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2009 (4) TMI 916 - HC - FEMAPetition under Article 226 - Complaint u/s 56 of the FERA r/w sub-sections 3 and 4 of Section 49 of FEMA - failure to comply with statutorily requirements of issuance of notice u/s 61 (2)(ii) of FERA - quashing of proceedings - petitioner points out that no proof of service has been filed along with the complaint - respondents have not cared to cite any of the persons in the list of witnesses. It is contended that so far as the criminal trial is concerned, the respondent would stand precluded from examining any witness who has not been cited as a witness. HELD THAT - It would appear that the statutory requirement of issuance of notice under proviso of sub clause (ii) of sub-section 2 of Section 61, its date and manner in the instant case as well as the failure to consider the petitioner's reply or even place it before the court, has resulted in manifest error in the exercise of jurisdiction by learned trial judge. The order taking cognizance in the instant case and directing issuance of summons, is clearly without application of mind and cannot stand in law. In the light of the well settled principles noticed, there is no embargo from quashing the proceedings which are pending before the ld trial court. Bare perusal of the complaint, it has been found that the complaint has been filed without compliance of the provisions of Section 61 of the FERA, 1973. No further inquiry is necessary or required to be conducted for the purposes. The compliance is mandatory and goes to the root of the matter. There is a statutory prohibition to the filing of a complaint without such statutory compliance. The objection raised by the petitioner to the filing and maintainability of the prosecution against it, is squarely covered under the guideline 6 laid down by the Apex Court in State of Haryana Vs. Chaudhary Bhajanlal 1990 (11) TMI 386 - SUPREME COURT and Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi Ors 1976 (4) TMI 213 - SUPREME COURT . The respondents have urged at length that the petitioner must be required to undergo the trial and establish his objections as a defence to the prosecution. The present case is one where examination of a statutory prohibition is required to be undertaken. In the light of clear principles laid down by the Apex Court, such an objection has to be held to be wholly misconceived. There would be no warrant for requiring the petitioner to defend a prolonged trial, if the filing of the complaint itself is statutorily prohibited. Continuation of such proceedings against the petitioner would, therefore, be vexatious, useless, serving no purpose and defeating the ends of justice. Therefore, this writ petition is allowed. It is directed that the proceedings arising out of complaint, entitled Enforcement Directorate v. Sanjay Malviya Ors. pending in the court of ld Additional Chief Metropolitan Magistrate, as against the petitioner alone shall stands quashed. The order of the ld Metropolitan Magistrate taking cognizance of the complaint against the petitioner herein and directing issuance of summons to him shall also stand quashed.
Issues Involved:
1. Compliance with statutory provisions of FERA, 1973. 2. Validity of the complaint and summons issued. 3. Application of natural justice principles. 4. Jurisdiction of the trial court. 5. Adequacy of the opportunity notice. 6. Examination of the complaint's procedural correctness. 7. Relevance of previous judicial precedents and statutory interpretation. Issue-Wise Detailed Analysis: 1. Compliance with Statutory Provisions of FERA, 1973: The petitioner challenged the proceedings under FERA, 1973 on the grounds of non-compliance with the mandatory provisions of Section 61(2)(ii). The court emphasized that the statute requires giving an opportunity to the accused to show they had permission for the alleged contravention. The court found that the notice dated 17th May 2002, served on 25th May 2002, did not provide adequate time for the petitioner to respond, thus failing to meet the statutory requirement. 2. Validity of the Complaint and Summons Issued: The petitioner argued that the complaint was filed before the expiry of the three-day period granted to respond to the opportunity notice. The court noted that the complaint was filed on 27th May 2002, the same day the petitioner's reply was received, indicating a lack of consideration of the petitioner's response. This procedural lapse rendered the complaint invalid. 3. Application of Natural Justice Principles: The court highlighted the necessity of adhering to natural justice principles, especially when statutory actions entail penal consequences. The court referred to the Apex Court's pronouncement in Mohinder Singh Gill vs. Chief Election Commissioner, emphasizing that natural justice is integral to fair administrative and judicial processes. The court concluded that the notice period given to the petitioner was inadequate and not a meaningful opportunity, thereby violating natural justice principles. 4. Jurisdiction of the Trial Court: The petitioner contended that the trial court acted without jurisdiction in taking cognizance of the complaint and issuing summons. The court agreed, stating that the trial court's order was made without proper application of mind, as the statutory requirements were not met. This lack of jurisdiction warranted quashing the proceedings. 5. Adequacy of the Opportunity Notice: The court examined whether the opportunity notice provided to the petitioner was adequate. It was found that the three-day period, which included a Sunday, was insufficient for the petitioner to gather necessary material to justify his actions. The court held that the opportunity must be adequate and meaningful, which was not the case here. 6. Examination of the Complaint's Procedural Correctness: The court scrutinized the procedural correctness of the complaint, noting that it lacked details about the date and manner of service of the notice. The complaint was filed without considering the petitioner's reply, indicating a procedural impropriety. The court emphasized that statutory compliance is mandatory and goes to the root of the matter. 7. Relevance of Previous Judicial Precedents and Statutory Interpretation: The court referred to several judicial precedents, including Pepsi Foods Limited vs. Special Judicial Magistrate and State of Haryana vs. Ch. Bhajanlal, to underscore the principles governing the exercise of inherent jurisdiction and the necessity of statutory compliance. The court reiterated that where law mandates a specific procedure, it must be followed strictly. Conclusion: The court quashed the proceedings against the petitioner, including the complaint and the summons issued, due to non-compliance with statutory provisions and principles of natural justice. The court emphasized the importance of procedural correctness and meaningful opportunity in legal proceedings, ensuring adherence to statutory and judicial standards.
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