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TMI Blog2009 (3) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... sent cases. - CRL. M.C. NOS. 6648-49 OF 2006 AND CRL. M. NO. 11218 OF 2006 - - - Dated:- 13-3-2009 - DR. S. MURALIDHAR, J. P.P. Malhotra, Ms. Rajdipa Behura, Shanker Chhabra and C.S. Chauhan for the Respondent. JUDGMENT 1. The prayer in this petition by the Petitioner No. 1 Shri S.K. Bahadur and his wife Petitioner No. 2 Smt. Asha Bhatnagar is for the quashing of Complaint Cases titled J.C. Makhija, Assistant Director, Enforcement Directorate v. S.K. Bahadur and J.C. Makhija, Assistant Director, Enforcement Directorate v. Asha Bhatnagar both pending in the Court of learned Additional Chief Metropolitan Magistrate ( ACMM ), New Delhi under section 8(1) of the Foreign Exchange Regulation Act, 1973 (FERA). 2. The aforementioned complaints state that on 4-12-1984 the premises at D-1/153, Satya Marg, Chanakaya Puri, New Delhi under occupation of the Petitioners was searched by the Central Bureau of Investigation ( CBI ) and foreign currency of US $ 2,596 and U.K. Sterling pounds 1,220 and certain other incriminating documents were found and seized. It was alleged that Petitioner No. 1 who was at the relevant time working as Joint Secretary and Legal A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the foreign currency seized, disproportionate to his known sources of income, a parallel complaint under the FERA in the Court of the learned ACMM is not going to serve any purpose except causing harassment to the petitioners. 5. Reference is made to section 155(4) CrPC which states that where the facts of the case disclose the commission of both a cognizable as well as a non-cognizable offence then the case shall be deemed to be a cognizable one notwithstanding that the other offences are non-cognizable. It is submitted that when on the same set of facts the CBI has filed a charge sheet and cognizance has been taken of the offence under section 5(1)( e ) PC Act, a separate complaint for a non-cognizable offence under the FERA was not maintainable. The learned Special Judge who took cognizance of the PC Act offence was competent to take cognizance of the offence under FERA as well. Inasmuch as the learned Special Judge did not do so it is not open to the learned ACMM to entertain the complaints and take cognizance of the offence under the FERA. 6. Petitioner No. 1 who appeared in person relied on certain circulars of the department to urge that since the value of the fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government is the competent authority to take decision thereon for the withdrawal of case filed under section 56 Foreign Exchange Regulation Act, 1973. The considered views of the Director were submitted to the Government. It has been observed from the facts of this case, that the FERA adjudication, prosecution and subsequent appeal before the ATFE filed by Shri Bahadur are linked to the case of CBI relating to a matter under the Prevention of Corruption Act and therefore this matter cannot be seen in isolation. Though a small amount is involved, the general policy being followed in considering such matters in the case of prosecutions filed is that where a case/cases are part of a group case, or/and penalties have not been paid, even though small, cases should not be withdrawn. As regards, Shri Bahadur s contention that the foreign currency did not belong to him, it has been noted that the Adjudicating Authority s order on the issue has not been disturbed by the ATFE or any other court so far and further that the Adjudicating Authority had levied penalty against Shri S.K. Bahadur and Smt. Bahadur which have not been paid till now. As regards, prosecution being filed even before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose the prosecution of the petitioners is expected to achieve particularly given the lapse of time and the fact that the amount involved is well below the minimum limit set by the respondent for launching prosecution. 6. In the circumstances this Court would like the respondent, in consultation with the Central Government, to examine the representation of the petitioners for dropping the prosecution afresh in light of the factors pointed out herein before. It hardly needs stressing that the dropping of the criminal proceedings is not going to affect either the adjudication proceedings, which are pending in appeal before the Appellate Board or the trial of petitioner No. 1 for the offences under the Prevention of Corruption Act. 7. Mr. Malhotra, learned ASJ states that the matter will again be examined and a proper affidavit will be filed by the respondent in this Court within four weeks. Till the next date of hearing, the proceedings before the trial court shall remain stayed. 8. List on 13-3-2008. 9. Order be given dasti to learned counsel for the parties." 10. Pursuant to the aforementioned order further affidavit was filed by the Directorate of Enforcement on 24-3-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 31-5-2002 and not as per guidelines of 9-2-1987." 12. Petitioner No. 1 was heard at length. Along with his written submissions Petitioner No. 1 has produced copies of the Circular (Tech.) Order No. 6/78 issued on 5-2-1997 a reference to which was made in the judgment dated 11-5-1995 of a learned Single Judge of this Court in Suman Kapoor v. Union of India 1995 JCC 695. In paras 8 and 11 of the said decision a reference was made to the guidelines contained in para 4 of the said Circular which suggests that prosecution is required to be launched if non-repatriation is mala fide and deliberate and only if the evidence is adequate and "there is fair chance of successful prosecution." Reference was also made to certain other guidelines dated 14-8-1984, which inter alia stated that after the receipt of the copy of adjudication order, it will be the responsibility of the Investigation Officer to examine whether the case falls under the guidelines for prosecution pursuant to the Technical Circular Order No. 6/78. The petitioner also referred to the Circular Technical No. 1/92 dated 5-5-1992 whereunder prosecution under section 56 FERA is to be considered only where the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion enabling the petitioners to approach this Court again for relief. 15. Certain facts which are not in dispute are that the total value of the foreign exchange seized from the premises of the petitioners is admittedly around Rs. 49,452. The complaint was filed in 1987 and 22 years have gone by and not even charge has been framed for the alleged offence under the FERA. The contention of Mr. Malhotra that irrespective of the value of foreign exchange that may have been found in possession of the petitioners, and irrespective of the lapse of time since the filing of the complaints, the criminal complaints ought not be quashed as that would sent a wrong signal does not impress this Court. 16. In order to appreciate this submission a reference may be made to section 56(1) FERA which reads as under : " Offences and prosecutions. (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, section 18A, clause ( a ) of sub-section (1) of section 19, sub-section (2) of section 44 and sections 57 and 58, or of any rule, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 6/87 dated 3-6-1987 which set the minimum value of foreign exchange seized at Rs. 25,000 to justify the prosecution. The limit was raised to Rs. 2.5 lakhs in 1992. Still, the amount of Rs. 49,452 cannot be said to be so substantial that the quashing of a criminal complaint involving foreign exchange of that value pending for over 22 years can be said to send a wrong signal. Also, the case was to be reviewed at different levels in light of the applicable circulars before prosecution was actually launched. As far as the present case is concerned the affidavits filed do not indicate that there was application of mind by the Central Government or the Director as the case may be to the circulars in force concerning launching and withdrawal of prosecutions. Despite two orders of this Court, the Central Government has refused to reconsider its decision without really giving any reasons for such decision. This Court is unable to appreciate the stand of the Central Government in the matter. 19. The exhaustive list of dates produced does not persuade the court to hold that it is the petitioners alone who are responsible for the delay in the progress of the two complaint cases. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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