TMI Blog2004 (7) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... under the GRI forms and it transpired from the records that the accused No. 1 refrained from doing anything or taking any action which had the effect of securing the export proceeds to the tune of Rs. 57,87,256.79, within six months from the date of shipment or within the time extended by the Reserve Bank of India as required under the law in contravention of sections 18(2) and 18(3) of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA, 1973) and thereby committed an offence punishable under section 56 of the said Act. The accused petitioner Nos. 2 and 3 being Chairman and Managing Director of the company (accused No.1) and responsible for conduct of day-to-day business of accused No.1 are also liable for prosecution for the offence under section 56 read with section 68 (1) of the Foreign Exchange Regulation Act, 1973. It was further alleged in the petition of complaint that opportunity notice as required under section 61 of the said Act was issued and served upon all the accused persons giving them opportunity to furnish within 10 days any permission/extension obtained from the Reserve Bank of India or from any competent authority of Government of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealt with under the Defence of India Rules. From 1947 to 1956, there was only one provision for alleged violation of Foreign Exchange Regulation namely prosecution before a Magistrate. There was no provision for departmental adjudication. In 1957, an amendment was effected in the FERA, 1947 by introducing the adjudication proceeding. In accordance with the amendment of 1957 whenever there was an allegation of contravention of FERA, the department was to institute a departmental adjudication proceeding at the first instance and if in course of the departmental proceeding the adjudicating authority was of the view that the penalty which could be imposed by him would not be adequate, in such a case only he could file a complaint before the learned Magistrate. By referring to a judgment reported in 1975 Supreme Court Cases (Cri.) 718, it is submitted by the learned Advocate of the petitioners that from paragraph 11 of the said judgment, it appears that between April, 1949 and April, 1956, the Reserve Bank of India completed investigation in about 200 cases, but prosecu- tion could be launched only in 66 cases, out of which 60 cases ended in conviction. Mr. Mukherjee submits that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment it appears that the Hon ble Apex Court, while setting aside order of acquittal, held that the accused has to prove absence of culpable mental state beyond reasonable doubt. Onus is on the accused to prove that person who made advances was not resident outside India. 13. Next judgment relied upon by the learned advocate in R. Kejriwal v. State of W.B. 2001 (3) CHN 617. It was held by the learned Single Judge of this Court that after the new Act of 1973 came into force, the twin systems of adjudication by the department and prosecution in Court have been provided for all sorts of violations of the provisions of this Act of 1973. Departmental proceeding and imposition of penalty etc. covered by sections 50 and 51 and the prosecution in Court under section 56 of the Act can now go hand in hand and question of double jeopardy does not arise in such a case. 14. Mr. Mukherjee next relies upon a judgment of the Hon ble Apex Court in CIT v. B. Champaklal 2001 SCC (Cri.) 544. From a perusal of the judgment, it appears that challenging criminal proceedings under the Income-tax Act, 1961, a writ petition was preferred on which criminal proceedings were stayed by the Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, if any person contravenes any of the provisions.... he shall be upon conviction by a Court be punishable". Under the present scheme of the Act of 1973 prosecutions for offences are totally independent from the penalty proceedings. The prosecutions are not made subject to the result of the departmental proceedings. 17. Mr. Dey relies upon a judgment of the Hon ble Apex Court in Asstt. Collector of Customs, Bombay v. L.R. Melwani AIR 1970 SC 962 wherein it was held by the Hon ble Apex Court as follows: "Criminal prosecution of the accused for alleged smuggling is not barred merely because proceedings were earlier instituted against him before the Collector of Customs. Adjudication before a Collector of Customs is not a prosecution nor the Collector of Customs a Court . Therefore, the rule of autre fois acquit cannot be invoked. Neither the issue estoppel rule is attracted. The issue estoppel rule is but a facet of the doctrine of autre fois acquit . Even though the accused was given benefit of doubt in earlier proceedings the decision of the Collector of Customs does not amount to a verdict of acquittal in favour of accused so as to attract the rule of issue estoppe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further it is open to the Criminal Court to arrive at a finding different from the one given by the Adjudicating Authority, on consideration of the materials and evidence placed before it." (p. 18) 22. In the next judgment 1996 C. Cr. LR (SC) 71, it was held by the Hon ble Apex Court that any contravention under FERA, 1973 in breach of civil obligation which attracts penalty under section 23(1)(A) of FERA, 1947 and a finding that the delinquent has contravened the provisions of the Act would immediately attract the levy of penalty under section 23 of the Act, 1947. It was further held that even after an adjudication by the authority and levy of penalty, the defaulter can still be tried and punished for the commission of an offence and the bar under Article 20(1) of the Constitution of India in such a case would not be attracted. 23. In the judgment in Ramesh Chandra Gorabadu v. State 1986 Cr. LJ 645, it was held by the learned Single Judge of Orissa High Court that dropping of a confiscation proceeding before the Collector shall not have any effect on the criminal trial. It was further held that even if confiscation proceeding is dropped by the Collector, it has no effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1973. Under the Act of 1973, the criminal proceedings initiated against the offender is different from and in addition to the proceedings initiated before an adjudicating officer under section 51 of the Act. We also find support from a judgment of Andhra Pradesh High Court in Anil Kumar Agarwal v. K.C. Babu 2003 Cr. LJ 2197, wherein it was held that the prosecution initiated under section 56 of the FERA, 1973 is independent of the proceeding initiated or pending before the adjudicating officer under section 5 of the Act of 1973. 28. We also find support from a judgment of Madras High Court in Excise and Customs Cases 319, A.S.G. Jothimani Nadar v. Deputy Director, Enforcement Directorate . In the said judgment it was held that in view of clear terms of sections 51 and 56 of FERA, 1973 there is no scope to hold that the criminal prosecution is dependent upon the outcome of the adjudication proceeding. Section 51 of the Act, 1973 is the relevant section regarding adjudication proceeding and it is a complete and independent provision by itself. 29. In view of the discussion made above, and in the light of the ratio contained in the judgments referred to above, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a complaint in the Court. Special authorization, for each individual case, in our view, is not at all required for the purpose of lodging a complaint in Court. 33. It will be proper for us to summarize the position emerging from the above discussion : (A)A complaint under section 56 of the Foreign Exchange Regulation Act can never be said premature if it is instituted before award of penalty under section 50 of the Act and such criminal proceeding being an independent proceeding can be initiated during pendency of the adjudication proceeding under section 51 of the Act of 1973. (B)The complainant in the present case has been duly authorized to lodge the complaint being empowered by the notification dated 24-9-1993 issued by the Central Government as referred to above. General authorization as given in the notification dated 24-9-1993 is sufficient for the purpose of lodging a complaint in Court and no special authorization is required for filing a complaint in each individual case. 34. The reference is answered accordingly. 35. Since similar points are involved in the other revisional application, this judgment shall also govern the other revisional applications u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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