TMI Blog2015 (3) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... visaged in law under Section 61 of the FERA which is apparent from the fact that complaint was filed and initiated in a haste manner before the ACMM even before the expiry of the period of opportunity granted to petitioner and the Trial Court in utter ignorance of the right given to the petitioner under Section 61 (2) and the bar imposed upon. The Trial Court thereby upon taking cognizance, issued process against the petitioner, which is apparent from the fact that the trial court did not even record in the impugned order about the fulfillment of statutory and mandatory requirement of Section 61 (2) of the FERA. With regard to Show Cause Notice for adjudication proceedings dated 4th April, 2002, which was served upon the petitioner on 22nd August 2002 i.e. after filing of the complaint, which was replied by petitioner vide reply dated in 19th September, 2002. - It is admitted fact that no proof of service of notice was filed by the respondent at the time of filing the complaint on 27th May, 2002 to establish that an opportunity in terms with Section 61 (2) was given to the petitioner and the petitioner failed to respond the same by showing that it has permission from the RBI or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing distributed to Delhi nearby areas illegally through PSTN (Public Switch Telephone Network). One ISDN line has a bandwidth of 144 Kbps and this bandwidth was misused to make about 24 voice calls in one single ISDN call, which caused loss equivalent to the charges for 22 lSD calls to the Govt. of India in terms of foreign exchange. It was averred that the above mentioned act resulted in loss of approx. ₹ 5 crore to Govt. of India in foreign exchange 4. On the basis of complaint FIR No.136/2000 under Section 420/120 B IPC was registered at P.S. Greater Kailash, New Delhi and on the basis of the allegations, the police collected evidence in the case above. 5. Thereafter, as it is alleged by the petitioner, the respondent in a hast manner filed a Criminal Complaint No. 880/1 dated 27th May, 2002 under Section 56 of the FERA read with Section 49 (3) (4) ofthe FEMA before the Court of ACMM as initiation of prosecution under FERA was going to lapse on 31st May, 2002 due to the sun set clause incorporated in FEMA for violation of Section 16(1)(b), 4, 7, 29(1)(a) read with Section 64(2) 68 of the FERA against the petitioner being one of the Director of Company namely M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) of the FERA, no magistrate shall take cognizance of the complaint if opportunity is not granted to the accused. In the present case, the respondent did not even mention full particulars of the date of notice and its service which are otherwise required to be mentioned in the complaint in order to satisfy the ACMM before taking cognizance of the offence. iii) That opportunity notice dated 17th May, 2002 was served upon the petitioner upon 23rd May, 2002 giving the petitioner three days time to file reply, but the respondent filed a criminal complaint without having waited for the expiry of notice period i.e. 29th May, 2002 without considering the fact that the said notice was served on 23rd May, 2002 and 25th and 26th May, 2002 being a gazetted and public holiday, the three day period with effect from 23rd May, 2002 would have lapsed on or about 28th May, 2002. iv) The respondent in a hast manner filed criminal complaint against the petitioner on 27th May, 2002 guided by the fact that in FERA sun-set period was due to expire on 31st May, 2002. Thus, the complaint filed by the respondent does not contain any averment as to the mode and manner of service of the notice upon p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it has to be done in that way or not at all is so well settled, that it needs no elaboration. The cognizance taken by ACMM is without jurisdiction and the process issued was illegal being in violation of proviso to Section 61 of the FERA and without application of judicial mind. 15. Learned counsel for the petitioner has referred paras 5, 8, 9, 11, 12, 13, 15, 16, 17, 27 and 38 to 52 of the Devashis Bhattacharya s case and submits that the present matter is wholly covered in the case as all the issues involved in the present matter has been discussed in the said referred paras and the prayer made in the present case is liable to be allowed. 16. FERA being a complete code in itself contains protection I mandatory provisions in compliance with principal of natural justice in form of proviso to Section 61 (2) which lays down a complete procedure to be adopted before initiation of prosecution, which is as follows : S. 61(2) No Court shall take cognizance---- (i) ................................... (a). ****************** (b). ******************* (ii) of any offence punishable under Section 56 or Section 57, except upon complaint in writing made by -- ----- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made or issued under FERA or under any order or notification made thereunder, provides as follows:- A direction, order or notice made or issued under the Act or these rules or any order or notification made thereunder shall be served on any person in the following manner, that is to say------ (a) by delivering or tendering it to that person or to his duly authorized agent; Or (b) by sending it to him by registered post with acknowledgment due to the address of his place of residence of his last known place of residence or the placewhere he carries on, or last carried on, business, or personally works, or last worked, for gains; or (c) If it cannot be served in any of the manners aforesaid, by affixing it on the outer door or some other conspicuous part of the premises in which that person resides or is known to have last resided or carries on , or last carried on business, or personally works or last worked for gain and the written report whereof should be signed by two persons. 20. It is averred by the petitioner that in terms of Rule 3(a) of the FERA it received notice on 23rd May, 2002 and sent his reply dated 25th May, 2002 by Speed Post and Registered Post on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered Bank vs. Directorate of Enforcement (2006) 4 SCC 278 (Para 10,11,12) in respect with Section (2) of the FERA considered by this Court in Ranjit Raj Anr. Vs. Sanjay Mishra Ors ; 165 (2009) DLT 614. is not applicable to the present case for reasons stated by the petitioner as below:- (i) That the facts of Standard Chartered Bank's case (supra) is different as in the said case the officials of the bank filed a Writ Petition assailing the constitutional validity of Section 50,51, 56 and 68 of the FERA seeking a writ of prohibition against department from initiating any proceedings against them . (ii) The Supreme Court in Standard Chartered s case (supra) did not discuss the nature and scope of notice issued under Section 61 (2) of the FERA as held in Ranjit Raj's case (supra), on the contrary the Supreme Court held therein that scope and ambit of Section 61 is controlled by Section 61 itself and hence declined to issue writ of prohibition. (iii) This Court in para 18 of the judgment in Ranjit Raj's case (supra) distinguished the facts of Devashish Bhattacharya's case (supra), which is applicable to the present case. (iv) It is not held in any of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s served upon the petitioner on 22nd August 2002 i.e. after filing of the complaint, which was replied by petitioner vide reply dated in 19th September, 2002. 29. It is admitted fact that no proof of service of notice was filed by the respondent at the time of filing the complaint on 27th May, 2002 to establish that an opportunity in terms with Section 61 (2) was given to the petitioner and the petitioner failed to respond the same by showing that it has permission from the RBI or not making him liable for prosecution under Section 56 of the FERA. 30. In view of the above facts as well as the legal bar imposed in proviso to Section 61 of the FERA, is ought to have satisfied himself at the first instance before issuance of the process about compliance of proviso to Section 61 (2) about the factum of opportunity given to the accused and his satisfaction to this effect must be there before taking cognizance against the petitioner in exercise of his legal duty, as there is a statutory bar imposed upon the ACMM from taking cognizance. If the trial court would have exercised his legal duty diligently in terms of Section 61 (2) of the FERA the cognizance could not have been taken fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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