TMI Blog2008 (2) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of investigation, a directive had been issued by the RBI to REIL on 19th September, 1996 under Section 33(2) FERA calling for the details of outstanding exports. By a letter dated 23rd October, 1996 REIL informed RBI that during the period 1992-96 the Directors of the REIL were Shri Ratan Lal Bagaria, Shri Bijoy Bagaria, Shri Ajay Bagaria, Shri Mohan Churiwala, Dr. S.Rangana and Smt. Vidya Bagaria. Summons under Section 40 FERA was issued to the REIL on 17th September, 1997. Shri Palash Ganguly, Director of REIL appeared and made a statement on 17th October, 1997 before the Enforcement Directorate. Shri Palash Ganguly informed that: Shri Ratan Bagaria is controlling all the operations and the day-to-day affairs of the company, the presently S/Shri Ratan Bagaria, Managing Director and S/Shri Bijoy Bagaria, N.K. Hara, S.N. Garg and Palash Ganguly (himself) are the Directors and are working on the instructions of Shri Ratan Bagaria that Shri Ratan Bagaria is out of country to Russin since January 1997; that REIL has an office in Moscow, Russia at 19, Begovarya Street and the phone No. is 9454880; that a total amount of ₹ 22,50,55,144.95 is pending realization on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to obtain the same. 7. A show cause notice was nevertheless issued on 9th May, 2002 issued by the Enforcement Directorate against the company and its Directors/Guarantors including the Petitioner here for contravention of Section 18(2) FERA. Simultaneously on 30th May 2002 a complaint was filed under Section 56 FERA against the company and its Directors/Guarantors including the Petitioner here. On 30th May 2002 the following order was passed by the learned ACMM: 30.5.2002 Present: SPP along with complainant. New complaint presented. It be checked and registered. Photocopy of documents have also been filed along with complaint. Ahlmad is directed to check the documents as per index attached with these documents. An application for exemption of personal attendance of complainant and for dispensing of recording of preliminary evidence has also been moved along with this complaint. As this complaint has been filed by a public servant in discharge of his public duties hence recording of preliminary evidence dispensed with. Personal attendance of complainant has also been dispensed with. Complainant has been allowed to be represented through SPP. Complaint and documents p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned trial court to that effect. It is further submitted that the documents like the annual return cannot be examined in these proceedings and also have to be proved only at the trial. It is submitted that scope of interference by this Court under Section 482 CrPC is extremely limited and has to be sparingly used. A reference is made to the judgment of Medchi Chemicals Pharma (P) Limited v. Biological E. Limited (2002) 3 SCC 269, Om Wati v. State 2001 AD (Crl) SC 69, Maratt Rubber Limited v. J.K. Marattuklam 2000 III AD (Crl) SC 1 and State of Madhya Pradesh v. S.B. Johari 2000 I AD (Crl) SC 421. 11. Section 68 FERA reads as under: 68 Offences by companies: (i) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made there under 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 render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India. That letter does not specifically show which of the named persons are directors and which are guarantors at that time for the purpose of Section 68 FERA, the person in charge of the affairs of the company. Section 68(2) FERA also seeks to rope any employees of the company if it is shown that the offence took place in connivance with the director, manager, secretary and any other officer. There is no other category of persons like for e.g., the guarantors, who can be made liable for the offences committed by a company under Section 138 NI Act. Likewise under Section 68 FERA, there is no question of a guarantor for being made liable the offences committed by a company. 15. The Petitioner has forcefully refuted the allegation that he was a Director of the company at the time of commission of offence. He has throughout maintained that he has resigned on 22nd August 1990 whereas the period for which the company has been charged for the offences is between 1992 and 1996. The Respondent has not been able to show that the Petitioner was in fact either charge of the company or responsible to it for the conduct of its business at the time when the offence was committed. It is one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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