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TMI Blog2009 (3) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made by the complainant that those persons had violated provisions of sections 8(1), 8(2), 8(3), 8(4), 9(1)( a ), 9(1)(l)( i ), 18(2), 18(3), read with sub-section (3) of section 49 of Foreign Exchange Regulation Act, 1973 ( sic ). 2. The name of the present petitioner was not added as an accused in the complaint though his name appeared in paragraphs 23 and 35 of the complaint where some allegations are made against the petitioner in helping Abhishek Verma in procuring some foreign exchange on a premium. However, the fact remains that he was not implicated as an accused. 3. Learned counsel appearing for the Enforcement Directorate submits that in fact a notice was issued to the petitioner calling upon him to show-cause as to why he should not be prosecuted. After taking his reply on record the Enforcement Directorate was satisfied that it was not a case where he should also be prosecuted along with other accused persons and that is how his name was not added as an accused in the complaint but inadvertently certain references were there qua him in the complaint probably which was prepared before the receipt of the reply to the show-cause notice issued to the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d persons with criminal liability when in the departmental proceedings, it has been found that ex facie there was no such violation. The yardstick fixed was that the charges in the departmental proceedings as well as the criminal complaint must be of identical nature and the exoneration of the concerned persons in the departmental proceedings is on merits holding that there is no contravention of the provisions of the said Act. 7. There is no real dispute that the adjudication proceedings in the present case are not based on technical grounds or by giving benefit of doubt or that the merits have not been examined. The natural consequences, thus, is that the charges cannot be framed and the criminal prosecution cannot be permitted to continue against the petitioners once the adjudication proceedings on merits have been found in favour of the petitioners. Learned counsel for the respondent, in fact, has been more than fair in accepting the said conclusion. 8. The petitions are, accordingly, allowed and the impugned orders framing charges are quashed and the petitioners are discharged." 5. It has been submitted by the petitioner that the aforesaid pronouncement by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FERA. Reading of the judgment, thus, in the manner indicated above, would clearly show that what is decided by the Supreme Court is that since two proceedings are independent, even when the adjudication proceedings are not over, the department was competent to launch criminal proceedings as well, alleging violation on the part of the accused person. 16. However, in the present case, we are not concerned with this question. A fine distinction of the issue involved in the case before the Supreme Court and before us in the present case has to be borne in mind. No doubt, as per the aforesaid judgment of the Supreme Court, adjudication proceedings as well as criminal proceedings can be initiated simultaneously. In fact, for initiating criminal proceedings one does not have to wait for the outcome of adjudication proceedings. Therefore, filing of the criminal proceedings by the department against the petitioner in the instant case cannot be termed as bad in law. However, the question with which we are concerned is the impact of the findings which is recorded on the culmination of adjudication proceedings on criminal adjudication. To put it in simple words, the issue is, if in the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e set of facts and circumstances, the criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is filed by the departmental authorities alleging violation/contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused persons with criminal liability when it is stated in the departmental proceedings that ex facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of the provisions of any Act." 7. Since in that case the exoneration was not on merits, the Court observed: "29. It is clear from the above that in the departmental proceedings, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other accused persons, the Department has taken a view that no case is made out against the present petitioner. Relevant observations made in this regard appears in para 62 of the said order which is reproduced hereunder : "62. As regards the proceedings against Shri Sandeep Puri against whom the charges of section 8(1) and 8(2) and section 18(2) and 18(3) of the FERA, 1973 were invoked in terms of section 68 of the Act, the said proceedings are dropped as the charges were not proved as discussed hereinabove. Similarly, the proceedings against Sh. Arjun Amla for contravention of section 8(1) of the FERA, 1973 are also dropped since the charge was not proved as per the discussions in the preceding paragraphs. 63. The penalties imposed as above should be deposited in the office of the Deputy Director, Enforcement Directorate, Delhi Zonal Office, 10A, Jam Nagar House, Akbar Road, New Delhi in the form of Demand Draft to be drawn in favour of the Pay and Accounts Officer, Department of Revenue, New Delhi, within 45 days of the receipt of this order." 11. The learned counsel for the respondents submits that the earlier notice which is also known as opportunity notice with resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a judgment has been given in Sandeep Puri s case ( supra ) subsequent to the order passing of the charge and it is not a case where even situation warrants passing of order under section 319 Cr. P.C. and further because the respondents themselves decided not to initiate the proceedings with criminal side against the petitioner after receiving his reply it is a fit case where proceedings should go on. There was no notice under section 61(2) for the purpose of the prosecution of the petitioner in respect of the offences for which an order under section 319 Cr. P.C. has been passed. 15. In view of the aforesaid and in view of the judgment delivered by Learned Judge of this Court in Sandeep Puri s case ( supra ) subsequent to the passing of the aforesaid order where her order framing of the charges was questioned also on the ground that once the petitioner Sandeep Puri was exonerated of an adjudicatory proceedings, no purpose would have been served to prosecute him any further. This is also the position in this case. 16. Even though Hon ble Supreme Court in Standard Chartered Bank ( supra ) also followed in Sunil Gulati s case ( supra ) has laid down that the two pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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