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TMI Blog2023 (4) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... ESSEE MOVED". 3. The appellant is not equipped with any other better particular of the respondent. 4. Considering the facts and circumstances, hearing of the appeal is taken up without the respondent. 5. In the impugned judgment dated 18th August, 2011 the Trial Court considered the following two points for decision, "1. Whether the accused failed to pay the penalty amount in view of adjudication order no.66/2000/AD dated 30.11.2000 within the stipulated period of 45 days computing from the date of it's receipt inspite of receiving the said adjudication order ? 2. Whether the complaint was filed in compliance of the provisions of section 61 (2)(ii) of the FERA ?" 6. Without going into point no. 1 the Trial Court has found as regards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly appreciated the attending facts and circumstances and also wrongly interpreted the applicable law, this Court's interference to the said impugned judgment would be necessary. 10. She has prayed for setting aside the impugned judgment dated 18th August, 2011 and also for necessary other directions in this case. 11. The relevant portion of the impugned judgment may be extracted as hereinbelow:- "Admittedly PW-1 filed this case as an enforcement officer and he was not the director of enforcement at the time of filing this complaint. PW-2 in his evidence stated that he substituted PW-1 and proceeded by virtue of government notification. This witness is also an enforcement officer and is not the director of enforcement. Neither the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) of sub-section (2) of section 61 of the Foreign Exchange Regulation Act, 1973, (46 of 1973) and in supersession of the Government of India in the Ministry of Finance, Department of Economic Affairs notification No. GSR 73, dated the 26th January, 1974, the Central Government hereby authorises the following officers to make complaints in writing to any court in respect of any offence punishable under section 56 or 57 of the said Act, namely :- (i) Additional Director of Enforcement ; (ii) All Deputy Directors of Enforcement ; (iii) All Assistant Directors of Enforcement ; (iv) All Chief Enforcement Officers ; (v) All Enforcement Officers." 13. Ms. Ray has also relied on the judgment of Rajasthan High Court in Provident Fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law has enumerated and specified the officers who can maintain a criminal proceeding in a Court. According to the said provisions of law the Director of Enforcement or an officer authorised in writing on behalf of the Director or the Central Government or an authorized officer of the Reserve Bank shall be entitled to maintain a criminal case in a Court of law on behalf of the Enforcement Directorate. 16. 'Exhibit A' would be the relevant written authorization in terms of the said provisions of law. 17. It is beyond understanding as to what prevented the Court to take note of this authorization letter, as the Court has held that there is no written authorization in favour of the complainant. It is further noted that there is a notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or taking judicial note of his evidence and Exhibit-A (i.e., authorization certificate dated (22.12.2005). By doing so, the material fact of the appellant holding the office at the particular period of time, has been left out of the purview of consideration. The Magistrate could not ignore the ocular and documentary evidence before it, more so, when all these were uncontroverted. By virtue of holding officer at the particular period of time and having been authorized vide 'Exhibit-A' there was no impediment for the appellant to institute prosecution, which the Magistrate has not considered and such non-application of mind has rendered his findigs not tenable in the eyes of law. 21. Non-consideration of gazette notification dated 24th Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable and liable to be set aside, being not in conformity with the laws. 23. On the discussion as above, the impugned judgment dated 18th August, 2011 is set aside. It is however, learnt that concerned officer representing the appellant in the Trial Court, at the point of time when this appeal was preferred in the year 2012 is not holding the office any more. Accordingly it is directed that either the successor of the said officer, holding the office at present, or any other person prescribed under law and duly authorized shall represent the appellant/complainant in the Trial Court. The Trial Court shall proceed in accordance with law and conclude the trial as expeditiously as possible, taking into consideration the time which is alre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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