2022 (12) TMI 1110 - HC - FEMA

Person aggrieved in section 17 of FEMA - deemed complainant - Whether appellant is not an aggrieved person? - Whether writ petitioner is not entitled for copy of the adjudication order as he was only an informer and he cannot be treated as complainant? - HELD THAT - Perusal of the rules stated makes it clear that a complaint can be made only by a person authorised by a general or special order of the Central Government. Lis is between the the complainant and the person against whom allegations were made and ultimately adjudicated. As per the statutory provisions, by no stretch of imagination, appellant/petitioner can be termed as a complainant and consequentially entitled to a copy of the adjudicatory order. Though Mr. S. Shyam, learned counsel for the appellant further submitted that he is personally aggrieved over the decision taken by the Adjudicating Authority and in the above circumstances, entitled to a copy of the order, we are not inclined to accept the said submission also, for the reason that an informer, to the Enforcement Directorate, cannot be said to be personally aggrieved over a decision taken by the Adjudicating Authority. In the light of the above discussion, we find no error or infirmity in the impugned judgment, warranting interference. Accordingly, writ appeal is dismissed.

Summary

Issues:
1. Entitlement to copy of adjudication order for an informer.
2. Interpretation of provisions under Foreign Exchange Management Act, 1999 and related rules.
3. Applicability of Section 17 and Rule 4(11) of Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000.
4. Consideration of rights under the Right to Information Act, 2005.
5. Relevance of Sections 74, 75, and 76 of the Indian Evidence Act, 1872.

Issue 1: Entitlement to copy of adjudication order for an informer

The petitioner sought a copy of the adjudication order based on a complaint made to the Directorate of Enforcement. The contention was raised that as an informer, the petitioner was not entitled to the copy of the order since only a complainant could request it. The court upheld this view, stating that the informer's role was limited to alerting officials about violations, and the complaint had to be filed by an authorized officer for an adjudication to proceed. The informer was not considered an aggrieved person under Section 17 and was not entitled to challenge the order through an appeal.

Issue 2: Interpretation of provisions under Foreign Exchange Management Act, 1999 and related rules

The court referred to Section 16(3) of the Foreign Exchange Management Act, 1999, which mandates that an adjudicating authority can only conduct an inquiry based on a complaint made by an authorized officer. Additionally, Rule 4(11) of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000, allows for the supply of the adjudication order to the person against whom the order is made. These provisions were crucial in determining the entitlement to a copy of the adjudication order.

Issue 3: Applicability of Section 17 and Rule 4(11) of Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000

Section 17 of the Act allows any person aggrieved by an order made by the adjudicating authority to prefer an appeal. Rule 4(11) of the Rules specifies that a copy of the order shall be provided free of charge to the person against whom the order is made. The court emphasized that the term "person aggrieved" in Section 17 encompassed only the individual against whom the order was passed, not an informer. This interpretation influenced the decision regarding the petitioner's entitlement to the adjudication order.

Issue 4: Consideration of rights under the Right to Information Act, 2005

While the petitioner's writ petition was dismissed concerning the copy of the adjudication order, the court mentioned that the petitioner retained the right to pursue obtaining the order under the Right to Information Act, 2005. This acknowledgment indicated an alternative avenue for accessing the information sought by the petitioner.

Issue 5: Relevance of Sections 74, 75, and 76 of the Indian Evidence Act, 1872

The petitioner argued that the adjudication order was a public document under Sections 74, 75, and 76 of the Indian Evidence Act, 1872. The court noted that the adjudication order was a public document, but the Single Judge's failure to consider this aspect did not warrant allowing the writ petition. The court maintained that the petitioner's status as an informer did not grant him the right to the adjudication order, as only the person against whom the order was made was entitled to it.

In conclusion, the court dismissed the writ appeal, affirming that the petitioner, acting as an informer, was not entitled to a copy of the adjudication order. The judgment was based on a thorough analysis of the relevant statutory provisions and rules governing adjudication proceedings in the context of the Foreign Exchange Management Act, 1999.