Delhi High Court
Moti Ram Bhasin vs Assistant Director, Enforcement ... on 26 May, 1993
Equivalent citations: 51(1993)DLT81
JUDGMENT R.L. Gupta, J.
(1) This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (Code for short) for quashing a com-plaint filed by first respondent against the petitioner and others for violation of Sections 8(1), 9(1) (b) (d) & (f) of the Foreign Exchange Regulation Act,1973 (FERA for short). The complaint is alleged to be pending in the Court of learned ACMM, New Delhi.
(2) It is alleged in the complaint that in August/September, 1985officers of the Enforcement Directorate, New Delhi had carried out searches of the residential premises of the petitioner (cited as the first accused) and co-accused 2, 3 and 5, namely, S/Shri Nanak Singh, Chanan Singh and Madan Mohan Abbut as also that of one Sh. K.S. Butalia. Certain incriminating documents were recovered and seized. The investigation revealed that during 1988, an association of the individuals consisting of Didar Singh and accused 2 to 4, without the previous general or special permission from the RBI as required under Section 8(1) of the FERA acquired foreign exchange of Us Dollars 4,10.000.00and also without such permission transferred the foreign exchange for placing outside India to the credit of the petitioner, a person other than an authorised dealer in foreign exchange. Thus the petitioner and other accused persons made themselves liable to be proceeded under Section 8(1) of the FERA. Investigation also revealed that during1980 the petitioner made payments of amounts totalling Rs. 33,87,000.00 in India to the said Association of individuals by order or on behalf of persons resident outside India in considerations for or in association with the receipt of payment in foreign exchange by a person outside India and there by rendered himself liable under Section 9(1) (d) & (f) of the FERA. Didar Singh died on 1-1-85 and so the proceedings against him abated. Accused 2 to 5 we restated to be liable u/Section 68(1) of the FERA, being a Company of individuals who at the time of the contravention were in charge of and responsible to the Company for the conduct of its business.
(3) I have heard arguments advanced by learned Counsel for theparties. Three contentions have been raised on behalf of the petitioner. (1)That the learned Magistrate while taking cognizance did not apply his judicial mind in order to see whether the accused was required to be summoned ornot; f2) The presumption under Section 72 of the FERA upon which the department has heavily relied in support of their allegations in the complaint was not available; (3) That from the impugned complaint dated 30-6-86 and the documents filed in support thereof, no offence is made out against the petitioner.
(4) All, these contentions have been refuted on behalf of the department and I have given my due consideration to the rival contentions. The first submission that the cognizance is not properly taken does not seem to besound. At page 36-A of the paper book, there is an order of the learned Metropolitan Magistrate dated 30-6-1986 by which he took cognizance. It is as follows :- PRESENT:Shri J.C. Makhija, Assistant Director, Complainant with Sh. M.V Raman, Adv.Fresh complaint filed u/Section 56 of the FERA. Perused. I take cognizance of the said offence. File be put up before the concerned Court of Ld. ACMM on 17-7-86.Sd/- MM.ND20-6-86."
It may be kept in mind that it is not a private complaint wherein some evidence was required to be recorded by the Magistrate so that after recording evidence he could have said that there were prima facie reasons to believe that a case was made out against the accused persons. It is specifically provided in Section 200 of the Code that if the complaint is filed by a public servant acting or purporting to act in the discharge of his official duties, the Magistrate need not examine the complainant and the witnesses. So in this case it is recorded by the learned Magistrate that he perused the complaint and took cognizance. I think there was sufficient compliance and the cognizance seems to have been properly taken. Learned Counsel for the petitioner has relied upon a case of Tula Ram and Others v. Kishore Singh, 1977 Scc (Crl.) 621. I have carefully perused this authority. It pertains toa private complaint and has no application to the facts of this case.
(5) So far as availability of presumption under Section 72 of the FERA is concerned, learned Counsel for the respondent submitted that even if the presumption is not available, it does not preclude the prosecution from independently proving its case. In this case incriminating documents were allegedly seized from the residence of K.S. Butalia. He is not an accused in the case and is being cited as a witness. Therefore, it is possible that the presumption under Section 72 of the FERA may not be available to theprosecution. But learned Counsel for the respondent seems to have rightly contended that prosecution is entitled to prove its case independently from other evidence. In this respect my attention has been drawn to certain circumstances showing prima facie involvement of the petitioner. I have carefully gone through these circumstances. At this stage it is not me to say that there is no prima facie case against the petitioner on the basis of these circumstances. It is stated in the complaint that the petitioner paid over Rs. 33 lacs to the Company of Accused 2 to 5 either on his own behalf or on behalf of other individuals in lieu of corresponding receipt/payments in USA. Then the prosecution intends to prove from the seized accounts through the statement of the writer/author of these accounts,namely. Madan Mohan Abbut dated 6-8-85, as also from the documents seized from the residence of the petitioner himself. Then it is also contended that it is to be proved that the petitioner, in his statement first denied knowing the main operators of this racket, but later on accepted the same when his attention was drawn to his earlier statement, and so on. However, it is different as to how many of these circumstances, the prosecution is able to prove during the evidence and what may be their impact.
(6) For the reasons stated above, I am of the view that it is not a fit case for interference under Section 482 of the Code. The petition is, therefore, dismissed.
(7) However, before parting with this case. I may point out that the complaint in this case was filed in 1986 and the offence is alleged to be of the year 1980. It is. therefore, desirable that this case is dealt with expeditiously by the learned Trial Court. It will complete the trial as early as possible,"preferably within four months.