AI Drafter 
TaxTMI 
TaxTMI 
2020 (4) TMI 417
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....For the sake of convenience, the accused/respondents herein will be referred to as the accused. 2. The case of the prosecution could be briefly summarised as under :- Pursuant to information received, the officials of the Enforcement Directorate conducted search on the factory and residential premises of A-1 and A-2 in which documents and related correspondence were seized. The said documents and correspondence related to non-realisation of export proceeds to the tune of Rs. 1,52,20,008/- out of the total amount of Rs. 2,16,24,676/- of which only Rs. 64,04,688, covering 119 GRs alone were realised. Scrutiny of the documents further revealed that substantial amounts to the tune of US$ 2,54,274.43 and US$ 69,917.22 were pending realisation from two buyers of US origin. It was further unearthed that out of the 119 GRs, A-1 was involved in the direct export in respect of 43 GRs in which A-1 was the original declarant and in respect of the other 76 GRs, quotas of several other manufacturers-cum-exporters were utilised by A-1 for effecting those exports. Further investigation of the case revealed the complicity of A-7 to A-9 (cases against them were separated) who had also signed t....
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....mission of the learned Special Public prosecutor that the adjudication proceedings initiated against the persons also ended in penalty being imposed against which appeals have been filed before the appellate authority and that no penalty, as imposed, has been paid and that the appellate proceedings is pending. It is the submission of the learned Special Public Prosecutor that only after issuing opportunity notice as contemplated u/s 61 (2) of FERA, the present complaint was filed. Therefore, the view arrived at by the trial court is per se unsustainable. 6. It is the further submission of the learned Special Public Prosecutor that the trial court has acquitted A-4 to A-6 holding that presumption cannot be drawn against those accused that they committed the offence. It is the further submission of the learned Special Public Prosecutor that the acquittal of A-1 to A3 by the trial court holding that opportunity notice was not given to them and, therefore, the same vitiates the prosecution is not sustainable. In this regard, attention of this Court was drawn to the decision of this Court in The Assistant Director - Vs - Khader Sulaiman (2005 126 Comp. Cas. 83 (Mad)). 7. It is fur....
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.... proviso to Section 61 (2) (ii) of FERA and, therefore, the non-issuance of opportunity notice to A-1 to A-3 coupled with A-4 to A-6 having not contravened the provisions of FERA, the prosecution deserves to fail and has rightly acquitted the accused and, therefore, no interference is called for with the order passed by the court below. 11. In dealing with matters, where the acquittal rendered by the court below is put to test, it is trite that unless the order of the court below suffers from the vice of perversity, the High Court ought not to interfere with the said order. In Shailendra Pratap & Anr. - Vs - State of U.P. (2003 (1) SCC 761), the Supreme Court has categorically held that the appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. The relevant portion of the order is extracted hereunder for better clarity :- "8. Having heard learned counsel appearing on behalf of the parties, we are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was a reasonable one and the order of acquittal cannot be said to be perverse. It is w....
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....of judgments, held as under :- "22. If the evaluation of the evidence and the findings recorded by the trial court do not suffer from any illegality or perversity and the grounds on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible. Merely because the appellate court on reappreciation and reevaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State v. K.Narasimhachary [State v. K. Narasimhachary, (2005) 8 SCC 364 : (2006) 1 SCC (Cri) 41] , this Court reiterated the well-settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. The same view was reiterated in T. Subramanian v. State of T.N. [T.Subramanian v. State of T.N., (2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] 23. In Murali....
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....2 SCC (Cri) 162] and Chandrappa [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court; (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal; (iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless the conclusions reached by....
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....rt proceeds beyond the time prescribed, extension of time has to be sought for from Reserve Bank of India and that Reserve Bank of India is alone vested with the power to grant extension of time to realise the amount. It is the further deposition of P.W.1 in cross examination that in response to the query from the Enforcement Directorate, Reserve Bank of India have stated that they have not granted any extension of time to A-1 to A-3 to realise the export proceeds. Though P.W.1 has deposed that no written communication was received from the Reserve Bank of India with regard to non-grant of time extension, however, to refute the stand of P.W.1, no document has been marked by the defence to show that time extension was sought for from the Reserve Bank of India. In the absence of any defence as to seeking time extension from Reserve Bank of India, it cannot be held that non-filing of any written communication from the Reserve Bank of India would jeopradize the case of the appellant. On the materials noted above, this Court has no hesitation to hold that A-1 to A-3 have not obtained any permission from the Reserve Bank of India as mandated u/s 18 (2) of FERA. 17. Insofar as the oppo....
