. Thereafter correspondence ensued between the appellant on the one hand and the Reserve Bank of India on the other as well as with the Deputy Director, Enforcement Directorate, under the present Act. By letter dated December 12, 1974, the appellant wrote to the Controller of Foreign Exchange, Reserve Bank of India, stating that in his entire tour in the United States, his brother, Sri Mhaisekar, who is an engineer at Chicago, defrayed all expenses of board, lodge and internal travel. According to this letter his brother spent for the appellant 1913. 61 U.S. dollars during the period of the appellant was in that country and he asserted that this was part of family affair. In his letter dated December 30, 1974, to the Assistant Controller, Foreign Exchange, the appellant communicated that his Chicago-based brother made all his expenses in respect of maintenance and internal travel during his stay in foreign countries. On January 3, 1975, the Assistant Controller wrote to the appellant, it appears, communicating to him that the hospitality extended to him by his brother during August, 1973, would not amount to contravention of the control regulations, since it was stated that he had travelled under the Foreign Travel Scheme of 1970. On January 16, 1975, however, the Joint Controller wrote to the appellant that on scrutiny of the papers it was observed that he had claimed from the University for the expenditure incurred by him abroad in excess of whatever was paid to him and that his claim in the sum of Rs. 26,298 was also sanctioned by the University and it would mean that what was claimed by him for reimbursement from the University was to be paid by him to his brother, in the U.S.A., and was perhaps meant to compensate him. Because of this, further clarification was sought from the appellant. By letter dated January 25, 1975, the appellant further stated that he was busy collecting some papers and sought further time. Eventually, on February 10, 1975, he wrote that the sum of Rs. 26,298 paid to him by the University towards the expenditure incurred on travel, board and lodge could not be paid by him to his Chicago-based brother either directly or indirectly. It has not been paid to anyone else and sought guidance from the Reserve Bank of India. It is after this, it appears, the Directorate stated and sought information from the appellant with regard to the expenditure overseas. The appellant then filed his letter dated May 9, 1975, giving a break-up of the expenditure incurred by him.

5. Mr. Pathak in support of the appeal has argued that these proceedings have been initiated with extraneous or mala fide intention and relied on certain letters available in this file. A brief reference is necessary, though, strictly speaking, all these letters would not be available to the appellant for the purpose of the present appeal. Those are clearly governmental communication but as to privilege was claimed and as the file is tendered, reference to that file has become necessary. It appears from this file and nothings therein that at least till about May, 1975, some of the noting officers had doubt as to whether the appellant had or had not contravened the provisions of s. 4(1). The notings suggest that the expenditure incurred by the appellant's brother within the meaning of s. 4(1) would not render the act of the appellant culpable. However, there are notings after this date taking the contrary view and deciding to issue memorandum to the appellant, which, as stated, has been eventually issued and the proceedings initiated. Then Mr. Pathak, the learned counsel, refers to the secret letter written by Shri D.K. Jain to the Deputy Director, Enforcement Department, on September 19, 1975, and submitted that that must have influenced the decision of the Director. It should be stated that that letter seeks information as to whether the intended notice under the Foreign Exchange Regulation Act was issued or not to Shri Nath, i.e., the present appellant. It cannot be forgotten that the Governor of the State is the Chancellor of the University concerned from whose funds the appellant had got sanctioned the expenditure to which reference is already made and there is nothing wrong on the part of the Chancellor, who is the Governor, to seek information as to what steps the Director was taking with regard to the expenditure represented to have been made by the Vice-Chancellor who went overseas in that capacity. It is difficulty to find any mala fide in this regard only because such queries are made by the high dignitaries of the State, who is also the Chancellor of the concerned University.

6. The submission of the learned counsel that these letters influenced the course of the present proceedings, to say the least, is entirely baseless. The whole thing appears to be the result of the representation of the appellant himself. It is he who submitted to the University the break-up of expenditure styling it to be the expenses incurred by him and sought reimbursement from the University. It is he, who, after getting the sanction and presumably getting the amount from the university funds, entered into correspondence with the Reserve Bank of India with a view to remit that or any part of that amount to his brother. As the University funds were involved and the executive council had sanctioned the expenditure upon the representation of the vice-Chancellor himself one fails to see how the writing of a letter and enquiry about the progress of the foreign exchange case can be said to be in any way mala fide. In this letter, on which reliance is placed, there is hardly anything which would go to indicate that the Governor of the State or the Chancellor of the University was interested in seeing that the Vice-Chancellor should be proceeded against. That is entirely the discretion of the Directorate and it does not appear that only because of this letter or query from the Governor, i.e., the Chancellor of the University, any particular step in this case was taken. The submission of the learned counsel that basically these proceedings are vitiated by mala fides, thus, has to be rejected.

