2007 (5) TMI 342 - HC - Companies Law

Issues Involved:
1. Validity of the charges framed under Section 56 of the Foreign Exchange Regulation Act, 1973 (FERA).
2. Compliance with summons issued under Section 40 of FERA.
3. Application of Section 219(1) of the Code of Criminal Procedure (CrPC).
4. Prejudice and miscarriage of justice due to framing of composite charges.

Detailed Analysis:

1. Validity of the Charges Framed under Section 56 of FERA:
The petitioner was charged with offences under Section 56 of FERA for failing to comply with summons issued under Section 40. The trial court found prima facie evidence for framing charges based on the petitioner's non-compliance with multiple summonses issued for his appearance and production of documents. The court noted that the petitioner willfully failed to comply with the summonses without any plausible reason or lawful excuse.

2. Compliance with Summons Issued under Section 40 of FERA:
The petitioner argued that he could not comply with the summons dated 15-9-1999 as it was received on 27-9-1999 at 2:00 p.m., which required his appearance on the same day at 11:00 a.m. The trial court acknowledged this impossibility but proceeded to frame a charge on that count, which was deemed erroneous. The petitioner also provided valid reasons for non-compliance with other summonses, citing his absence from India, which were accepted by the complainant, leading to the issuance of fresh summonses.

3. Application of Section 219(1) of the Code of Criminal Procedure (CrPC):
The petitioner contended that the trial court violated Section 219(1) of CrPC by framing four charges instead of three, as mandated for separate offences. The petitioner argued that each incident should have been framed as a separate charge to avoid prejudice. The court found merit in the argument regarding the first summons and decided to delete the reference to the summons dated 15-9-1999 from the charge. However, the court held that the remaining charges, even if framed in a composite manner, did not result in prejudice to the petitioner.

4. Prejudice and Miscarriage of Justice Due to Framing of Composite Charges:
The petitioner argued that the composite charges would cause prejudice and miscarriage of justice. The court referred to Sections 461 and 464 of CrPC, which distinguish between irregularities that vitiate proceedings and those that do not. The court emphasized that an omission or technical violation does not constitute a fatal infirmity unless it results in a failure of justice. The court concluded that no such failure of justice occurred in this case and upheld the charges, except for the deletion of the reference to the first summons.

Conclusion:
The petition was allowed to the limited extent of deleting the reference to the summons dated 15-9-1999 from the charge. The charges related to the summonses dated 7-10-1999, 8-11-1999, and 21-12-1999 remained undisturbed. The court found no miscarriage of justice or prejudice due to the framing of composite charges and upheld the trial court's order on the remaining charges.

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