Research › Browse › Judgment

Karnataka High Court · body

1999 DIGILAW 259 (KAR)

SAJJANRAJ BAGRECHA v. JOINT DIRECTOR GENERAL OF FOREIGN TRADE, MINISTRY OF COMMERCE, NEW DELHI

1999-05-27

V.K.SINGHAL

body1999
( 1 ) PETITIONER is aggrieved by the action of the respondent in imposing the penalty of Rs. 3,00,000/- for violation of Section 4-I (1) (a) of the Imports and Exports (Control) Act, 1947 and clause 8 (1) (f) and (g) of the Imports and Exports (Control) Order, 1955. A show-cause notice was issued to the petitioner that he has obtained import licence of Rs. 7. 50 lakhs for import of steel in the name of a fictitious concern by submitting a forged SSI certificate and forged export order, It is also alleged that the documents for obtaining the import licence were signed by the petitioner and the petitioner executed a legal undertaking on behalf of Balaji Industries a fictitious firm to fulfil the export obligation on 6-2-1981 and that the petitioner had helped one mr. G. Hemraj in getting Import Licence and opening L C at Punjab National Bank, Chickpet branch, in the name of Balaji Industries, Chickmagalur, a fictitious concern. ( 2 ) PETITIONER applied for copy of the document on the basis of which the allegations were made and it is stated that the copies were not provided and that the petitioner was prevented from making proper representation. The order levying penalty was passed on 16-8-1993 on the basis of the statement made by Sri Hemraj (Now deceased) and Bank Officials. Petitioner was subject to penalty of Rs. 3,00,000/- and was debarred from obtaining allotment of imported goods from canalising agencies or from importing any goods till 31-3-1997. Personal hearing was also given. The Adjudicating Authority, Joint Director General of Foreign Trade considered the request for copies of document on the basis of the show-cause notice was issued (as referred in para 14 ). No request for cross-examining any witness was made by the petitioner. Personal hearing was also given. The Adjudicating Authority, Joint Director General of Foreign Trade considered the request for copies of document on the basis of the show-cause notice was issued (as referred in para 14 ). No request for cross-examining any witness was made by the petitioner. Regarding the documents it was observed that it is true that the documents on the basis of which the Department seeks to penalise the notices should be supplied to them; at the same time it is all the more necessary on the part of the notices to co-operate with the adjudication proceedings; they should identify the documents required for their defence; they merely demanded the documents without specifying them; these notices wanted to cross-examine the witnesses; the provisions of Evidence Act are not relevant to adjudication proceedings and as such he did not accede to their request, and further observed that whatever the documents, the notices require were already in their possession. The appeal was dismissed. ( 3 ) THE matter was further carried to the Appellate Committee, Government of India, where it was observed that the finding has already been recorded by two adjudicating officers and it cannot be said that the appellant is totally ignorant of the proceedings. The Joint Director General of foreign Trade in his order has recorded in great detail the violation committed by the appellant. There is no miscarriage of justice and the facts have been correctly appreciated by the adjudication Officer before coming to the conclusion. The appeal was accordingly dismissed. ( 4 ) THE submission of the learned Counsel for the petitioner is that whatever the documents referred to above have not been provided to the petitioner, it is a breach of principles of natural justice entire proceedings stand vitiated. ( 5 ) THE contention regarding cross-examination of the witnesses is also raised. So far as the question of cross-examination is concerned, the Adjudicating Authority has dealt in detail as to who has made the request for cross-examination and who has made the request for supply of document. The petitioner has not made any request for cross-examination and therefore appellate Authority could not have been entertained nor it could be considered at this stage. ( 6 ) REGARDING non-furnishing of the document, the petitioner has not specifically demanded as to which of the documents he wanted to be given. The petitioner has not made any request for cross-examination and therefore appellate Authority could not have been entertained nor it could be considered at this stage. ( 6 ) REGARDING non-furnishing of the document, the petitioner has not specifically demanded as to which of the documents he wanted to be given. It is submitted by the petitioner that he had no knowledge of the documents based on which the penalty order was passed but when the first appeal was preferred, after going through the adjudication order it was his duty to give the details of the documents which were not furnished to him or which have caused him prejudice. Though the principles of Evidence Act apply to the adjudication proceedings, it has to be seen from the facts of each case as to what prejudice has been caused. The finding which has been recorded is that the documents are already in possession of the petitioner. Even before this Court it was not pointed out as to which of the documents were not furnished. In these circumstances, no case for interference is made out. Observations of the Apex Court in the case of K. L. Tripathi v State Bank of India and Others, to the following effect are also relied: "the basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt or if the version or the statement of the person who has testified, is in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version of the credibility of the statement. The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination especially when it was not asked for there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only on explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases". Since the petitioner failed to point out the documents required by him even before this Court or to prove that any prejudice was caused to him, it cannot be considered that principles of natural justice have been violated. Petition stands dismissed.