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The Enforcement Officer Versus Mohammed Akram

2017 (8) TMI 574 - SUPREME COURT OF INDIA

Disobedience to respond to the summons issued under Section 40(3) FERA - offence under Section 56 of FERA, 1973 - Held that:- This point has come up for consideration before this Court in Enforcement Director and Anr. v. M.Samba Siva Rao and Ors. (2000 (5) TMI 586 - SUPREME COURT OF INDIA). Due to the divergence of opinion of the High Courts of Kerala, Madras on one hand and High Court of Andhra Pradesh on the other, a three Judge Bench of this Court considered the matter and held as clauses (i) .....

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r the Act, and therefore, such contravention would squarely come within the ambit of Section 56 of the Act. - The question of service under Section 40(3) of FERA, 1973 not being effected on the Respondent is irrelevant at this point of time as he was represented by an Advocate before the Trial Court. It appears that the Respondent is not interested in these proceedings. In any event, the judgment of the High Court cannot be sustained as it is contrary to the law laid down by this Court in En .....

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nted. These Appeals are preferred against the judgment dated 29.07.2011 in Criminal Appeal No.940 of 2007 of the High Court of Karnataka at Bangalore and the judgment dated 10.01.2012 in Criminal Revision Petition No.1177 of 2011. 2. Notice was issued to the Respondent on 24.08.2012. As service could not be effected in the normal course, by an order dated 08.05.2014, this Court directed the Appellant to take appropriate steps for effecting the service on the Respondent as per the procedure presc .....

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ing the procedure prescribed in Section 65 Cr. P.C., the Bailiff affixed the summons on the door of the Respondent s house at his last known address. The Respondent is deemed to have been served. None appeared for the Respondent today. 3. The Assistant Director, Enforcement Directorate (FERA), Bangalore filed a complaint against the Respondent and two others for an offence punishable under Section 56 (1) (ii) of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as the FERA 1973 .....

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d under Section 40 of FERA on 23.10.1997 directing the Respondent and two others to appear before the Enforcement Officer, Bangalore on 24.10.1997. The Respondent and others failed to respond to the summons. As the Respondent and two others did not appear before the Enforcement Officer, CC No.86 of 1998 was filed before the Special Court (Economic Offences), Bangalore by the Assistant Director, Enforcement Directorate (FERA), Bangalore. The Respondent was represented in the said proceedings by a .....

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f summons on the Respondent was effected by affixing a copy of the summons on door of the house of the Respondent was not accepted by the Special Court. It was held that the complainant failed to prove the address of the Respondent by adducing any evidence. As the authorities did not prove the valid service of summons on the accused either personally or by substituted service, according to the Trial Court, the contravention of Section 40 (3) FERA did not arise. That apart, the Trial Court furthe .....

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gment of the Kerala High Court in Itty s case (supra), holding that disobedience of summons for appearance does not amount to contravention of the provisions of FERA, 1973. The Appellant preferred a Criminal Revision Petition under Section 397 Cr. P.C. requesting for setting aside the order passed by the High Court in Criminal Appeal No.940 of 2007 which came to be rejected as being not maintainable. The said judgments of the High Court in Criminal Appeal No.940 of 2007 dated 29.07.2011 and judg .....

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s of Kerala, Madras on one hand and High Court of Andhra Pradesh on the other, a three Judge Bench of this Court considered the matter and held as follows: 4. A learned Single Judge of the Kerala High Court considered this question in the case of Itty v. Asstt. Director [(1992) 58 ELT 172 (Ker)]. On a conjoint reading of Sections 40 and 56 of the Act, the learned Judge came to the conclusion that the failure to obey the summons issued under Section 40(1) cannot be held to be a contravention of t .....

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w clauses (i) and (ii) of Section 56(1) are material for deciding the quantum of punishment and further, there is no reason why the expression in any other case in Section 56(1)(ii) should be given any restrictive meaning to the effect that it must be in relation to the money value involved, as has been done by the Kerala High Court. The summons issued under Section 40, if not obeyed, must be held to be a contravention of the provisions of the Act and at any rate, a contravention of a direction .....

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ct is identified and substantiated only in terms of the extent and value of the money involved in the offence, and therefore, violation or contravention of summons, issued under Section 40 of the Act unrelated to the money involved in the investigation cannot be held to be punishable under Section 56. Against the aforesaid judgment of the Madras High Court, the department had preferred appeals to this Court, which were registered as Criminal Appeals Nos. 143-44 of 1998, but the question raised w .....

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