Judgment :- C.A. Nos. 23, 31, 32 and 33 of 1995 are directed against a common judgment of acquittal dated 7-4-1994 made in C.C. Nos. 673, 676, 674 and 675 of 1991 on the file of the learned Additional Chief Metropolitan Magistrate, Economic Offences I, Madras and C.A. No. 148 of 1995 is directed against the judgment of acquittal dated 15-6-1994 made in C.C. No. 333 of 1993 on the file of learned Additional Chief Metropolitan Magistrate, Economic Offences II, Madras. Even though the facts relating to each of these cases slightly differ from each other, the issues that arise for consideration in these appeals are identical and common, and hence, these appeals were heard together. The Interesting and substantial questions that arise for consideration in these appeals are : (i) Whether the non-issuance of opportunity notice to the respondents/accused as contemplated under Section 61(2)(ii) of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as "FERA, 1973") vitiates the case of the prosecution ? (ii) Whether the Courts below are right in acquitting the respondents/accused, holding that the appellant/complainant has failed to prove the charges, beyond all reasonable doubts, against the respondents/accused that they are guilty of the offences punishable under the provisions of the FERA, 1973 ? (iii) Are the respondents/accused not entitled for the benefit of the enactment of the Foreign Exchange Management Act, 1999 (hereinafter referred to as "FEMA, 1999") whereunder no provision is made for punishment, assuming that the respondents/accused are liable to be convicted for the offences punishable under Sections 9(1)(b) and 9(1)(d) of the FERA, 1973 in the respective criminal cases, and could they be punishable for the said offences under the FERA, 1973, which stands repealed by the enactment of the FEMA ? The case of the prosecution in C.C. Nos. 673, 676, 674 and 675 of 1991 is as under :- One Khader Sulaiman is the accused in C.C. Nos. 673, 676, 674 and 675 of 1991, which were tried jointly. Equipped with a search warrant dated 8-11-1985 issued under Section 37 of the FERA, 1973 by the Director of Enforcement, the Enforcement Officer P. V. Balasubramanian (P.W. 1) conducted a search in Khader Sulaiman's house on 9-11-1985 at No. 27, Appu Maistry Street, Madras 1 and seized certain incriminating documents, which are marked as Ex. P3 series, as well as Indian currency of Rupees 30,000/- under a mahazar report (Ex. P3 series, as well as Indian currency of Rupees 30,000/- under a mahazar report (Ex. P2), and at the time of search Khader Sulaiman gave a statement to P.W. 1 and the same was marked as Ex. P4. In the said statement dated 9-11-1985 (Ex. P4), the accused Khader Sulaiman had explained the code word, namely "COLD FINGER" as well as the modus operandi operated by him in dealing with the foreign exchange which are punishable under Sections 9(1)(b), 9(1)(d) and 56(1)(i) of the FERA, 1973, and also explained about the incriminating documents, viz. seven sheets (Ex. P3 series), seized during the search on 9-11-1985. Thereafter, Khader Sulaiman made the following statements, viz., (i) statement dated 11-11-1985 (Ex. P8), and (ii) statement dated 24-2-1986 (Ex. P9), wherein he confirmed his dealings in foreign exchange. During the course of investigation P.W. 1 obtained a statement from one Saroja, wife of T. S. Balasubramanian, dated 4-3-1986, (Ex. P10) wherein she had stated that her husband was working in DSA Ruwi Sultanate of Oman for the past three years and returned to India on 6-2-1986 as he was dismissed from service on 5-2-1986 and that her husband himself would state with respect to the payment which she used to receive from him through a third party. However, in Ex. P11, a telegram sent by Khader Sulaiman addressed to the Enforcement Officer, it was alleged that the statements, Exs. P4, P8 and P9, were obtained from him under force, threat and coercion, and therefore, they are not binding on him. Based on the above statements of Khader Sulaiman (Exs. P4, P8 and P9), adjudication proceedings were initiated under Section 51 of the FERA, 1973 for the alleged contravention of Sections 9(1)(b) and 9(1)(d) r/w 56(1) and (2) of the FERA, 1973 and a show cause notice (Ex. P5), as contemplated under Section 56 of the FERA, 1973 was served on Khader Sulaiman, to which Khader Sulaiman submitted his explanation dated 16-8-1988, (Ex. P6). In Ex. P6, Khader Sulaiman stated that he had already, by his letter dated 11-11-1985 (Ex. D1) and his telegram dated 24-2-1986 (Ex. P11), retracted the statements made on 9-11-1985 (Ex. P4) and 11-11-1985 (Ex. P8) and hence they are not binding on him. It was also contended that the onus of proving the receipts and payments, in violation to the provisions of the FERA, 1973 lays on the appellant/complainant. D1) and his telegram dated 24-2-1986 (Ex. P11), retracted the statements made on 9-11-1985 (Ex. P4) and 11-11-1985 (Ex. P8) and hence they are not binding on him. It was also contended that the onus of proving the receipts and payments, in violation to the provisions of the FERA, 1973 lays on the appellant/complainant. After giving a personal hearing to the accused Khader Sulaiman and his counsel on 16-9-1989, the adjudication authority, viz. Additional Director of Enforcement, by proceedings dated 11-10-1989 (Ex. P7), held that Khader Sulaiman had contravened the provisions of Sections 9(1)(b) and 9(1)(d) of the FERA, 1973 and imposed a penalty of Rs. 65,000/- and Rs. 60,000/- for the said offences respectively, in addition to the confiscation of Rs. 30,000/- under Section 63 of the FERA, 1973. In the light of the evidence of PW-1 and the documentary evidence Exs. P4, P8 and P9, the appellant contended that the accused Khader Sulaiman committed the offence punishable under S. 9(1)(d) r/w. 56(1)(i) for distributing Rs. 1,02,700/- in July 1985 and Rs. 2,79,600/- during July and September, 1985, under Section 9(1)(d) r/w 56(1)(ii) for distributing Rs. 20,000/- in November 1985 : under S. 9(1)(b) r/w 56(1)(i) for receiving payment of Rs. 1,03,000/- in May 1985 and Rs. 1,17,000/- in August, 1985; and under Section 9(1)(b) r/w 56(1)(ii) for receiving payment of Rs. 96,500/- in July 1985, Rs. 67,000/- in August 1985, and Rs. 50,000/- in October, 1985, as the accused failed to prove that he had requisite permission from the Reserve Bank of India for receiving the amount from a person resident outside India and disbursing the same to the person residing in India. In defence, Khader Sulaiman marked a copy of the letter dated 11-11-1985 (Ex. D1) addressed to the Special Director of the Enforcement Directorate, complaining that he was tortured and forced by the officers of the Enforcement Directorate to give a statement (Ex. P4), and denied his complicity in the crime. The accused Khader Sulaiman contended that : (a) the learned Magistrate ought not to have taken cognizance of the offences for want of opportunity notice contemplated under Section 61(2)(ii) of the FERA, 1973; (b) the statements marked as Exs. P4, P8 and P9 cannot be relied upon, as the contents of the same were retracted by letter dated 11-11-1985 (Ex. D1), and by a telegram marked as Ex. P4, P8 and P9 cannot be relied upon, as the contents of the same were retracted by letter dated 11-11-1985 (Ex. D1), and by a telegram marked as Ex. P11, as well as in their respective bail applications; (c) the non-examination of S. K. Haja Mohideen, a person resident outside India, at whose instance the amounts were said to have been received and paid to the persons in India vitiates the case of the prosecution; (d) the non-examination of the recipients of the amount renders the case of the prosecution unbelievable and therefore, no reliance could be placed on the seven sheets (Ex. P3 series) said to have been seized from Khader Sulaiman; and (e) the failure to examine the bankers through whom the amounts were said to have been disbursed by demand drafts renders the prosecution case untrustworthy. The learned Additional Chief Metropolitan Magistrate (E.O. I.) by a common judgment dated 7-4-1994, accepted the contentions of the accused-Khader Sulaiman and acquitted him of all the four charges, holding that : (a) the statements of the accused Khader Sulaiman were obtained by force and coercion; (b) the statement (Ex. P4) obtained from the accused Khader Sulaiman while he was under illegal custody could not be relied upon; (c) the prosecution failed to prove the charges against the accused-Khader Sulaiman by independent witness, satisfactorily; and (d) Ex. P3 series could not be relied upon for want of Mahazar witnesses to the same; Hence, C.A. Nos. 23, 31, 32 and 33 of 1995. The Criminal Appeal No. 148 of 1995 is directed against the judgment of acquittal dated 15-6-1994 in C.C. No. 333 of 1993 of the learned Additional Chief Metropolitan Magistrate (E.O. II), Chennai. The case of the prosecution in C.C. No. 333 of 1993, in brief, is stated as follows :- P. Krishnasamy and J. Sampath Kumar are the first and second accused respectively in C.C. No. 333 of 1993. P.W. 1, equipped with a search warrant (Ex. P1) dated 9-7-1991 issued under Section 37 of the FERA, 1973 by the Assistant Director of Enforcement, conducted a search in the business premises of Krishnasamy, viz., Raja Traders at No. 58, Thana, Street, Purasawalkam, Madras 600 007 on 9-7-1991 and seized certain incriminating documents viz. telephone file containing telephone bills and other documents (Ex. P3 series) and a diary (Ex. P4), under a mahazar report dated 9-7-1991 (Ex. telephone file containing telephone bills and other documents (Ex. P3 series) and a diary (Ex. P4), under a mahazar report dated 9-7-1991 (Ex. P2), Krishnaswamy gave a statement (Ex. P5) to PW 1 at the time of search on 9-7-1991. In Ex. P5, a confession statement dated 9-7-1991, the first accused Krishnaswamy had narrated the manner in which he was dealing in foreign exchange as per the instructions of Srinivasagam of Colombo. He had also explained that the documents seized from his residence on 9-7-1991, under Ex. P3 series, are related to the telephone bills relating to the telephone No. 661577; the telephone book containing telephone numbers of the second accused Sampath Kumar and other relatives and friends and his connection with them in the dealings of foreign exchange. Thereafter, Krishnaswamy appeared before P.W. 1 on 10-7-1991, in response to the summon marked as Ex. P6 and again gave a statement dated 10-7-1991 (Ex. P7), in his own handwriting, wherein, the first accused Krishnaswamy confessed that he disbursed most of the money to Basheer and some to Roshan, Murugesh of Mayura Textiles and Murugesh of Nathan Avenue, Harrington Road, and gave the details relating to the said disbursement of funds. On the same day, namely 10-7-1991, after identifying one Roshan of Madras, first accused Krishnaswamy gave another statement (Ex. P8), clarifying that he delivered Rs. 20,000/- to one Roshan, as stated in Ex. P5. P.W. 1, also obtained a statement from one Perumal, who is a partner of Raja Traders, Madras, on 16-7-1991, and the same was marked as Ex. P10. The second accused Sampath Kumar, appeared before P.W. 1 on 29-7-1991, and gave a statement (Ex. P9), in his own handwriting, confirming that he was a partner of SRK Bankers along with his brother, sister, sisters husband Srinivasagam, at whose instance, the amounts were received and paid through Muthuraman. Simultaneously the Enforcement Officer P. Ganesan, (P.W. 2), executed the warrant dated 9-7-1991 issued under Section 37 of the FERA, 1973 by the Assistant Director of Enforcement, and conducted a search on 10-7-1991, in the place of SRK Bankers (Office cum house) at No. 12B, Shastri, Road, Thillai Nagar, Trichy, in the presence of two independent witnesses and one Muthuraman, Managing Partner of SRK Bankers. During the search, some incriminating documents, viz., five sheets and Rs. 40,000/- were seized under mahazar report (Ex. P11). During the search, some incriminating documents, viz., five sheets and Rs. 40,000/- were seized under mahazar report (Ex. P11). Two incriminating documents were seized from Muthuraman and they were marked as Ex. P12 series. Muthuraman gave a statement (Ex. P13) during the search on 10-7-1991, confirming his connection in the dealings of foreign exchange along with the second accused-Sampath Kumar, as per the instructions of Srinivasagam of Colombo. On the direction of the Assistant Director of Enforcement (Ex. P14), the Enforcement Officer, K. Dhandayuthapani (P.W. 3), conducted a search in the house of Krishnaswamy at No. 6, Diwan Bahadur Shanmugam Salai, Chennai - 600 010 on 9-7-1991 and one Bommamani, wife of Krishnaswamy, alone was present at the time of search. During the search, some documents, 100 US dollars as travellers cheque and 24 US dollars were seized, under mahazar report (Ex. P15). The documents and US dollars seized were 12 in number, marked as Ex. P16 series. On the same day, viz., 19-7-1991, the second accused Sampath Kumar appeared before PW 3 and gave a statement marked as Ex. P. 17. While interrogating one Jakbar Nissar on 8-4-1991 in connection with some other case against him, the Chief Enforcement Officer, R. Chakrapani, PW 4, seized certain documents from him which contained the telephone number of the first accused, viz. 661577, and slips containing code words, viz. THIRU MECKA. Based on the said information, the first accused-Krishnaswamy was questioned on 30-7-1991 and a statement was obtained from him, which was marked as Ex. P18, wherein the code word "THIRU MECKA" was explained as follows : --------------------------------------- T H I R U M E C K A --------------------------------------- 1 2 3 4 5 6 7 8 9 0 --------------------------------------- In Ex. P18, the first accused Krishnaswamy, also explained the modus operandi adopted in receiving the amount from one Srinivasagam and disbursing the same to one Nissar. On 19-7-1991, Krishnaswamy and Sampath Kumar, by letters dated 19-7-1991 (Exs. P19 and P21 respectively) retracted their earlier confessional statements stating that the same were obtained by threat and coercion. Based on the above statements, a show cause notice dated 21-2-1992 (Ex. P23) was issued as to why adjudicating proceedings as contemplated under Section 51 of the Act should not be held against them for the alleged contravention of Sections 9(1)(b) and 9(1)(d) r/w 56(1)(i) of FERA, 1973. Based on the above statements, a show cause notice dated 21-2-1992 (Ex. P23) was issued as to why adjudicating proceedings as contemplated under Section 51 of the Act should not be held against them for the alleged contravention of Sections 9(1)(b) and 9(1)(d) r/w 56(1)(i) of FERA, 1973. Pursuant to the above show cause notice (Ex. P23), the first and second accused were heard in person by the Adjudication Officer, who by an adjudication order dated 22-1-1993 (Ex. P26) held that first and second accused contravened Sections 9(1)(b) and 9(1)(d) of the FERA, 1973 imposed the following penalties, viz., the first accused P. Krishnaswamy should pay a fine of Rs. 2,50,000/- for contravention of Section 9(1)(b) of the FERA, 1973 and pay a further fine of Rs. 2,50,000/- for contravention of Section 9(1)(d) of the FERA, 1973 and that the second accused J. Sampath Kumar should pay a fine of Rs. 2,00,000/- for contravention of Section 9(1)(b) of the FERA, 1973 and pay a further fine of Rs. 2,00,000/- for contravention of Section 9(1)(d) of the FERA, 1973, apart from confiscating Indian currency of Rs. 40,000/- and releasing US dollars 124/- to first accused with a direction that the same should be surrendered to an