7. There is clear foundation for initiating the proceedings, for, the facts found indicate that in terms while in the United States the appellant had expended foreign exchange which was made available to him by his brother. It is not in dispute that proper procedure was followed in that a show-cause notice was issued, the appellant was given opportunity to reply and his statement was also duly recorded. In his statement during the enquiry he stated that the expenses were defrayed by his brothers, Shri L.K. Mhaisekar, an engineer at Chicago. In that country the appellant had gone to Chicago, Loss Angeles, Los Vegas, Disney Land, etc. He had stayed for 15 days in the States. His brother went along with him to certain places but was not with him at all places. In the United States his brother gave him necessary cash. The appellant further stated that in view of the letter of the Reserve Bank dated January 3, 1975, the hospitality extended to him by his brother during his stay would not amount to contravention of s. 4(1) of the Act. There is a reference in the appeal court order that an affidavit was filed by his brother stating therein that the foreign exchange dollars were made available to the appellant which were meant 'to be spent and lodge charges and other incidental expenses. The money given was just sufficient to cover these expenses leaving no balance whatsoever. The cash was not given as gift at all and was not given to be spent in any other manner than the expenses of hospitality and travel.' The affidavit of the brother further states : 'since I could not accompany him to all places because of my own employment, I had to give him necessary cash not as his own but for the purpose of spending on the above-said expenses of travel, : board and lodge and incidental charges'. The portions within inverted common above are from the affidavit of April 7, 1976, filed during the course of hearing before the appeal court. In the earlier affidavit of February 25, 1975, the said Mhaisekar had stated that he had not received any amount of money directly or indirectly from the appellant towards his foreign travel during July, August and September, 1973.

8. All these statements of acts do not leave any manner of doubt that the appellant visited the United States and has expend U.S. dollars for the purpose of travel, boarding and lodging and other incidental charges and those dollars were made available to him by his brother. It does not appear from the affidavits of the said brother that the appellant had to reimburse this foreign exchange in any form. At least there is no evidence on this aspect. However, it appears that the appellant did draw from Marathwada University on equivalent sum in Indian currency styling it to be the expenditure incurred by him on his own tour. Thus, as far as the appellant is concerned and from the facts above, it has been concluded as proper finding of fact that the appellant received the foreign exchange for the purpose of his own expenditure and the source was his brother. The view taken, of the facts, by the Deputy Director as well by the appeal court in this regard is in no manner against the record.

9. Now, turning to the submission for the present appeal, which was strenuously, the Foreign Travel Scheme duly foreign travel of the appellant the Reserve Bank of India and the Foreign Exchange Control impliedly permits taking foreign exchange from a disclosed or undisclosed host for the purpose of maintenance and internal travel in a foreign country. Reliance is placed on Exchange Control Manual and the Schemes envisaged thereunder to submit that once the due permission to leave India is taken and granted, once the necessity of 'P' form procedure is dispensed with and, further, once the tour itself is covered by the Scheme of Foreign Travel, it must be presumed that with regard to the acquisition of foreign exchange from an undisclosed host for the purpose of maintenance and travel there is an implied sanction or approval of the Reserve Bank. In this context specific reference is made even to the letter of the Reserve Bank of India of January 3, 1975, which communicated that the hospitality from the brother in the United States would not be a contravention of s. 4(1) and would be a permissible exercise. In the second aspect it is strenuously submitted that s. 4(1) of the Act, being a prohibition or restriction, should be so construed as excluding voluntary payments made by a host for the purpose of defraying expenses on the reasonable maintenance and travel while the guest is in a foreign country. It is indeed submitted that unless such an interpretation is given the net obstruction of s. 4(1) would be so wide that even an innocent person coming in possession of the cash in the shape of foreign exchange would be exposed to penalty and prosecution. According to the learned counsel it must be the acquisition of foreign exchange and not a mere act of hospitality. Even if there be any doubt in this regard, according to the learned counsel, the benefit of that, this being a quasi-criminal proceeding, should go to the accused person.

