TaxTMI 
TaxTMI 
2011 (2) TMI 154
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.... taken by him. 2. Shorn of unnecessary detail the facts giving rise to the present appeal are that on May 22, 1992 various premises in the occupation of the appellant Radheshyam Kejriwal besides other persons were searched by the officers of the Enforcement Directorate. The appellant was arrested on May 3, 1992 by the officers of the Enforcement Directorate in exercise of the power under section 35 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as the "Act") and enlarged on bail on the same day. Further the appellant was summoned by the officers of the Enforcement Directorate to give evidence in exercise of the power under section 40 of the Act and in the light thereof his statement was recorded on various dates, viz., May 22, 1992, March 10, 1993, March 16, 1993, March 17, 1993 and March 22, 1993. On the basis of materials collected during search and from the statement of the appellant it appeared to the Enforcement Directorate that the appellant, a person resident in India, without any general or specific exemption from the Reserve Bank of India made payments amounting to Rs. 24,75,000 to one Piyush Kumar Barodia in March/April, 1992 as considerat....
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....ould require the proof of payment having been made to the credit of any person at exchange other than the rate which has been authorized by the Reserve Bank of India. In the case before me, it has not been proved beyond reasonable doubt whether a sum of Rs. 24,75,000 has actually been paid or not. There is no documentary evidence except the statement of Shri Piyush Kumar Barodia and the retracted statement of Shri Radheshyam confirming the fact that Rs. 24,75,000 was exchanged at of Rs. 33 per dollar. Therefore, it is very relevant to take the above facts and circumstances into consideration before coming to a conclusion as to the correctness of the statements given by S/Shri Radheshyam Kejriwal and Piyush Kumar Barodia. The documentary evidence available and the statements of the other co-accused will definitely throw further light in the matter. After considering all the above facts, I find that the only evidence available against Shri Radheshyam Kejriwal is the fact that his telephone number and name are mentioned in the documents seized from Shri Piyush Kumar Barodia and the fact that some transactions have been noted against his name which do not match the sum of Rs.....
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....id not produce any permission. 6. The Enforcement Directorate on the same allegation which was the subject-matter of adjudication proceedings laid a complaint against the appellant for prosecution under section 56 of the Act before the Metropolitan Magistrate. After the issuance of process and exoneration in the adjudication proceedings the appellant filed an application for dropping the proceedings, inter alia, contending that on the same allegation the adjudication proceedings having been dropped and the appellant exonerated, his continued prosecution is an abuse of the process of the court. The Metropolitan Magistrate by order dated September 2, 1997, rejected his prayer. Aggrieved by the same the appellant preferred a criminal revision application and reiterated the same submission but it did not find favour with the Calcutta High Court and by the impugned order dated August 10, 2001, it rejected the revision application. While doing so it observed as follows : "Therefore, the contention of Mr. Ghosh is unacceptable that in the adjudication proceedings being held by the Department concerned the allegations against the petitioner having not been found establi....
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....ovisions of this Act other than section 13, clause (a) of sub-section (1) of section 18, section 18A and clause (a) of sub-section (1) of section 19 or of any rule, direction or order made thereunder, he shall be liable to such penalty not exceeding five times the amount or value involved in any such contravention or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement or any other officer of Enforcement not below the rank of an Assistant Director of Enforcement specially empowered in this behalf by order of the Central Government in either case hereinafter referred to as the adjudicating officer." 10. The aforesaid provision provides for mandatory penalty and fixes the outer limit of such penalty on any person contravening the provisions of the Act which is to be adjudged by the Director of Enforcement or any other officer of the Enforcement not below the rank of an Assistant Director empowered by the Central Government. The procedure and the power to adjudicate penalty have been provided under section 51 of the Act, which reads as follows : 51. Power to adjudicate.-For the purpose of adjudging under section 50 whether any ....
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....on 51 of the Act and to prevent the tendency to violate is curbed by inserting section 56 of the Act providing for imposing appropriate punishment after due prosecution, the relevant portion whereof reads as follows : "56. Offences and prosecutions.-(1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any person contravenes any of the provisions of this Act other than section 13, clause (a) of sub- section (1) of section 18, section 18A, clause (a) of sub- section (1) of section 19, sub-section (2) of section 44 and sections 57 and 58, or of any rule, direction or order made thereunder, he shall, upon conviction by a court, be punishable,- . . . 14. With deepest respect we are entirely in agreement with the conclusion of our learned brother Sathasivam J. that the proceedings under sections 51 and 56 of the Act are independent of each other and the finding in an adjudication proceeding under section 51 of the Act is not binding in the proceeding for prosecution under section 56 of the Act and both can go hand in hand. Further, the prosecution can be launched even before conclusion of adjudication proceedings under section 5....
