TMI Blog2008 (9) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... ces with particular reference to an amount or value involved and as such the non-compliance of summons under Section 40 (3) of the Act cannot be computed in terms of value or amount and therefore, the penal provision under Section 56 of the Act is not applicable to the instant case ; (2) The petitioner had responded to the summons issued by the Department by sending replies and seeking time to appear on health grounds and therefore, the question of refusal or disobedience of the summons does not arise ; (3) The materials available on record discloses that the petitioner had not mute but had answered all the summons and produced her passport and the bank statements of accounts and further issue of the summons by the Department has to be presumed that they have accepted her explanation for seeking time to appear and as such non-compliance of Section 40 (3) of the Act not at all arises ; and (4) The petitioner responding to the summons issued under Section 40 (3) of the Act appeared before the respondent on 20.06.1996 and she was interrogated, arrested and remanded to judicial custody. Even assuming and if not admitting that the petitioner had not appeared pursuant to the sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Muthukrishna Varadarajulu v. Chief Enforcement Officer, Enforcement Directorate, Chennai reported in 2001 Crl.L.J.1924. It is further submitted by the learned Additional Solicitor General that in a similar case in C.Sampathkumar Another V. Enforcement Officer and A.N.Dyaneswaran V.Enforcement Officer in Crl.O.P.Nos.5468 and 5629 of 1996 dated 01.08.1997 [reported in 1999 (95) Comp Cas 602 : 1999 (105) ELT 563 (Madras)] this Court has taken a view that the non-compliance of Section 40 of the Act would not attract the penal provision of Section 56 of the Act and the Department challenged the decision of this Court and preferred appeals before the Hon'ble Supreme Court and though the Hon'ble Supreme Court has dismissed the appeals in Crl.A.Nos.143 and 144 of 1998 by keeping the question of law open by order dated 20.07.1998 on the ground that the concerned petitioner in that matter was already arrested and remanded after interrogation, the order of the Hon'ble Supreme Court would not amount to a precedent and it may be only an obiter dictum. 6. The learned Additional Solicitor General would further proceed to contend that there is no illegality or there is no bar for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to any award of penalty by the adjudicating officer under this Act, if any person contravenes any of the provisions of this Act other than Section 13, clause (a) of sub-section(1) of Section 18, Section 18-A, clause (a) of sub-section (1) of Section 19, sub-section (2) of Section 44 and Sections 57 and 58, or of any rule, direction or order made thereunder, he shall, upon conviction by a court, be punishable, (i) in the case of an offence the amount or value involved in which exceeds one lakh of rupees, with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine: Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months; (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both. (2) If any person convicted of an offence under this Act not being an offence under Section 13 or clause (a) of sub-section (1) of Section 18 or Section 18-A or clause (a) of sub-section (1) of Section 19 or sub-section (2) of Section 44 or Section 57 or Section 58 is again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that an offence under this Act has caused no substantial harm to the general public or to any individual shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than six months. (6) Nothing in the proviso to Section 188 of the Code of Criminal Procedure, 1973 shall apply to any offence punishable under this section. 9. At the outset, this Court is constrained to state as per the position of law settled by the Hon'ble Apex Court that the violation or contravention of Section 40 of the Act would fall within the purview of the penal provision under Section 56 of the Act. 10. The Hon'ble Apex Court in Enforcement Directorate and another v. M.Samba Siva Rao and others reported in AIR 2000 SC 2128 has held that, The summons issued under S.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 S.56 of the Act. Further it cannot be said that the direction or order inasmuch as it is only when directions pertaining to some money value involved is disobeye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and her brother Mr.T.V.Sundaravadanam sent another letter dated 30.05.1996 seeking adjournment for two weeks. It is pertinent to be noted that all these admitted versions of the complainant further re-iterated in the counter itself. Therefore, it is crystal clear that the petitioner all along only sought time for appearance and she has expressed her intention and inclination to appear before the respondent and sought time to appear as she was undergoing treatment for illness. 14. It is pertinent to be noted from the materials available on record that all the summons were in the printed forms filled up with the relevant dates for appearance and it is seen that the petitioner by responding to such summons already submitted her passport and bank statements of accounts and as such it is crystal clear that the petitioner was all along giving co-operation to the respondent. It is also seen that the materials available on record discloses that the petitioner enclosed the medical certificates for seeking the relief of extension of time to appear. Therefore, in view of the admitted version of the respondent/complainant in the impugned complaint as well as in the counter filed before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pear before the competent authority would certainly amount to disobedience. From the reading of the above said decision of this Court it is not clear that whether the petitioner in that case has sought for time to appear or merely stated that he is unable to appear. But as far as the instant case is concerned, as already pointed out by this Court, the petitioner not only sent mere letter seeking for time to appear on health grounds, but also furnished certain documents, viz., passport and statements of accounts and apart from that the allegations contained in the complaint as well as in the counter filed before this Court disclose that by sending the replies seeking time to appear, the petitioner expressed her inclination and intention to appear before the respondent and therefore, from the conduct of the petitioner by no stretch of imagination it could be construed to be an evasion to appear before the respondent. 17. Yet another important feature could not lost sight of this Court in this case is that admittedly after the institution of the impugned complaint, the respondent has chosen to send further summons dated 17.06.1996 for her appearance on 20.06.1996 as per the admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the plain words of the enactment. We are unable to accept the constructions put in the aforesaid judgment as in our view 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 issued under the Act, and therefore, such contravention would squarely come within the ambit of Section 56 of the Act. The question came up for consideration before a learned Single Judge of the Madras High Court in the case of C. Sampath Kumar v. A.N. Dyaneswaran2 and was disposed of by the learned Judge of the Madras High Court by judgment dated 1-8-1997. The Madras High Court also came to the conclusion that the entire Section 56 of the Act is identified and substantiated only in terms of the extent and value of the money involved in the offence, and therefore, violat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the decision of this Court appeals were preferred by the Department before the Hon'ble Apex Court in Crl.A.Nos.143 and 144 of 1998 and the Hon'ble Apex Court has held that the question raised was not necessary to be answered as the persons concerned appeared before the Enforcement authorities and were arrested by the Enforcement Directorate and therefore, the question of law was kept open by the order dated 20.07.1998. Therefore, the view taken by the Hon'ble Apex Court is squarely applicable to the facts of the case on hand as in this case also as already stated, even as per the admitted version of the respondent in his counter that the fresh summon was served on the petitioner and in compliance, the petitioner appeared before the respondent on 20.06.1996 and she was interrogated, arrested and remanded to judicial custody on the same day. In view of this admitted fact, this Court is of the considered view that allowing the petitioner to undergo the ordeal of trial by continuing the trial proceedings would amount to a clear case of abuse of process of Court. 20. It is also contended, as stated above, by the learned Additional Solicitor General that the trial in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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