TMI Blog2017 (8) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... son 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 issued under 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received from the Special Court (Economic Offences), Bangalore that the Respondent was not available at the time when the Bailiff visited the last known address to serve the summons. Following 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 ). It was alleged in the complaint that M/s Pheroze Fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 further held that refusal to appear before the Enforcement Officer in spite of summons under Section 40 (1) of FERA cannot be regarded as a contravention of the Act. The Special Court followed the judgment of the Kerala High Court in Itty v. Assistant Director , reported in 1992 (58) E.L.T. 172 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tt. 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 the provisions of the Act, rule, direction or order inasmuch as it is only when directions pertaining to some money value involved are disobeyed, such disobedience is punishable under Section 56 of the Act. The learned Judge applied the ordinary rules of construction that penal statutes should receive a strict construction and the person to be penalised must come squarely within the plain words of the enactment. We are unable to accept the constructions put in the aforesaid judgment as in our view claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised was not necessary to be answered as the persons concerned appeared before the Enforcement Authorities and were arrested by the said Enforcement Authorities and, therefore, this Court kept the questions of law open by its order dated 20-7-1998. In yet another case, the question arose for consideration before the Madras High Court in Criminal OP No. 5718 of 1996 and a learned Single Judge did not agree with the earlier decision of the said High Court in Criminal OPs Nos. 5468 and 5629 of 1996 and referred the matter to a Division Bench by his order dated 13-8-1997 and it was submitted at the Bar that the Division Bench has not yet disposed of the matter. The question came up for consideration before the Andhra Pradesh High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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