Wilful non-payment under FERA Section 57 requires a subsisting default on the complaint date; appellate relief defeated prosecution.

Prosecution under Section 57 of the Foreign Exchange Regulation Act, 1973 requires a subsisting and wilful failure to pay the penalty on the date the complaint is filed. Where the appellate tribunal had waived the balance penalty through relief under Section 52(2) and the adjudication order remained under challenge, the non-payment could not be treated as deliberate default. As the essential ingredients of the offence were absent, the complaint was held not maintainable and was quashed.

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Issues: Whether a complaint under Section 57 of the Foreign Exchange Regulation Act, 1973 could be sustained when the balance penalty amount had been waived by the appellate tribunal and the adjudication order was under challenge.

Analysis: Section 57 penalises failure to pay the penalty imposed by the adjudicating officer or appellate authority, and such failure must exist on the date of filing of the complaint. The balance penalty had been subjected to an appellate order dispensing with pre-deposit under Section 52(2) of the Foreign Exchange Regulation Act, 1973, and the adjudication order was still under appeal. In these circumstances, the non-payment could not be characterised as a deliberate or wilful default, and the essential ingredients for launching prosecution were absent.

Conclusion: The complaint was not maintainable and was quashed in favour of the petitioner.

Ratio Decidendi: A prosecution under Section 57 of the Foreign Exchange Regulation Act, 1973 cannot be founded unless there is a subsisting and wilful failure to pay the penalty on the date of the complaint; where appellate relief has suspended or waived the obligation, the offence is not made out.

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