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....ng on his prosecutor. In the instant case for the reasons already mentioned, we are unable to hold that the proceeding beforethe Collector of Customs is a criminal trial. From this it follows that the decision of the Collector does not amount to a verdict of acquittal in favour of accused Nos. 1 and 2." 16 We do not find any substance in the submission of Mr. Malhotra and the decision relied on has no bearing in the facts and circumstances of the case. 17. In L. R. Melwani's case, AIR 1970 SC 962*, the accused persons resisted their prosecution on the ground that the Collector of Customs having given the benefit of doubt, in view of the guarantee granted under article 20(2) of the Constitution for the same offence they cannot be tried more than once. It was also contended that that person once convicted or acquitted cannot be tried for the same offence again in view of the safeguard provided under section 403 of the Code of Criminal Procedure, 1898, which corresponds to section 300 of the Code of Criminal Procedure, 1973. In order to get the benefit of section 300 of the Code of Criminal Procedure, 1973, it is necessary for an accused person to establish that no....
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....urt in the case of B. N. Kashyap v. Emperor, AIR 1945 Lahore 23, 27 and our attention has been drawn to the following passage : "There is no reason in my judgment as to why the decision of the civil court particularly in an action in personam should be allowed to have that sanctity. There appears to be no sound reason for that view. To hold that when a party has been able to satisfy a civil court as to the justice of his claim and has in the result succeeded in obtaining a decree which is final and binding upon the parties, it would not be open to criminal courts to go behind the findings of the civil court is to place the latter without any valid reason in a much higher position than what it actually occupies in the system of administration in this country and to make it master not only of cases which it is called upon to adjudicate but also of cases which it is not called upon to determine and over which it has really no control. The fact is that the issues in the two cases although based on the same facts (and strictly speaking even parties in the two proceedings) are not identical and there appears to be no sufficient reason for delaying the proceedings in the crimina....
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....Section 41 provides which judgment would be conclusive proof of what is stated therein." 22. Hence, we reject this submission of Mr. Malhotra. 23. Mr. Malhotra submits that the finding recorded in the adjudication proceeding is not binding on the criminal proceeding as both cases have to be decided on the basis of the evidence therein. Reliance has been placed on a decision of this court in the case of Iqbal Singh Marwah v. Meenakshi Marwah [2005] 4 SCC 370, the relevant portion whereof reads as follows : "32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings is entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire bur- den lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced th....
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....no order as to costs." 26. In the case of G. L. Didwania v. ITO [1995] Supp (2) SCC 724*, on setting aside the order of the assessing authority which led to the prosecution of the assessee by the Income-tax Appellate Tribunal, this court held the prosecution not permissible and while doing so observed as follows : "4. In the instant case, the crux of the matter is attracted and whether the prosecution can be sustained in view of the order passed by the Tribunal. As noted above, the assessing authority held that the appellant-assessee made a false statement in respect of income of M/s. Young India and Transport Company and that finding has been set aside by the Income-tax Appellate Tribunal. If that is the position then we are unable to see as to how criminal proceedings can be sustained." 27. Similar view has been taken by this court in the case of K. C. Builders v. Asst. CIT [2004] 2 SCC 731**, in which it has been held as follows : "26. In our view, once the finding of concealment and subsequent levy of penalties under section 271(1)(c) of the Act has been struck down by the Tribunal, the Assessing Officer has no other alternative except to correct his o....
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....e of Standard Chartered Bank* (supra) and L. R. Melwani [1969] (2) SCR 438 ; AIR 1970 SC 962 holding that adjudication proceedings and criminal proceedings are two independent proceedings and both can go on simultaneously and a finding in the adjudication proceeding is not binding in the criminal proceedings and the judgments of this court in the case of Uttam Chand [1982] 2 SCC 543**, G. L. Didwania [1995] Supp (2) SCC 724*** and K. C. Builders [2004] 2 SCC 731# wherein this court had taken a view that when there is a categorical finding in the adjudication proceeding exonerating the person which is binding and conclusive, the prosecution cannot be allowed to stand. Judgments of this court are not to be read as statute and when * [2006] 130 Comp Cas 341 (SC)** [1982] 133 ITR 909 (SC)*** [1994] 224 ITR 687 (SC)# [2004] 265 ITR 562 viewed from that angle there does not seem any conflict between the two sets of decisions. It will not make any difference in principle that the latter judgments pertain to cases under the Income-tax Act. The ratio which can be culled out from these decisions can broadly be stated as follows : (i) Adjudication proceedings and criminal prosecution can b....
