2003 (1) TMI 631 - HC - Companies Law

Court allows appeals, convicts under FERA 1973, imposes fines & imprisonment.

Assistant Director, Enforcement Directorate Versus Khader Sulaiman

Assistant Director, Enforcement Directorate Versus Khader Sulaiman - [2005] 63 SCL 248 (MAD.) Issues Involved:1. Non-issuance of opportunity notice under section 61(2)(ii) of the FERA, 1973.2. Validity of acquittal based on failure to prove charges beyond reasonable doubt.3. Applicability of FEMA, 1999 for punishment of offences committed under FERA, 1973.Detailed Analysis:Issue 1: Non-issuance of Opportunity Notice under Section 61(2)(ii) of the FERA, 1973The court examined whether the non-issuance of an opportunity notice to the respondents/accused, as required under section 61(2)(ii) of the FERA, 1973, vitiated the prosecution's case. The court referred to the corresponding provisions of the FERA, 1947, and concluded that the opportunity notice need not necessarily be a separate notice but could be part of the adjudication process. The court held that if the accused had been given an opportunity to show cause during the adjudication proceedings, it would suffice, and a second notice before prosecution was not mandatory. The court cited previous judgments to support this interpretation, affirming that the provision was directory and not mandatory.Issue 2: Validity of Acquittal Based on Failure to Prove Charges Beyond Reasonable DoubtThe court analyzed whether the lower courts were correct in acquitting the accused on the grounds that the prosecution failed to prove the charges beyond reasonable doubt. The court reviewed the provisions of the FERA, 1973, including sections 8, 9, 59, and 71, which impose restrictions on foreign exchange dealings and shift the burden of proof to the accused. The court noted that the statements recorded by enforcement officers under the FERA, 1973, are admissible as evidence and can form the basis for conviction unless retracted convincingly. The court found that the confessional statements were corroborated by material evidence and that the accused failed to prove that the statements were obtained under duress. The court held that the prosecution had sufficiently proved the charges, and the acquittals were not justified.Issue 3: Applicability of FEMA, 1999 for Punishment of Offences Committed Under FERA, 1973The court addressed whether the respondents/accused could be punished under the repealed FERA, 1973, given that the FEMA, 1999, which replaced it, does not provide for punishment. The court referred to section 49 of the FEMA, 1999, which includes a saving clause stating that offences committed under the FERA, 1973, would continue to be governed by its provisions. The court emphasized that the repeal of the FERA, 1973, does not absolve the accused of liability for offences committed under it. The court also noted that the legislative intent was to ensure that serious economic offences are not left unpunished. Therefore, the court concluded that the respondents/accused could be punished under the FERA, 1973, despite its repeal.Conclusion:The court allowed the appeals, setting aside the acquittals and remanding one case for a new trial. The respondents/accused were found guilty of the charges under the FERA, 1973, and were sentenced accordingly, taking into consideration their personal circumstances and the legislative changes. The court imposed fines and sentences of imprisonment till the rise of the court, with provisions for rigorous imprisonment in case of non-payment of fines. The judgments highlight the court's commitment to upholding the law and ensuring that economic offences are duly punished.