TMI Blog2008 (2) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... unt No. 105/03/20009 with the said Branch of the Bank. The Petitioners aver that in their capacity as cashiers of the Bank, accepted bona fide, the said deposits in compliance with the provisions of the Foreign Exchange Regulation Act, 1973 (hereafter referred to as the FERA ), the guidelines issued by the Reserve Bank of India (hereafter referred to as the RBI ) and Rules and practices of the Bank. On 14th November, 1994, they received summons from the first respondent, under Section 40 of the FERA. In due compliance with the summons they appeared before the first respondent on 29-11-1994; and their statements were recorded. 3. Thereafter, the RBI issued a clarificatory circular on 31-7-1995 in which certain measures for the operation of NRE accounts and acceptance of deposits in such accounts were prescribed. It is averred that, prior to the clarification, aspects concerning operation and acceptance of NRE accounts were dealt with under the Exchange Control Manuals, and that the measures contained in the clarificatory circular were not contained in the relevant Exchange Control Manual, at the relevant time. 4. It is averred that on 24th February, 1995, a Memorandum of show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also the reasons for reviving the proceedings after a delay of ten years. Reliance on Section 49(3) of the Foreign Exchange Management Act, 1999 (hereafter referred to as the FEMA ) is also placed; it stipulates that no Adjudicating Officer shall take notice of any contravention under Section 51 of FERA after the expiry of a period of 2 years from the date of commencement of FEMA; which period expired on 31st May, 2002. Therefore, he contends that the impugned notice is ultra vires the FEMA. 8. Learned Counsel contends that the allegation in the impugned notice is that the Petitioners abetted the offence through negligence; however, he submits, that concept of abetment through negligence is alien to law and is ex facie a contradiction in terms. It is submitted that to establish an offence of abetment, it must be shown that the alleged abettor had not only facilitated the offence but also done so with a knowledge and intention to facilitate such an offence and not mere negligence. He places reliance on the definition of abetment given under Section 107 of the IPC and the decisions in Tuposhi Chakaravarti v. State (2000) 55 DRJ 267 and Shiv Ram v. State of U.P. (1975) 3 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner is at liberty to agitate all the points available to him before the authority concerned to seek adjudication thereon. 11. It is urged on behalf of the respondents that the contention of the Petitioners that the proceedings are time barred is unsustainable in terms of the judgment of the Supreme Court in V.K. Aggarwal, Assistant Collector of Customs v. Vasantraj Bhagwanji Bhatia and Ors. AIR 1988 SC 648 where it was held that : The fact that twenty years have elapsed since the date of seizure is not ground for not proceeding further with the matter in as much as the offence in question is a serious economic offence, which undermines the entire economy of the Nation and also the fact that delay occasioned in the working of the judicial system by the ever increasing workload which cannot provide an alibi for upholding such a plea. 12. The power of the High Courts under Article 226 is indeed wide and any attempt to place a narrow construction upon its jurisdiction would militate the spirit of the Constitution itself. As was observed in Dwarkanath v. ITO, AIR 1966 S.C. 81 Article 226 ex facie confers a wide power on the High Courts to reach injustice wherever it is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years, without the notice of hearing disclosing any reason for the delay, is not a mere matter of impropriety; the respondents were under a duty to disclose what compulsions held up the adjudicatory process for so long. Absent such explanation, revival of the proceedings would be unlawful and arbitrary. The duty to give reason is a sine qua non of any executive action, without which the action is liable to be struck down. 14. This duty to give reasons, in the case of the impugned notice is necessarily accompanied by a duty to give furnish details regarding allegations contained in the notice. The purpose of issuing a show cause notice is to ensure that its recipient is not deprived of a fair and reasonable chance of showing cause and being heard. Taken so, an effective notice, containing at the a brief sketch of the facts leading to the allegations and the nature of the offence alleged, is a necessary corollary of the right to be heard. However, the Courts cannot lay down any straightjacketed standards in this regard and ever case must be examined on its terms. The Supreme Court s decisions in Canara Bank v. Debashish Das - (2003) 4 SCC 557 and Food Corporation of India v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X
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