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2014 (1) TMI 692 - HC - FEMAComplaint under section 56 of the FERA - Notice u/s 61 not served - Held that - respondents maintain in their counter affidavit that Opportunity Notices in terms of Section 67 of FERA were issued to petitioners and the documents relied upon in the complaint in question were supplied to petitioners - The stand of petitioners that there was no intentional or wilful default on their part also raises a triable issue which cannot be determined while exercising inherent jurisdiction of this Court under Section 482 of Cr.P.C. and that too, at the threshold of these proceedings - averments made in paragraph No. 2 (vii) & (viii) of the complaint in question prima facie justify continuance of proceedings arising out of this complaint. Pertinently, prosecution of petitioners in the instant Complaint is for contravention of substantive provisions of this enactment i.e. Section 14, 16 & 18 (3) of FERA read with Central Government s Notification No. F-1/67/EC/73-1 & 3 both of 1st January, 1974. So, this question as well as the question of vicarious liability is left open to be considered at the stage of framing of charge/Notice under Section 251 of Cr.P.C., as the case may be - petition is disposed of with liberty to petitioners to urge the pleas taken in this petition on the afore-noted limited extent before the trial court at the stage of framing of charge/Notice, while not commenting upon the merits, lest it may prejudice either side - Decided in favour of Appellants.
Issues:
1. Quashing of criminal complaint under FERA. 2. Lack of opportunity notice and document furnishing. 3. Role specification of accused Directors in the complaint. 4. Applicability of Circular on contravention amount. 5. Intentional default by the petitioners. 6. Continuance of proceedings based on complaint. Analysis: 1. The petition sought the quashing of a criminal complaint under FERA against the petitioner-company and its directors. The petitioners argued that no opportunity notice was given before filing the complaint, documents were not furnished, and individual roles were not specified. The respondents contended that the contentions were untenable as the notice served constituted a valid notice under FERA. 2. The respondents maintained that opportunity notices were issued and documents were supplied to the petitioners, which the petitioners disputed. The court found these disputes raised triable issues that needed to be determined at trial. The petitioners' claim of no intentional default also raised a triable issue not determinable under Section 482 of Cr.P.C. 3. Regarding the role of the petitioners, the court found that the complaint justified the continuation of proceedings. The applicability of a Circular on contravention amount was discussed, with the court noting that the alleged contravention predated the Circular, and the prosecution was for contravention of substantive FERA provisions. 4. The court disposed of the petition, allowing the petitioners to raise their pleas at the stage of framing charges, without commenting on the merits to avoid prejudice. The questions of the Circular's retrospective operation and vicarious liability were left open for consideration during the framing of charges. This detailed analysis covers the issues raised in the judgment comprehensively, outlining the arguments presented by both parties and the court's findings on each issue.
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