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2020 (4) TMI 417 - HC - FEMAOffence under FERA - Economic Offence cases - failure to realize the respective full export proceeds of the goods within the stipulated period - Transaction in clandestine manner - Whether opportunity notice as contemplated under the proviso to Section 61 (2) (ii) of FERA has been issued to A-1 to A-3? - Whether prior permission as mandated u/s 18 (2) of FERA has been obtained by A-1 to A-3 from the Reserve Bank of India;? - judgment of acquittal recorded by the trial court - HELD THAT:- This Court has no hesitation in holding that even non-issuance of opportunity notice as contemplated u/s 61 (2) (ii) of FERA will not vitiate the case. However, in the case on hand, Ex.P-41, opportunity notice as contemplated u/s 61 (2) (ii) of FERA has been issued to the accused. In such circumstances, the finding of the trial court that no opportunity notice has been issued to the accused is not only against the materials available on record, but also not in line with the law laid down by this Court and, accordingly, the said finding of the trial court is liable to be interfered with. Insofar as the issue relating to contravention of Section 18 (3) of FERA by A-4 to A-6 is concerned A-4 to A-6 not only gave their quotas to A-1 to A-3 for being used, but have also jointly signed the declaration and that A-4 and A-5 have also given letter to their bankers to credit the realisation of the export proceeds in the account of A-1. That being the undisputed case, it is not now open to A-4 to A-6 to contend that they have not contravened the provisions of Section 18 (3) of FERA. Though it is not A-4 to A-6, who have sold the goods, but have only given their quotas to A-1 to A-3, however, A-6 being a joint declarant, a duty is cast upon A-4 to A-6 to see that all reasonable steps have been taken to receive or recover the payment for the goods sold and in the absence of following the provisions by taking the necessary steps to recover the export proceeds, it is to be presumed that A-4 to A-6 have contravened the provisions of Sections 18 (2) and (3) of the Act. The quota used by A-1 to A-3 is that of A-4 to A-6 and it is the imperative duty of A-4 to A-6 to see that the provisions of FERA are complied with in letter and spirit. By just giving the quota to A-1 to A-3, A-4 to A-6 cannot shirk their responsibility and take a turn and say that since they are not the exporters and that the sale proceeds does not pertain to them, they have not contravened the provisions of Section 18 (3) more so, when A-6 is the joint declarant in the GR Forms along with A-1. Losing sight of the above materials, the finding recorded by the trial court is not only illegal, but is also perverse, which requires interference. Once this Court comes to the conclusion that the findings recorded by the trial court are illegal and perverse, then there is no legal bar for this Court to interfere with the said acquittal, in the light of the decisions aforesaid. Accordingly, this Court is of the considered view that the findings recorded by the trial court are illegal and perverse and is against the materials available on record and in the above circumstances, this Court is left with no other option, than to overturn the verdict of acquittal recorded by the trial court and convict the accused. Though minimum sentence has been prescribed for the offence under Section 18, however, this Court, after taking into consideration the submissions advanced on behalf of the accused, and also considering their age and also the fact that the offence was committed during the period 2008-2009, and that almost a decade has passed since the commission of the offence, is of the considered view that the accused could be sentenced to a period of one day to be undergone from the time of sitting of this Court till the raising of this Court along with imposition of fine. Accordingly, this appeal is allowed setting aside the acquittal recorded by the trial court and instead the accused/respondents herein are found guilty of the charges framed against them and they are hereby convicted and sentenced to undergo simple imprisonment for a period of one day before this Court, which is to be undergone on 12.02.2020 from the time of the sitting of this Court till the raising of this Court on the said day. Each of the accused is directed to pay a fine of ₹ 1,00,000/- (Rupees One Lakh only) by way of demand draft in favour of the Enforcement Directorate before 12/02/2020.
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