TMI Blog2009 (11) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... m the office of accused No. 1 - Nestle India Ltd. it was revealed that the company while ostensibly concluding certain contracts with a the Russian Company for sale of coffee, actually exported the goods to Finland. Though the consignments were booked for Moscow, delivery of the goods was taken in Helsinki, en route Moscow. The scrutiny of the record of accused No. 1 also revealed that the Company had signed a contract with the Russian Company for export of coffee to Russia and accordingly, Bank of Foreign Economic Affairs, Moscow, had issued a LC for 100% value of goods against repayment of State credit on behalf of that Russian Company, for an amount of Indian rupees 110 crores in favour of accused No. 1, but the goods exported by it never reached Russia. It. was informed by RBI that, funds for repayment of State credits could be utilized for export of goods to Russian Federation only and no third country exports were permitted to be financed out of these funds. 3. It has been alleged in the complaint that the exports made by accused No. 1, Nestle India Ltd., are not covered under Repayment of State Credit Scheme and the said scheme was misutilized for the purpose of exploiting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they are guilty of violating the provisions of Section 16(1) read with 68 of FERA, 1973, Circular No. 3 dated 28th' September, 1993 of RBI under Section 73(3) of FFRA, 1973 Section 18(2) 18(3) of FERA, 1973 read with Rule 7, 8 and 9 of Foreign Exchange Regulation Rules, 1974, Section 16(1) (a) (b) read with 68(1) 68(2) of Foreign Exchange Regulation Act, 1973. 5. Vide this petition which now stands treated as a petition under Section 482 of Code of Criminal Procedure, the petitioners have sought quashing of the above-referred complaint and order dated 31st May, 2002 passed by the learned ACMM, New Delhi summoning them to face trial in respect of the above-referred offences. They have also sought quashing of the opportunity notice dated 22nd May, 2002. Besides the grounds taken in the main petition, a number of additional grounds were taken by the petitioner vide Criminal Miscellaneous No. 11768 of 2006. However, during arguments and in the Written Synopsis filed by them, the petitioners have pressed the petition only on the following three ground : (i) The investigations in respect of FERA, 1973 contraventions could not have been continued after repeal of FERA on 1st Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose, by a fiction of law, it shall be presumed as if FERA, 1973 had not been repealed. Since sub-section (3), to the extent it is relevant, prohibits the Court from taking a cognizance of offence committed under FFRA, 1972 after expirty of two years from the date of commencement of FFMA, a combined reading of sub-section (3) and sub-section (4) would mean that though there was no time limit prescribed by the Legislature for concluding investigation of the offences committed under FERA, 1973, the Court could not have taken cognizance of such an offence after 31st March, 2002, when the sunset period envisaged in sub-section (3) expired. The provisions of sub-section (4) cannot be read to mean that no investigation in respect of offences committed under FFRA could be continued after its repeal w.e.f. 1st June, 2000 and only the prosecution could be launched with the sunset period of two years commencing from 1st June, 2000. Taking such an interpretation would amount to reading something in sub-section (4) which does not exist there at all. In fact, the interpretation suggested by the learned counsel for the petitioner, if taken, would lead to absurd consequences, and therefore, cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aled, or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed, or (e) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." A bare perusal of Clause (c) and (e) would leave no doubt that if a criminal liability has been incurred by anyone under a repealed Act, that would not be affected in any manner by repeal of that Act and an investigation which is in progress at the time of repeal of enactment can continue on the assumption that the repealing Act had not at all been passed. In fact, during arguments, it was not at all disputed that if Section 6 of General Clauses Act applies, the investigation into offences committed under FERA, 1973 could continue even after repeal of that Act. 10. The contention of the petitioners is that since the provisions of Section 6 of General Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral application of Section 6 of General Clauses Act with regard to the effect of repeal. The only exception this sub-section makes is sub-section (3) of the same Section. This would mean that the Section 6 of General Clauses Act would not apply in respect of an offence committed under FERA, 1973 only to the extent, that no Court would be able to take cognizance of such an offence on expiry of sunset period of two years from the date of commencement of FEMA, 1999. But, for the provisions of sub-section (3), there would have been no bar on the Court taking cognizance of an offence committed under FERA, 1973, within the period of limitation otherwise prescribed for such an offence. Sub-section (6) makes it explicit that Section 6 of General Clauses Act would continue to apply to such offences except in respect of the time period within which the Court could take cognizance of such an offence, after repeal of FERA, 1973. I, therefore, held that there is no merit in the first ground urged by the petitioners. Ground No. 2 12. During the course of arguments, the petitioner did not urge that appointment of Enforcement Officer under Section 4 of FERA came to an end with the repeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st date on which the sunset period expired. The contention of the petitioner is that the opportunity notice gave only throe days time which was not enough and the request of the company for giving more time was rejected. It has also been contended that neither the reply filed by the company was considered before filing the complaint nor was it filed in the Court alongwith the complaint. 14. The proviso to Section 61(2) of FERA, 1973 reads as under : "Provided that where any such offence is the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission." A perusal of the above referred proviso would show that the notice envisaged under this proviso is not a show-cause notice. This provision is not based on the principles of audi altrem partem. The principle of audi altrem partem normally does not apply to criminal prosecutions, at pre-prosecution stage. It, therefore, does not require the complainant to give a notice to the accused persons, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing opportunity notice was to enable the accused to show the requisite permission from RBI and no such permission was disclosed in the reply. The second contention was that the plea taken in the reply dated 27th May, 2002 submitted by the petitioners was actually taken into consideration before filing the complaint. During the course of arguments, the learned counsel for the respondent did show a communication on his file which disclosed that the reply filed by the petitioner was considered before filing the complaint. It was pointed out that though notice were issued to 10 persons, prosecution was launched only against some of them which by itself would indicate that the reply submitted by the petitioners was duly considered before filing the complaint. Had the respondents not taken the reply into consideration and had it filed the complaint mechanically, without due application of mind, the complaint would have been filed against all the noticees and not only against some of them. In fact, a perusal of the averments made in the complaint also indicates that the reply submitted by the petitioner was considered before filing the complaint. In para 3 of the complaint, it has been al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even three working days to furnish the reply. On the other hand, in the present case, the petitioner gave reply on 27th May and, therefore, got 4 days from the date of receipt of the notice and the reply filed by it, appears to have been duly considered before filing the complaint. 19. Another important aspect in this regard is that the judgment in Debashish Bhatacharya (Supra) does not take into consideration the decision of the Hon'ble Supreme Court in Standard Chartered Bank v. Directorate of Enforcement 2006 (197) E.L.T. 18 (S.C.) = 2006 (4) SCC 278 where the Hon'ble Supreme Court discussed the nature and scope of the opportunity notice envisaged in Section 61(2)(ii) of FERA, 1973 and took a view on it. 20. The opportunity notice envisaged u/s 60(2)(ii) of FERA, 1973 came up for consideration before the Hon'ble Supreme Court in Standard Chartered Bank v. Directorate of Enforcement - 2006 (197) E.L.T. 18 (S.C) = 2006 (4) SCC 278. A perusal of para 2 of the judgment would show that in one of the matters before the Hon'ble Supreme Court, writ petition No. 2377/1966, individual notices issued u/s 61 of FERA were challenged. While considering such notices, the Hon'ble Court, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution is referred to and it is submitted that many rights including the right against self incrimination is available to a person accused of an offence. Section 61(2) of FERA makes it clear that no court can take cognizance of an offence except upon a complaint by the officer referred to therein. The proviso to Section 61(2) of the Act provides that no complaint regarding the offences referred to in that Section shall be made unless an opportunity is given to the concerned person to show that he had the requisite permission where the offence charged is an act which requires permission under the Act. We think that if the notice sets out the alleged contravention, (an act which could have been done with permission) and calls upon the person accused of the offence whether he had the requisite permission for the transaction, that will satisfy the requirement of the Section." "14. At this stage, we cannot ignore the argument on behalf of the respondents that if the appellants are not able to show any permission, complaints have to be filed before the concerned magistrate and that magistrate will issue process only on being satisfied that a case has been made out for such issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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