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TMI Blog2016 (6) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... n No.497 of 2011 assailing the order passed by the learned Additional Sessions Judge, Fort, Greater Bombay in Criminal Revision No.716 of 2008 whereunder the revisional court had dislodged the order of discharge passed by the Chief Metropolitan Magistrate, Mumbai in Complaint Case No.1149/S/2002 wherein the company as well as its officer were facing trial for the offence punishable under Section 56(1)(i) of the Foreign Exchange Regulation Act, 1973 (for short, 'the Act') for the alleged contravention of the provisions of Sections 18(2) and 18(3) of the Act. 3. As the factual matrix would depict, when the matter was pending for trial before the learned Chief Metropolitan Magistrate, the adjudicating authority vide order dated 30.03.2005 imposed penalty of Rs. 2,00,00,000/- (Rupees two crore only) against the appellant-company and penalty amounting to between Rs. 50,000/- (Rupees fifty thousand only) to Rs. 2,00,000/- (Rupees two lac only) on each of the Directors. Being grieved by the order passed by the adjudicating authority, the company as well as the Directors preferred Appeal No.517 of 2005 and other connected appeals before the Appellate Tribunal for Foreign Exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also shown as directors of M/s. Videocon Appliances Ltd. 12. The Reverse Bank of India by two letters of dated 21.1.1992 and dated 18.2.1994 as at page 46 and 52 of the records has also stated that international transactions of trade by purchase of goods from Japan and Korea and sale to M/s. Radio Exports, Russia does not require any filling up of the GRI form along with declaration under Section 18(1)(a) nor are covered under Treat Agreement mechanism with Russia about payment. We have not been led to anything wherefrom this Tribunal can find that RBI has gone wrong. RBI functions as delegated authority of Parliament under FER Act and in this sense of term functions as Controller and Regulator of foreign exchange, hence, the advice of RBI given by aforesaid two letters is required to be accepted when it is totally in consonance with the legal provisions." [Underlining is ours] 5. Being of this view, the tribunal dislodged the finding of the adjudicating authority. 6. Be it noted here, the order passed by the tribunal was not assailed by the Revenue and, therefore, it has attained finality. 7. Presently, we shall advert to the scenario in the court of the learned Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of this view, the High Court has expressed the opinion that the tribunal has not given any finding on the merits of the case and its findings are based on technical grounds. The said appreciation has led to the dismissal of the criminal application preferred by the assessee. 10. We have heard Mr. C.U. Singh, learned senior counsel for the appellant and Mr. A.K. Panda, learned senior counsel for the respondents. 11. It is submitted by Mr. Singh that the High Court has not appropriately decided the petition regard being had to the jurisdiction under the Code of Criminal Procedure and keeping in view the principles stated by the majority in Radheshyam Kejriwal (supra) but has allowed itself to decide on the justifiability of the order passed by the tribunal in appeal preferred by the appellant and, therefore, the ultimate conclusion is vitiated. Learned senior counsel further submits that the order passed by the tribunal cannot be regarded as an order passed on technical grounds as the tribunal has analysed the facts and taken a view and same having gone unchallenged, the order of discharge passed by the learned Magistrate is absolutely defensible and should not have been interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter had proceeded, as has been indicated earlier, to record its opinion about the transaction on which the tribunal has rendered its verdict. It is submitted by Mr. Singh, learned senior counsel appearing for the appellant that the order of the tribunal was not under assail before the High Court and, hence, the High Court could not have commented on the merits of the same. We find substance in the aforesaid argument. As the order passed by the tribunal was not under challenge, the High Court should not have deliberated on the justification of the view expressed by the tribunal. It is interesting to note that the High Court has relied on the principles of the majority in Radheshyam Kejriwal (supra) and declined to quash the proceedings. Mr. Panda, learned senior counsel appearing for the revenue would strenuously argue that the Radheshyam Kejriwal (supra) is contrary to the view expressed in the Standard Chartered Bank (supra) and, therefore, the matter requires to be reconsidered by the larger Bench. As we find, that the decision in Standard Chartered Bank (supra) has been copiously referred to in the opinion by the majority and on facts it has been distinguished. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that adjudication proceedings and criminal proceeding are two in- dependent proceedings and both can go on simultaneously and finding in the adjudication proceedings is not binding on the criminal proceeding and the judgments of this Court in Uttam Chand, G.L. Didwania and K.C. Builders wherein this Court had taken a view that when there is categorical finding in the adjudication proceedings exonerating the person which is binding and conclusive, the prosecution cannot be allowed to stand. The judgments of this Court are not to be read as a statute and when viewed from that angle there does not seem any conflict between the two sets of decisions. It will not make any difference on principle that latter judgments pertain to cases under the Income Tax Act". 18. In the ultimate eventuate, the following principles were culled out from the decisions referred to in the judgment. The majority has put it thus:- "The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of FER Act, 1973 and the advise of the Reserve Bank of India given in its letters dated 21.1.1992 and 18.2.1994 deserve to be accepted as they are totally in consonance with legal provisions. The High Court, without an assail to the order passed by the tribunal, has adverted to the same and opined that it does not subscribe to the view expressed by the tribunal that Section 18(2) and 18(3) of the Act were not applicable to the transaction in question. The High Court could not have done that. We may note with profit that the High Court after stating that has reproduced paragraph 38 and (vi) and opined that the findings given by the tribunal are based on technical grounds and, therefore, the prosecution is liable to continue. As we perceive, the judgment of the tribunal is on merits, inasmuch as findings have been recorded after analysis of facts and the conclusion has been arrived at that the appellants have not violated the provisions of the Act. In such a situation, it cannot be said that it is a judgment rendered on technical grounds and, therefore, we are compelled to hold that the High Court has totally erred in law. 22. In view of the aforesaid analysis, we allow the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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