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TMI Blog2009 (5) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... cates, for the Respondent. [Order]. - Admit. 2. With the consent of the parties, the matter was taken up for final hearing and after hearing the parties, the orders had been reserved. 3. By this petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioner prays for quashing of the complaint pending before the learned trial court titled as "Niranjan Subudhi v. Amrik Singh Saluja" for the violation of the provisions of Section 57 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA). 4. The brief facts leading to the filing of the present petition are that on 15-8-1997, the residential premises of the petitioner were searched under Section 37 of FERA, which allegedly resulted in the recovery and seizure of Indian currency to the tune of Rs. 1,18,00,000/- (Rupees One Crore Eighteen Lakhs only), one bunch of loose sheets (29 in number) and one currency note of Rs. 50/- bearing No. 5AA 69JJ95, as per the details given in the panchnama. Follow-up searches were conducted at various places, including the premises of one Raj Kumar Kedia at Calcutta, one J.P. Soni at Delhi and Rajiv Gopalani at New Delhi. The documents and other inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Rupees Four Lakhs Forty Thousand only) on the ground that the deposit thereof would cause undue hardship to the appellant. 7. Notwithstanding the aforesaid, the respondent on 31-5-2002 filed a complaint under Section 57 of the FERA, 1973 before the learned ACMM, Patiala House Courts for the non-deposit of the penalty amount of Rs. 6,23,240/- (Rupees Six Lakhs Twenty Three Thousand Two Hundred Forty only) in terms of the orders and directions issued by the Adjudicating Authority, whereas, admittedly on the said date the balance penalty amount was only Rs.4,40,000/- (Rupees Four Lakhs Forty Thousand only) and the deposit of the same too had been dispensed with by the Appellate Tribunal. 8. Subsequently, however, the Appellate Tribunal, New Delhi by its order dated 4-1-2008 dismissed the appeal of the appellant and sustained the order of the Adjudicating Authority, FERA. Aggrieved with the aforesaid order of the Appellate Tribunal, the petitioner filed an appeal before this Court bearing Crl. A. No. 120/2008. In the said appeal, this Court by an order dated 29-7-2008, after hearing both the parties, stayed the recovery of the balance amount of Rs. 4,40,000/- (Rupees Four Lakhs F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 57 of the said Act. By its order dated 27-5-2002, the Foreign Exchange Tribunal had already dispensed with the deposit of the amount of Rs. 4,40,000/-, which was the balance penalty amount due from the petitioner, and, therefore, there was no occasion for the respondents to allege that the petitioner had not deposited the balance penalty amount, and that too amounting to Rs. 6,23,240/- (Rupees Six Lakhs Twenty Three Thousand Two Hundred Forty only), and to file a complaint on the basis thereof, whereas the balance penalty amount due on 31-5-2002 (i.e. on the date of filing of the complaint) was even otherwise Rs. 4,40,000/- (Rupees Four Lakhs Forty Thousand only). 11. The learned counsel also contends that the mala fides of the respondents are crystal clear from the fact that despite the orders dated 27-5-2002 of the Tribunal staying the deposit of the balance penalty amount, the respondents filed the complaint exactly four days after the said order, i.e. on 31-5-2002. The Department at that point of time had full knowledge of the fact that the deposit of the penalty amount had been dispensed with by the Tribunal, that there was no willful default on the part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Section make it abundantly clear that failure on the part of the person concerned to pay the penalty imposed is the sine qua non for conviction under the said Section. Such failure, needless to say, must exist on the date of the filing of the complaint. In the present case, in my considered opinion, there was no failure on the part of the petitioner to pay the penalty imposed, for the reason that the Appellate Tribunal itself had waived the deposit of the balance penalty amount, i.e., the sum of Rs. 4,40,000/- (Rupees Four Lakhs Forty Thousand only), after taking note of the fact that out of the balance penalty amount of Rs. 6,23,240/- (Rupees Six Lakhs Twenty Three Thousand Two Hundred Forty only), the petitioner had paid a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) after the passing of the order of the Adjudicating Authority. 15. The contention of the learned counsel for the petitioner that the failure to pay the penalty amount by the petitioner within the time prescribed was neither deliberate nor willful is, therefore, not sans merit, the petitioner having already filed an appeal in the Tribunal with an application for stay seeking waiver of the pre-deposit amount und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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