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TMI Blog2023 (1) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... Public Prosecutor (ED) ORDER The Indian Overseas Bank (IOB) and its employees have questioned the adjudication order passed by the Special Director of Enforcement in proceedings no.ADJ/14-15/B/SDE/RAJ/2010/FERA 3645 dated 25.02.2010, imposing penalty for the contravention of Section 64(2) of the Foreign Exchange Regulation Act(hereinafter referred to as 'the FERA'). 2. The brief facts of the case are as under: 2.1. M/s.Trinity International Corporation was maintaining a Current Account No.1764 with the IOB, Janakpuri Branch, New Delhi. On 05.12.1991, the proprietor of the said concern issued a cheque for a sum of Rs.1,54,20,800/- from his Account No.1764 with IOB, to transfer the said amount to Standard Chartered Bank(SCB), Mumbai to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already exercised its powers under Section 73(3) of FERA and directed the IOB to repatriate/surrender the amount that had already gone out of India and the same has been complied with by the bank and reported to the RBI on 03.12.1993. Hence, there is no violation of the provisions of the FERA. The learned counsel further contended that the Special Director of Enforcement lacks jurisdiction to impose penalty against the petitioners and hence, the present Writ Petition is maintainable even though an alternative remedy of appeal is available. 5. Per contra, the learned Special Public Prosecutor appearing on behalf of the respondent submitted that not even a part of the cause of action had arisen within the jurisdiction of this Court and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FERA, must be treated to be an order under FEMA and consequently, the appellate remedy available under FEMA will automatically apply and that is the reason why, even in the impugned proceedings dated 25.02.2010, the petitioners were informed that an appeal against the order dated 25.02.2010 will lie before the Appellate Tribunal in line with Section 19 read with Section 49(5)(a) of the FEMA. 8. Section 50 of the FERA provides that the adjudication as against any contravention of provisions of the FERA must be adjudged by the Director of Enforcement or any other officer of the enforcement not below the rank of an Assistant Director of Enforcement specially empowered in this behalf by the order of the Central Government. In the instant case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the enactment itself provides for further remedies under Section 19 of FEMA before the Appellate Tribunal and thereafter, under Section 35 of the Act, by way of filing a further Appeal before the High Court against the order passed by the Appellate Tribunal. These remedies have been provided to enable an aggrieved person to contest the order passed by the adjudicating authority, both on facts and on law. These appellate remedies cannot be bypassed and the doors of the High Court cannot be knocked straight away under Article 226 of the Constitution of India. 12. It is true that where the High Court has entertained a Writ Petition and it is pending for a long time, the Writ Petition should not be thrown out on the ground of alternative rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the grounds before the Appellate Tribunal. 15. In the result, the Writ Petition is disposed of with the following directions: a) The petitioners are permitted to file appeal against the order passed by the Special Director of Enforcement in Proceedings No.ADJ/14- 15/B/SDE/RAJ/2010/FERA3645 dated 25.02.2010 within a period of 45 days from the date of the receipt of copy of this order. b) When this Writ Petition was entertained, interim order was passed and thereby, the operation of the order of the Special Director of Enforcement dated 25.02.2010 was stayed. Consequently, the penalty amount was not recovered from the petitioners during the pendency of the Writ Petition. We are inclined to extend this interim protection till the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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