TMI Blog2018 (4) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order as sufficient compliance of Section 61(2) of FERA, is clearly misplaced. Since respondents have failed to comply with the mandatory requirement of Section 61(2) of FERA, the Trial Court clearly erred in taking cognizance. The impugned order on charge dated 11.07.2017 cannot be sustained and is liable to be set aside. The impugned order dated 11.07.2017 is, accordingly, quashed. The present petition is allowed. - Crl. Rev. P. No. 642 of 2017 and Crl. M.A. No. 14087 of 2017 (Stay) - - - Dated:- 5-4-2018 - MR SANJEEV SACHDEVA J. Advocates who appeared in this case: For the Petitioner: Ms. Sangita Bhayana, Advocate. For the Respondent: Ms. Shreya Sinha, Advocate. CORAM:- JUDGMENT SANJEEV SACHDEV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there is no mandatory requirement of giving an opportunity notice . She submits that when the accused had appeared before the Authority for recording his statement under Section 40 of FERA, he was asked as to whether he had the requisite permission; in response to which, he failed to produce the permission and, accordingly, the requirement of giving an opportunity was satisfied. 6. Section 61 of FERA reads as under:- 61. Cognizance of offences: (1) ***** ***** ***** (2) No court shall take cognizance- (i) ***** ***** ***** (ii) of any offence punishable under section 56 or section 57, except upon complaint in writing made by- (a) the Director of Enforcement; or (b) any officer authorised in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint. Magistrate will issue process only on being satisfied that a case has been made out for such issue. 11. The offence is alleged to have been committed in the year 1995. The statement of the accused was recorded in 1996. It is this statement, which is sought to be relied upon by the learned counsel for the respondent. The subject statement was recorded under Section 40 of FEAR when, admittedly, an investigation was going on into the alleged offence. 12. Admittedly, an Opportunity Notice was issued by the respondents on 24.05.2002 specifically requiring the petitioners to show as under:- ***** ***** ***** NOW THEREFORE, the said M/s United India Airways Ltd. and S/Shri Rakesh Gupta and Ashok Chawla are hereby g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners was not at A-34, Connaught Place but at E-34, Connaught Place which is a distinct and different property. Clearly, the Opportunity Notice was neither sent to the correct address nor served on the petitioner. 15. In case the contention of the respondent were to be accepted that an opportunity was given to the petitioners at the time of recording the statement under Section 40 of FEAR in compliance of Section 61(2) of FERA, then there was no requirement for the respondent to have issued a specific Opportunity Notice calling upon the petitioners to show as to whether they have the requisite permission or not and specifically stating therein that the same was in compliance of Section 61(2). 16. The subject complaint was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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