9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (4) TMI 417 - HC - FEMAOffence under FERA - Economic Offence cases - failure to realize the respective full export proceeds of the goods within the stipulated period - Transaction in clandestine manner - Whether opportunity notice as contemplated under the proviso to Section 61 (2) (ii) of FERA has been issued to A-1 to A-3? - Whether prior permission as mandated u/s 18 (2) of FERA has been obtained by A-1 to A-3 from the Reserve Bank of India;? - judgment of acquittal recorded by the trial court - HELD THAT - This Court has no hesitation in holding that even non-issuance of opportunity notice as contemplated u/s 61 (2) (ii) of FERA will not vitiate the case. However, in the case on hand, Ex.P-41, opportunity notice as contemplated u/s 61 (2) (ii) of FERA has been issued to the accused. In such circumstances, the finding of the trial court that no opportunity notice has been issued to the accused is not only against the materials available on record, but also not in line with the law laid down by this Court and, accordingly, the said finding of the trial court is liable to be interfered with. Insofar as the issue relating to contravention of Section 18 (3) of FERA by A-4 to A-6 is concerned A-4 to A-6 not only gave their quotas to A-1 to A-3 for being used, but have also jointly signed the declaration and that A-4 and A-5 have also given letter to their bankers to credit the realisation of the export proceeds in the account of A-1. That being the undisputed case, it is not now open to A-4 to A-6 to contend that they have not contravened the provisions of Section 18 (3) of FERA. Though it is not A-4 to A-6, who have sold the goods, but have only given their quotas to A-1 to A-3, however, A-6 being a joint declarant, a duty is cast upon A-4 to A-6 to see that all reasonable steps have been taken to receive or recover the payment for the goods sold and in the absence of following the provisions by taking the necessary steps to recover the export proceeds, it is to be presumed that A-4 to A-6 have contravened the provisions of Sections 18 (2) and (3) of the Act. The quota used by A-1 to A-3 is that of A-4 to A-6 and it is the imperative duty of A-4 to A-6 to see that the provisions of FERA are complied with in letter and spirit. By just giving the quota to A-1 to A-3, A-4 to A-6 cannot shirk their responsibility and take a turn and say that since they are not the exporters and that the sale proceeds does not pertain to them, they have not contravened the provisions of Section 18 (3) more so, when A-6 is the joint declarant in the GR Forms along with A-1. Losing sight of the above materials, the finding recorded by the trial court is not only illegal, but is also perverse, which requires interference. Once this Court comes to the conclusion that the findings recorded by the trial court are illegal and perverse, then there is no legal bar for this Court to interfere with the said acquittal, in the light of the decisions aforesaid. Accordingly, this Court is of the considered view that the findings recorded by the trial court are illegal and perverse and is against the materials available on record and in the above circumstances, this Court is left with no other option, than to overturn the verdict of acquittal recorded by the trial court and convict the accused. Though minimum sentence has been prescribed for the offence under Section 18, however, this Court, after taking into consideration the submissions advanced on behalf of the accused, and also considering their age and also the fact that the offence was committed during the period 2008-2009, and that almost a decade has passed since the commission of the offence, is of the considered view that the accused could be sentenced to a period of one day to be undergone from the time of sitting of this Court till the raising of this Court along with imposition of fine. Accordingly, this appeal is allowed setting aside the acquittal recorded by the trial court and instead the accused/respondents herein are found guilty of the charges framed against them and they are hereby convicted and sentenced to undergo simple imprisonment for a period of one day before this Court, which is to be undergone on 12.02.2020 from the time of the sitting of this Court till the raising of this Court on the said day. Each of the accused is directed to pay a fine of ₹ 1,00,000/- (Rupees One Lakh only) by way of demand draft in favour of the Enforcement Directorate before 12/02/2020.
Issues Involved:
1. Whether the opportunity notice as contemplated under the proviso to Section 61 (2) (ii) of FERA was issued to A-1 to A-3. 2. Whether prior permission as mandated under Section 18 (2) of FERA was obtained by A-1 to A-3 from the Reserve Bank of India. 3. Whether A-4 to A-6 contravened the provisions of Section 18 (3) of FERA. 4. Whether the judgment of acquittal recorded by the trial court requires any interference. Issue-wise Detailed Analysis: 1. Opportunity Notice under Section 61 (2) (ii) of FERA: The trial court found that no opportunity notice was issued to A-1 to A-3, leading to their acquittal. However, the appellate court examined Ex.P-41, which is the opportunity notice issued to the accused. The court referred to the precedent in *Khader Sulaiman’s case*, which clarified that the issuance of an opportunity notice, even if not immediately before prosecution, suffices if it was given during adjudication proceedings. The court concluded that the trial court's finding was factually incorrect and against the materials available on record. Therefore, non-issuance of the opportunity notice does not vitiate the prosecution. 2. Prior Permission from Reserve Bank of India: The prosecution's case, as supported by P.W.1's testimony, indicated that A-1 to A-3 did not obtain prior permission from the Reserve Bank of India for the realization of export proceeds beyond the prescribed time. The Reserve Bank confirmed that no extension was granted. The defense failed to provide any document proving that they sought such an extension. Consequently, the court held that A-1 to A-3 did not obtain the necessary permission as mandated under Section 18 (2) of FERA. 3. Contravention of Section 18 (3) of FERA by A-4 to A-6: The trial court acquitted A-4 to A-6, holding that no presumption could be drawn against them. However, the appellate court found that A-4 to A-6 gave their quotas to A-1 to A-3 and jointly signed declarations. A-4 and A-5 also instructed their bankers to credit the export proceeds to A-1's account. The court determined that A-4 to A-6 had a duty to ensure compliance with FERA provisions, which they failed to do. Their actions amounted to a contravention of Sections 18 (2) and (3) of FERA. The trial court's finding was deemed illegal and perverse, warranting interference. 4. Interference with the Judgment of Acquittal: The appellate court emphasized that interference with an acquittal is warranted only if the trial court's findings are perverse or illegal. Citing precedents, the court noted that if the trial court's conclusions are reasonable and plausible, they should not be disturbed. However, in this case, the trial court's conclusions were found to be illegal and against the evidence on record. Therefore, the appellate court overturned the acquittal and convicted the accused. Conclusion: The appellate court allowed the appeal, setting aside the trial court's acquittal. The accused were convicted and sentenced to undergo simple imprisonment for one day, along with a fine of ?1,00,000 each. The sentence was to be served on 12.02.2020, and failure to pay the fine would result in six months of simple imprisonment. The court directed the accused to appear before the Registrar (Judicial) and produce proof of fine payment before serving the sentence.
|
