A stay petition for waiver of pre-deposit of penalty of Rs. 10 lakhs imposed by the adjudicating authority vide his impugned order dated 23.04.2002 has been filed alongwith the appeal. The learned Counsel for the appellant Mr. R.S. Suri stated the following:
a. that there is no one by the name of Mr. Ram Nath and it is actually Mr. Mohinder Singh Chera who had impersonated as Mr. Ram Nath.
b. that the stay petition need not be proceeded with and the case could be finally heard for disposal.
c. he agreed that they have not made the pre-deposit of penalty as required under Section 19 of FEMA, 1999;
d. that there are judgments which deal with the issue of final disposal of the case without insisting on the pre-deposit for which he stated that he would be submitting the said judgments within a weeks’ time that is by 26.03.2018.
e. that it would cause undue hardship if the appellant is asked to make the pre-deposit although he did state that the money has since been received back by the said Mr. M.S. Cheera.
The learned counsel for the respondent stated the following:
a. that there is no prima facie case in favour of the appellant
b. that the appellant is one Mr. Ram Nath and not Mr. M.S. Cheera as mentioned by the learned counsel for the appellant although he did agree that the impugned order has recorded that Mr. M.S. Cheera resident of U.K. tried to impersonate Shri Ram Nath, the noticee
c. that Mr. M.S. Cheera had filed an application for amendment to take Mr. M.S. Cheera as the appellant since it was he who was effected by the order. But this application was subsequently withdrawn on 13.12.2011. Hence Mr. M.S. Cheera cannot be taken as the appellant.
d. That in the passport application of Mr. Mohinder Singh, no aliases have been given.
e. The show cause notice was issued to Mr. Ram Nath and hence the appeal should proceed only on his name.
f. That the appellant has not pleaded any undue hardship for the predeposit by giving any evidence either financially or otherwise for the same.
g. Hence they do not deserve to get any stay and the pre deposit has to be made as per Section 19 of FEMA before the case could be taken up for final hearing, and that by now they should have deposited the said amount since its an appeal of 2002.
I have given my careful considerations to the above arguments and also perused the documents on record. Briefly, the case is that one Shri Ram Nath a person resident in India acquired foreign exchange amounting to £5983430.13 plus interest in his account in the Bank of India, Paris Branch. The said amount was acquired from one Shri Mohinder Singh and his family members resident of Kuala Lumpur, Malaysia. Mr. Ram Nath did not have any previous permission of the Reserve Bank of India and thus contravened the provisions of Section 8(1) and 14 of FEMA.
The issue that was contested right from the adjudication stage is the identity of Mr. Ram Nath although in the Appellate Tribunal they have withdrawn the application for change in appellant's name. It is seen that the Court of the Special Judge, CBI, Guwahati, Assam had vide its Judgment dated 23.04.2013, after going through all details, examining and cross examining many witnesses held that:
“In view of the above I find and hold that the prosecution has proved the allegations against the accused person beyond reasonable doubt. The accused persons are found guilty.”
The above judgment was in the context of fake passport issued by the Passport office, Guwahati to M.S. Cheera in the name of Mr. Ram Nath. But it does not throw any light on the existence or otherwise of Mr. Ram Nath the noticee in this case. The impugned order has discussed in detail the involvement of Mr. Ram Nath.
Coming to the merits of the present case for the limited purpose of the stay petition, the learned counsel for the appellant has so far not submitted any judgment on similar facts and issue. On the other hand, although he has pleaded undue hardship he has not given any proof or evidence of the same and has fairly agreed that the accused has received back the entire money. I find that this is an arguable case on merits and hence cannot also be stated to be prima facie in their favour. They are accordingly required to pre-deposit the penalty of Rs. 10 lakhs within a period of four weeks from today failing which the appeal shall be disposed off as per the provisions of FEMA.