9911796707
TMI Blog2009 (2) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed by the Enforcement Directorate against M/s. Harshita Limited (presently Harshita Organics Limited) [`Company'] and six others including the Petitioner who is described therein as a Director of the said company. The allegation against the Company was that it had failed to realize the export proceeds equivalent to Rs. 4,947.43 lakhs during the year 1997-98 and that the Company failed to furnish any permission of the Reserve Bank of India ('RBI') for extension of the time for realization of the export proceeds. Accordingly, it was alleged in the complaint that the Company had contravened Sections 18(2) and 18(3) FERA. 3. As regards the Petitioner the only allegation in the complaint is contained in para 8 thereof which r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting year 1997-98. Therefore factually also the Petitioner cannot be made liable for the offence committed by the company in terms of Section 18(2) and (3) read with Section 68 FERA. 5. Learned Counsel for the Respondent on the other hand submits that the fact that the Petitioner was a Director of the Company till 28th August 1997 is not in dispute. Since the failure to realize the export proceeds is relatable to the year 1997-98, a prima facie case is made out against the Petitioner. He further submits that the question whether the Petitioner was in fact in charge of the day-to-day affairs of the Company can be decided only at the trial. 6. As regards the first submission made by learned Counsel for the Petitioner it is seen that Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the Respondent No. 1, who was the Manager of the Company in question, and Respondents 2 to 4 who were its Directors could be made liable for the offence committed by the company under Sections 7 and 16 of the Prevention of Food Adulteration Act. The averment in the complaint in the said case reads as follows: 5. That accused 3 is the Manager, of accused 2 and accused 4 to 7 are the Directors of accused 2 and as such they were incharge of and responsible for the conduct of business of accused 2 at the time of sampling. 9. In the context of the above averment, in para 15 of the judgment in Ram Kishan Rohtagi, the Supreme Court observed: 15. So far as the Manager is concerned, we are satisfied that from the very nature of his duties it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the Petitioner merits acceptance. It is held that the complaint, when read as a whole, does not make out even a prima facie case against the Petitioner for the offence under Sections 18(2) and 18(3) FERA read with Section 68 thereof. 11. As regards the second submission, a reply filed by the Respondent does not dispute the fact that although the Petitioner may have been a Director at the time when the first exports were made on 31st May 1997 and 3rd June 1997, he was no longer a director on the dates when the realization of the export proceeds were done, i.e., 30th November 1997 and 3rd December 1997 respectively. The Respondents does not dispute the fact that the Form 32 was filed with the Registrar of Companies showing th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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