authorised dealer in Foreign Exchange as required under Section 8(3) of the FERA, 1973 within 15 days of the release and submit proof thereof to the Enforcement Officer. Based on the above investigation and the evidence collected, a criminal case was lodged against the first accused and second accused in C.C. No. 333 of 1993 on the file of the learned Additional Chief Metropolitan Magistrate (E.O.), wherein the first accused and second accused were tried for the following charges : (i) That they, during the period starting from January, 1991 to July, on the directions of Srinivasagam of Ceylon, received Rs. 1,15,26,000/- in India from person who were unauthorised to deal in foreign exchange thereby committed an act contrary to Section 9(1)(b) of the FERA, 1973 and punishable under Section 56(1)(i) of the above said Act; (ii) That first accused, who was unauthorised to deal with foreign exchange, on the directions of Srinivasagam of Ceylon, delivered Rs. 1,15,26,000/- in India from person who were unauthorised to deal in foreign exchange thereby committed an act contrary to Section 9(1)(b) of the FERA, 1973 and punishable under Section 56(1)(i) of the above said Act; (ii) That first accused, who was unauthorised to deal with foreign exchange, on the directions of Srinivasagam of Ceylon, delivered Rs. 1,15,26,000/- to various persons in India thereby committed an act contrary to Section 9(1)(d) of the FERA, 1973 punishable under Section 56(1)(i) of the above Act; (iii) That second accused, who was not empowered to deal with foreign exchange, on the directions of Srinivasagam of Ceylon received Rs. 97,40,000/- from persons who are not empowered to deal with Foreign Exchange committed an act contrary to Section 9(1)(b) of the FERA, 1973 punishable under Section 56(1)(i) of the above said Act; (iv) The second accused, who was not empowered to deal with foreign exchange, on the directions of Srinivasagam of Ceylon delivered Rs. 97,00,000/- to various persons thereby committed an act contrary to Section 9(1)(d) of the FERA, 1973 punishable under Section 56(1)(i) of the above said Act. On behalf of the accused it was contended before the learned Additional Chief Metropolitan Magistrate (E.O.), Chennai that : a. the statements of the respondents/accused cannot be relied upon in view of their respective retraction letters (Exs. P19 and P21); b. non-examination of Srinivasagam as well as the persons who paid or received the amount on the instructions of Srinivasagam, vitiates the prosecution case; and c. the appellant/complainant had not proved the charges against the accused beyond reasonable doubt. The learned Additional Chief Metropolitan Magistrate, by judgment dated 15-6-1994 accepting the contentions made on behalf of the accused, held that the accused had not contravened Sections 9(1)(b) and 9(1)(d) of the FERA, 1973 and hence they are not guilty under Section 56(1)(i) of the FERA, 1973 and released the accused under Section 248(1), Cr. P.C. Hence, Criminal Appeal No. 148 of 1995. Mr. K. Kumar, learned counsel appearing on behalf of the appellants contends that : (a) The statements of the accused/respondents in respective cases (Exs. P4, P8 and P9 in Crl. A. Nos. 23, 31, 32, and 33 of 1995 and Exs. P5, P7, P8 and P9 in Crl. P.C. Hence, Criminal Appeal No. 148 of 1995. Mr. K. Kumar, learned counsel appearing on behalf of the appellants contends that : (a) The statements of the accused/respondents in respective cases (Exs. P4, P8 and P9 in Crl. A. Nos. 23, 31, 32, and 33 of 1995 and Exs. P5, P7, P8 and P9 in Crl. A. No. 148 of 1995) which are made to the Enforcement Officers, who are not Police Officers within the meaning of Section 24 of the Indian Evidence Act are admissible in evidence and are binding on the accused, and, moreover, the same corroborate with the evidence of the Investigating Officers and other documentary evidence that are seized at the time of search in the respective cases. (b) If the amounts were received and disbursed of in the course of normal transactions, argued that, there would not be any necessity for any secretive description or codes used for disbursement of the amounts; (c) The retraction letter (Ex. D1) and the retraction telegram (Ex. P11) in Crl. A. Nos. 23, 31, 32 and 33 of 1995 and the retraction letters (Exs. P19 and P21) in Crl. A. No. 148 of 1995, much less the statements made in the bail application, that the statements were obtained by the Enforcement Officers by using force and coercion are liable to be rejected as untrustworthy, as the respondents/accused did not complain anything about such force and coercion to the Magistrates, when they were produced for remand; (d) Since the accused were arrested and produced before the Magistrates concerned within 24 hours in the respective cases, the statements made before the respective Enforcement Officers, could not be said to have been obtained during the illegal custody; (e) The non-examination of the persons who either paid or received the money on the instructions of the persons resident outside India, or the bank through which the amounts were disbursed, in the respective cases, is not fatal to the case of the prosecution; (f) Placing reliance on Ramesh Chandra Mehta v. State of West Bengal reported in AIR 1970 SC 940 : (1970 Cri LJ 863), Issa Yacub Bichara v. State of Mysore reported in AIR 1971 Mysore 7 (sic) and AIR 1981 Ker 7 (sic), it was contended that the statements of the respondents/accused since corroborates with : i. the material and documentary evidence in the respective cases; ii. the recoveries of currency - both Indian Rupees and U.S. Dollars, as the case may be; and iii. is supported with the evidence of the Investigation Officers in the respective case, the accused are held to be guilty for the contraventions and are therefore, liable to be convicted for the respective charges; (g) The notice issued for adjudication is a sufficient compliance of opportunity notice contemplated under Section 61(2)(ii) of the FERA, 1973. In this regard, reliance was placed on the following decisions : (a) Jothimani Nadar A.S.O. v. The Deputy Director, Etc. reported in 1989 Mad LW (Cri) 43; (b) Ismail v. Assistant Director, Enforcement, Madras reported in 1990 Mad LW (Cri) 376; and (c) New India Corporation v. Government of India reported in 1970 Cri LJ 295 (Mysore); and (h) Since the statement of co-accused could be relied upon as held in Morarji Goculdas B & W Co. Ltd. v. Union of India reported in (1996) 83 ELT 259 , the statement of the accused in C.C. No. 333 of 1998 stands proved as the same corroborates with the evidence of co-accused and that of the co-partner of the second accused, viz., Sampath Kumar. Mr. M. M. Abdul Razack, learned counsel for the respondent/accused in Crl. A. Nos. 23, 31, 32 and 33 of 1995 and Mr. P. Rajarathinam, learned counsel appearing for the respondent/accused in Crl. A. No. 148 of 1995, took me through both the oral and documentary evidence on record, that are referred to above, in detail and reiterated the contentions that are raised on behalf of the respondents/accused before the respective trial Courts. 