9911796707
TMI Blog2012 (5) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) between South Africa and India were heavily influenced through illegal betting, etc., and consequently on revelations made by Delhi Police, a Commission of Enquiry known as 'King Commission of Enquiry', was set-up by the President of South Africa, chaired by Hon'ble Judge E.I. King, which was to look into the illegal gratification which Mr. Hansie Cronje and other South African Cricket Team members, amongst others may have received. The said Commission furnished its report on 11-8-2000, which mentioned that the petitioner herein paid amounts to the tune of 1,10,000 US$ to Mr. Hansie Cronje. On the basis of the said report, respondent No. 2/Enforcement Directorate sought to prosecute the petitioner for violation of the provisions of sections 8(1) and 9(1)(a) of the FERA read with section 49(4) of the FEMA. Simultaneously, adjudication proceedings before the Enforcement Directorate were initiated against the petitioner under the said Acts. In the adjudication proceedings, an order dated 11-12-2003 was passed by the Special Director, Enforcement Directorate, imposing a penalty of Rs. 2 crores on the petitioner for acquisition of foreign exchange from the persons other than the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudication order dated 11-12-2003 passed by Special Director, Enforcement Directorate, directing respondent No. 2/Enforcement Directorate to refund the pre-deposited amount, the complaint filed by respondent No. 2/Enforcement Directorate, subject-matter of the present petition, ought not to be quashed and proceedings ought to continue and that once the Trial Court is satisfied that the petitioner ought to be discharged, then the same result would ensue. 6. Learned Senior Advocate for the petitioner however distinguishes the judgment in the case of Joginder Gulati (supra) relied upon by respondent No. 2/Enforcement Directorate and submits that in the said judgment, even though the learned Single Judge had taken into consideration the judgment in the case of Sunil Gulati (supra), yet he had gone on to hold that since in the said case the exoneration of the petitioner had not been on merits, hence it would be open to the criminal court to decide the case on merits. Learned Senior Advocate for the petitioner submits that for these reasons, the petitioner therein was not held entitled for quashing of the criminal proceedings initiated against him, however, in the instant case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, that would have no bearing on the criminal proceedings and the criminal proceedings are to be determined on its own merits in accordance with law, uninhibited by the findings of the Tribunal. It is because of the reason that insofar as criminal action is concerned, it has to be proved as per the strict standards fixed for criminal cases before the criminal Court by producing necessary evidence. 4.In case of converse situation namely where the accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings could still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and it is found that allegations are not substantiated at all and the concerned person(s) is are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner in the CBI report without looking into the actual text of the statement, and hence the said statement could not form the basis of the conviction. It was held that the department had been unable to establish the identity of the said Mukesh Gupta or 'M.K.' mentioned in the interim report of the King Commission and failure on the part of the department to get the petitioner identified by Mr. Hansie Cronje in the adjudication proceedings or for that matter, from Mr. Manoj Prabhakar and Mr. Anand Saxena, had weakened the case of the department considerably and it could not be established that the petitioner and the person named in the interim report of King Commission, i.e., Mukesh Gupta or 'M.K.' were the same person. Referring to a number of judgments on the issue that order of conviction could be passed only on evidence and not on hypothetical propositions or unwarranted inferences, the Tribunal concluded that the adjudicating officer was not justified in relying on hearsay evidence. 10. Furthermore, the factum of the passport of the petitioner remaining in the custody of the CBI after his interrogation, and the observation made in the interim report of the King Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present complaint are identical and the Appellate Tribunal has passed an order on merits reversing the findings of the adjudication officer while exonerating the petitioner, this Court is of the opinion that the exoneration has to be held as one on merits and not one on a technicality. 13. It is not in dispute that the order of the Appellate Tribunal exonerating the petitioner, has attained finality, after the appeal preferred by Respondent No. 2/Enforcement Directorate in this Court was dismissed. Thus, following the decision in the case of Sunil Gulati (supra) which mandates that it would be unjust for the departmental authority to continue with the criminal complaint, when in the course of adjudication, categorical and unambiguous findings have been returned that there is no contravention of the provisions of the Act, and when the concerned person has been exonerated, no useful purpose shall be served by proceeding further with the criminal complaint in the instant case and the respondent agency cannot be permitted to prosecute the petitioner, having failed to establish the foundational facts to justify his prosecution. As a result, the present petition succeeds and criminal c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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