TMI Blog2012 (5) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... and (9)(1)(a) of the FERA – Held that:- it would be unjust for the departmental authority to continue with the criminal complaint, when in the course of adjudication, categorical and unambiguous findings have been returned that there is no contravention of the provisions of the Act, and when the concerned person has been exonerated, no useful purpose shall be served by proceeding further with the criminal complaint in the instant case and the respondent agency cannot be permitted to prosecute the petitioner, having failed to establish the foundational facts to justify his prosecution. - CRL. M.C. NO. 401 OF 2004 - - - Dated:- 9-2-2011 - MS. HIMA KOHLI, J. Sandeep Sethi and Anurag Jain for the Petitioner. M.N. Dudeja and Ms. Renu Bansal for the Respondent. ORDER 1. The present petition is filed by the petitioner under Article 226 of the Constitution of India read with section 482 of the Cr. P.C. praying inter alia for setting aside the order dated 18-3-2003 passed by the learned ACMM, by which the petitioner s application for recalling of process issued against him in Complaint Case No. 860/1/2002 was dismissed. 2. Briefly stated, the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectorate by preferring a criminal appeal, registered as Crl. A. No. 525/2009. The said appeal was accompanied by an application for condonation of delay of 360 days. Vide order dated 14-9-2009, the aforesaid application for condonation of delay was dismissed, as the learned Single Judge observed that respondent No. 2/Enforcement Directorate, appellant therein, was unable to satisfy the court and show sufficient cause for not filing the appeal within the stipulated time. As a result, the criminal appeal also came to be dismissed. It is an undisputed position that the aforesaid order on appeal has attained finality as respondent No. 2/Enforcement Directorate has not preferred any SLP against the said order. 4. At the outset, learned Senior Advocate for the petitioner states that in view of the order dated 21-4-2008 passed by the Appellate Tribunal dealing with the merits of the case, which order has attained finality, the present petition ought to be allowed and the pending criminal complaint preferred by respondent No. 2/Enforcement Directorate against the petitioner ought to be quashed. In support of his submissions, he relies on the following judgments : ( i ) Sunil Gulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Tribunal/departmental proceedings. After examining the judgments of both nature, the court held that there was no conflict between the views expressed in the two set of judgments and in fact, they would be read harmoniously in different sets of circumstances. The circumstances were set out in para 25 of the aforesaid judgment and the same are reproduced hereinbelow for ready reference : "25. The conclusion arrived at by the Andhra Pradesh High Court, in my respectful submission, after relying upon Assistant Collector of Customs v. L.R. Malwani ( supra ), ratio whereof was misread and ignoring other judgments of the Apex Court would not be correct. What is needed is the harmonious reading of all these judgments as I do not even see any contradiction. In fact, various cases of the Supreme Court, note whereof is taken above, deal with different situations. The principles which can be culled out from the aforesaid judgments, when all these judgments are read out harmoniously, would be the following : 1.On the same violation alleged against a person, if adjudication proceedings as well as criminal proceedings are permissible, both can be initiated simultaneously. For initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex facie there is no such violation . The yardstick would, therefore, be to see as to whether changes in the departmental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of the provisions of any Act." [Emphasis supplied] 8. In the light of the aforesaid judgment, followed by coordinate Benches of this Court in the cases of Sunil Gulati ( supra ), Biharij Mfg. Co. (P.) Ltd. ( supra ), D.K. Rastogi ( supra ) and Anil Mahajan ( supra ), this Court is required to go through the order passed by the Appellate Tribunal to see as to whether or not it is an order passed on merits and whether the foundational facts in the complaint are identical or not. 9. A perusal of the aforesaid order dated 21-4-2008 passed by the Appellate Tribunal reveals that the Tribunal considered the submissions made by both sides on merits and considered the documents mentioned in para 4 thereof, which include, amongst others, the interim report dated 11-8-2000 prepared by the King Commission of Enquiry, four sets of statements made by the petitioner on 5-7-2000, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating officer dated 11-12-2003 was set aside, while allowing the appeal of the petitioner. 11. In the aforesaid backdrop when the complaint filed by respondent No. 2/Enforcement Directorate before the learned ACMM is perused, it is apparent that the facts averred in the adjudication proceedings and those averred in the complaint are more or less identical. The complaint also refers to the King Commission s report which has been extensively reproduced in the body of the complaint, from paras 143 to 156. The complaint also takes note of the report of the CBI prepared in October, 2000 and the statement of Mukesh Gupta at the rate of M.K. at the rate of John, who was interrogated by the CBI officials, pertaining to his admission that payments had been made by him to Mr. Hansie Cronje in the year 1996 during the India-South Africa Cricket Test Series held at Kanpur, India, and in South Africa. Further, reference is made to statements made by Mr. Manoj Prabhakar and Mr. Anand Saxena, who were stated to have been examined for the purpose of identifying the petitioner herein. The deposition of the petitioner before the CBI has also been adverted to, to claim that the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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