Mandatory pre-complaint opportunity under FERA bars cognizance when complaint is filed before the accused's reply is considered.

The proviso to Section 61(2)(ii) of the Foreign Exchange Regulation Act, 1973 requires a meaningful pre-complaint opportunity for the accused to show that the necessary permission existed where the alleged contravention concerns an act prohibited without permission. Filing the complaint before that opportunity expired, and before the accused's reply was considered, amounted to non-compliance with a mandatory statutory pre-condition. The complaint also showed no application of mind to the accused's response, and the summons were issued without addressing the statutory bar. The complaint and consequential summons were therefore liable to be quashed for want of jurisdiction.

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Issues: Whether the criminal complaint and summons under the Foreign Exchange Regulation Act, 1973 were liable to be quashed for non-compliance with the mandatory proviso to Section 61(2)(ii), requiring an opportunity to the accused to show that permission existed before filing the complaint.

Analysis: The proviso to Section 61(2)(ii) of the Foreign Exchange Regulation Act, 1973 makes pre-complaint compliance mandatory where the alleged contravention concerns an act prohibited without permission. The opportunity contemplated is not a mere formality and must be meaningful, having regard to the serious penal consequences under the statute. On the facts, the complaint was filed before the expiry of the time granted in the opportunity notice and before the accused's reply was considered. The record also showed that the complaint did not reflect consideration of the petitioner's response and that the trial court issued summons without application of mind to this statutory bar.

Conclusion: The statutory pre-condition for filing the complaint was not satisfied, and the complaint and consequential summons were liable to be quashed.

Ratio Decidendi: Where a statute expressly bars cognizance unless a prior opportunity is afforded to the accused to show requisite permission, filing a complaint before that meaningful opportunity is exhausted or considered is a jurisdictional defect warranting quashing of the proceedings.

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