23, 31, 32 and 33 of 1995 and Mr. P. Rajarathinam, learned counsel appearing for the respondent/accused in Crl. A. No. 148 of 1995, took me through both the oral and documentary evidence on record, that are referred to above, in detail and reiterated the contentions that are raised on behalf of the respondents/accused before the respective trial Courts. Placing reliance on the decision in Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd., reported in 2000 Cri LJ 4035 : ( AIR 2000 SC 2901 ), the learned counsel for the respondents/accused contend that even though the statements were made before the customs authorities, who are non-police personnel, the Court is duty bound to see whether such statements are admissible in law, satisfying the test contemplated under Section 24 of the Indian Evidence Act, and therefore, the statements made by the accused are liable to be scrutinized by the Court in the same manner as confession made by an accused person to any non-police personnel and the Court has to be satisfied in such cases, that any inculpatory statement made by the accused person to the Gazetted Officer must also pass the test prescribed in Section 24 of the Indian Evidence Act. Both the learned counsel for the respondents contend that assuming the respondent/accused could be convicted based on the evidence on record for the respective charges, no punishment can be imposed on them in view of the repeal of the FERA 1973 and enactment of FEMA, 1999 where there is no provision for punishment. In this regard reliance was placed on the decision in State v. Gian Singh reported in 1999 SCC (Crl) 1512 : (1999 Cri LJ 4315) and T. Barai v. Henry Ah Hoe reported in AIR 1983 SC 150 : (1983 Cri LJ 164) : Mr. M. Abdul Razack, learned counsel for the respondents in Crl. A. Nos. 23, 31, 32 and 33 of 1995 emphatically contends that the charge framed in C.C. No. 676 of 1991 is not sustainable in law as the said charge is with reference to the payments made in the month of November, 1985, with reference to which there is no evidence available on record, and on the other hand, the evidence is related to the payments said to be made in October, 1985. In reply, Mr. In reply, Mr. K. Kumar, learned counsel for the appellant contends that assuming the charge in C.C. No. 676 of 1991 is not based on material evidence, since there are sufficient evidence on record to prove that the accused has committed contravention of Section 9(1)(d) r/w 56(1)(ii) of the FERA, 1973 for the amount paid in the month of October, 1985, he cannot be acquitted for such contravention, as at the best the judgment of acquittal in C.C. No. 676 of 1991 has to be set aside and the matter has to be directed to the trial Court to direct a new trial on the charges framed, in whatever manner he seems fit as provided under Section 464(2), Cr. P.C. Mr. K. Kumar, learned counsel for the appellant also contends that in view of the saving clause in the FEMA, 1999, namely Section 49(4) of the FEMA, 1999, the offence said to have been committed under the FERA, 1973 should be dealt with under the provisions of the repealed Act, namely the FERA, 1973 itself, notwithstanding the repeal, as the Supreme Court has time and again held that the offence committed under the FERA, 1973 are serious in nature. I have bestowed my careful consideration to the submission of both sides. As rightly pointed by Mr. M. Abdul Razack, learned counsel for the respondent in Crl. A. Nos. 23, 31, 32 and 33 of 1995, while the charge framed in C.C. No. 676 of 1991 against the respondent/accused - Khader Sulaiman for the contravention of Section 9(1)(d) of the FERA, 1973 is with reference to the disbursement/payment of Rs. 20,000/-, made on the instruction of one S. K. Haja Mohideen, a person resident outside India, during the month of November, 1985, concedingly, the evidence relied upon by the prosecution to substantiate the said charge is with reference to the disbursement/payment of Rs. 20,000/- made in the month of October, 1985. On the other hand, once there is prima facie and satisfactory existence of sufficient grounds for proceeding against the accused, the Court is obliged to evaluate such material evidence instead of acquitting the accused from the very guilt itself, which may result in the failure of justice. Satisfied with the statements and material evidence on record that the respondent/accused in C.C. No. 676 of 1991, had contravened Section 9(1)(d) of the FERA, 1973 with respect to the disbursement/payment of Rs. Satisfied with the statements and material evidence on record that the respondent/accused in C.C. No. 676 of 1991, had contravened Section 9(1)(d) of the FERA, 1973 with respect to the disbursement/payment of Rs. 20,000/- in the month of October, 1985, even though at the stage of framing the charges the Court is not expected to go deep into probative value of the materials on record, the Court is obliged to see whether there is prima facie evidence in support of the charge levelled against the accused. While framing charges, there is no need to maintain the same standard to be adopted by the Court in scrutinizing the evidence at the time of trial, but all due diligence should be taken even at the stage of framing the charge as to whether the charges framed is supported with prima facie and sufficient material evidence. Therefore, the Court should satisfy itself that the charge levelled against the accused is supported with prima facie and sufficient material evidence before issuing process to the accused and committing him for trial with respect to the charge framed. Want of such due diligence while framing the charge in C.C. No. 676 of 1991, in my considered opinion, resulted in failure of justice, not only to the appellant/complainant, but also caused much delay in the administration of criminal justice. If and when an error, omission or Irregularity is apparent in the charge framed and tried, Section 464(2) Cr. P.C. provides the Appellate Court to direct a new trial to be had upon a charge framed in whatever manner it thinks fit. Of course, Mr. M. M. Abdul Razack, learned counsel appearing for the accused in C.C. No. 676 of 1991 submits that there would not be any gainful purpose in setting aside the judgment of acquittal in C.C. No. 676 of 1991 and remitting the matter by exercising the power conferred under Section 464(2), Cr. P.C. due to the elapse of over 18 years from the time of the alleged occurrence. P.C. due to the elapse of over 18 years from the time of the alleged occurrence. As held by the Apex Court in State of Gujarat v. Mohanlal reported in AIR 1987 SC 1321 : (1987 Cri LJ 1061), the mere fact that considerable period has elapsed for which time-lag the prosecution was in no way responsible is no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court have become a part of life and the order of the day, because to deny the opportunity for the appellant/complainant to remove the formal defect was to abort a case against an alleged economic offender and the ends of justice will not be satisfied if the accused in such criminal case is acquitted due to an error in framing the charge. The Community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. The Community or the State is not a persona non-grata whose cause may be treated with disdain. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. I am, therefore, of the considered opinion that, assuming there is an error or omission in the charge itself, or the charge is totally vague or is not supported with any material evidence to be relied upon by the prosecution, the Court would not be justified to proceed with from that stage of the framing an erroneous charge. I am, therefore, of the considered opinion that, assuming there is an error or omission in the charge itself, or the charge is totally vague or is not supported with any material evidence to be relied upon by the prosecution, the Court would not be justified to proceed with from that stage of the framing an erroneous charge. Bearing this in mind, and finding that the trial Court has acted with material irregularity, by exercising the powers conferred under Section 464(2) of the Cr. P.C., I am inclined to allow the appeal, viz. Crl. A. No. 31 of 1995, set aside the judgment of acquittal of the learned Additional Chief Metropolitan Magistrate. Economic Offences, I, Madras dated 7-4-1994 made in C.C. No. 676 of 1991, remit the matter to the learned Additional Chief Metropolitan Magistrate, Economic Offences I, Madras, and direct a new trial to be had upon