2022 (6) TMI 1341 - HC - FEMA

Person aggrieved in section 17 of FEMA - deemed complainant - Whether appellant is not an aggrieved person? - writ petitioner entiltment for copy of the adjudication order as he was only an informer and he cannot be treated as complainant - Central Government Counsel CGC contended that the petitioner is not entitled for a copy of the adjudication order, since he is only an informer and cannot be termed as the complainant - HELD THAT - We find substantial force in the contention urged by the learned CGC. Other than alerting the officials of the Department regarding violations of the Act, an informer has no further role as per the scheme of the Act. The complaint based on the information has to be filed by an authorised officer, upon which alone the adjudicating authority can conduct enquiry. The Rules envisage issuance of copy to the person against whom an order of adjudication is passed. The term aggrieved person in Section 17 will take in only the person against whom the order is passed and the complainant. Being so, the informer is not entitled for a copy of adjudicating order has no legal right to challenge the order by filing an appeal under Section 17. In the result, the writ petition is dismissed, without prejudice the petitioner s right to pursue his application for obtaining a copy of the order under the Right to Information Act, 2005.

Summary

Issues:
1. Entitlement of the petitioner to obtain a copy of the adjudication order under the Foreign Exchange Management Act, 1999 (FEMA).
2. Interpretation of the term "person aggrieved" in Section 17 of FEMA.
3. Rights of an informer in relation to adjudication orders.
4. Availability of remedies for an informer under the law.

Analysis:
The petitioner filed a complaint alleging violations of FEMA, resulting in penalties on the violator. Subsequently, the petitioner sought a copy of the adjudication order, which was not provided, leading to the filing of a writ petition. The petitioner argued that as an aggrieved person under Section 17(2) of FEMA, they are entitled to the copy of the order. However, the Central Government Counsel contended that the petitioner, being an informer, does not qualify as a complainant under the Act, and thus, is not entitled to the adjudication order copy. The Counsel referred to Section 16(3) of the Act and Rule 4(11) of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000, to support this argument.

The Court, after considering the arguments, agreed with the Central Government Counsel's interpretation. It was held that under the Act, an informer's role is limited to alerting officials about violations, and the complaint must be filed by an authorized officer for an enquiry to proceed. The rules mandate providing a copy of the adjudication order to the person against whom the order is made. Therefore, the term "person aggrieved" in Section 17 encompasses only the individual against whom the order is passed and the complainant, excluding informers. Consequently, the informer does not possess the legal right to challenge the order through an appeal under Section 17.

As a result, the writ petition was dismissed, with a note that the petitioner retains the option to pursue obtaining the order copy under the Right to Information Act, 2005. This judgment clarifies the distinction between the roles of informers and complainants under FEMA, emphasizing that informers do not have the same entitlements regarding adjudication orders as complainants.