Judgment :- These revisions are filed by the accused against the order of rejection of the unnumbered petitions filed under Section 258 of the Code of Criminal Procedure in C.C.Nos.390 and 391 of 2002 respectively on the file of the Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai as not maintainable as per order dated 31.3.2003. 2. The respondent filed complaints in C.C.Nos.390 and 391 of 2002 respectively under Section 57 of the Foreign Exchange Regulation Act (hereinafter referred to as 'the Act') for non-payment of penalty amount of Rs.3,75,000/- out of the total amount of Rs.6,50,000/- as per order dated 27.11.2000 and for non-payment of penalty amount of Rs.1 lakh as per order dated 25.8.2000, despite the reminder notice sent on 06.5.2002. The accused filed petitions under Section 258 of the Code of Criminal procedure for direction not to proceed with the trial of the said criminal cases. In the petitions, it is stated that the accused filed appeals before the FERA Board along with the petitions to dispense with the deposit of the penalty amount and both the appeals are pending disposal before the FERA Board. Since the statutory appeals are pending, the criminal prosecution on the basis of the original order cannot be proceeded with till the disposal of the said appeals. The Additional Chief Metropolitan Magistrate, Chennai, after hearing the counsel for the accused and considering the submissions made by the counsel, without numbering the petitions, rejected the petitions as not maintainable. The order in both the petitions are challenged in these revisions. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 4. The learned counsel for the petitioner/accused argued that even before the filing of complaints in both the cases in C.C.Nos.390 and 391 of 2002 under Section 57 of the Act, competent appeals were filed on 27.4.2002 and 16.11.2002 and since the appeals filed before the FERA Board are pending and till such time the appeals are disposed of, criminal cases taken on file and registered for non-payment of balance penalty amount of Rs.3,75,000/- in C.C.No.390 of 2002 and non-payment of penalty amount of Rs.1 lakh in C.C.No.391 of 2002 cannot be proceeded with. In support of such contention, the learned counsel relied on the following decisions: (i) COMMISSIONER OF INCOME TAX, MUMBAI vs. BHUPEN CHAMPAK LAL DALAL AND ANOTHER (JT 2001 (3) SC 271); and (ii) TUKARAM ANNABA CHAVAN AND ANOTHER vs. MECHINDRA YESHWANT PATIL ( AIR 2001 SC 994 ) The above said decisions arise under the Income Tax Act. 5. The learned counsel further relied on the following decisions: (i) DETINNERS PVT. LTD. vs. ASSISTANT COLLECTOR OF CENTRAL EXCISE (1993 (66) E.L.T. 161 (BOM.); (ii) BATA INDIA LTD. vs. SUPERINTENDENT OF CENTRAL EXCISE ( 1997 (94) E.L.T. 45 (Cal.); and (iii)THE ASSISTANT DIRECTOR, ENFORCEMENT DIRECTORATE, MADRAS AND ANOTHER vs. HAMEED JAHUFFER ALIAS S.A.HAMEED ( 1996 (1) M.L.J. 260 ) The above said decisions arise under the Central Excise Act. 6. The learned counsel for the respondent / complainant, referring to Sections 52,57 and 70 of the Act, argued that the appeals filed by the accused before the FERA Board are not in time. The learned counsel also argued that irrespective of the appeals preferred before the FERA Board, the criminal proceedings initiated on file in C.C.Nos.390 and 391 of 2002 can be proceeded with for non-payment of the balance penalty amount of Rs.3,75,000/- out of Rs.6,50,000/- imposed by the Deputy Director of Enforcement as per order dated 27.11.2000 in C.C.No.390 of 2002 and for non-payment of the entire penalty amount of Rs.1 lakh in C.C.No.391 of 2002 and for which, orders have been served upon the accused on 22.3.2002 in both the cases. The learned counsel also argued that inasmuch as there is nothing to show that the penalty imposed have been deposited within the stipulated time even before preferring appeal to the appellate Board and that petitions filed to dispense with the deposit of penalty amount have been ordered, such appeals preferred before the Appellate Board themselves are not maintainable. 7. The learned counsel relied on the following decisions in support of the contentions: (i) R.K.SWAMY, MANAGING DIRECTOR, ETC. 7. The learned counsel relied on the following decisions in support of the contentions: (i) R.K.SWAMY, MANAGING DIRECTOR, ETC. vs. THE ASSISTANT DIRECTOR, ENFORCEMENT DIRECTORATE, SOUTHERN ZONE, MADRAS -6 (1993 L.W. (CRL) 407); (ii) A.JOSEPH vs. TAHSILDAR, EGMORE NUNGAMBAKKAM TALUK, MADRAS (2002 (139) E.L.T. (Mad)); (iii) A.I.SHAMSUDEEN AND OTHERS vs. THE SPECIAL DIRECTOR, ENFORCEMENT DIRECTORATE, NEW DELHI AND OTHERS (1994 M.L.J.R. 636); (iv) K.M.MOHAMED YOUSUF SULAIKHA UMMAL vs. ASSISTANT DIRECTOR ( 1991 (56) E.L.T. 324 (Mad.); (v) Unreported judgment of this Court in W.P.NO.2726 OF 1995 DATED 27.9.2002; (vi) Unreported judgment of this Court in CRL.O.P. NOS.45, 47 AND 255 OF 1994 DATED 14.9.1994; and (vii) Unreported judgment of this Court in CRL.M.P. NO.9087 OF 1986 DATED 08.10.1990. 