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TMI Blog2024 (5) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... und the petitioner guilty of violation of the aforesaid provisions on 16.05.1996 and imposed a penalty of Rs. 1.50 lakhs upon the petitioner. The petitioner preferred an appeal against such order on 09.07.1997 and was subsequently directed to deposit a sum of Rs. 33,000/- with prerequisite for admission of the appeal which was not complied with by the petitioner stating his financial constraint. The issuance of notice and subsequent adjudication determining the petitioner to be guilty of violation of Section 18(2) and Section 18(3) of the Foreign Exchange Regulation Act 1973 related to 18.07.1996 and 16.05.1997 prior to the promulgation of the Foreign Exchange Management Act, 1999 and according to Section 49 (3) and Section 49 (4) of the F.E.M.A. Act of 1999. The provisions of the F.E.R.A. Act of 1973 will be applicable in the instant case. A further sunset period of two years was granted to adjudicate the proceedings of the offences instituted under the F.E.R.A. Act deferring the applicability of the F.E.M.A. Act of 1999 as enumerated in Section 49 (3) of the F.E.M.A. Act. The contention of the Learned Advocate for the petitioners to deal with the instant offence of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001) convicting the petitioner for commission of an offence punishable under Section 57 of the Foreign Exchange Regulation Act, 1973 and sentencing him to suffer imprisonment for 6 months and to pay fine of Rs. 5000/- in default to suffer simple imprisonment for 2 months more. 2. The allegations portrayed in the said complaint are precisely to the effect that:- a) The Assistant Director of Enforcement Directorate, Kolkata in exercise of powers conferred upon him under Section 51 read with Section 50 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA ) found the petitioner guilty of violation of the provisions of Section 18(2) and 18(3) of the FERA and accordingly imposed a penalty of Rs. 1,50,000/- upon the petitioner vide adjudication order no. 33/97/AD dated 16.05.1997. b) In the said order the Assistant Director of Enforcement Directorate, Kolkata directed the petitioner to deposit the penalty amount in the Kolkata office of Enforcement Directorate at 8A, Lindsay Street, Calcutta 700037 within 45 days from the date of receipt of the said order. c) The petitioner, inspite of receipt of such adjudication order, failed to deposit the aforesaid penalty am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Deputy Director, Enforcement Directorate, Foreign Exchange Regulation Act requiring the petitioner to show cause why adjudication proceedings under Section 51 of the FERA Act should not be initiated against him for contravention of Section 18(2) and Section 18(3) of the Foreign Exchange Regulation Act, 1973 for non-realization of export proceeds by the petitioner from the said foreign purchasers. e) On 16.05.1997, the adjudicating authority found the petitioner guilty of violation of Section 18(2) and Section 18(3) of the Foreign Exchange Regulation Act, 1973 and imposed a penalty Rs. 1.50 Lakhs upon the petitioner. f) On 09.07.1997, the petitioner preferred an appeal being Appeal No. 268/97 before Foreign Exchange Regulation Appellate Board against order dated 16.05.1997. However, by order dated 28.10.1997, the appellate board directed the petitioner to deposit a sum of Rs. 30,000/- as a pre-requisite for admission of appeal, which the petitioner could not comply due to paucity of funds. g) On 29.12.1999, Foreign Exchange Regulation Act, 1973 was repealed and replaced with Foreign Exchange Management Act, 1999. Pertinently Foreign Exchange Management Act, 1999 was en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of reduced punishment as prescribed under FEMA Act. Therefore, his conviction to suffer imprisonment for 6 months should be set aside and only a fine of appropriate amount should be imposed upon him. m) Section 57 of FERA lays down that if any person fails to pay the penalty imposed by the adjudicating officer or the Appellate Board or the High Court or fails to comply with any of his or its directions or orders, he shall, upon conviction by a court, be punishable with imprisonment for a term which may extend to two years or with fine or with both. Thus, sentence that can be imposed on an accused for contravention of Section 57 has to be read disjunctively wherein a Court of competent Jurisdiction has the power to either impose only fine or only imprisonment or both upon the accused. 8. The rival contentions of the Learned Advocate for the Opposite Party are stated as follows:- i. The petitioner alleged that in view of the repeal of the FERA, by the Foreign Exchange Management Act, 1999 (FEMA) the petitioner can only be imposed with fine and cannot be sentenced to imprisonment, as per the present provisions under FEMA. The petitioner relied on T. Barai Vs. Henry Ah Hoe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Standards Act, 2006. ii. The petitioner also relied upon the judgment Anil Dhar Ors. Vs. Enforcement Directorate 2010 SCC Online Del 1761 on the proposal that under Section 57 may modify the punishment. It is submitted that as evident from paragraph 7 of the Anil Dhar (Supra) that there the person was imposed with fine once in individual capacity and second time as sole proprietor of M/s Babs International which was not a separate legal entity. Thus, the Hon'ble Court held that one person cannot be punished