2002 (11) TMI 667 - HC - Companies Law

Summary

Issues Involved:
1. Initiation of criminal case under Foreign Exchange Regulation Act (FERA) and Foreign Exchange Management Act (FEMA).
2. Compliance with sections 8, 9, 56, 57, and 61 of the Foreign Exchange Regulation Act.
3. Opportunity to inspect documents and submit a reply.
4. Adequacy of time provided to the petitioner for response.
5. Requirement to furnish documents before lodging a complaint.

Detailed Analysis:

1. Initiation of Criminal Case under FERA and FEMA:
A criminal case was sought to be initiated against the petitioner and another individual for purchasing a foreign car in contravention of sections 8(1) and 9(1), read with section 64(2) of the Foreign Exchange Regulation Act (FERA), punishable under section 56 of the Act, invoking section 61.

2. Compliance with Sections 8, 9, 56, 57, and 61 of FERA:
The case revolves around the alleged violation of sections 8 and 9, which restrict dealings in foreign exchange and payments without prior permission from the Reserve Bank of India (RBI). Section 56 outlines the penalties for contraventions, while section 61 specifies the jurisdiction and procedure for cognizance of offences, mandating that complaints be made by authorized officers.

3. Opportunity to Inspect Documents and Submit a Reply:
The respondents provided the petitioner an opportunity to inspect the documents on 5-4-2002, but the petitioner did not avail of this opportunity. Instead, the petitioner repeatedly requested to drop the criminal action without inspecting the documents.

4. Adequacy of Time Provided to the Petitioner for Response:
The petitioner contended that the five-day period given to respond to the opportunity notice dated 21-5-2002 was too short. However, the court found this argument unconvincing since the petitioner had three months from the notice date to respond but failed to do so effectively.

5. Requirement to Furnish Documents Before Lodging a Complaint:
The court clarified that section 61(2)(ii) of the Act does not require the respondents to furnish documents at the stage of issuing an opportunity notice. The petitioner is expected to know whether he had obtained the necessary permissions from the RBI, which is a fact within his knowledge. The requirement to furnish documents arises at the stage of framing charges, not at the inception of lodging a complaint.

Conclusion:
The court dismissed the writ petition, emphasizing that the petitioner had ample time to respond and inspect documents but chose not to. The court directed the concerned Magistrate to proceed with the matter expeditiously, noting that the petitioner had already delayed the criminal action significantly. Consequently, the connected W.P.M.P. was closed, and no costs were awarded.