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TMI Blog1998 (3) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... as "Urea Scam , where it came to be known during the course of investigation that huge amounts were received by various persons by way of commissions and a part of such amount was received through Hawala channels in India. In connection with the investigation in the said case, the petitioner was required to be interrogated and examined by the complainant. In that connection, summons were issued on number of occasions at the instance of the complainant under section 40 of the Act requiring the petitioner herein to appear before the complainant at Hyderabad for being examined and interrogated and he, however disobeyed the summons even though he was having knowledge of such summons which could not be served upon him personally and which were affixed to the door of his residence. Such summons were issued on the last occasion on 17-2-1998 requiring the petitioner to appear before the complainant on 23-2-1998 and inspite of the same, he failed to appear before the complainant and instead gave an evasive reply. Non-appearance of the petitioner in pursuance of such summons under section 40 is an offence punishable under section 56 of the said Act. As such, the complaint was filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at length in support of their respective contentions regarding the points in dispute in the present case and the matter is being disposed of on merits as the arguments were addressed by both sides at length with regard to all the disputed aspects. 6. The point for consideration is whether there are valid and justifiable reasons for quashing the proceedings in C.C. No. 17 of 1998 on the file of the Special Judge for Economic Offences, Hyderabad, which were taken on file against the petitioner/accused for the offences under section 56 read with section 40 of the Foreign Exchange Regulation Act ? 7. The facts in the case are not disputed. The petitioner is said to be required for the purpose of interrogation for the alleged offence under the provisions of the Act in connection with the case came to be popularly known as Urea Scam , and as such the respondent, who is the Chief Enforcement Officer, Enforcement Directorate, issued summons to the petitioner as contemplated under section 40 to appear before him for the purpose of such interrogation. As seen from the complaint petition and the sworn statement given by the respondent before the lower Court, such summons were issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner in the present proceedings is that even if the petitioner is said to have failed to appear before the respondent for the purpose of interrogation in pursuance of the summons served on him, such contravention of the directions contained in the summons issued under section 40 is not an offence punishable under section 56, under which the complaint was filed by the respondent and taken on file by the lower Court, and therefore, the proceedings in the abovesaid criminal case should be quashed. His contention in this regard is that section 56 speaks about offences with reference to amount or value, and it is identified and substantiated only in terms of extent and value of the money involved in the offence, that contravention of the provisions of section 40 by failing to obey the directions contained in the summons to appear before the respondent, cannot be computed in terms of value or amount so as to attract the provisions of section 56, and therefore, the complaint filed by the respondent under section 56 cannot be taken cognizance and the lower Court has erred in doing so. He has also tried to rely upon the decision of the Kerala High Court rendered in Itty v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutions . (1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any person contravenes any of the provisions of this Act other than section 13, clause ( a ) of sub-section (1) of section 18, clause ( a ) of sub-section (1) of section 19, sub-section (2) of section 44 and sections 57 and 58, or of any rule, direction or order made thereunder, he shall, upon conviction by a Court, be punishable, ( i ) in the case of an offence the amount or value involved in which exceeds one lakh of rupees, with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine : Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months; ( ii ) in any other case, with imprisonment for a term which may extend to three years or with fine or with both." Sub-section (1) of section 56 applies not only to a case where a person contravenes any of the provisions of the Act, other than the provisions excepted therein, but also to the contravention of any rule, direction or order made under the Act. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of any of the provisions of the Act or the directions or orders made under the Act, be punished for such offence with imprisonment for a term which shall not be less than six months, but which may extend to seven years or with fine if the amount or value involved in such offence exceeds Rs. 1 lakh. Therefore, as far as the offences punishable under clause ( i ) of section 56(1) are concerned, there must be amount or value involved in such offence so as to sentence the offender. But clause ( ii ) of section 56(1) provides that in any other case the offender shall be punished with imprisonment for a term which may extend to three years or with fine or with both. If the intention of the Legislature was to provide that the offence punishable under clause ( ii ) of section 56(1) shall also involve any amount or value, it would have been specifically mentioned in clause ( ii ) to that effect. But, instead of doing so, clause ( ii ) is made applicable to all other cases of contravention of any of the provisions of the Act or the directions or orders made under the Act. Contravention of the directions given in the summons issued under section 40 is punishable under section 56(1)( ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved therein. It cannot be said for a moment that all such contraventions of the provisions of the Act and the orders or directions made under the Act should be left unpunished under the Act if they do not have any monetary value. Therefore, the contravention of the directions contained in the summons issued under section 40 is clearly punishable under clause ( ii ) of section 56(1). Such view of mine was also expressed by the Madras High Court in an unreported decision rendered in M.P. Jain v. Assistant Director Crl. O.P. No. 312 of 1992, and which is referred to by the Madras High Court in its decision in Crl. O.P. Nos. 5468 and 5629 of 1996, and also in another subsequent decision in N. Sasikala v. Enforcement Officer, Enforcement Directorate Crl. O.P. No. 5718 of 1996 dated 30-8-1997. In N. Sasikala s case ( supra ) J. Kanakaraj, J. of the Madras High Court did not agree with the opinion expressed by the Madras High Court in its earlier decision in Crl. O.P. Nos. 5468 and 5629 of 1996, regarding the applicability of section 56(1)( ii ) for contravention of the provisions of section 40, and therefore, referred the matter to a Division Bench for decision. 14. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 57 and section 58 are specifically excluded from the operation of section 56. A separate provision is made for punishing such contra-ventions under other relevant provisions of the Act. For instances, section 67 of the Act provides for contravention of the provisions of section 13, section 18(1)( a ), and section 19(1)( a ). Similarly, section 44(2) of the Act relates to prohibition of disclosure of documents or information by any officer of Enforcement except in the discharge in good faith of his official duties and provides for punishment for such disclosure, and it is, there-fore, a self-contained provision for punishment of such offences. So also section 57 is a self-contained provision to deal with offences enumerated therein. Therefore, for obvious reasons, the abovesaid provisions of the Act have been kept out of the purview of section 56 and the Legislature has clearly enumerated such cases which are exempted from the purview of section 56 wherever it was felt necessary, and as such those contraventions will have to be dealt with under those other relevant provisions of the Act and not under section 56. Similarly, offences which involve any amount or value are contemplat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well before the dates on which he was required to appear in pursuance of such summons, he failed to make his appearance before the respondent, and thereby contravened the provisions of section 40. Under those circumstances, the lower Court felt that there is prima facie material to take the case on file under section 56 for the contravention of the provisions of section 40 and therefore, it took the case on file. Therefore, it is not a fit case where the proceedings can be quashed under section 482 on such grounds urged by the learned counsel for the petitioner. 17. The learned counsel for the petitioner further tries to contend that instead of issuing summons to the petitioner, who is an accused in C.C. No. 17 of 1998, the lower Court directly issued non-bailable warrants, and such conduct on the part of the Presiding Officer is to be deprecated. Issuing of non-bailable warrant for apprehending the accused is a subsequent act after the case is taken on file. Taking the case on file is one thing and taking steps to apprehend the accused is another thing. Taking steps to apprehend the accused either by issuing summons or warrants is in the discretion of the Presiding Officer a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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