Full Judgment
1. This appeal is directed against Adjudication Order No. Addl. (APK)/111/93, dated 25-8-1993 under which a penalty of Rs. 2,50,000 has been imposed on the appellant for contravention of section 9(1)(f)(i) of the Foreign Exchange Regulation Act, 1973 (âthe Act). The charges are based on the allegation that the appellant had paid a sum of Rs. 64,583 to Gurpal Singh (whose real name is alleged to be Surinderpaul Singh) in consideration of the receipt of Hongkong $ 29,356.26 by Ashok Kumar in Hongkong. 2. Shri S.C. Puri, the learned counsel for the appellant, stated at the outset that the appellant was also prosecuted by the department under section 56 of the Act for the same charges as were adjudicated under the impugned order but in view of the order made by the adjudicating authority exonerating the appellant of the charge of violation of section 8(1) of the Act, the learned ACMM framed the charge of contravention of section 9(1)(f)(i) only; that on the appellants own plea, the learned Magistrate held him guilty of the charge; that in view of the fact that the appellant had already faced the trial for six years and the amount involved was only about Rs. 64,000, he imposed the punishment of fine of Rs. 8,000 and imprisonment till the rising of the Court; that the appellant had already paid the fine as recorded in that judgment of the learned ACMM. Shri Puri submitted that in view of the fact that the appellant had already pleaded guilty before ACMM, he would not contest the findings of the adjudicating authority but he would strongly plead for waiver or reduction of the penalty amount to a token sum. In support of the plea, Shri Puri submitted that the criminal trial itself is sufficient punishment for the appellant because in the normal course even for violations of the Act involving amounts much higher than Rs. 64,000, the department does not normally initiate criminal proceedings under section 56. He submitted that apart from facing the trial for six years the appellant had also to pay a fine of Rs. 8,000. Shri Puri further pleaded that on the facts alleged by the department there is no loss of foreign exchange; that it is clear from the alleged facts that the appellant was being used by others and he allowed himself to be used because of poor financial position; that the purpose and object of the Act would be adequately served by proceeding against Manmohan Singh and Surinder Singh who would have been benefited by the contravention of the Act. Shri Puri pleaded that in the circumstances, the appellant does not deserve any further penalty. Since Shri Puri pleaded for reduction of the amount of penalty, I decided to waive the requirement of the pre-deposit. I proceed to dispose of the appeal by this final order. 3. Shri A.C. Singh, ALA of the department, submitted that since Shri Puri is not contesting the finding of contravention and in view of the submissions made by Shri Puri he has no objection to the reduction of the amount of penalty, which is a matter at the discretion of the Board. Shri Singh added that he would urge the Board to maintain the imposition of penalty though of a reasonable amount but he does not deserve a total waiver. 4. I have considered the submissions made by the parties. Since Shri Puri, the learned counsel for the appellant did not press the appeal, and in my opinion rightly so, except in respect of the penalty, I would not interfere with the finding of the contravention of section 9(1)(f)(i) on the part of the appellant. However, I find some force in the submissions made by Shri Puri in respect of the quantum of penalty. I find that the amount involved in contravention is Rs. 64,583 only and in the circumstances in which the contravention has allegedly occurred, the penalty of Rs. 2,50,000 as imposed under the impugned order is, in any case, excessive. The quantum of penalty has to be determined keeping in view the facts and circumstances of each case. In my view, the circumstances as brought out by Shri Puri, particularly the fact that the appellant had already been punished in the parallel criminal trial, fully justified reduction of the amount of penalty to a token sum and not the full waiver of penalty. In my opinion, about 10 per cent of the amount involved in the contravention would be adequate, in the circumstances of the case, to meet the ends of justice provided the appellant undertakes to pay the amount of penalty within 15 days. 5. In view of the above, the appeal is partly allowed. While the finding of contravention of section 9(1)(f)(i) on the part of the appellant involving an amount of Rs. 64,583 is upheld, the amount of penalty is reduced to Rs. 6,400. It is seen from the record that the appellant has already paid any amount of Rs. 6,400 by way of penalty in compliance with this order.