TaxTMI 
TaxTMI 
2009 (3) TMI 571
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....the fact remains that he was not implicated as an accused. 3. Learned counsel appearing for the Enforcement Directorate submits that in fact a notice was issued to the petitioner calling upon him to show-cause as to why he should not be prosecuted. After taking his reply on record the Enforcement Directorate was satisfied that it was not a case where he should also be prosecuted along with other accused persons and that is how his name was not added as an accused in the complaint but inadvertently certain references were there qua him in the complaint probably which was prepared before the receipt of the reply to the show-cause notice issued to the petitioner. It is also fairly conceded by the learned counsel appearing for the Enforcement Directorate that the petitioner was also exonerated in the adjudicatory proceeding as no penalty has been imposed upon him for having violated any of the provisions of the Foreign Exchange Management Act, 1999 (sic). 4. The petitioner has filed this petition aggrieved from an order passed by the ACMM summoning him under section 319 Cr. P.C. while framing charges against the persons who were named in the complaint despite the Departmental dec....
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....al grounds or by giving benefit of doubt or that the merits have not been examined. The natural consequences, thus, is that the charges cannot be framed and the criminal prosecution cannot be permitted to continue against the petitioners once the adjudication proceedings on merits have been found in favour of the petitioners. Learned counsel for the respondent, in fact, has been more than fair in accepting the said conclusion. 8. The petitions are, accordingly, allowed and the impugned orders framing charges are quashed and the petitioners are discharged." 5. It has been submitted by the petitioner that the aforesaid pronouncement by this Court squarely applies to the case of the petitioner also. In this regard he also referred to an earlier judgment delivered in the case of Anil Mahajan v. UOI [Crl. Rev. P. No. 160 of 2007, dated 5-2-2008] as well as the judgment of Sunil Gulati v. R.K. Vohra in [Crl. M.C. Nos. 991 and 2173 of 2004, dated 20-12-2006] delivered by another Single Judge of this Court wherein also it was held : "14. However, what is relevant for us is the discussion in the judgment on one of the arguments which was raised by counsel for the appellant Bank. Th....
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.... be borne in mind. No doubt, as per the aforesaid judgment of the Supreme Court, adjudication proceedings as well as criminal proceedings can be initiated simultaneously. In fact, for initiating criminal proceedings one does not have to wait for the outcome of adjudication proceedings. Therefore, filing of the criminal proceedings by the department against the petitioner in the instant case cannot be termed as bad in law. However, the question with which we are concerned is the impact of the findings which is recorded on the culmination of adjudication proceedings on criminal adjudication. To put it in simple words, the issue is, if in the adjudication proceedings the petitioner is exonerated, whether on that basis the petitioner can state that criminal proceedings should also be dropped. Case of the petitioner is that since it is held by the adjudicating authority itself that the petitioner has not committed any violation of FERA provisions, same authority cannot be allowed to continue the criminal proceedings." 6. After making the aforesaid observations, the learned Single Judge drew the following conclusions : "1. On the same violation alleged against a person, if adjudica....
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....complaint and say that there is sufficient evidence to foist the accused persons with criminal liability when it is stated in the departmental proceedings that ex facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of the provisions of any Act." 7. Since in that case the exoneration was not on merits, the Court observed: "29. It is clear from the above that in the departmental proceedings, the petitioner is not exonerated on merits and it would still be open to the criminal court as to whether the statement of Sunil Gulati under section 108 of the Customs Act should be believed or not. Therefore, the impugned order of the learned trial court is valid and proper, though the discussion on the issue namely relevance of adjudication proceedings on the criminal cases may not be fully correct which is stated by the learned trial court in the earlier part of the order. Since the conclusion of the learned trial court in the impugned order....
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....Sh. Arjun Amla for contravention of section 8(1) of the FERA, 1973 are also dropped since the charge was not proved as per the discussions in the preceding paragraphs. 63. The penalties imposed as above should be deposited in the office of the Deputy Director, Enforcement Directorate, Delhi Zonal Office, 10A, Jam Nagar House, Akbar Road, New Delhi in the form of Demand Draft to be drawn in favour of the Pay and Accounts Officer, Department of Revenue, New Delhi, within 45 days of the receipt of this order." 11. The learned counsel for the respondents submits that the earlier notice which is also known as opportunity notice with respect to the question as to whether criminal proceedings should be initiated against the petitioner or not was given much earlier i.e., on 3-5-2002 which document is also available at pages 73-87 and was issued on 3-5-2002. This notice was replied to by the petitioner vide his reply dated 13-5-2001 which is at page 88 and based upon the aforesaid, the Department passed the order dated 10-5-2005. 12. Since no complaint was filed till 31-5-2002 which was the last date till when complaint could be filed, this goes to show that the Department decided ....