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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 ..... h the Magistrate has not considered and such non-application of mind has rendered his findings not tenable in the eyes of law. The Magistrate was duty bound to take note of the same, more particularly, in terms of Section 57(7) of the Evidence Act. It was a mandate of law. The notification dated 24th September, 1993 read with the direct evidence of the appellant before the Trial Court would unfailingly point out to the fact of the appellant to be competent officer under law, to institute prosecution on behalf of the Enforcement Directorate. By not considering all these factual and legal aspects, the Trial Court has committed gross error. The impugned judgment suffers from non-application of mind and illegality. Thus unable to place occurrence with the finding of the Court in the impugned judgment that provisions of Section 61 (2) (ii) of the Foreign Exchange Regulation Act, 1973 has not been complied with by the complainant in order to institute a case punishable under Section 57, as it is in this particular proceeding. In my considered opinion, the impugned judgment of the Trial Court suffers for non-application of mind and wrong appreciation of the fact situation as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SO 715 (E) dated 24th September, 1993 which is a public document too. 9. According to Ms. Ray, while passing the impugned judgment and order dated 18th August, 2011 the Court has misdirected itself as regards consideration of the available materials and also the provisions of applicable law and, thus, has come to an erroneous finding. Ms. Ray, has further submitted that on the basis of the evidence in the Trial Court and the documents relied on by the appellant the locus standi of the complainant is proved well beyond doubt and the complainant was entitled to proceed in the said case in accordance with law. According to her, since in the judgment the Court has wrongly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Officers. 13. Ms. Ray has also relied on the judgment of Rajasthan High Court in Provident Fund Inspector, Kota vs. M/s Jhumarlal Swarooplal Ors. reported in 1991 SCC Online Raj 236 to submit that in a similar fact the Court has been pleased to hold that evidence by the concerned officer to have held a particular office would be a direct evidence u/s 60 of the Evidence Act and in absence of any challenge to the same, the Magistrate shall be erring in case such fact is not accepted. It was held that taking note of the publication in official gazette was imparative for the Magistrate. 14. It would be beneficial if the relevant provisions of law that is Section 61 (2) (ii) of the Foreign Exchange Regulation Act, 1973 be extracted before further discussions are made. 61 (2) No court shall take cognizance- .. (ii) of any offence punishable under section 56 or section 57, except upon complaint in writing made by- (a) the Director of Enforcement; or (b) any officer authorised in writing in this 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or an authorised officer of Reserve Bank, shall be eligible to institute a complaint. The Magistrate has also emphasized that the appellant would not have the locus standi to initiate prosecution in absence of any authorization, without however considering 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 September, 1993 shall only be adding to the senile trait of the impugned order dated 18th August, 2011. Notification dated 24th September, 1993 is a public document and of unimpeachable nature ..... X X X X Extracts X X X X X X X X Extracts X X X X
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