10. Careful consideration of both these aspects as pressed in aid by the learned counsel does not, under the facts and circumstances of the present case, ensure to his benefit. As the facts stand and are found, which must be assumed for the purpose of the present appeal to haven been properly found, it was U.S. dollars which were made available by the brother of the appellant for his expenditure. The case of hospitality has been rejected. Reference to the Manual on which heavy reliance is placed does not bring the case of the appellant in any permissive category. It must not be forgotten that the provisions of the Foreign Exchange Regulation Act have been enacted with an object to regulate certain payments and dealings in foreign exchange with an object to regulate certain payments and dealings in foreign exchange in the economic and financial interest of the country. The Manual and the particular parts on which reliance is placed being the Introductory Part, S.P.M. 8 - 'P' Form procedure, 'P' Form Eligibility Criteria, Foreign Travel in paras. 15.1, 15.4, 15.B.11, Part-F (15.17) and Miscellaneous Travel for purpose of Conferences (15.F.1), do not in any manner permit obtaining of foreign exchange while an Indian person is in a foreign country. The transactions regulated by Foreign Control are dealt with in Introductory Part-para. 1.3 and one of the heads is 'Foreign Travel' with or without exchange. The Special Travel Schemes are considered in Part 'H' and dealt with under the passages on eligibility criteria for the same. Paragraph 'H' too speaks of release of foreign exchange to the tune of U.S. dollars 500 or its equivalent. Then follow the procedural rules. 'P' Form procedure requires Reserve Bank's approval for booking of any passage in India for foreign travel, i.e., the categories specifically excepted and Part 'J' deals with such excepted categories and details out those persons who are in excepted categories. Part 'L' deals with 'P' form eligibility criteria and that too deals with the categories of travellers and gives guidelines for the Reserve Bank for approving 'P' form applications. These criteria are heavily relied on by Mr. Pathak stating that the same are not insisted by the Reserve Bank of India. In that act even the host has not to be declared, it is submitted while such passage is permitted to a foreign country. In this background the learned counsel reads the instructions under para. 15 with regard to Foreign Travel. It is significant to observe that para 15.B.11 clearly states that the residents who can undertake foreign travel under Foreign Travel Scheme can purchase from authorised dealers exchange to the tune of U.S. dollars 500 or its equivalent.

11. All these principles available in this Manual do not further the case of the appellant at all. Only because he travelled under the Foreign Travel Scheme it is not possible to read impliedly that he was entitled to rely upon any person outside India so as to secure foreign exchange. The purpose of the Foreign Exchange Regulation act is to regulate the receipt of foreign exchange, and, whenever the payments are received or secured and the charge is levied that it is in breach of a particular provision of law, it is within the four corners of the concerned provisions, that one must look to find the answer as to whether such securing of the foreign exchange was permissible or not. As indicated above, the Manual and the various provisions contained therein nowhere permit any such securing of the foreign exchange. On the other hand some of the provisions only permit securing payment of foreign exchange to the extent of U.S. 500 dollars from the authorised dealers and not from any other person. Reliance of the learned counsel, therefore, on the Manual hardly helps the appellant, who has indeed, as is his case, travelled under the Foreign Travel Scheme and recovered foreign money much more than U.S. dollars 550 from his brother. Such a course is not permissible. Schemes and guidelines merely show that he was permitted to leave the country without the usual formalities but do not further imply that he was at liberty to acquire foreign exchange from any person to any extent while he was abroad.

12. The other aspect of the learned counsel's submission rests on the findings and the interpreting of the terms of s. 4(1). Both the Deputy Director and the appeal court have found that acquisition of the concerned foreign exchange amounted to gift and being contrary to the notification No. FERA-256/72 R.V. dated October 7, 1972.

13. Section 4(1) reads as follows :

'Except with the previous general or special permission of the Reserve Bank, no person other than an authorised dealer shall in India, and no person resident in India other than an authorised dealer shall outside India, buy or otherwise acquire or borrow from, or sell or otherwise transfer or lend to or exchange with, any person not being an authorised dealer, any foreign exchange'.

14. The provisions of s. 4 enact restrictions on the persons with regard to dealings in foreign exchange. The provisions themselves have to be understood and interpreted so as to further the express object of the Act, one of it being to regulate certain payments and dealings in foreign exchange. The provision is in two parts, being permissive as well as prohibitive. Unless as may be excepted by a general or special permission of the Reserve Bank, no foreign exchange can be acquired by any person other than by an authorised dealer in India and resident of India nor one can deal in such foreign exchange while such person is outside the country. The restriction is against the persons who are in India as well as against the persons who are Indian residents while they are abroad. The section by itself permits acquisition from various dealers in the country as well as outside the country. If the transaction is not between the person and an authorised dealer there is a total statutory embargo on buying or otherwise acquiring, borrowing or selling or otherwise transferring or lending of any foreign exchange. Once it is shown that the person of the category mentioned the section has acquired the foreign exchange, not from the authorised dealer, then as the width and amplitude of the section stands, the only defence available is the previous general or special permission of the Reserve Bank. By the very intent, the section is drafted in such a language as to cover all types or acquisition of foreign exchange. It is indeed significant that the process of buying and borrowing are expressly mentioned and also the legislature has used the wide words 'otherwise acquired'. Primarily, the intention is to prohibit dealings by receipt of foreign exchange except in the manner and to the extent expressly permitted.