a charge framed in whatever manner he thinks fit, and complete the trial expeditiously and pronounce the judgment within six months from the date of receipt of copy of this order. Criminal Appeal No. 31 of 1995 is allowed with the direction indicated above. The contentions raised on behalf of the appellant/complainant and the respondent/accused in rest of the appeals, viz. Crl. A. Nos. 23, 32, 33 and 148 of 1995 are compartmentalised under the following three substantial questions : i. Whether the non-issuance of opportunity notice to the respondent/accused as contemplated under Section 61(2)(ii) of the FERA, 1973 vitiates the case, of the prosecution ? ii. Whether the Courts below are right in acquitting the respondents/accused, holding that the appellant/complainant has failed to prove the charges, beyond all reasonable doubts, against the respondents/accused that they are guilty of the offences punishable under the provisions of the FERA, 1973 ? iii. Are the respondents/accused not entitled for the benefit of the enactment of the FEMA. 1999 whereunder no provision is made for punishment, assuming that the respondents/accused are liable to be convicted for the offences punishable under Sections 9(1)(b) and 9(1)(d) of the FERA, 1973 in the respective criminal cases, and could they be punished for the said offences under the FERA, 1973, which stands repealed by the enactment of the FEMA, 1999 ? 1999 whereunder no provision is made for punishment, assuming that the respondents/accused are liable to be convicted for the offences punishable under Sections 9(1)(b) and 9(1)(d) of the FERA, 1973 in the respective criminal cases, and could they be punished for the said offences under the FERA, 1973, which stands repealed by the enactment of the FEMA, 1999 ? Question No. (i) : Whether the non-issuance of opportunity notice to the respondents/accused as contemplated under Section 61(2)(ii) of the FERA, 1973 vitiates the case of the prosecution ? In order to appreciate the scope and spirit of the opportunity notice contemplated under proviso to Section 61(2)(ii) of the FERA, 1973, I am obliged to refer the corresponding provisions to Section 61 and 51 of the FERA, 1973 to that of the FERA 1947, namely Section 23(1) and 23-D respectively. The corresponding Sections, namely Section 61 the FERA, 1973 and relevant portion of Section 23 of the FERA, 1947 reads as follows : "Section 61 of the FERA, 1973 - Cognizance of offences : (1) Notwithstanding anything contained Section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate and for any Magistrate of the first class to pass a sentence of imprisonment for a term exceeding three years or of fine exceeding five thousand rupees on any person convicted of an offence punishable under Section 56. (2) No Court shall take cognizance - (i) of any offence punishable under sub-section (2) of Section 44 or sub-section (1) of Section 58, - (a) where the offence is alleged to have been committed by an officer of Enforcement not lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Central Government; (b) where the offence is alleged to have been committed by an officer of Enforcement lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Director of Enforcement; (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 Foreign Exchange Regulation Act any officer of the Reserve Bank authorised by the Reserve Bank by a general or special order : Provided that where any such offence is the contravention of any of the provisions, of this Act or of any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission." Relevant portion of Section 23 of the FERA, 1947 : "Section : 23(1) if any person contravenes the provisions of Section 4, Section 5, Section 9, Section 10, sub-section (2) of Section 12 or Section 17, Section 18-A or Section 18-B or of any rule, direction or order, made thereunder, he shall - (a) be liable to such penalty not exceeding three times the value of the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, which ever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or (b) upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. xxxxxxxxxxx Section 23(3) No Court shall take cognizance - (a) of any offence punishable under sub-section (1) except upon complaint in writing made by the Director of Enforcement xxxxxxxxxxxx Provided that where any such offence in the contravention of any of the provisions of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission." Similarly, the corresponding Sections, namely Section 51 the FERA, 1973 and Section 23-D of the FERA, 1947 reads as follows : "Section 51 of the FERA, 1973 - Power to adjudicate : For the purpose of adjudging under Section 50 whether any person has committed a contravention of any of the provisions of this Act (other than those referred to in that section) or any rule, direction or order made thereunder, the adjudicating officer shall hold an inquiry in the prescribed manner after giving that person a reasonable opportunity for making a representation in the manner and if, on such Inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provisions of that section." Section 23-D of the FERA, 1947 - Power to adjudicate : "(1) For the purpose of adjudging under clause (a) of sub-section (1) of Section 23 whether any person has committed a contravention, the Director of Enforcement shall hold an inquiry in the prescribed manner after giving that person a reasonable opportunity of being heard and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordance with provisions of the said Section 23 : Provided that if, at any stage of the inquiry, the Director of Enforcement is of opinion that having regard to the circumstances of the case, the penalty which he is empowered to impose would not be adequate, he shall, instead of imposing any penalty himself, make a complaint in writing to the Court." The Apex Court, speaking about the features of foreign exchange, the subject-matter of the above legislations, in Shanti Prasad Jain v. Director of Enforcement reported in AIR 1962 SC 1764 held that : "..... the subject-matter of the legislation viz., foreign exchange has features and problems peculiarly its own, and that it forms a class in itself. A law which prescribes a special procedure for investigation of breaches of foreign exchange regulations will therefore, be not hit by Art. 14 as it is based on a classification which has a just and reasonable relation to the object of the legislation. The vires of Section 23(1)(a) is accordingly not open to attack on the ground that it is governed by a procedure different from that prescribed by the Code of Criminal Procedure. xxxxxx Section 23-D confers authority on the very officer who has power to try and dispose of a case to send it on for trial to a Court, and that too only when he considers that a more severe punishment than what he is authorised to impose, should be awarded. In a judicial system in which there is a hierarchy of Courts or Tribunals, presided over by Magistrates or officers belonging to different classes, and there is a devolution of powers among them graded according to their class, a provision such as Section 23-D is necessary for proper administration of justice. While on the one hand a serious offence should not go without being adequately punished by reason of cognizance thereof having been taken by an inferior authority, the accused should on the other hand have in such cases the benefit of trial by a superior Court. xxxxxx In our view the power conferred on the Director of Enforcement under Section 23-D to transfer cases to a Court is not unguided or arbitrary, and does not offend Art. 14 and Section 23(1)(a) cannot be assailed as unconstitutional." A Division Bench of the Mysore High Court in New India Corpn. v. Govt. of India reported in 1970 Cri LJ 295, following the ratio laid down in Shanti Prasad case ( AIR 1962 SC 1764 ), referred supra, interpreted the scope of opportunity notice contemplated under proviso to Section 23(3) of the FERA, 1947 as follows : "........ The fact that the proviso to Section 23(3) provides for a further safeguard before a complaint is made does not mean that the said safeguard dispenses with the safeguard of an initial adjudication provided under Section 23D(1). The fact that the proviso to Section 23(3) provides for a further safeguard before a complaint is made does not mean that the said safeguard dispenses with the safeguard of an initial adjudication provided under Section 23D(1). Indeed, the opportunity contemplated by the proviso to Section 23(3) need not necessarily be afforded by means of the issue of a notice, but can also be afforded in the course of an adjudication under Section 23-D(1)." Concedingly, proviso to Section 23(3) of the FERA, 1947 corresponds to proviso to Section 61(2)(ii) of the FERA, 1973. Therefore, the ratio laid down by the Mysore High Court, in New India Corpn. v. Govt. of India, referred supra, squarely applies to decide whether opportunity notice contemplated under Section 61(2)(ii) of the FERA, 1973 is mandatory or obligatory. When an identical issue came for consideration before this Court in Jothimani Nadar, A.S.G. v. The Deputy Director, Etc. reported in 1989 Mad LW (Crl) 43 : (1990 Cri LJ (NOC) 77), S. Natarajan, J., as he then was, following the decision in New India Corpn. case, referred supra, held as follows : "...... I do not think it necessary to go into the question whether the direction contained in the proviso for a show cause notice being given is mandatory in character or directory in nature. Even, if it to be held that the proviso contains a mandate, the question for consideration is whether a second show cause notice should be given to a person before a criminal prosecution is launched against him under Section 56 of the Act. I find no basis in the proviso for holding that such a notice should be given. All that the proviso states is that before a Court takes cognizance of an offence which relates to the contravention of any provision of the Act, which prohibits the doing of an act without permission, the complainant must have given an opportunity to the accused to show cause that he had such a permission. What follows from this is that at some point of time prior to the filing of the complaint, the accused must have been given opportunity to show cause that he had obtained the requisite permission and he had not contravened the provisions of the Act on any manner. What follows from this is that at some point of time prior to the filing of the complaint, the accused must have been given opportunity to show cause that he had obtained the requisite permission and he had not contravened the provisions of the Act on any manner. It is, however, not necessary that the show cause notice must have been issued immediately before the filing of the complaint. If a show cause notice had been issued before adjudication proceedings were started, it would undoubtedly constitute a valid notice under the proviso to Section 61(2). I have already held that a criminal prosecution is not a contravention of the adjudication proceedings. As such a prosecution cannot amount to a second stage of the proceeding warranting the issue of a second show cause notice. It has been held in New India Corporation v. Government of India, 1970 Cr LJ 295 (Mad) that Section 23(1) of the Foreign Exchange Regulation Act, 1947 does not provide for two procedures and the opportunity contemplated by the proviso to Section 23(3) corresponding to proviso to Section 61(2) of the new Act can also be afforded in the course of an adjudication under Section 23-D(1). The ratio would govern the facts of this case also, even though the present prosecution has been launched under the 1973 Act, because the proviso under the old Act of 1947 and that under the 1973 Act are identical in terms. Hence, it is not open to the petitioner to contend that he ought to have been issued a second show cause notice before the launching of the prosecution and in the absence of such a notice the complaint is not maintainable." Similarly, Arunachalam, J. in Ismail v. Assistant Director, Enforcement, Madras reported in 1990 Mad LW (Crl) 376, on an identical question whether the opportunity notice contemplated under proviso to Section 61(2)(ii) is mandatory of obligatory, following the decision in (i) New India Corpn. case and (ii) Jothimani Nadar, A.S.G. case, referred supra, held that : "....... The learned counsel for the petitioner would contend that Natarajan, J., had not considered in the said decision, the words "the person accused of the offence" found in the proviso to Section 61(2)(ii) of the Act, which words, in the view of the Supreme Court, can arise only when a complaint is made, relating to the commission of an offence, before a Magistrate. A formal accusation can only be deemed to be made when a complaint is made before the Magistrate, competent to try the person guilty of the infraction under various section of the Act. In reply to this specific issue, the learned counsel for the respondent would urge, that the Supreme Court was considering the scope of a statement made under Section 107 and 108 of the Customs Act, by a person against whom an enquiry was made, vis-a-vis the provisions of Art. 20(3) of the Constitution of India and also with reference to Sections 24 and 25 of the Indian Evidence Act, to hold that at that stage any statement made by a person against whom an enquiry was made, was not a statement made by a person accused of an offence. He would further add that adjudication proceedings were quasi criminal in nature and while show cause notices were issued, there was already an accusation by the Deputy Director of Enforcement against the petitioner. The words "the person accused of an offence" in the proviso, will have to be read, keeping in view the context in which it had been used and the effect of the words in the same proviso has been given an opportunity of showing." 10. In the Repealed 1947 Act, Section 23-D(1) contemplated an initial adjudication and a prosecution only in the event of the Director of Enforcement arriving at an opinion that having regard to the circumstances of the case, the penalty which he was empowered to impose would not be adequate, when instead of imposing any penalty himself, he shall make a complaint in writing to the Court. 11. Under the Foreign Exchange Regulation Act, 1973, adjudication as well as prosecution, can ever be initiated simultaneously. This is very clear from the provisions engrafted in Sections 50, 51 and 56 of the Act. Hence, when a prosecution is possible even before adjudication, the provisions contained in the Proviso to Section 61(2)(ii) of the Act will have to be Interpreted, in that context. Looked from that angle, it is apparent that before a prosecution is launched, the person accused of an offence must be given an opportunity of showing cause that he had such permission when the Act prohibits doing of an act without such permission. Looked from that angle, it is apparent that before a prosecution is launched, the person accused of an offence must be given an opportunity of showing cause that he had such permission when the Act prohibits doing of an act without such permission. The proviso, to my mind does not contemplate a second opportunity being furnished to the person accused of an offence, who had such an opportunity, when show cause notices were issued in cases where the adjudication had proceeding the prosecution. 