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M/s National Fertilisers Ltd., Arun K. Maitra & Others Versus Enforcement Directorate

2016 (4) TMI 366 - DELHI HIGH COURT

Violation of provisions of FERA by the SBI officials - Validity of summons - making full advance payment to the tune of US$ 38 million without either obtaining any prior permission of the Reserve Bank of India (‘RBI’) or any guarantee from an International Bank of repute situated outside India to safeguard their money - Held that:- petitioners are not covered under Sub-section (ii) of Section 49 of FERA for abetting or not complying with all or any such conditions.

Summoning order da .....

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bordinate officers other than Managing Directors, Directors and Executive Directors as per the provisions of Section 68 of FERA.

The respondents deliberately and willfully ignored the investigation conducted by CBI whereby, chargesheet at Para 2 confirmed that C.K. Ramakrishnan and D.S. Kanwar who were functioning as Managing Director and Executive Director respectively in the petitioners company were responsible having domain over the funds of the company during the year 1995-96 and .....

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and Summons quashed - Decided in favor of petitioner. - CRL. M. C. 3003/2002, CRL.M.C. 5093/2003 - Dated:- 9-3-2016 - Suresh Kait, J. For the Petitioner : Mr. Dinesh Mathur, Senior Advocate with Mr. Ghanshyam Joshi and Mr. Chirag Joshi, Advocates For the Respondent : Mr. Rajesh Manchanda and Mr. Rajat Manchanda, Advocates ORDER Suresh Kait, J. 1. By way of the present petitions filed under Section 482 Cr.P.C. petitioners seek directions thereby quashing of criminal complaint filed by respondent .....

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the petitioner company), whereas Crl. M.C. 5093/2003 has been preferred by employees of above named Company. 4. It is important to note that vide orders dated 03.10.2002 and 16.12.2003 proceedings against the petitioners have been stayed by this Court. 5. The facts of the cases in brief are that petitioners company deals in fertilizers, heavy chemicals and their by-products including manufacturing and distribution and in case of necessity arises for the country, the Company was authorized to imp .....

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gulation Act, 1973 (hereinafter referred to as FERA ) as the petitioners company while acting as a canalizing agency for import of fertilizers entered into a contract with one Turkish Company namely M/s. Karsan Ltd. for supply of 200000 Metric Tons of Urea and made full advance payment to them to the tune of US$ 38 million without either obtaining any prior permission of the Reserve Bank of India ( RBI ) or any guarantee from an International Bank of repute situated outside India to safeguard th .....

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9(1)(f)(i) and (3), 49, 64(2) and 73 (3) read with Section 68 of FERA. 7. Ld. Sr. Counsel further submitted that the complaint is contrary to the investigation and chargesheet filed by the CBI in case bearing No.RC-3A/96-ACU-1. The CBI, in fact, found that the petitioners company was the victim of the conspiracy of the accused therein punishable under sections 120B/201/409 and 420 of IPC and Section 13 (2) read with Section 13 (1) (c) and (d) of Prevention of Corruption Act. Some of the petitio .....

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ar 1996 itself. Hence, the institution of the complaint in question is nothing but an attempt to abuse the process of law and appears to be based on frivolous charges and is an afterthought complaint. 8. Ld. Sr. Counsel further submitted that the petitioners employees have been arrayed as witnesses in CBI case mentioned above. Some of them have already been testified while others are now reluctant to do so, although their testimonies in that matter are of critical importance as they feared that .....

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0, which gives protection against self-incrimination, as upheld by the Supreme Court in the case of M.P. Sharma Vs. Satish Chandra, [1954] 1 SCR 1077. 10. Further submitted that ld. Trial Court was mislead by the respondent as they suppressed the material fact that the petitioners company had initiated Arbitration proceedings for recovery of cheated/defrauded money from M/s. Karsan and its Banks. The petitioners company has kept the Reserve Bank apprised of its steps to recover its amount of mon .....

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sel further submitted that as regards the petitioner company, a bare reading of the allegations shows that the Provisions of Section 56 of FERA along with alleged offences/violations are not even protected as none of the violations are alleged out against the petitioners company. Perusal of aforesaid Section shows that it is the duty of authorized agent that before engaging/undertaking in any transaction involving in foreign exchange, it has to take care of the directions and instructions issued .....

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y nor any duty to perform in the light of the provisions of the aforesaid Sections. Furthermore, there is no question of attaching vicarious liability on the petitioners for the actions of any entity of the Government including SBI. 12. Further there are no specific allegations in the complaint against the petitioners employees, except vague and general allegations that the petitioners were liable and responsible for the work of the petitioners company. Thus, the complainant failed to demonstrat .....

