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2009 (4) TMI 916 - HC - FEMAPetition under Article 226 - Complaint u/s 56 of the FERA r/w sub-sections 3 and 4 of Section 49 of FEMA - failure to comply with statutorily requirements of issuance of notice u/s 61 (2)(ii) of FERA - quashing of proceedings - petitioner points out that no proof of service has been filed along with the complaint - respondents have not cared to cite any of the persons in the list of witnesses. It is contended that so far as the criminal trial is concerned, the respondent would stand precluded from examining any witness who has not been cited as a witness. HELD THAT:- It would appear that the statutory requirement of issuance of notice under proviso of sub clause (ii) of sub-section 2 of Section 61, its date and manner in the instant case as well as the failure to consider the petitioner's reply or even place it before the court, has resulted in manifest error in the exercise of jurisdiction by learned trial judge. The order taking cognizance in the instant case and directing issuance of summons, is clearly without application of mind and cannot stand in law. In the light of the well settled principles noticed, there is no embargo from quashing the proceedings which are pending before the ld trial court. Bare perusal of the complaint, it has been found that the complaint has been filed without compliance of the provisions of Section 61 of the FERA, 1973. No further inquiry is necessary or required to be conducted for the purposes. The compliance is mandatory and goes to the root of the matter. There is a statutory prohibition to the filing of a complaint without such statutory compliance. The objection raised by the petitioner to the filing and maintainability of the prosecution against it, is squarely covered under the guideline 6 laid down by the Apex Court in State of Haryana Vs. Chaudhary Bhajanlal [1990 (11) TMI 386 - SUPREME COURT] and Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors [1976 (4) TMI 213 - SUPREME COURT]. The respondents have urged at length that the petitioner must be required to undergo the trial and establish his objections as a defence to the prosecution. The present case is one where examination of a statutory prohibition is required to be undertaken. In the light of clear principles laid down by the Apex Court, such an objection has to be held to be wholly misconceived. There would be no warrant for requiring the petitioner to defend a prolonged trial, if the filing of the complaint itself is statutorily prohibited. Continuation of such proceedings against the petitioner would, therefore, be vexatious, useless, serving no purpose and defeating the ends of justice. Therefore, this writ petition is allowed. It is directed that the proceedings arising out of complaint, entitled Enforcement Directorate v. Sanjay Malviya & Ors. pending in the court of ld Additional Chief Metropolitan Magistrate, as against the petitioner alone shall stands quashed. The order of the ld Metropolitan Magistrate taking cognizance of the complaint against the petitioner herein and directing issuance of summons to him shall also stand quashed.
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