TMI Blog2017 (2) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... y and she does not know about the contravention took place in the day today administration of the company is not acceptable, at the present stage, since so many materials were produced on the side of the Enforcement authorities. Further, the learned Senior counsel appearing for the petitioner has submitted that at the time of interrogation by the respondent authorities, the petitioner has denied all the questions and she has specifically stated that she had no knowledge about the business transactions of the company and the day today affairs of the Company. In this regard, this court is of the considered view that the petitioner/A3 denied all the questions raised by the enforcement officials and replied that she did not know about the company day today affairs and hence, this court has to look into the materials and evidences produced on the side of the Enforcement authorities. On verification of the materials available on record, it is presumed that the petitioner/A3 is responsible and liable for the contraventions done by the A1 Company and there are sufficient records and evidences produced on the side of the enforcement authority. Hence, this court is of the considered vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to invoke Section 68 of the FERA and serious injustice has been caused to the petitioner by reason of non-reference to those judgments and others and that the learned Judge failed to see that the complaint as filed against A3 is not maintainable and there is no need to invoke vicarious liability under Section 68 of the Act and that the learned Judge failed to see that the company had a Managing Director, who has arrayed as A2 and that the petitioner/A3 was only an ordinary Director and that the learned Judge failed to see that to invoke vicarious liability under Section 68 of the Act, the complainant must make averments in the complaint itself, is Director concerned was in-charge of and response for the day to day management of the company, where there is no such averment made in the complaint, it is wholly not maintainable against the Director and on that ground alone, the petitioner/A3 ought to have been discharged and that the learned Judge failed to see that none of the prosecution witnesses had spoken or deposed that the petitioner/A3 was in-charge of or responsible to the day today administration of the company and that the learned Judge failed to see that the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra and another] 11.2002 CRL.L.J.3026 [J.Jayalalitha and etc., vs, State and others] 12.1983(4) Delhi Reported Judgments 272 [Smt. Motia Rani Bhatia vs. Addl. Director of Enforcement others] 13.(2012)5 SCC 661 [Aneeta Hada vs. Godfather Travels and Tours Private Limited] 14.2013-2-L.W (Crl.)289 [S.Balasubramanian another vs. The State of Tamil Nadu and others]. 15.(2013)12 SCC 17 [State of Maharashtra vs. Kamal Ahmed Mohammed Vakil Ansari and others] 16.1996-2-L.W..637 [T.H.S. Rahmath Fathima vs. T.K.Kader Mohideen] 17.(1981)1 SCC 80 [Ramji Dayawala and sons (P) Ltd., vs. Invest Import. 18.(2003)8 SCC 745 [Narbada Devi Gupta vs. Birendra Comber Jaiswal and another] 19.(2010)4 SCC 491 [Life Insurance Corporation of India and another vs. Ram Pal Singh Bisen]. 20.(2010)4 SCC 329 [Tukaram S.Dighole vs. Manikrao Shivaji Kokate]. 21.(1986)2 SCC 716 [R.S.Nayak Vs. A.R.Antulay] wherein it has been held that: 43.As pointed out by the Constitution Bench in the judgment to which reference has been made, the relevant Sections of the Code of Criminal Procedure ('Code' for short) for the trial of a case of this type are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge under Section 245(1) is a preliminary one and the test of prima facie case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial court is satisfied that a prima facie case is made out, charge has to be framed. 22.2002 SCC On Line Mad 913 [Karam Chand Thaper and Brothers (Coal Sales) Ltd. vs. T.G.Vasanth Gupta], wherein, it has been held as follows:- 7.The counsel for the respondent argued that since the company has not been added as an accused, the Managing Director alone cannot be an accused. To this, the revision petitioner replied what is complained against the respondent is the offence of cheating which requires a mental element. A corporate body cannot have a mental status. Further, the complaint by the complainant is only against the misrepresentation made dishonestly by the Managing Director who is the respondent herein. Therefore, non-inclusion of the company as an accused does not affect the case of the petitioner. This argument of the counsel for the revision petitioner is acceptable. It is a case of dishonest representation made by the Managing Director and hence, company need not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion found on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. 24.(2006)4 SCC 659 [State of Maharashtra vs. Momnath Thapa others], wherein it has been held as follows:- 32.The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. 25.(2009)14 SCC 115 [Ajay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. 14. When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it-clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed). 15. The above procedure, if followed, will have two advantages. First is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islation of the seal of the Clerk of the County of New York. In that context, I see no difficulty whatever, legal or otherwise, in admitting this affidavit on the records of the court I need hardly quote R.6 of the Company Rules, 1959 of this Court which says' Save as provided by the Act or by these Rules, the practice and procedure of the Court and the provisions of the Code so far as applicable shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any of the documents which is presented otherwise than in accordance with this rules of the practice and procedure of the Court. 33.As I have said above, admitting this affidavit on the records of this Court will be following the practice and procedure of this Court. That is how I understand the cursus curiae of this Court for may years. 4. Per contra, Mr.G.Rajagopalan, the learned Additional Solicitor General appearing for the respondent would contend that there are sufficient materials available against the petitioner/A3 and the petitioner/A3 has passed the resolution of the company and in pursuance of the resolution passed by her, the company entered into contract with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Explanation: For the purposes of this sub- section, a person who deposits foreign exchange with another person or opens an account in foreign exchange with another person, shall be deemed to lend foreign exchange to such other person. (2)Except with the previous general or special permission of the Reserve Bank, no person, whether an authorised dealer a money changer or otherwise, shall enter into any transaction which provides for the conversion of Indian currency into foreign currency or foreign currency into Indian currency at rates of exchange other than the rates for the time being authorised by the Reserve Bank. (3)Where any foreign exchange is acquired by any person, other than any authorised dealer or a money changer, for any particular purpose, or where any person has been permitted conditionally to acquire foreign exchange, the said person shall not use the foreign exchange so acquired otherwise than for that purpose or, as the case may be, failed to comply with any condition to which the permission granted to him is subject, and where any foreign exchange so acquired cannot be so complied with, the said person shall, within a period of thirty days from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder or on behalf of any person resident outside India; .... Section 68: Offences by companies- (1)Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time of contravention was committed, was in charge of, any 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 took place without his knowledge or that he exercise all due diligence to prevent such contraventions. (2)Notwithstanding anything contained in sub section 1), where a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person s handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document. 11. On perusal of the entire materials available on record, it is clearly revealed that so many incriminating materials available against the petitioner/A3. It is also revealed that the petitioner/A3 was informed by A2 about the business transaction of the A1 Company then and there. 12. Further, the petitioner/A3 has acted as Chairperson for the Board of Directors of the Company meeting and passed resolution in the Board Meeting and A1 Company entere ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