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t to mention here that in affidavit dated 20.02.2010 filed by Sh. K.C. Abraham, officer of respondent / Department in Crl. M.C. 5093/03, there is one letter dated 12.06.1996 of Reserve Bank of India requesting the respondent / Department to coordinate with CBI in respect of the investigation in the afore-noted matter. The said fact has been concealed by the respondent in the complaint in question. Moreover, in Snap Inspection Report of RBI annexed with the said affidavit it is mentioned that Ass .....

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een convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation .....

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age on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party. The second respondent, in our opinion, was not justified in suppressing the material fact that he was convicted by the Magistrate on an earlier occasion. Since the second respondent deliberately suppressed the crucial and important fact, we disapprove strongly and particularly, the conduct of the second respondent and by reason of such conduct, the second respondent disentitled himself f .....

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However, their retirement benefits, i.e., gratuity, encashment of earned leave etc. have been withheld by the Company due to the pendency of the complaint before the Trial Court. Rest of the petitioners, i.e., petitioner nos. 2, 8 and 9 are serving and now they are at the fag end of their service. They have been denied of their promotions due to the pendency of the complaint whereas their juniors have been promoted. As such, the petitioners are facing day-to-day humiliation due to their non-pro .....

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he criminal proceedings which are at the threshold. We do not think that on filing of any application for discharge. High Court cannot exercise its jurisdiction under Section 482 of the Code. In this connection, reference may be made to two decisions of this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate : 1998 Cri LJ 1 and Ashok Chaturvedi v. Shitul H. Chanchani: 1998 Cri LJ 4091 , wherein it has been specifically held that though the Magistrate trying a case has jurisdiction to disch .....

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rs have violated the Procedures and Rules while signing the contract and accepting the terms of payment and delivery of the Urea and by paying the entire amount of US$ 3.80 Lakh and US$ 37.62 million respectively in advance through SBI, New Delhi, to Pamuk Bank Ankara, Turkey and Pictet Bank, Geneva, without prior approval bereft bank guarantee and insurance policy. The aforesaid remittance was made by the authorized dealer, i.e, SBI, who failed to comply with the conditions of RBI as prescribed .....

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15 days from the close of relevant period. The contract in question was signed in violation of the aforesaid provisions. In addition, special permission was also required from RBI before acquisition of payment of aforesaid foreign exchange of US$ 3.80 Lakh and US$ 37.62 million without the same being backed by the requisite International Bank of repute guarantee. The petitioners company did not obtain any permission from RBI and even the SBI did not obtain any permission. In this manner, the afo .....

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he conduct of its shall be deemed to be guilty. 20. Ld. Counsel submitted that the petitioners have committed an offence in collusion with other co-accused persons in a very calculative manner which has caused loss of foreign exchange amounting to US$ 38 million to the Country. The aforesaid amount was remitted in advance in violation of the procedure, provisions and rules by the accused persons as the alleged Urea was not received against the said amount. Thus, the Trial Court has legally and j .....

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and trial for offences under the Act and the provisions of Cr.P.C. will not be applicable to the extent of provisions of FERA. The officers of the respondent are empowered to conduct the investigation pertaining to offence under FERA. 21. Ld. Counsel further submitted that alleged Arbitration proceedings and trial of CBI, case wherein the petitioners are stated to be the witnesses, creates no bar to prosecute them by filing complaint under Section 56 of FERA. No adverse inference can be drawn ag .....

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violated Sections 6 (4) & (5), 8 (1)(3)&(4), 9(1)(f)(i) &(3), 49, 64 (2) & (3) read with Section 68 of FERA punishable under Section 56 of FERA. 23. Ld. Counsel further submitted that only summons have been issued, charges are yet to be framed. Therefore, the petitioners have surpassed the procedure and the present petition is liable to be dismissed being premature. Moreover, the petitioners having violated the due procedure are liable for penal action under FERA. 24. To strengt .....

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ference in this connection can be made to a decision of this Court in the case of Raja Narayanlal Bansilal v. Maneck Phiroz Mistry and Anr. : AIR 1961 SC 29, wherein it has been held as follows: The effect of this decision thus appears to be that one of the essential conditions for invoking the constitutional guarantee enshrined in Article 20(3) is that a formal accusation relating to the commission of an offence, which would normally lead to his prosecution, must have been levelled against the .....

