Delhi District Court
Directorate Of Enforcement vs Sanjay Jolly on 16 July, 2012
IN THE COURT OF MS. NEENA BANSAL KRISHNA
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
Criminal Revision No. 29/12
Directorate of Enforcement
through Jaswant Singh
Enforcement Office,
Directorate of Enforcement,
Govt. of India, 10-A, Jam Nagar House,
Akbar Road, New Delhi .... Appellant
versus
Sanjay Jolly
son of late Sh O.P. Jolly
Prop. Of M/s. Livia Exports
R/o 14/19A, Moti Nagar,
New Delhi .... Respondent
Date of institution of the petition : 03.08.2010
Date of reserving judgment/order : 07.06.2012
Date of Order/ judgment : 16.07.2012
ORDER:
1. This is a revision under Section 399 read with Section 397 of Cr.P.C. against the order dated 09.06.2010 passed by learned Addl. Chief Metropolitan Magistrate vide which the respondent has been discharged. The facts in brief are that during the year 1998, respondent firm effected shipment of goods valued US $ 35,96,250 under the cover of G.R. Firm but without permission from R.B.I and has further restrained from taking any action for securing the export proceeds valued US $ 2100530 which have not been received in India within prescribed period or within time extended by R.B.I in the prescribed manner. The respondent failed to submit CA No. 29/12 Page No. 1 Dir. Of Enf. Vs Sanjay Jolly the requisite permission of the R.B.I if any extended the period for realisation of the export proceeds. It was also revealed during the investigation that accused had not submitted the export documents within the statute period of 21 days from the shipment of goods in contravention of Rule 6(2) of Foreign Exchange Regulation Rules. Opportunity notice dated 26.04.2002 was issued by the petitioner whereby respondent was called upon to give in writing if he had any permission from the R.B.I., but respondent failed to submit any permission of R.B.I, therefore, an complaint against accused for offences punishable under Section 56 FERA 1973 was filed.
2. The ld. Addl. Chief Metropolitan Magistrate summoned the accused against the summoning order. Revision petition was filed on the ground that no opportunity notice had been served, learned Sessions Judge while dismissing the said revision petition vide order dated 21.12.2002 observed that the respondent had failed to place on record even after the summoning any permission from the R.B.I and thus this plea of non service of opportunity notice was without merit. The Criminal Misc.(M) No. 1270/2003 under Section 482 Cr.P.C was filed by the respondent in the Hon'ble High Court of Delhi where also the petitioner was not able to satisfy the Bench and ,therefore, withdrew his petition. Petitioner during the pre charge evidence examined three witnesses namely PW1 Niranjan Subudhi who had proved the opportunity notice dated 26.04.2002. PW2 Satish Sharma proved the service of opportunity notice. PW3 K.C. Abrahim proved the complaint as well as Gazette Notification vide which complainant was CA No. 29/12 Page No. 2 Dir. Of Enf. Vs Sanjay Jolly authorised to file the complaint. PW3 also exhibited statement of the accused recorded under Section 40 of FERA.
3. Learned Addl. Chief Metropolitan Magistrate in this impugned order dated 09.06.2010 discharged the respondent under Section 245 Cr.P.C by observing that the admittedly the opportunity notice was served by affixation on the Rajouri Garden address despite being aware that the respondent was not residing on the said address and the premises were lying locked. More over, the two independent panch witnesses have not been examined to prove the panchnama prepared in regard to the affixation of opportunity at the premises of the respondent. It was also observed that the opportunity notice did not contain the facts which came to the knowledge of the department while recording the statement of the respondent under Section 40 of FERA. The complaint as well as the testimony of the witnesses merely contained bald statement of non realisation of export proceeds without specifying any amount or the goods viz. a viz. the said proceeds were required to be realised. It was,therefore, concluded that no prima facie case against respondent was disclosed by the department and accordingly the respondent was discharged.
4. Aggrieved by the said order of the discharge, the present revision petition has been filed. It is argued on behalf of the Department that the contention which have been raised in the present matter had been taken up by the respondent when he challanged the summoning order but the same had already been decided against the respondent in the revision petition and the writ filed against the revision before Hon'ble CA No. 29/12 Page No. 3 Dir. Of Enf. Vs Sanjay Jolly High Court had also been withdrawn. The issue thus raised now had already been decided finally and could not have been reconsidered by the Ld. Addl. Chief Metropolitan Magistrate .It is, therefore, submitted that the impugned order is liable to be set aside. Ld. Counsel on behalf of the respondent has submitted that despite knowing that the respondent was not residing at the Rajouri Garden address and the premises were locked. The opportunity notice was intentionally served by way of affixation. It is submitted that present complaint had been filed on 20.05.2002 despite the fact that the investigation in the said matter were still continuing. More over, the details of the allegations had not been mentioned in the opportunity notice, thereby depriving the respondent from giving effective reply to the said opportunity notice. More over, the facts which came to the knowledge of the department from the statement of the respondent under Section 40 FERA were not incorporated in the opportunity notice. It was argued that service of opportunity notice was mandatory and the department has not been able to show from the evidence adduced at the pre charge stage that the notice had been served. It is, therefore, submitted that the order of ld. Addl. Chief Metropolitan Magistrate cannot be assailed and the present revision petition is liable to be set aside.