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....calling upon them to produce the necessary permission from the concerned authority for the transaction involved. The Standard Chartered Bank and its officers filed writ petitions in the Bombay High Court challenging the constitutional validity of sections 50, 51 and 68 of the Act. The Bombay High Court upheld the constitutional validity of the aforesaid provisions of the Act but at the same time observed that section 68(1) of the Act shall not be applicable to adju- dication proceedings and it is confined to prosecution under the Act. The bank and its officers aggrieved by the judgment of the Bombay High Court upholding the constitutional validity of the impugned provisions of the Act and the Union of India dissatisfied with the observation of the court whereby it restricted the application of section 68(1) of the Act to only criminal prosecution filed separate appeals before the Supreme Court. This court upheld the decision of the Bombay High Court so far as the constitutional validity of the aforesaid provisions of the Act is concerned and accordingly dismissed the appeals filed by the bank and its officers. However, this court reversed the view of the Bombay High Court in regard....
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....l. I have already noted the facts and find- ings of the adjudicating authority in detail. The adjudicating authority had clearly come to the conclusion that there was no material to hold the present applicant guilty for contravention of the provisions of the FERA and he was completely exonerated. When in the departmental proceedings before the adjudicating authority, the Department could not establish the charges, it is difficult to imagine how the Department could prove the same charges before the criminal court when the standard of proof may be much higher and more stringent than the standard of proof required in Departmental proceedings." 34. The Delhi High Court also considered this question arising out of a case under the Foreign Exchange Regulation Act, in detail in the case of Sunil Gulati v. R. K. Vohra [2007] 145 DLT 612, and held as follows : "In case of converse situation namely where the accused persons are exonerated by the competent authorities/tribunals in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings should still continue. If the exoneration in departmental adjud....
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....appeal is allowed, the impugned judgment of the learned Metropolitan Magistrate and the order affirming the same by the High Court are set aside and appellant's prosecution is quashed. 38. P. Sathasivam J.-This appeal is filed against the final judgment and order dated August 10, 2001 passed by the High Court of Calcutta in C.R.R. No. 3593 of 1997 whereby the learned single judge of the High Court dis- missed the application filed by the appellant herein under sections 401 and 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") for quashing the criminal proceedings initiated against him vide Complaint Case No. 965 of 1995 under section 56 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as "the FERA") pending in the court of 9th Metropolitan Magistrate, Calcutta. Brief facts (a) On May 7, 1993, a show-cause notice bearing No. T-4/2- C/93 was issued by the Special Director, Enforcement Directorate, FERA, Government of India, New Delhi to five persons including the appellant herein for holding inquiry under section 51 of the FERA for the purpose of adjudicating the penalty under section 50 for contravening th....
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.... filed an application before the Metropolitan Magistrate, Calcutta for dropping the proceedings. Vide order dated September 2, 1997, the Metropolitan Magistrate rejected the said application and held that there is no bar to proceed with the criminal case as the proceeding before the FERA Board is separate. (d) Being aggrieved by the said order, on December 4, 1997, the appellant filed an application under sections 401 and 482 of the Code before the High Court of Calcutta for quashing of the criminal proceedings. The High Court, by the impugned order dated August 10, 2001, rejected the prayer for quashing of the criminal proceedings. Against the said order, the appellant has filed this appeal by way of special leave before this court. 39. Heard Mr. Amarendra Sharan, learned senior counsel for the appellant and Mr. P. P. Malhotra, learned Additional Solicitor General for the respondents. 40 The main question that arises for consideration in this appeal is whether the Enforcement Directorate (ED) FERA can prosecute the appellant in a proceeding under section 56 of the FERA when on the self-same facts and cause of action, the respondent-adjudicating authority dro....
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....other than section 13, clause (a) of sub-section (1) of section 18, section 18A and clause (a) of sub-section (1) of section 19 or of any rule, direction or order made thereunder, he shall be liable to such penalty not exceeding five times the amount or value involved in any such contravention or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement or any other officer of Enforcement not below the rank of an Assistant Director of Enforcement specially empowered in this behalf by order of the Central Government (in either case hereinafter referred to as the adjudicating officer). 51. Power to adjudicate.-For the purpose of adjudging under section 50 whether any person has committed a contravention of any of the provisions of this Act (other than those referred to in that section) or of any rule, direction or order made thereunder, the adjudicating officer shall hold an inquiry in the prescribed manner after giving that person a reasonable opportunity for making a representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordanc....