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cution but no question intended to incriminate him can be asked and in case it is done the protection under Article 20(3) of the Constitution shall spring into action. What question shall be put to this Appellant when he appears as a witness is a matter of guess and on that basis he does not deserve the blanket protection under Article 20(3) of the Constitution. Even at the cost of the repetition we may observe that in the Police case when he appears and asked to answer question, the answer wher .....

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ant under Section 67, it was vehemently contended by Mr. R.K.Jain, Senior Advocate that the statements on basis whereof the appellants have been found guilty are not voluntary and thus their conviction cannot be sustained. The statements of the appellants have been recorded by officers of Department of Revenue Intelligence who are not police officers within the meaning of Section 25 of the Evidence Act, 1872. The confessional statements recorded by such officers are admissible in evidence. Learn .....

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, the seizure of the narcotics had taken place between 6 to 9 p.m. at the Customs House and the statements of accused Nos.2, 3 and 6 were recorded on the next day i.e. on 16th May, 1993 and the statement of accused No. 1 was recorded on 17th May, 1993. It may be noted that accused Nos.2, 3 and 6 were apprehended on the spot on 15th May, 1993 whereas accused No. 1 was arrested on 16th May, 1993. The courts below on appreciation of evidence have neither doubted the recovery nor has found the state .....

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, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged. 27. Further relied upon case of State of Karnataka v. L. Muniswamy and Ors. (1977 .....

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put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept. Section 227of the CrPC, 2 of 1974, provides that: If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall .....

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s reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the new Code, which corresponds to Section 561-A of the Code of 1898, .....

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the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the H .....

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contours of that salient jurisdiction. 28. I have heard ld. Counsel for the parties and perused the record. 29. The issues arising for consideration in the present petition are that: I. Whether on the basis of the facts stated in the complaint and the documents annexed thereto the petitioners can be held responsible for the contravention of the provisions of FERA alleged to have been committed by the Company and the accused persons merely being officers of the Company can be said to be in-charge .....

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transaction and took / or obtained any monetary or other benefits? 30. There is no material on record or any specific allegation made against any of the petitioners in the complaint to suggest that even any of these petitioners were involved remotely in the said offence being in-charge or responsible for the affairs of the Company and in that capacity conspired or abetted the offence. The allegations made by the respondent are vague and general and do not bring the petitioners under the ambit of .....

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e and responsible for the work of the said Company and therefore were well conversant with the procedures and documentations for import and finance . 31. After going through the complaint, it is established that except the allegations noted above, no averment is made in whole of the complaint against the petitioners. The only allegation made against one of the petitioners, namely, P.K. Kataria is in respect of directions being given by D.S. Kanwar ED(M) of petitioners company regarding sending l .....

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the Act or any rule, direction or order made thereunder in a company, every person who at the time when the contravention was committed was in-charge and was responsible to, the company for the conduct of business of the Company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. The respondent, however, without ascertaining the facts about the same, without any documentary or other proof stated in the co .....

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e, direction or order made thereunder is a company, every person who, at the time of the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention too .....

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ompany, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Explanation.-For the purposes of this section- (i) company means anybody corporate and includes a firm or other association of individuals; and (ii) director , in relation to a firm, means a partner in the firm. 34. On perusal of the aforesaid provisions, it is established that respondent failed to consider the imp .....

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the Companies Act, 1956, and is governed by Memorandum and Articles of Association of the Company, which are statutory and public documents and the powers and duties of officials flow from the Articles of Association. The respondent deliberately did not file the said documents as the same would have absolved all the petitioners from the offences covered under Section 68 of FERA. The respondent also failed to produce any document on record showing delegated powers to any of the petitioners as in .....

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nts filed and investigation made would have made it clear that only the Managing Director and Executive Director, namely, C.K. Ramakrishnan and D.S. Kanwar respectively, were in-charge and responsible for the affairs of the Company. This may be corroborated from their statements made under Sections 39 and 40 of FERA, which are admissible in law and the same also gets corroboration from the contents of the complaint as well as from the investigation conducted by CBI in case No. RC-3A/96-ACU-1, wh .....

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said Articles are being reproduced as under: Article 79: Appointment of Managing Director. For the conduct and Management of the business of the Company in general and subject to the control and supervision of the Board of Directors, the President may empower the Chairman nominated under Article 92 to exercise the functions of the Managing Director or appoint one of the Directors to be the Managing Director who will be the Chief Executive Officer of the Company. The President may also appoint o .....

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e whole time employees of the Company and shall be whole time employees of the Company and shall be paid such salary and Allowances as may be fixed by the President. Article: 82 which deals with Delegation of Powers. The Board may, from time to time, delegate such of its powers as it may think fit and as are not required to be exercised by the Board at a meeting to the Standing / Executive Committee of Directors, Chairman, the Managing Director, an executive Director, a Functional Director, subj .....

