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TMI Blog2002 (11) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate and for any Magistrate of the first class to pass a sentence of imprisonment for a term exceeding three years or of fine exceeding five thousand rupees on any person convicted of an offence punishable under section 56]. (2) No court shall take cognizance : ( i )of any offence punishable under sub-section (2) of section 44 or sub-section (1) of section 58, ( a )where the offence is alleged to have been committed by an officer of enforcement not lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Central Government; ( b )where the offence is alleged to have been committed by an officer of Enforcement lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Director of Enforcement; or ( ii )of any offence punishable under section 56 or section 57, except upon a complaint in writing made by ( a )the Director of Enforcement; or ( b )any officer authorised in writing in his behalf by the Director of Enforcement or the Central Government; or ( c )any officer of the Reserve Bank authorised by the Reserve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther than an authorised dealer shall outside India, purchase or otherwise acquire or borrow from, or sell, or otherwise transfer or lend to or exchange with, any person not being an authorised dealer, any foreign exchange : Provided that nothing in this sub-section, shall apply to any purchase or sale of foreign currency effected in India between any person and a money-changer. Explanation - For the purpose of this sub-section, a person who deposits foreign exchange with another person or opens an account in foreign exchange with another person, shall be deemed to lend foreign exchange to such other person. (2) Except with the previous general or special permission of the Reserve Bank, no person, whether an authorised dealer or a money-changer or otherwise, shall enter into any transaction which provides for the conversion of Indian currency into foreign currency or foreign currency into Indian currency at rates of exchange other than the rates for the time being authorised by the Reserve Bank. (3) Where any foreign exchange is acquired by any person, other than an authorised dealer or a money-changer, for any particular purpose, or where any person has been permitted c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be deemed to have received such payment otherwise than through an authorised dealer; ( c )draw, issue or negotiate any bill of exchange or promissory note or acknowledge any debt, so that a right (whether actual or contingent) to receive a payment is created or transferred in favour of any persons resident outside India; ( d )make any payment to, or for the credit of, any person by order or on behalf of any person resident outside India; ( e )place any sum to the credit of any person resident outside India; ( f ) make any payment to, or for the credit of, any person or receive any payment for, or by order or on behalf of, any person as consideration for or in association with ( i )the receipt by any person of a payment or the acquisition by any person of property outside India; ( ii )the creation or transfer in favour of any person of a right (whether actual or contingent) to receive payment or acquire property outside India; ( g ) draw, issue or negotiate any bill of exchange or promissory note, transfer any security or acknowledge any debt, so that a right (whether actual or contingent) to receive a payment is created or transferred in favour of any person as c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1) of section 18 (or section 18A) or clause ( a ) of sub-section (1) of section 19, or sub-section (2) of section 44 or section 57 or section 58], is again convicted of an offence under this Act [not being an offence under section 13 or clause ( a ) of sub-section (1) of section 18 (or section 18A) or clause ( a ) of sub-section (1) of section 19, sub-section (2) of section 44 or section 57 or section 58], he shall be punishable for the second and for every subsequent offence 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. (3) Where a person having been convicted of an offence under this Act [not being an offence under section 13 or clause ( a ) of sub-section (1) of section 18 (or section 18A) or clause ( a ) of sub-section (1) of section 19, or sub-section (2) of section 44 or section 57 or section 58], is again convicted of an offence under this Act [not being an offence under section 13 or clause ( a ) of sub-section (1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Magistrate of the first class to pass a sentence of imprisonment for a term exceeding three years or of fine exceeding five thousand rupees on any person convicted of an offence punishable under section 56)]. (2) No court shall take cognizance : ( i )of any offence punishable under sub-section (2) of section 44 or sub-section (1) of section 58, ( a )where the offence is alleged to have been committed by an officer of Enforcement not lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Central Government; ( b )where the offence is alleged to have been committed by an officer of Enforcement lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Director of Enforcement; or ( ii )of any offence punishable under section 56 or section 57, except upon a complaint in writing made by ( a )the Director of Enforcement; or ( b )any officer authorised in writing in his behalf by the Director of Enforcement or the Central Government; or ( c )any officer of the Reserve Bank authorised by the Reserve Bank by a general or special order : Provided that where any such offence is the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three months since the service of the impugned opportunity notice dated 21-5-2002 on the petitioner, he had not chosen to submit his reply whether he had obtained any Special or General permission from the Reserve Bank of India contemplated under sections 8 and 9, read with sections 56 and 57 of the Act before purchasing the said foreign car. 8. Be that be, the procedure that is contemplated under proviso to section 61(2)( ii ) of the Act before initiating criminal action against a person for the offence punishable under section 56 of the Act, is to give an opportunity to such person to show whether he had obtained Special or General permission from the Reserve Bank of India either for dealing in Foreign Exchange or for the payments, is mandatory under sections 8 and 9 of the Act, as any violation to the same would amount to an offence liable to be prosecuted by the respondents under sections 56 and 57 of the Act referred to above. Section 61 of the Act provides the procedure to be followed and prescribes the jurisdiction of the court for proceeding with the criminal action for the offences punishable under sections 56 and 57 of the Act. The opportunity contemplated under the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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