2019 (8) TMI 215 - HC - FEMA

Maintainability of petition - Petition by a person who refuses to subject himself to Indian Laws - whether the Writ Court should exercise its jurisdiction in case of a Petitioner who has been issued a non-bailable warrant by the Special Court under the Prevention of Money Laundering Act, 2002 (PMLA) - HELD THAT;- This Court by its 2018 (2) TMI 762 - BOMBAY HIGH COURT rejected the above contention and entertained the Petition by this very petitioner. We are informed that the status and condition of the Petitioner viz-a-viz Indian Law continues to remain what it was on 30th January, 2018 i.e. no red corner notice has yet been issued in respect of the Petitioner. These facts are not disputed and distinguished by the Revenue. Thus, this issue having already been considered by a coordinate bench of this Court and no new facts have thereafter have been brought to our notice which would warrant a different view. Rejection of Petitioner's application for copy of the reply filed by BCCI - permission for joint hearing of all the noticee - denial of cross-examination - HELD THAT - The compliant/ show cause notice relies upon the statement of persons of whose cross examination is sought. Thus, the basic rules of natural justice would require grant of the same, in case, the statements are being relied upon by the Respondent No.1 - the Respondent No.1 would grant cross examination of the five persons in case it seeks to rely upon the same. Permission for joint hearing of all the noticee - HELD THAT - It gives no reason for refusing the same. It rejects the requirement only by stating that it would cause prejudice. Therefore, the aforesaid directions in the impugned communication dated 8th January, 2018 is set aside and the Respondent No.1 would deal with the above request afresh and dispose of the same in accordance with law. Rejection of the request for a copy of the reply filed by BCCI by only stating it would cause prejudice - HELD THAT - No reasons in support thereof are indicated therein. Thus, the above communication dated 21st August, 2017 is set aside to the above extent and restored to Respondent No.1 for fresh decision. Petition disposed off.

Summary

Issues:
Challenge to decisions dated 21st August, 2017 and 8th January, 2018 of the Director of Enforcement under the Foreign Exchange Management Act, 1999 and Foreign Exchange Management (Adjudication Proceedings and Appeals) Rules.

Analysis:
The petitioner challenged the decisions of the Director of Enforcement dated 21st August, 2017 and 8th January, 2018. The first grievance was regarding the rejection of the application for a copy of the reply filed by the Board of Control of Cricket in India (BCCI). The second challenge was related to the denial of cross-examination of five individuals and the refusal to allow a joint hearing for all noticees. The High Court questioned the petitioner's standing under Indian laws but ultimately decided to hear the petition based on previous judgments. The proceedings originated from a complaint made by the Assistant Directorate Enforcement, leading to a show cause notice to BCCI and other individuals, including the petitioner, for alleged breaches of the Foreign Exchange Management Act. During the adjudication proceedings, the petitioner requested cross-examination of certain individuals, joint hearing of all noticees, and a copy of BCCI's reply to the show cause notice.

The court found that natural justice required the grant of cross-examination if statements of individuals were being relied upon. The previous order in a similar case favored the petitioner, leading to the direction for the respondent to allow cross-examination. The court also set aside the refusal for a joint hearing, citing lack of reasons provided for the rejection. Similarly, the decision to deny a copy of BCCI's reply lacked supporting reasons and was therefore set aside for a fresh decision. The court emphasized that the respondent must give reasons for not accepting applications and ensure a proper decision-making process. The final order directed the respondent to offer cross-examination, reconsider the joint hearing request, and decide on providing a copy of BCCI's reply in accordance with principles of natural justice. The petition was disposed of accordingly.