ALPHA COMMERCIALS v. M. G. ATTRI CHIEF ENFORCEMENT OF
2007-01-15
S.RAVINDRA BHAT
body2007
DigiLaw.ai
S. RAVINDRA BHAT, J. ( 1 ) IN these proceedings under Section 482 of the Code of Criminal procedure, the petitioner company has sought for quashing of a complaint made by the respondent Enforcement Directorate for alleged commission of offences punishable under Section 56 of the Erstwhile Foreign Exchange Regulation Act. ( 2 ) THE allegation against the petitioners was that it failed to comply with certain directives issued by the respondents on 22. 6. 2000 and 29. 11. 2000 under Section 33 (2) of the Act (hereafter ?fera? ). During the course of the proceedings, it transpired that the Enforcement Directorate took out independent proceedings and adjudicated on the allegations which were the subject matter of the notice under Section 33 (2 ). The adjudication proceedings culminated in an order adverse to the petitioners; on 30. 11. 03 by the Special Directorate enforcement. The petitioners were held guilty under Section 33 (2) and penalized in the sum of Rs. 5,000/ -. ( 3 ) IT is contended that in the meanwhile the respondents had initiated proceedings which are the subject matter of the present Section 482 petition. The learned Additional Chief Metropolitan Magistrate took cognizance of the complaint and issued notice to the petitioners. The petitioners had appealed to the Appellate Authority in respect of the order in original dated 30. 11. 2003. The learned counsel submits that the Appellate Authority by its order dated 3. 3. 2004 allowed the appeal and set aside the adjudication order, which had held the petitioners guilty for contravention of Section 33 (2); even the penalty was set aside. ( 4 ) IN the counter affidavit filed by the respondents it has been averred inter alia as follows :- "vide order dated 28. 11. 2003, the learned Adjudicating Authority was pleased to exonerate S/sh. S. S. M. Ahmed hussain, H. Ameerudeen @ Mohd. Ameerdeen Habib, Ms. Zulaika Banu and ms. Hameed Amina Bivi. The learned adjudicating Authority was pleased to hold that Sh. H. Sayed Abdul Kader (noticee no. 4 to the show cause notice) was incharge of and was responsible to the firm, m/s Alpha Commercials, Chennai (the present petitioner) for the conduct of its business during the relevant period.
Ameerdeen Habib, Ms. Zulaika Banu and ms. Hameed Amina Bivi. The learned adjudicating Authority was pleased to hold that Sh. H. Sayed Abdul Kader (noticee no. 4 to the show cause notice) was incharge of and was responsible to the firm, m/s Alpha Commercials, Chennai (the present petitioner) for the conduct of its business during the relevant period. Since noticee No. 4, Shri H. Sayed Abdul kader failed in furnishing the requisite information required U/s 33 (2) of FERA, 1973, he was found guilty for the aforesaid contravention of the Act. Consequently a penalty of Rs. 5000/- (Rupees five thousand) was imposed on the aforesaid Sh. H. Sayed Abdul Kader noticee No. 4 to the SCN. As regards the firm m/s Alpha Commercials, Chennai, the present petitioner, the learned Adjudicating authority found the firm to have contravened Sec. 33 (2) of FERA and a penalty of rs. 5000/- was imposed on the firm for the aforesaid contravention. M/s Alpha Commercials, the present petitioner and Shri H. Sayed Abdul kadar filed appeal Nos 41 and 43 of 2004 before the Appellate Tribunal for foreign Exchange, New Delhi against the aforesaid adjudication order. Vide order dated 3. 3. 2004 the said appeals were allowed and the findings and order of the Adjudicating Authority were set aside by the Tribunal. The respondent directorate reviewed the adjudication order and the findings of the Appellate tribunal and the same have been accepted by the Directorate of Enforcement. " ( 5 ) MR. Panda, learned senior counsel for the respondents submits that even though the petitioners were exonerated in the proceedings, nevertheless the criminal prosecution under Section 56 is independent. He relied upon the opening expression in that provision ?without prejudice?. He also relied upon the certain judgments of the Supreme Court including the judgment in Standard chartered Vs. Directorate of Enforcement 2006 (4) SCC 278, to emphasize that regardless of the outcome of the adjudication order, the prosecution would be independently maintainable. ( 6 ) I am of the opinion that in the facts of this case the petitioner is really entitled to relief. The allegation against it was premised upon violation of Section 33 (2); it led to an adjudication order where it was held guilty. Undoubtedly the order resulted in imposing penalty. However, the said order was set aside by the Appellate Authority on 3. 3.
The allegation against it was premised upon violation of Section 33 (2); it led to an adjudication order where it was held guilty. Undoubtedly the order resulted in imposing penalty. However, the said order was set aside by the Appellate Authority on 3. 3. 2004 The Appellate authority's order has been accepted by the respondent and has attained finality. In these circumstances it would not be in the interests of justice to continue with the criminal proceedings. The ends of justice therefore clearly require invocation of the power under Section 482. Accordingly, the complaint no. 7/1/2002 and all proceedings further to it pending before the learned additional Chief Metropolitan Magistrate are hereby quashed. The petition is allowed in the above terms. No costs.