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....s "the person accused of an offence" in the proviso, will have to be read, keeping in view the context in which it had been used and the effect of the words in the same proviso has been given an opportunity of showing". 10. In the Repealed 1947 Act, Section 23-D(1) contemplated an initial adjudication and a prosecution only in the event of the Director of Enforcement arriving at an opinion that having regard to the circumstances of the case, the penalty which he was empowered to impose would not be adequate, when instead of imposing any penalty himself, he shall made a complaint in writing to the Court. 11. Under the Foreign Exchange Regulation Act, 1973, adjudication as well as prosecution, can ever be initiated simultaneously. This is very clear from the provisions engrafted in Section 50, 51 and 56 of the Act. Hence, when a prosecution is possible even before adjudication, the provisions contained in the Proviso to Section 61(2 )(ii) of the Act will have to be interpreted, in that context. Looked from that angle, it is apparent that before a prosecution is launched, the person accused of an offence must be given an opportunity of showing cause that he had such ....
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....at the proviso contemplates is that before a prosecution is instituted, the person accused of an offence should have been given an opportunity. The words "had been" used in the Section also gives an insight to the object behind the provision. In my view, the words "has been given" denote the furnishing of an opportunity to the person accused of an offence, but does not contemplate issue of a second show cause notice before the launching of the prosecution. Therefore, the decision of the Supreme Court in Ramesh Chandra Vs. State of West Bengal reported in AIR 1970 SC 940 holding that under the Customs Act, 1962, a formal accusation can only be deemed to be made when a complaint is made before a Magistrate competent to try the person guilty of the infraction under the provisions of the Customs Act does not affect the interpretation of the proviso to Section 61(2)(ii) of the Act, given above. The context in which the words have been used as well as the usage of the words "has been" must be given the full meaning in the background of the object of the Act and the importance of this provision for efficacious implementation of the general scheme of the notice before the prosecution is in....
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....n respectful agreement with the view expressed by the Mysore High Court, which found favour with Natarajan,J. while deciding Crl.M.P.No.2288 of 1980. 16. The decisions in P.Joseph John Vs. The State of Travancore, Cochin reported in AIR 1955 SC 160 and Chintapalli Agency of Taulk Arrack Sales Co-operative Society Ltd., Vs. Secretary (Food and Agriculture) Government of Andhra Pradesh reported in Air 1977 SC 2313, can have no bearing to the issue involved in these petitions. In the earlier case the Supreme Court held that under Article 311 of the Constitution a civil servant was entitled to have a reasonable opportunity to defend himself and show cause, both at the time of enquiry into the charges brought against him and at the stage when definite conclusions have been come to, on the charges and the actual punishment to follow was provisionally determined upon. In the latter case it was held that the minimum requirement under Section 77(2) of the Andhra Pradesh Cooperative Societies Act, 1964, which was a mandatory provision was a notice informing the opponent about the application and affording him an opportunity to make his representation against whatever had been allege....
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....portunity notice as contemplated u/s 61 (2) (ii) of FERA has been issued to the accused. In such circumstances, the finding of the trial court that no opportunity notice has been issued to the accused is not only against the materials available on record, but also not in line with the law laid down by this Court and, accordingly, the said finding of the trial court is liable to be interfered with. 19. Insofar as the issue relating to contravention of Section 18 (3) of FERA by A-4 to A-6 is concerned, the trial court has rendered a finding that A-4 and A-5 have given their quotas to A-1 to A-3 for use of exporting their product. This fact has also been admitted by A-6. However, the trial court has misdirected itself in holding that the presumption u/s 18 (3) of FERA that A-4 to A-6 have contravened the provisions of Section 18 (2) of FERA has not been proved. It is the uncontroverted case of the prosecution that the quota relating to A-4 to A-6 have been given to A-1 to A-3 for their use. P.W.1, in cross examination has deposed that A-4 and A-5 have given letter to the authorised dealers/bankers of A-1 to have the export proceeds realised to the account of A-1. It not only transp....
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....learned counsel appearing for the accused/respondents herein pray that after acquittal having been recorded, a decade has passed since then, this Court, may consider imposing a lesser sentence in lieu of imposition of some fine, considering the age and other ailments suffered by the accused. 23. Though minimum sentence has been prescribed for the offence under Section 18, however, this Court, after taking into consideration the submissions advanced on behalf of the accused, and also considering their age and also the fact that the offence was committed during the period 2008-2009, and that almost a decade has passed since the commission of the offence, is of the considered view that the accused could be sentenced to a period of one day to be undergone from the time of sitting of this Court till the raising of this Court along with imposition of fine. 24. Accordingly, this appeal is allowed setting aside the acquittal recorded by the trial court and instead the accused/respondents herein are found guilty of the charges framed against them and they are hereby convicted and sentenced to undergo simple imprisonment for a period of one day before this Court, which is to be undergo....