for the same offence twice. Thus, it is submitted that there was no modification/alteration of the punishment and in Anil Dhar's case (Supra) only fine was imposed and no sentence of imprisonment. The said case is also inapplicable for adjudication of the present dispute. iii. The petitioner submitted that the punishment as envisaged under Section 57 of the FERA stipulated imprisonment for a term which may extend to two years or with fine or with both, thus the Hon'ble Court may alter the punishment of imprisonment only with fine. The petitioner has failed to make out any case for interference by this Hon'ble Court under Section 482, Cr.P.C. The inherent powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of this Act (4) Subject to the provisions of sub-section (3) all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. (5) Notwithstanding such repeal, (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any license, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; (b) any appeal preferred to the Appellate Board under sub-section (2) of section 52 of the repealed Act but not disposed of before the commencement of this Act shall stand transferred to and shall disposed of by the Appellate Tribunal constituted under this Act; (c) every appeal from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of section 52 of the repealed Act shall, if not filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the repealed Act as if that Act had not been repealed. Sub-section (3) of section 49 saves the prosecution for the offences punishable under sections 56 and 57, which have been committed prior to the repeal of the Foreign Exchange Regulation Act, provided the competent court takes its cognizance within two years from the date of coming into force of the Foreign Exchange Management Act. In view of sub-section (4) of section 49, for the purposes of the prosecution of offences punishable under sections 56 and 57 of the Foreign Exchange Regulation Act, by a legal fiction, the provisions of the repealed Act will continue to apply. However, the same will continue to apply only for the purposes of prosecution of the offences which are saved by sub-section (3) of section 49 of the Foreign Exchange Management Act. That is how the complaint filed by the Enforcement Officer, duly authorised under clause (ii) of Sub-section (2) of section 61 of the Foreign Exchange Management Act, will continue to be valid, inasmuch as by virtue of the legal fiction incorporated in sub-section (4) of section 49, the prosecution will continue to be governed by the provisions of the Foreign Exchange Regulation A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date and amend the law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India. 12. Section 1 of the said Act enumerates as follows:- 1. Short title, extent, application and commencement. (1) This Act may be called the Foreign Exchange Management Act, 1999. (2) It extends to the whole of India. (3) It shall also apply to all branches, offices and agencies outside India owned or controlled by a person resident in India and also to any contravention thereunder committed outside India by any person to whom this Act applies. (4) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision. 13. The said Act came into effect from 1st June, 2000, vide notification no. G.S.R. 371(E), dated 1st May, 2000. 14. Section 49 of the said aforesaid Act states the following 49. Repeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 1897) with regard to the effect of repeal. 15. Section 49 (3) of the aforesaid Act enumerated that the Courts were mandatorily restricted to take cognizance under the offence of the repealed act and no adjudicating officer shall take cognizance of any contravention under Section 51 of the repealed Act after an expiry of a period of two years from the date of the commencement of the said Act. 16. Section 49 (4) of the aforesaid Act has been stipulated below:- (4) Subject to the provisions of sub-section (3) all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. 17. A conjoint reading of the provisions enumerated under Section 49 (3) and 49 (4) of the said Act signified that the actions taken by the competent authorities aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid. The memorandum as aforesaid was issued against the petitioner to show cause as to why adjudication proceedings under Section 51 of the F.E.R.A Act should not be initiated against him for contravention of Sections 18(2) and Section 18(3) of the Foreign Exchange Regulation Act, 1973 on 18.07.1996. The adjudicating authority as aforesaid found the petitioner guilty of violation of the aforesaid provisions on 16.05.1996 and imposed a penalty of Rs. 1.50 lakhs upon the petitioner. The petitioner preferred an appeal against such order on 09.07.1997 and was subsequently directed to deposit a sum of Rs. 33,000/- with prerequisite for admission of the appeal which was not complied with by the petitioner stating his financial constraint. The issuance of notice and subsequent adjudication determining the petitioner to be guilty of violation of Section 18(2) and Section 18(3) of the Foreign Exchange Regulation Act 1973 related to 18.07.1996 and 16.05.1997 prior to the promulgation of the Foreign Exchange Management Act, 1999 and according to Section 49 (3) and Section 49 (4) of the F.E.M.A. Act of 1999. The provisions of the F.E.R.A. Act of 1973 will be applicable in the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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