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2022 (12) TMI 566 - HC - FEMAOffence under FEMA - vicarious liability of the persons responsible - Responsibility of Directors - accused person following alleged contravention by him of the provisions of the said Act, being the ‘Director’ of the company, along with the company and other co-accused persons, for alleged commission of such contraventions/offence - HELD THAT:- During all these time petitioner was a ‘Director’ of the accused company. He remained so till 2nd August, 1996, that is a date well within the statutory period of six months time. According to the scheme of this Act, he cannot relinquish his liability as regards the alleged contravention for this period at the time of and after export of the goods, till the time he remained as company’s ‘Director’ taking part in the affairs thereof, as suggested in the complaint, of course unless he rebuts the same with adequate materials. Under the circumstances, it cannot be said that the allegations made against the petitioner in the complaint do not prima facie constitute any offence, show the involvement of the petitioner therein, or make out a case against him, or that it do not disclose any cognizable offence at all. It can also not be said that the allegations made in the FIR are only absurd and inherently improbable, or that there is no sufficient ground for proceeding against him. The factual aspects of the case as discussed above, would definitely discard any intention of malafide or malice of the complainant, who intends to proceed against the accused person on the basis of available materials against him, prima facie constituting an offence. This should not lead to quashing a proceedings initiated to unearth the truth. See BHAJAN LAL [1990 (11) TMI 386 - SUPREME COURT] Petitioner though being designated or appointed in the accused company as a ‘Director’ , he was not entrusted with the management, affairs or policy of the same as part of his duty as a ‘Director’ -Company’s records and more so the specific averments in the complaint show otherwise. This, at one end, prima facie constitutes a contravention/offence and make out a case against him and at the other, duly complies with the statutory provision and dictum of the Hon’ble Supreme Court in N. Rangachari’s judgment (mentioned earlier). Hence this case shall not fall within the category of cases, where the power of this Court under section 482 Cr.P.C, 1973, may be exercised to prevent abuse of the process of the court or otherwise to secure the ends of justice. Contrarily, by following the ratio of the judgment of N. Harihara Krishnan vs. J. Thomas [2017 (9) TMI 1 - SUPREME COURT] it can be stated that taking cognizance of an offence by the court is one of the initial steps in the whole process. Upon existence of prima facie material, the process of the court should not be hampered. Thus no merit in petitioner’s case, this revision is dismissed.
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