8. It appears, the appeals have been preferred by the accused before the Appellate Board with regard to the penalty imposed in the order relating to C.C.No.390 of 2002 by the Deputy Director of Enforcement, Chennai, made on 27.11.2000 and the penalty imposed in the order relating to C.C.No.391 of 2002 by the Deputy Director of Enforcement, Chennai, made on 25.8.2000 and both the orders were served upon the accused on 22.3.2002. Section 52(2) of the Act reads as under: "(2) Any person aggrieved by such order may, on payment of such fee as may be prescribed and after depositing the sum imposed by way of penalty under Section 50 and within forty-five days from the date on which the order is served on the person committing the contravention, prefer an appeal to the Appellate Board: Provided that the Appellate Board may entertain any appeal after the expiry of the said period of forty-five days, but not after ninety days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time: Provided further that where the Appellate Board is of opinion that the deposit to be made will cause undue hardship to the appellant, it may, in its own discretion, dispense with such a deposit either unconditionally or subject to such conditions as it may deem fit." 9. Therefore, the appeals will lie against the order imposing penalty if preferred within 45 days from 22.3.2002 after depositing the amount imposed by way of penalty or by filing necessary application to dispense with payment of such deposit. Therefore, the appeals will lie against the order imposing penalty if preferred within 45 days from 22.3.2002 after depositing the amount imposed by way of penalty or by filing necessary application to dispense with payment of such deposit. In respect of the penalty imposed relating to C.C.No.390 of 2002, according to the learned counsel for the accused, the appeal was filed on 27.4.2002 along with the petition to dispense with the deposit of balance penalty amount of Rs.3,75,000/- as contemplated under Section 52(2) of the Act. The said appeal was received by the FERA Board, as per acknowledgment, on 01.5.2002 and the appeal has been registered on 16.10.2002 as per the intimation sent by the Board. In respect of the penalty imposed relating to C.C.No.391 of 2002, according to the learned counsel for the accused, the appeal was preferred before the Appellate Board on 16.11.2002 along with the petition to dispense with the deposit of entire penalty amount of Rs.1 lakh. Therefore, it is clear that the said appeal was not filed in time in view of the fact that the appeal is to be filed within 45 days from the date on which the order is served on the person committing contravention and the Appellate Board may entertain any appeal after the expiry of such period of 45 days and not after 90 days if it is satisfied that the appellant was prevented by sufficient cause from filing appeal in time. The order was served on the accused on 22.3.2002. Therefore, such appeal is clearly not filed in time even assuming that the period of 45 days from 22.3.2002 can be condoned in the appellate Court. 10. As regards appeal in respect of the penalty amount imposed relating to C.C.No.390 of 2002, though the accused filed the appeal on 27.4.2002 and it can be said was in time since filed within 45 days from the date of service on the person ie., on 22.3.2002 admittedly before filing such appeal, the penalty amount payable was not deposited and only a petition was filed to dispense with the deposit of balance penalty amount of Rs.3,75,000/-. Therefore, merely because the appeal has been filed in time, it cannot be said that the criminal proceedings initiated against the accused in C.C.No.390 of 2002 cannot be proceeded with. 11. In R.K.SWAMY, MANAGING DIRECTOR, ETC. Therefore, merely because the appeal has been filed in time, it cannot be said that the criminal proceedings initiated against the accused in C.C.No.390 of 2002 cannot be proceeded with. 11. In R.K.SWAMY, MANAGING DIRECTOR, ETC. vs. THE ASSISTANT DIRECTOR, ENFORCEMENT DIRECTORATE, SOUTHERN ZONE, MADRAS - 6 (1993 (L.W. (CRL) 407), this Court has held "prosecution initiated against the petitioner under Section 57 of the FER Act, Section 57 punishes persons, who fail to pay the penalty within 45 days prescribed for payment of the penalty imposed by the adjudicating authority. The offence is complete on non-payment within that period of 45 days. It may be that in certain cases hardship may be caused to the accused, but the law laid down by the Supreme Court in P.Jayappan v. S.K.Perumal (A.I.R. 1984 S.C. 1693) is that a mere expectation of success in some proceeding in appeal or Reference under the Act cannot come in the way of the institution of the criminal proceedings." No orders have been passed in the petition filed to dispense with the deposit of balance penalty amount of Rs.3,75,000/- in C.C.No.390/2002. 