9911796707
TMI Blog2010 (2) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint before the Chief Metropolitan Magistrate, Esplanade bearing C.C. No. 122/W/2002 against several accused including the applicants before me. 6. The charges are that the offences punishable under Section 120B of Section 56(1)(ii) read with Section 19(1)(b) of FERA, 1973, Section 64(2), 68(1) and 68(2) of FERA, 1973 all read with Section 49(3) and 49(4) of the FEMA, 1999 have been committed by the accused. It is stated that accused no.1, 5 to 9 are private limited companies dealing in Finance, shares and stock broking. Accused nos. 2 and 3 are the Directors of these companies. Accused no.4 is a Director in accused nos. 5, 6 and 8 whereas, accused no.10 is a private limited company dealing in finance and shares. It is stated that the Directors are responsible for and in charge of the business of the companies in question. Accused no.12 is also a private limited company and accused no. 13 is a Director thereof. It is stated that accused nos.14 to 17 are banking companies and officers of the banking company. 7. After referring to the searches carried out by the Income Tax Department at premises of with accused no.1 in Mumbai and after seizure of documents thereat, it is alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de on 20/08/2002 and 16/11/2002. On these applications, after hearing the parties, the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai passed an order on 16/06/2005 rejecting them. 10. Aggrieved by this rejection, the applicants preferred a Criminal Revision Application before the Court of Sessions of Greater Bombay upon which the impugned order has been passed. 11. Mr. Kulkarni and Mr. Khanavkar, learned counsel appearing for the applicants contended that the complaint was ex facie barred by law. A complaint which is barred by law could not have been entertained, leave alone, process issued summoning the accused in furtherance thereof. It is contended that the courts below failed to appreciate that the 1973 Act has been repealed by the Parliament and now what is in force is the Foreign Exchange Management Act, 1999 (for short `the 1999 Act ). Inviting my attention to Section 49 of the 1999 Act, it is contended by the learned counsel that the consequences of repeal are clear. The said provision deals with repeals and savings. The 1973 Act is repealed and the appellate board constituted thereunder is dissolved. On dissolution of the board, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt unambiguously deals only with taking of cognizance by court in criminal prosecution, while the subsequent part deals only with civil adjudication. It is common knowledge that a conjunction combines two different and distinct sentences. Therefore, Section 49(3) has to be split and read as : No courtshall take cognizance of an offence under the repealed Act. AND No adjudicating officer shall take notice of any contravention under Section 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act. 15. The applicants submit that the Rule of Last Antecedent widely relied upon while interpreting provisions of law in the strict grammatical sense, supports the aforesaid submission of the applicants. As per the said rule of interpretation, `relative and qualifying words, phrases and clauses are applied to the antecedent immediately preceding the said clause. In Section 49(3), the relative/qualifying phrase is after the expiry of a period of two years from the date of commencement of this Act while the two antecedents are (1) no courtshall take cognizance of an offence under the repealed Act and (2) no adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the applicants would mean that and will have to be read as or . If such an intent is not apparent from the statutory provision, then, by interpretative process, this court cannot read the provision in question, so as to bifurcate the proceedings. In these circumstances, there is no substance in the application and it deserves to be dismissed. 18. At the outset, I must clarify, that although in the written submissions, several pleas have been raised with regard to the merits of the transaction, I am not inclined to deal with them. It will not be possible to hold only on the version of the applicants, that the transactions were authorised by law. The complaint would have to be read as a whole and to my mind it discloses commission of offences under the relevant statutory provisions. On the basis of the applicants version on the merits of the matter, the complaint cannot be quashed. Therefore, it is clarified that all pleas and contentions on merits of the controversy are kept open for being raised at an appropriate stage. 19. The only contention therefore surviving for my consideration is about interpretation of Section 49 and more particularly sub section 3 thereof. This pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that the High Court may entertain such appeal after the expiry of the siad period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. (6) Save as otherwise provided in sub section (3), the mention of particular matters in sub sections (2), (4) and (5) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1987), with regard to the effect of repeal. 20. A bare perusal of the 1999 Act would make it apparent that the 1999 Act has been brought on the statute book by the legislature so as to deal with the developments which have taken place after the 1973 Act was enacted. The statement of objects and reasons sets out that the 1973 Act was repealed by the 1999 Act. Several amendments were made to the 1973 Act but even thereafter significant developments have taken place. There is substantial increase in the foreign exchange reserves, growth in foreign trade, rationalization of tariffs, current account convertibility, liberalization of Indian investments abroad, increased access to external commercial borrowings by Indian Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch parties, so also, to save the proceedings from being completely barred, that the legislature stepped in. To the extent that there is non obstante clause in Section 49(3), the provisions of the general law, namely, the General Clauses Act would not come into play. However, if sub section 4 is perused, it is clear that the legislative intent is to permit continuation of proceedings under the old Act. If the court takes cognizance within 2 years from the date of commencement of the 1999 Act, then, such proceedings can continue. That is how, Section 49(4) of the 1999 Act reads. Therefore, if the various sub sections of Section 49 are read together and harmoniously, it would be apparent that even offences of which cognizance has been taken by a court, can be continued and trial thereof is not barred, provided, cognizance is taken within the statutory period. If such was not the intent, then, there would not have been another non obstante clause in Section 49(5). Therefore, if the two non obstante clauses and the saving in sub sections 6 of Section 49 are read harmoniously, then, the intent is that the offences can be tried and taken cognizance of, so also, the adjudication proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no error in rejecting the application for discharge and upholding the order issuing process. 25. The decisions brought to my notice by the learned counsel for the applicants are clearly distinguishable. In Principles of Statutory Interpretation by Hon ble Mr. Justice G.P. Singh, 11th Edition 2008, page 455, the learned Author has succinctly set out the principles where the provisions have been construed either conjunctively or disjunctively. He refers to the decisions rendered by the Supreme Court of India and other courts out of India. The learned Author comments thus : 7. Conjunctive and Disjunctive Words Or and And : . The word `or is normally disjunctive and `and is normally conjunctive but at times they are read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the context. As stated by SCRUTTON, L.J.: You do sometimes read `or as `and in a statute. But you do not do it unless you are obliged because `or does not generally mean ``and and `and does not generally mean `or . And as pointed out by LORD HALSBURY the reading of `or as `and is not to be resorted to, unless some other part of the same statute or the clear int ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