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.... of the appellant that since there is a categorical finding by the Special Director exonerating the appellant from all charges levelled against him, the Department is not permitted to initiate criminal proceedings under section 56 of the FERA. It is the stand of the appellant that in view of the language used in sub-section (1) of section 56, namely, "without prejudice to any award or penalty by the adjudicating officer under this Act . . . ", and in the light of the categorical conclusion by the Special Director dropping all the charges, the Enforcement Department is estopped from initiating prosecution. 45. In support of the above claim, learned senior counsel for the appellant relied on the following decisions : (1) G. L. Didwania v. ITO [1995] Supp (2) SCC 724* ; (2) K. C. Builders v. Asst. CIT [2004] 2 SCC 731** ; (3) P. S. Rajya v. State of Bihar [1996] 9 SCC 1 ; and (4) Uttam Chand v. ITO [1982] 2 SCC 543***. 46. The first decision, being G. L. Didwania1 (supra) arose under the Income-tax Act. The appellant therein was an assessee and for the * [1997] 224 ITR 687 (SC).** [2004] 265 ITR 562 (SC).*** [1982] 133 ITR 909 (SC). assessment year 1960....
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.... Magistrate by his order dated September 2, 1979, dismissed the said application and held that the prosecution has got a right to lead evidence in support of his complaint and the court can come to the conclusion whether or not any criminal offence is made out. The Magistrate also observed that the order of the Tribunal can be taken only as evidence. Aggrieved by the same, the appellant-assessee filed an applica- tion under section 482 of the Code before the High Court and the High Court dismissed the same in limine which was challenged before this court. The question before this court was whether the prosecution can be sustained in view of the order passed by the Tribunal. In the factual scenario, this court held as under (page 690) : "4. . . . As noted above, the assessing authority held that the appellant-assessee made a false statement in respect of income of M/s. Young India and Transport Company and that finding has been set aside by the Income-tax Appellate Tribunal. If that is the position then we are unable to see as to how criminal proceedings can be sus- tained." 47. The ratio laid down in the decision is that in view of the conclusion of the Income-t....
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....was available. In other words, there is no ratio for being considered for other cases. 52. Now, let me consider the stand of the Department as projected by Mr.P.P. Malhotra, learned Additional Solicitor General. After taking through sections 50, 51 and 56 of the FERA, Mr. Malhotra submitted that both the proceedings, namely, the departmental adjudication and imposition of penalty as covered by sections 50 and 51 and the prosecution covered by section 56 of the Act can go hand in hand and there is no bar to simultaneous operation of these two systems. He also submitted that all the decisions relied on by the learned counsel for the appellant have no bearing on the issue in the case on hand since no one has dealt with the provisions of the FERA, more particularly, sections 50, 51 and 56. In support of his claim, he relied on the following decisions : (1) Standard Chartered Bank v. Directorate of Enforcement [2006] 4 SCC 278* ; (2) K. G. Premshanker v. Inspector of Police [2002] 8 SCC 87 ; (3) Assistant Collector of Customs v. L. R. Melwani [1969] (2) SCR 438 ; (4) Iqbal Singh Marwah v. Meenakshi Marwah [2005] 4 SCC 370 and (5) B. N. Kashyap v. Emperor, AIR 1945 Lahore 23 Fu....
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...., 2005 (Standard Chartered Bank v. Directorate of Enforcement [2005] 4 SCC 530*** overruled the decision in Asst. Commissioner v. Velliappa Textiles Ltd.1 and sent these appeals for being heard on the merits by a Division Bench. The question that was decided was whether in a case where an offence was punishable with a mandatory sentence of imprisonment, a company incorporated under the Companies Act, can be prosecuted, as the sentence of imprisonment cannot be imposed on the company. The majority in the Constitution Bench, held that there could be no objection to a company being prosecuted for penal offences under the FERA and the fact that a sentence of imprisonment and fine has to be imposed and no imprison- ment can be imposed on a company or an incorporated body, would not make section 56 of the FERA inapplicable and that a company did not enjoy any immunity from prosecution in respect of offences for which a mandatory punishment of imprisonment is prescribed. In the light of the said decision of the Constitution Bench, the controversy before the three judge Bench has narrowed down and proceeded on the basis that the appellant-banks are liable to be prosecuted for offences unde....