12. In A.I.SHAMSUDEEN AND OTHERS vs. THE SPECIAL DIRECTOR, ENFORCEMENT DIRECTORATE, NEW DELHI, AND OTHERS (1994 M.L.J.R (CRL) 636, at page 637, this Court has held that there cannot be any dispute with regard to the principle that the original order under Section 57 of the Act gets merged with the order of the Appellate Board. But that does not mean that till the order of the Appellate Board is announced, the consequences of the order of the original authority should get automatically stopped. 13. In K.M.MOHAMED YOUSUF SULAIKHA UMMAL vs. ASSISTANT DIRECTOR ( 1991 (56) E.L.T. 324 (Mad.), this Court has held: "The fact that the appeal had been entertained by assigning a specified number is not by itself sufficient to indicate even by way of implication that the deposit of the penalty amount had been dispensed with and the appeal had been taken on file. If at all, it would indicate that a number had been assigned to the appeal for the purpose of conveniently referring the same in future correspondence. If at all, it would indicate that a number had been assigned to the appeal for the purpose of conveniently referring the same in future correspondence. In the absence of any order dispensing with the deposit of the penalty amount by the Board, the contravention amounting to an offence under Section 56 of the FERA gets fruitioned by the elapse of forty five days from the date of receipt of the adjudication order, which in fact happened in the instant case." The said judgment was followed by this Court in A.JOSEPH vs. TAHSILDAR, EGMORE NUNGAMBAKKAM TALUK, MADRAS ( 2002 (139) E.L.T. 287 (Mad.) and was approved by the Division Bench of this Court in The Assistant Director, Enforcement Directorate, Madras v. Hameed Jahuffer @ S.A.Hameed ( 1996 (1) M.L.J. 260 ) 14. In an unreported judgment in W.P.No.2726 of 1995 dated 27.9.2002, V.S.Sirpurkar, J. as he then was has held that if the non-compliance of the order of penalty by itself is an offence, the moment the petitioner had failed to deposit the penalty amount, the offence was complete. 15. In another unreported judgment in Crl.O.P.Nos.45,47 and 255 of 1994 dated 15.9.1994, Rengaswamy, J. has held as follows: "Under the Foreign Exchange Regulation Act, the offence is committed when the penalty amount was not paid within 45 days as prescribed by the adjudicating authority. Therefore, the prosecution has been launched before the learned Magistrate as offence has been committed under Section 57 of the Foreign Exchange Regulation Act. The Appellate Authority under the Foreign Exchange Regulation Act has nothing to do with the criminal prosecution." 16. In one another unreported judgment in Crl.M.P.No.9087 of 1986 dated 08.10.1990, Arunachalam, J. has held: "There is no dispute that though the appeal was numbered, no orders were passed in the petition filed for dispensing with the deposit of penalty. Therefore, the complaint when it was laid before the trial Magistrate, was perfectly valid in law." 17. As held in the decisions relied on by the learned counsel for the respondent, merely because the appeals were filed before the Appellate Board, it cannot be said that the criminal proceedings under Section 57 of the Act will not lie and there cannot be any presumption that merely because the appeals have been registered, the deposit of penalty amount will be dispensed with and the appeals will be taken on file. The accused has not deposited the balance penalty amount of Rs.3,75,000/- relating to C.C.No.390 of 2002 and has also not deposited the penalty amount of Rs.1 lakh relating to C.C.No.391 of 2002 when they filed the appeals before the Appellate Board as contemplated under Section 52(2) of the Act. Therefore, the criminal proceedings initiated in C.C.Nos.390 and 391 of 2002 for non-payment of the balance penalty amount and the penalty amount are proper and as such, no direction can be issued not to proceed with the trial of the said criminal cases. Considering all these aspects, the learned Additional Chief Metropolitan Magistrate, E.O.II, Egmore, has rightly rejected to entertain the petitions filed for that purpose. There is no reason to interfere with such order in both the cases. 18. In the result, these revision petitions are dismissed and the orders passed by the learned Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai, are confirmed. Consequently, Criminal M.P. Nos.3460 and 3461 of 2003 are closed.