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TMI Blog1994 (3) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... FERA"). The allegations in the complaint are briefly as follows: The Special Director of Enforcement initiated adjudication proceedings against the accused for contravention of certain sections of the Foreign Exchange Regulation Act and by his 6rder dated October 23, 1989, imposed a total penalty of Rs. 2,50,000 to the accused and directed the accused to deposit the penalty imposed within 45 days of the date of receipt of the said order, at the office of the Enforcement Directorate, Madras. The said order was served on the accused. Inspite of repeated notices, the accused had not paid the penalty of Rs. 2,50,000. Failure to pay the penalty, imposed by the Special Director of Enforcement, within 45 days from the date of receipt of the order is an offence punishable under section 57 of the Foreign Exchange Regulation Act. Hence, the complaint. In E.O.C.C. No. 317 of 1993, the respondents have filed the complaint against the petitioner in Crl. O. P. No. 9756 for an offence under section 57 of the Foreign Exchange Regulation Act, on similar allegations, with regard to the penalty of Rs. 50,000 imposed by the Special Director of Enforcement, in his order, dated October 23, 1989. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to be quashed. With regard to this submission, Mr. P. Rajamanickam, the learned Special Public Prosecutor for the respondents, would submit that no stay of operation of adjudication orders are passed by the Appellate Board and so the respondents/complainants need not wait indefinitely till the disposal of the appeals. He would add that the submission that these complaints are premature, cannot be sustained. I have carefully considered the first submission made by learned counsel for the petitioners and Mr. P. Rajamanickam. In Crl. O. P. No. 8836 of 1991, my learned brother, Justice Arunachalam, had occasion to consider a similar submission. In that case also, the complaint was filed for the offence under section 57 of the Foreign Exchange Regulation Act, 1973, for having failed to pay the penalty imposed by the Special Director, Enforcement, within 45 days of the receipt of the said order. The first submission made before the learned judge was that against the order imposing penalty passed by the Special Director, Enforcement, the petitioner had preferred a statutory appeal with an application for stay. It is still pending disposal before the Foreign Exchange Regulation Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uashing of the complaint filed in C. C. No. 2892 of 1974, on the file of the Chief Metropolitan Magistrate, Egmore, Madras, with regard to the penalty of Rs. 5 lakhs. In that case, the appeal against the order of penalty lies to the Appellate Board, but as a condition precedent, the entire penalty must be deposited unless the Appellate Board relaxes the condition and minimises the amount of deposit. Availing of the discretion granted to the Appellate Board, the petitioner moved the Appellate Board and obtained permission to furnish bank guarantee to the extent of Rs. 1 lakh for his appeal being entertained by the board. Subsequently, the Board dismissed the appeal and against the dismissal, the petitioner has preferred A. S. No. 413 of 1975 to the High Court and has also obtained an order of stay of collection proceedings in respect of penalty amount. In the meanwhile, the Assistant Director has filed the complaint before the Chief Metropolitan Magistrate, Egmore, Madras, under section 23F of the Foreign Exchange Regulation Act. The learned judge had held that though, under the Act, there is no provision which directly prohibits the filing of a complaint during the pendency of a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewhere. On this aspect, learned counsel for the petitioners brought to my notice the judgment of the Gujarat High Court in Digvijay Cement Co. v. State of Gujarat [1989] 22 ECR 638 wherein S.S. Kapadia J. held that when the matter was pending before the Tribunal and the possibility of allowing the appeal could not be ruled out, the petitioner cannot be said to have committed any offence and it was in the interest of justice, stay of criminal proceedings could be ordered, till the hearing of the appeal pending before the Tribunal. Since I have quoted the view of the Supreme Court relating to exercise of such power in appropriate cases, as a general rule, the view of the Gujarat High Court cannot be accepted." In A R. Antulay v. R. S. Nayak [1988] 2 SCC 602 ; AIR 1988 SC 1531, it was held that deprivation of one statutory right of appeal would amount to denial of procedure established by law. In the instant case, the question that falls for consideration is whether because an appeal was filed to the Appellate Board, the consequence of non-payment of penalty imposed in the adjudication order should be stopped till the disposal of the appeal. The question here is not deprivat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation, do not at all exist. It was further held that during the pendency of the appellate or revisional proceedings, to continue the prosecution in the criminal court would amount to prosecuting on uncertain facts which cannot be countenanced and that in such a case, the prosecution proceedings are liable to be quashed. With respect, in view of the consistent view of this court, with which I agree, I do not apply the ratio of this case to the cases on hand. The next submission made by learned counsel appearing for the petitioners was that the court of the Additional Chief Metropolitan Magistrate at Madras has got no jurisdiction to try these cases inasmuch as the accused are in Kerala State and the orders of adjudication were not passed in Madras. This contention was rightly repelled by Mr. P. Raja-manickam by pointing out that in all these orders of adjudication, they were directed to pay the penalty amount at Madras and the failure to pay that amount gives the cause of action for filing of these complaints and so the learned Additional Chief Metropolitan Magistrate, Madras, has got jurisdiction to try these cases. The sine qua non for the offence is non payment of the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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