9911796707
TMI Blog2015 (3) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... k (ISDN) connection was given to 12 subscribers each at business premises of the companies at E-380 Greater Kailash, New Delhi to petitioner's company M/s Intergroup C& E Ltd. and another company at M-70 Greater Kailash belonging to co-accused Shri Arindam Ganguly. 3. The modus operandi as alleged by MTNL in the complaint was that one ISDN line was made a permanent channel at each of the above premises and thereafter by using sophisticated equipment international calls were being 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. Rs. 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 petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, 2002 and cognizance taken by ACMM, the petitioner filed this present petition inter alia on the following grounds:- i) The respondent did not observe the statutory and mandatory provisions of FERA before initiating the proceedings of criminal complaint against the petitioner as held by this Court for the co-accused of the present petitioner in Devashis Bhattacharya's case decided by this Court. ii) That in terms with the proviso of Section 61(2) (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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he compliant does not disclose the date of this notice and there is no mention of the reply submitted by the petitioner. It is apparent therefrom that complaint was drafted before or at the time of preparation of notice dated 17th May, 2002 and the same is filed without considering the objections of petitioner in its reply dated 25th May 2002. 14. It is well settled law that where law mandates something to be done in a particular way, then 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the exercise of jurisdiction by ACMM . The order taking cognizance in the instant case and issuance of summons is contrary to law. 19. Reference is made to Section 10 of General Clauses Act, 1897 in respect to computation of time for complying with opportunity notice dated 17th May, 2002 served on 23rd May, 2002. Furthermore, Rule 3 of FERA provides method for service of directions, orders or notices 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice upon the petitioner is doubtful. 24. The issue of opportunity notice and service thereof in the present case is also discussed by this Court in paras 15-30 of Devashish Bhattacharya's case (supra) and ratio of law laid down therein is applicable to the present case. 25. With regard to second contention of the respondent, the ratio of law laid down in judgment Standard Chartered 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flects no proper care is taken to serve the notice in accordance with prescribed in Rule 3 of the FERA which clearly prescribe the mode and manner of service of notices issued underthe FERA and therefore cannot be considered as a proper service of the notice of opportunity. 28. 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. 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 giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