12. The law laid down by the Supreme Court in L.I.C. of India v. Escorts Ltd., reported in AIR 1986 SC 1370 , that action under Section 50 or 56 was not obligatory and in the case of a prosecution under Section 56, the delinquent was further protected by the requirement that the complaint has to be made by one or other of the officers specified by Section 61(2)(ii) only and even then only after giving an opportunity to the person accused of the offence of showing that he had the necessary permission does not appear to contemplate a second opportunity before prosecution. In that case the Supreme Court was concerned with Section 29 of the Act which dealt with contravention without the general or special permission of the Reserve Bank of India. The Apex Court did not see a true foundation for the argument that the word "permission" in Section 29 of Act contemplated previous permission only. In that context it was observed that the person accused of the offence could satisfy the office concerned that he had applied for permission and that there was reasonable prospect of his obtaining the permission when called upon to show that he had the necessary permission. In these cases we are concerned with Section 8(1) and (2) and Section 9(1)(d) of the Act. Both Sections 8(1) and (2) specifically refer to the previous general or special permission of the Reserve Bank of India under Section 29 of the Act which uses the word "permission". In the former case only the person accused of an offence, must have been given an opportunity, for showing cause that he had such permission. 13. It is, therefore, apparent that if a prosecution is initiated even before the adjudication proceedings, the person accused of an offence must have had an opportunity of showing cause that he had permission. In the former case only the person accused of an offence, must have been given an opportunity, for showing cause that he had such permission. 13. It is, therefore, apparent that if a prosecution is initiated even before the adjudication proceedings, the person accused of an offence must have had an opportunity of showing cause that he had permission. However, if the adjudication proceedings had been initiated earlier in which show cause notice had been given, especially with reference to Section 8(1) and (2) of the Act, a second opportunity does not appear to be intendment of the proviso. All that the proviso contemplates is that before a prosecution is instituted, the person accused of an offence should have been given an opportunity. The words "had been" used in the Section also gives an insight to the object behind the provision. In my view the words "has been given" denote the furnishing of an opportunity to the person accused of an offence, but does not contemplate issue of a second show cause notice before the launching of the prosecution. Therefore, the decision, of the Supreme Court in Ramesh Chandra v. State of West Bengal reported in AIR 1970 SC 940 : (1970 Cri 863), holding that under the Customs Act, 1962, a formal accusation can only be deemed to be made when a complaint is made before a Magistrate competent to try the person guilty of the infraction under the provisions of the Customs Act does not affect the interpretation of the proviso to Section 61(2)(ii) of the Act, given above. The context in which the words have been used as well as the usage of the words "has been" must be given the full meaning in the background of the object of the Act and the importance of this provision for efficacious Implementation of the general scheme of the notice before the prosecution is initiated. To hold that second action is imperative in all cases irrespective of the prosecution being earlier or later to adjudication, even after proof of a show cause notice having been given before an adjudication would certainly frustrate the purpose behind the provision. 14. The observation of Natarajan, J., in Crl. To hold that second action is imperative in all cases irrespective of the prosecution being earlier or later to adjudication, even after proof of a show cause notice having been given before an adjudication would certainly frustrate the purpose behind the provision. 14. The observation of Natarajan, J., in Crl. M.P. No. 2288 of 1980 with which I agree are extracted here under :- "Even if it is to be held that the proviso contains a mandate, the questions for consideration is whether a second show cause notice should be given to a person before a criminal prosecution is launched against him under Section 56 of the Act. I find no basis in the proviso for holding that such a notice should be given. All that the proviso states is that before a Court takes cognizance of an offence which relates to the contravention of any provision of the Act which prohibits the doing of an act without permission, complainant must have been given an opportunity to the accused to show cause that he has such permission. What follows from this is that at same point of time prior to the filing of the complaint the accused must have been given an opportunity to show that he had obtained the requisite permission and he had not contravened the provisions of the Act in any manner. It is, however, not necessary that the show cause notice must have been issued immediately before the filing of the complaint. If a show cause notice had been issued before adjudication proceedings were started, it would undoubtedly constitute a valid notice under the proviso to Section 61(2)." Further in New India Corporation v. Director Enforcement Directorate, Government of India, reported in 1970 Cri LJ 295, a Division Bench of Mysore High Court while considering a similar provision in the repealed Foreign Exchange Regulation Act, 1947 observed :- "Indeed, the opportunity contemplated by the proviso to Section 23(3) need not necessarily be afforded by means of the issue of a notice, but can also be afforded in the course of an adjudication under Section 23-D(1)." 15. Under the old Act the Director of Enforcement was empowered to make a complaint only if he considered that his own powers of punishment were inadequate to set the situation or the gravity of the offence, while the first step of instituting adjudication proceedings had already been taken. Under the old Act the Director of Enforcement was empowered to make a complaint only if he considered that his own powers of punishment were inadequate to set the situation or the gravity of the offence, while the first step of instituting adjudication proceedings had already been taken. I am in respectful agreement with the view expressed by the Mysore High Court, which found favour with Natarajan, J. while deciding Crl. M.P. No. 2288 of 1980. 16. The decisions in P. Joseph John v. The State of Travancore. Cochin reported in AIR 1955 SC 160 and Chintapalli Agency of Taluk Arrack Sales Co-operative Society Ltd. v. Secretary (Food and Agriculture) Government of Andhra Pradesh reported in AIR 1977 SC 2313 , can have no bearing to the issue involved in these petitions. In the earlier case the Supreme Court held that under Art. 311 of the Constitution a civil servant was entitled to have a reasonable opportunity to defend himself and show cause, both at the time of enquiry into the charges brought against him and at the stage when definite conclusions have been come to, on the charges and the actual punishment to follow was provisionally determined upon. In the latter case it was held that the minimum requirement under Section 77(2) of the Andhra Pradesh Co-operative Societies Act, 1964, which was a mandatory provision was a notice informing the opponent about the application and affording him an opportunity to make his representation against whatever had been alleged in the petition. The principles of natural justice were also considered. The provisions of the Section will have to be interpreted, taking note of the context and the principles of natural justice that a person shall not be condemned unheard (Audi alteram partem). The expression "a person accused of any offence" was considered by the Supreme Court in Ramesh Chandra Mehta's case reported in AIR 1970 SC 940 in the context of Art. 26(3) of the Constitution taken in conjunction with Sections 24 and 225 of the Indian Evidence Act at the stage of enquiry contemplated under Sections 107 and 108 of the Customs Act. 17. 