15. Now, no doubt the rule of interpretation is that when wide words are used as are available in the phrase 'otherwise acquired' the effort should be to chisel the connotation so as to give it a uniform fixity of meaning. Effort should be to find out its in built limitations. The question is, what is contemplated by the term 'otherwise acquired' Is it simpliciter coming in possession of the foreign exchange that is intended to be covered by this phrase or is it intended to indicate that the acquisition must be with a title or dominion permitting non-questionable appropriation of the same

16. Before the grammar of this phrase is examined, it is enough to observe that extension of hospitality in the shape of making available goods or services or making available the material items of happiness including means of communication or travel and receipt thereof cannot be within the mischief of this section. Even buying of food by another or of entertainment or tickets of travel and making it available in the bought-form as such will not be within the mischief, for, the persons who buy will be expending foreign exchange on his account. It, therefore, follows that the host for his guest, is no intended to be regulated by the provisions of sub-s. (1). Hardly between a guest and the host one can conceive of any monetary transaction. But when such monetary transactions ensue between two persons necessarily the relation in law cannot be simply that of a host and guest but it would suffer a change.

17. It also easily follows that whatever may be the width and amplitude of the word 'acquire' as is set out in the present phrase preceded by the known word of 'buy' and followed by another known term 'borrow', the words 'otherwise acquire' is intended to cover receipts of all kinds having some elements of these though not identical with it. Legislature avoids repetitious formulation and use of the same words by different terms. Every word of law should, therefore, receive interpretation in its appropriate context. The processes of buying, acquiring and borrowing are to be between persons. The person need not necessarily be an individual but may include other juristic persons known to law. Therefore, foreign exchange must necessarily pass from one person to another. It does not stand to reason that a gift of foreign exchange inter vivos will be outside the purview of the acquisition contemplated. If it be the gift of foreign exchange inter vivos then it is none the less an acquisition of foreign exchange. When acquisition comes by gift it extinguishes the title of the donor and confers title on the donee. Not only possession but also entitlement are available in a transaction of gift. Gift of foreign resulting in receipt thereof by a person cannot, in the context of the present sub-section, be excepted from the purview of the term 'otherwise acquired'.

18. No doubt, the word 'acquire' has its several has its several facets and has to be understood in the context of the given provisions of a statute. It simply means 'to receive or to come in possession of' (Radhabai v. State of Maharashtra, : AIR1970Bom232 ). Similarly, it means 'to have gained or to get interest in property' (Kuppuswamy v. State : AIR1969Mad233 ). When there is a process of acquisition indicated in law, in a statute concerned with title, it is indicative of the negative connotation too, in that in the things so acquired, the person acquiring had no previous or prior interest or title and when that thing is so acquired a dominant relationship ensues between the acquirer and the thing or property so acquired (Smt. Salubai Ramchandra v. Chandu Saju : AIR1966Bom194 ).

19. The process of acquisition with relation to any species of property including foreign exchange basically and primarily is the process known to law involving transfer of interests in property. It is a dual process in that it implies giving and taking. The passing of property is made obviously by these elements. When the giver gives, he is said to transfer, while the taker takes, he is said to acquire. The giver gives what he possesses and is entitled to so give; while the taker takes and as such acquires what the giver thus possessed and was entitled to. The acquisition, therefore, is synonymous with taking of the property. Elementary taking involves the possession of the things so taken as well as power or authority to deal with it on one's own account.

20. Keeping these acknowledged connotations and legal effects it can be stated that when the process of acquisition takes place with regard to the property in question negatively it indicates that prior to the acquisition the acquirer had no interest or title to that property. Positively, the process of acquisition follows the concrete results in the taking of the property so that the acquirer comes in possession and is in a possession to appropriate the same. The word 'otherwise acquired', however wide it may be, positively implies possession and capacity for appropriation with regard to the item of property. It is taking in law for all purposes. Culpable acts of acquisition by theft or deceit cannot, however, be within it. So also the mere factum of possession without capacity or entitlement to appropriate would not be acquisition as such. The process leading to acquisition be various, including the one of gratuitous payments for the purpose of accommodating a relation or a guest, and such monies would be lawfully available to the recipient as acquired. Such payments, the return of which is neither intended nor sought, made in cash, cannot be escape the restriction imposed by s. 4(1).

21. It is difficult to exclude the case of payment of foreign exchange only because the payer happened to be the brother and he was intending to cover the expenditure of internal travel, board and lodge and for that purpose he handed over the foreign exchange. As far as the specie of property is important question in all such cases is whether one person has passed on the foreign exchange for the unquestionable as well non-accountable use of another person, and if the answer be in the affirmative then unless exceptions are established it does appear that such payments will fall within the meaning of the term 'otherwise acquired'. As already indicated, acquisition implies, in the context of foreign exchange, coming into possession and taking of such money and having capacity and entitlement to use it as one's own.

22. By these tests, it cannot but be concluded that there has been a breach of s. 4(1) of the Act and the appeal has no merit.

23. In the result, the appeal fails and is dismissed.

24. Mr. Pathak applies for leave to appeal to the Supreme Court. Leave refused.


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