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above two persons and were not delegated to anyone under Article 82 as no documents in this respect has been filed in the Court. Moreover, the respondent has admitted in Para XIV of the complaint that accused nos. 2 and 3 were the CMD and AD (M). The said fact has been confirmed by CBI in the chargesheet filed by it in case RC-3A/96-ACU-1. As per the chargesheet, the investigation has revealed that C.K. Ramakrishnan was functioning as Managing Director and D.S. Kanwar was functioning as Executiv .....

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e funds of the petitioners company. Therefore, by no stretch of imagination, it can be construed that the petitioners committed any act making them liable under Section 68 of FERA. 39. As per the investigation of CBI, the contract was recommended by D.S. Kanwar on 31.10.1995 and approved by C.K. Ramakrishnan on 01.11.1995 and in terms of approved proposed contract, D.S. Kanwar gave instructions to remit 1% of the contract value in Insurance Cover which would show that it was only these persons w .....

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s still under consideration. The said fact establishes that D.S. Kanwar, who had domain over the fund of the company, was interested to get the remittance made under all circumstances even without following due process as required by law. Accordingly, the officials of SBI, the authorized agent for dealing of remittance of foreign exchange, followed the directions of D.S. Kanwar and effected the remittance on 14.11.1995. 40. It is pertinent to mention here that as per the CBI, no role has been as .....

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provisions of Section 68 of FERA only in respect of those persons who were in-charge and running the affairs of the Company at that time and had colluded with certain officials of the authorized banks which were responsible for remittance of the foreign exchange. 41. As per the complaint, the respondent had failed to show any abetment on the part of the petitioners who were neither Managing Directors, Directors, Executive Directors nor having any power or domain over the funds nor instructed the .....

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13.11.1995 directed the SBI to remit the amount positively by 14.11.1995. 43. From the facts recorded above, it is clear that petitioners are not covered under Sub-section (ii) of Section 49 of FERA for abetting or not complying with all or any such conditions. 44. It is important to note that summoning order dated 30.05.2002 was issued just two days prior to the repealing of the FERA Act as on that day hundreds of such complaints were filed and process was to be issued in all those complaints .....

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is an exception to the normal rule of criminal jurisprudence and no person can be held criminally liable for the actions of another. 46. The Supreme Court in the case of Monaben Ketanbhai Shah & Anr. Vs. State of Gujarat and Ors. (2004) 7 SCC 15 observed as under: 7…………The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumpt .....

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2009) 10 SCC 48, the Supreme Court observed as under: 17………the averment in a complaint that an accused is a director and that he is in charge of and is responsible to the company for the conduct of the business of the company, duly affirmed in the sworn statement, may be sufficient for the purpose of issuing summons to him. But if the accused is not one of the persons who falls under the category of 'persons who are responsible to the company for the conduct of the busin .....

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der sub-section (1) of Section 141. Other officers of a company can be made liable only under sub-section (2) of Section 141, be averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence. 21……………the trauma, harassment and hardship of a criminal proceeding in such cases, may be more serious than the ultimate punishment, it is not proper to sub .....

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, a guarantee from the International Bank of repute situated outside India should be obtained. Further stated, special permission was required to be obtained from RBI before acquisition and payment of the above said foreign exchange. Therefore, major role has been attributed to SBI and the only role attributed to the petitioners employees is under the provisions of FERA for which all the documents and investigations lead to the conclusion pointing out the role of C.K. Ramakrishnan and D.S. Kanwa .....

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egard. The Snap Inspection Report held the SBI responsible for remittance. However, it is nowhere mentioned therein that any of the petitioners had played any role in the remittance. 50. As per Section 2(b) of FERA, SBI is the authorized dealer to deal in all foreign currencies as provided under Section 6 (2) (ii) of FERA. As provided under Section 6 (4) of FERA, the SBI in all its dealings in foreign exchange and in the exercise and discharge of powers and of the functions delegated to it under .....

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anaging Director of the petitioners company by calling him in the PMO to help accused Sanjeeva Rao, the relative of the then Prime Minister. The said averments of the complaint shows that the said contract was being dealt with at the highest level, i.e., at the level of the then Prime Minister as his relative Sanjeeva Rao kept on meeting accused C.K. Ramakrishnan between April to October, 1995 due to same, a contract was signed in July, 1995, which was not acted upon in its place. Therefore, ano .....

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