17. In the Deputy Director, Enforcement Directorate, Madras v. P. Manapper Mohamed Ali Jinnah reported in 1989 Mad LW (Cri) 337 : (1989 Cri LJ 2138), Ratravel Pandian, O.C.J. as he then was, speaking on behalf of the Division Bench held following the law laid down in State of U.P. v. Dgoman reported in AIR 1960 SC 1125 that the expression "accused person" in Section 24 of the Evidence Act and the expression "a person accused of any offence" in Section 25 of the said Act have the same connotation and describe the person against whom evidence is sought to be led in a criminal proceeding. Hence, all that the proviso to Section 61(2)(ii) requires is that no such complaint shall be made unless the person accused of the offence 'has been given' an opportunity of showing cause that he had such permission. On fact the petitioner has sufficient opportunity to show cause and there is no violation of the provisions of the Proviso aforementioned. Therefore, the first contention is rejected." In view of the above settled law and admitted fact that the respondents/accused had been given an opportunity by the Enforcement authority, of being heard during the adjudication contemplated under Section 51 of the Act, non-issuance of the opportunity notice as contemplated under the proviso to Section 61(2)(ii) of the FERA, 1973 shall not vitiate the case of the prosecution. Question No. (i) is answered accordingly. Question No. (ii) : Whether the Courts below are right in acquitting the respondents/accused, holding that the appellant/complainant has failed to prove the charges, beyond all reasonable doubts, against the respondents accused that they are guilty of the offences punishable under the provisions of the FERA, 1973 ? For analysing the rival contentions of the learned counsel on either side, with respect of the above point, it would be appropriate to refer various provisions of FERA, 1973. The FERA, 1973, was enacted to consolidate and amend the law regulating certain payments, dealings in foreign exchange and securities, transactions indirectly affecting foreign exchange and the import and export of currency for the conservation of the foreign exchange resources of the country and the proper utilization thereof in the interests of the economic development of the country. The FERA, 1973, was enacted to consolidate and amend the law regulating certain payments, dealings in foreign exchange and securities, transactions indirectly affecting foreign exchange and the import and export of currency for the conservation of the foreign exchange resources of the country and the proper utilization thereof in the interests of the economic development of the country. Under the scheme of the FERA, 1973, certain special restrictions were introduced with regard to the dealings in the foreign exchange, the object being to see that the country's foreign exchange resources were not wasted under any circumstances and were properly utilized to advance the national interest. Sections 8 and 9 of the FERA, 1973, contemplate a special or general permission of the Reserve Bank of India in dealing in foreign exchange. In this regard, it is relevant to refer Sections 9(1)(b) and 9(1)(d) of the FERA : "Section : 9 - Restrictions on payments : (1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in or resident in India shall; (a) ............ (b) receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India. Explanation - For the purposes of this clause, where any person, in or resident in India, receives any payment by order on behalf of any person resident outside India through any other person (including an authorised dealer) without a corresponding inward remittance from any place outside India then such person shall be deemed to have received such payment otherwise than through an authorised dealer; (c) ........... (d) make any payment to, or for the credit of, any person by order or on behalf of any person resident outside India : (e) to (g) ..........." It is a settled law that, if a person residing in India is instructed by a person resident outside India to make payment to any person in India, the person who receives the amount would be violating Section 9(1)(b) of the FERA, 1973, vide S. Parameswaran v. Director of Enforcement reported in 1993 (66) Taxman 534. Sections 34, 35, 36, 37, 38, 39 and 40 of the FERA, 1973, empower the Officers of the Enforcement, authorised by the Central Government, to search suspected persons and seize documents, to arrest such persons who are guilty of the offence punishable under the FERA, 1973; to seize documents and to examine the persons and to summon the persons to give evidence and produce documents, etc. Taking into consideration the principles adumbrated by the Apex Court, (I) by a majority judgment in Rattan Lal case, and (ii) by the ratio laid down in Gain Singh case (1999 Crl LJ 4315 : ( AIR 1999 SC 3450 ), referred supra, giving the benefit of the legislative benevolence to the respondents/accused, and exercising the discretionary powers conferred under Section 56 of the FERA, 1973, to impose a lesser sentence for adequate and special reasons that are put forth by the respondents/accused in the respective criminal cases, this Court, passes the following order : i. Allow the appeal in Crl. A. No. 31 of 1995, set aside the judgment of acquittal of the learned Additional Chief Metropolitan Magistrate, Economic Offences 1, Madras dated 7-4-1994 made in C.C. No. 676 of 1991, remit the matter to the learned Additional Chief Metropolitan Magistrate, Economic Offences 1, Madras, and direct a new trial to be had upon a charge framed in whatever manner he thinks fit, and complete the trial expeditiously and pronounce the judgment within six months from the date of receipt of copy of this order; ii. The respondent/accused in Crl. A. No. 23 of 1995 is found guilty for the offence punishable under Section 9(1)(d) r/w 56(1)(i) of the FERA, 1973 and sentenced till the rise of the Court, and also to pay a fine of Rs. 5,000/- for each of two counts; iii. The respondent accused in Crl. A. No. 32 of 1995 is found guilty for the offence punishable under Section 9(1)(b) r/w 56(1)(i) of the FERA; 1973 and sentenced till the rise of the Court, and also to pay a fine of Rs. 5,000/- for each of two counts; iv. The respondent/accused in Crl. A. No. 33 of 1995 is found guilty for the offence punishable under Section 9(1)(b) r/w 56(1)(1) of the FERA, 1973 and sentenced till the rise of the Court, and also to pay a fine of Rs. 5,000/- for each of two counts; iv. The respondent/accused in Crl. A. No. 33 of 1995 is found guilty for the offence punishable under Section 9(1)(b) r/w 56(1)(1) of the FERA, 1973 and sentenced till the rise of the Court, and also to pay a fine of Rs. 5,000/- for each of three counts; v. The respondents/accused in Crl. A. No. 148 of 1995 are found guilty for the offences punishable under S. 9(1)(b) r/w 56(1)(1) of the FERA, 1973 (one count each) and Section 9(1)(d) r/w 56(1)(i) of the FERA, 1973 (one count each) and sentenced till the rise of the Court, and also to pay a fine of Rs. 10,000/- each for each of the two counts; vi. The sentence imposed above, in the criminal appeals, shall run concurrently; and vii. In case, the respondents/accused in the respective cases, fail to comply with the fine imposed above, they shall be liable for rigorous imprisonment for one month in each of the counts. Accordingly, these criminal appeals are allowed. Appeals allowed.