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.... other law, to an adjudication and prosecution being launched in respect of an alleged contravention of the FERA. Counsel submitted that the law has permitted it by providing two separate modes for dealing with the person who contravenes the law in relation to foreign exchange. While the primary purpose of imposing of the penalty is in the interests of revenue and the preservation of foreign exchange, the primary purpose of prosecution is to serve as a strong deterrent to persons or companies contravening the provisions of the Act and to send a message to society at large. Counsel pointed out that section 56 of the FERA which deals with offences and prosecutions, commences with the words `without prejudice to any award of penalty by the adjudicating officer under this Act'. A person contravening any of the provisions shall upon conviction by a court will be punished, even if a penalty has been imposed on him. There was no warrant for reading the words `without prejudice to' as restricting the right of the authorities under the Act to proceed with the adjudication first and to commence the prosecution only at its conclusion. Counsel also emphasised that the two proceedings are....
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.... suggested by the learned senior counsel. The very purpose of the Act and the very object of inclusion of the Act in the Ninth Schedule justifies an interpretation of the provisions as they stand on the basis that there is nothing arbitrary or unreasonable in the provisions and in the scheme as enacted. We may also notice that section 23D of the Foreign Exchange Regulation Act, 1947 which was considered in Rayala Corporation (P) Ltd. had a proviso, which indicated that the adjudication for the imposition of penalty should precede the making of a complaint in writing to the court concerned for prosecuting the offender. The absence of a similar proviso to section 56 or to section 51 of the present Act, is also a clear indication that the Legislature intended to treat the two proceedings as independent of each other. Obviously, the Legislature must be taken to have been conscious of the interpretation placed on the corresponding provisions by this court in the decisions above referred to when the 1973 Act was enacted and it was also included in the Ninth Schedule to ward off any challenge on the ground that it would be violative of article 14 of the Constitution, unless understood or ....
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.... an adjudication is binding on the court in a prosecution under section 56 of the Act. There is no indication that the prosecution depends upon the result of the adjudication. We have already held that on the scheme of the Act, the two proceedings are independent. The finding in one is not conclusive in the other. In the context of the objects sought to be achieved by the Act, the elements relied on by the learned senior counsel, would not justify a finding that a prosecution can be launched only after the completion of an adjudication under section 51 of the Act. The decision in K. C. Builders v. CIT [2004] 2 SCC 731** is clearly distinguishable. The court proceeded as if under the Income-tax Act, the prosecution is dependent on the imposition of penalty. That was a case where the prosecution was based on a finding of concealment of income and the imposition of penalty. When the Tribunal held that there was no concealment, and the order levying penalty was cancelled, according to this court, the very foundation for the prosecution itself disappeared. This court held that it is settled law that levy of penalties and prosecution under section 276C of the Income-tax Act are....
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....decide to what extent it is binding or conclusive with regard to the matter(s) decided therein . . . 32. In the present case, the decision rendered by the Constitution Bench in M. S. Sheriff case [1954] AIR 1954 SC 397 would be binding, wherein it has been specifically held that no hard-and-fast rule can be * [2004] 265 ITR 562 (SC).laid down and that possibility of conflicting decision in civil and criminal courts is not a relevant consideration. The law envisages `such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for limited purpose such as sentence or damages'. 33. Hence, the observation made by this court in V. M. Shah case [1995] 5 SCC 767 that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case [1970] 3 SCC 694 are in context of the facts of the case stated above. The court was not required to consider the earlier decision of the Constitution Bench in M. S. Sheriff case as well as sections 40 to 43 of the Evidence Act. 34.....
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....d No. 1 is the proprietor and accused No. 2 is the manager) although it is apparent that they have directly assisted the importers in their illegal activities and are morally guilty. Since there is no conclusive evidence against them to hold them as persons concerned in the act of unauthorised importation, they escape on a benefit of doubt." 57. Despite the above finding, the Assistant Collector in his complaint sought to prosecute these accused persons. The Constitution Bench has considered the contention that "the finding of the Collector of Customs referred to earlier operated as an issue estoppel in the present prosecution". The following conclusion of the Constitution Bench is relevant (page 965 of AIR 1970 SC) : "9. The rule laid down in that decision was adopted by this court in Pritam Singh v. State of Punjab, AIR 1956 SC 415 and again in N. R. Ghose alias Nikhil Ranjan Ghose v. State of West Bengal [1960] 2 SCR 58. But before an accused can call into aid the above rule, he must establish that in a previous lawful trial before a competent court, he has secured a verdict of acquittal which verdict is binding on his prosecutor. In the instant case for the ....
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....ble that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure ; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished." 60. In B. N. Kashyap, AIR 1945 Lah 23, the Full Bench of the court while considering sections 40 to 43 of the Evidence Act, 1872 has held that a finding on certain facts by a civil court in an action in personam is not relevant before the cr....