TMI Blog2016 (6) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal 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. Thus we allow the appeals, set aside the judgments and order passed by the High Court as well as by the learned Additional Sessions Judge and direct that the order passed by the learned Magistrate discharging the accused persons shall stand restored. - Criminal Appeal No. 332 of 2016 (Arising out of Special Leave Petition (Crl) No. 10515 of 2013), Criminal Appeal No. 333 of 2016 Arising out of Special Leave Petition (Crl) No. 40 of 2014) - - - Dated:- 19-4-2016 - Dipak Misra And Shiva Kirti Singh, JJ. For the Petitioner : Mr. C.U. Singh, Sr. Adv. Mr. Siddharth Bhatnagar, Adv. Mr. S. Mishra, Adv. Mr. Sidharth Mohan, Adv. Ms. Garima Tiwari, Adv. Mr. Nirnimesh Dube,Adv. SLP(Crl.) 40/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the goods in question were never exported outside India so Section 18(2) is in no way can be applied to these transactions because such international selling is not governed by Section 18(1) (a) of FER Act. The impugned order has repeatedly said that for purchase of CPT colour tubes from Japan and Korea the appellant spent the foreign exchange. May it be so. But such spending of foreign exchange in international trade by an Indian person is not forbidden by Section 19 of FER Act. Shri A.C. Singh, ALA could not point out any other provision in FER Act where spending of foreign exchange is prohibited in international trade by a person resident in India. It is well known fact that international trade is transacted by spending foreign exchange but the earning of foreign exchange is also made by person resident in India. There is no law whereby Indian resident is regulated from entering into international trade. If that is so, the appellant cannot be held guilty for Section 18(2) read with Section 18(3) of FER Act, 1973. [Emphasis added] 4. After so stating, the tribunal proceeded to opine that:- 11. The act of transferring trade license which was earlier in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge dislodged the view expressed by the learned Magistrate and allowed the revision. Being dissatisfied, the appellant preferred Criminal Application No. 497 of 2011 before the High Court. The learned single Judge referred to the decision Radheshyam Kejriwal v. State of West Bengal Anr. (2011) 3 SCC 581, noted that the revisional court had relied on the minority view, reflected on the principles culled out in the said case, adverted to the findings recorded by the tribunal and thereafter opined that:- In the present case, however, what is noted is that though the goods were physically shipped from Korea and Japan, the same were shipped on behalf of the accused and in my considered opinion it amounted to export. It is stated to be third country export. In such a case of export, in my view, it is not necessary that the goods shall necessarily be shipped from the shores of India. It is noted that permission was obtained by the accused to ship the goods from South Korea and Japan directly. Foreign exchange was paid to the Japanese and Korean companies. The payment was to be received in Indian rupees and same was supposed to be received in India at Indian Bank, Nariman Point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require to be interfered with by this Court. 13. In reply, Mr. Singh would contend that in Radheshyam Kejriwal (supra), the decision rendered in Standard Chartered Bank (supra) has been extensively considered and distinguished and the basis of the distinction forms the foundation of discharge in the present case and, therefore, this Court should exercise its jurisdiction under Article 136 of the Constitution and set aside the order of the High Court. That apart, it is urged that there is no necessity for reconsideration of the decision in Radheshyam Kejriwal (supra) by a larger Bench. 14. It is obligatory to note at the outset that the findings recorded and the conclusions arrived at by the tribunal are founded on analysis of statutory provisions, the applicability of the letters issued by the Reserve Bank of India and the nature of transaction carried out between the parties. It is beyond any stretch of doubt that the decision rendered by the tribunal is on merits. It is not an adjudication on any technical foundation. The decision on merits was allowed to rest by the revenue. The learned Magistrate, as has been stated earlier, relying upon the decision in Radheshyam Kejriw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two proceedings are independent. The finding in one is not conclusive in the other. In the context of the objects sought to be achieved by the Act, the elements relied on by the learned Senior Counsel, would not justify a finding that a prosecution can be launched only after the completion of an adjudication under Section 51 of the Act. 16. In that context, the majority in Radheshyam Kejriwal (supra) has proceeded to pose the issue required to be adjudicated in the said case. It is as follows:- However, in a case like the present one in which the penalty proceeding under Section 51 of the Act and the prosecution under Section 56 of the Act though launched together but the penalty proceeding culminated earlier exonerating the person, the question would arise as to whether continuance of the prosecution would be permissible or not. In other words, the question with which we are concerned is the impact of the findings which are recorded on the culmination of adjudication proceedings on criminal proceeding and in case in the adjudication proceedings the person concerned is exonerated can he ask for dropping of the criminal proceeding on that ground alone . 17. Thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases . 19. Clarifying the position, the majority observed that the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. On the basis of the aforesaid principles, the majority proceeded to analyse the factual matrix and analysed the finding recorded by the adjudicating authority and opined when there is a finding by the Enforcement Directorate in the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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