5. I have heard the arguments and have perused the file.
6. The present complaint had been filed under Section 56 FERA for commission of offence under Section 18(2) and (3) by the respondent. It was alleged that respondent had CA No. 29/12 Page No. 4 Dir. Of Enf. Vs Sanjay Jolly effected shipment of goods worth US Dollar 3596250 under the cover of GR forms in the year 1998 but he did not take any permission from Reserve Bank of India and also restrained from taking any action for securing export proceed valued US Dollar 2100530 which have been received in India within the prescribed period or time framed or time extended by Reserve Bank of India.
7. For bringing home any offence under Section 56 statute requires the service of an opportunity notice under Section 61 of the Act. The scope of opportunity notice has been discussed at length by the Hon'ble Supreme Court in Standard Chartered Bank Vs Directorate Enforcement 2006(4) SCC 278; wherein it was noted that the scope of the ambit of the notice is mentioned in section 61 of the Act. On receipt of such notice it was for the appellant to show that they had necessary permission from the concerned authority under the Act. Therefore, if the notice sets out the alleged contravention and calls upon the person accused for the offences whether he had the requisite permission for the transaction, that will satisfy the requirement of the Section.
8. Delhi High Court in Crl. M.C. 5138/2006 in the matter of Ranjit Raj and others Vs Sanjay Mishra and another decided on 27.11.2009 made a reference to the case of Standard Chartered Bank( supra) and observed that section 61(2) of the Act would show that the notice envisaged under this provisio is not a show cause notice. It is not based on the principles of audi altrem partem. The principle of "audi altrem partem" normally does not apply to criminal prosecutions, at CA No. 29/12 Page No. 5 Dir. Of Enf. Vs Sanjay Jolly pre-prosecution stage. It, therefore, does not require the complainant to give a notice to the accused persons, giving them an opportunity to show cause as to why he be not prosecuted. This provision applies only to such offences which are committed by contravening any provision of the Act or of any rule, direction or order whereby doing of an act is prohibited without permission. If requisite permission is obtained, the impugned act would not constitute an offence. Therefore, the purpose of the notice is to enable the accused to show that he had the requisite permission with him and ,therefore, the act committed by him does not constitute an offence. The person served with opportunity notice cannot seek to justify the act complained of. The limited purpose of this notice is to show the permission, if any, is available with him.
9. It is, therefore, not disputed that section 61(2) of the Act talks about an opportunity to be given to the accused to furnish the requisite permission from the Reserve Bank of India, because an offence is stated to be committed only if the requisite permission has not been obtained.
10. In the present case, PW1Niranjan Subudhi has deposed that during the course of his official duty he had got opportunity notice dated 26.04.2002, Ex PW1/1 in terms of Section 61(2) FERA, issued to the accused. PW2 Satish Sharma, UDC Enforcement Directorate is the person who in discharge of his official duty, had served this opportunity notice upon the Rajouri Garden address of the respondent by way of affixation and had also obtained signature of two witnesses on the CA No. 29/12 Page No. 6 Dir. Of Enf. Vs Sanjay Jolly Panchnama Ex PW2/1 which was prepared in respect of service of opportunity notice. It has been rightly pointed out by the ld. counsel for the respondent that the said opportunity notice has been addressed to the respondent at J-13/58, Rajouri Garden, New Delhi-110027. PW2 has admitted in his cross examination that he had found the said premises to be locked and on inquiries from the near by residents he came to know that respondent was not residing there. He also admitted that it was mentioned in the records of the department that respondent was not residing on the said address and it was only his official address. He also admits to have made no efforts to trace out the residential address of the respondent.
11. The perusal of the record shows that the statement of respondent under Section 40 were recorded on 20.02.2002, 22.02.2002 and 17.05.2002 and in all these statements, the address of the respondent had been shown as that of Moti Nagar. The department despite being aware that the Rajouri Garden address was the official address which was lying closed have intentionally sent the opportunity notice to the said address. No efforts what-so-ever have been made for the service of the notice at his Moti Nagar which he had been consistently giving to the Department in his various statements. The pasting of the opportunity notice at the official address of the respondent, therefore, cannot be deemed to be proper service.
12. The modality of the service of Opportunity Notice is given in the Rule3, according to which in the first instance, the notice is to be served by delivery or tender of a copy of the CA No. 29/12 Page No. 7 Dir. Of Enf. Vs Sanjay Jolly said notice on the person who is sought to be prosecuted or to his duly authorised agent or it may be sent to him by registered post with acknowledgment due to the address of his place of residence or his last known place of residence or the place where he carries on or last carried of the business or personally worked for gains. It is only in the event that if a notice cannot be served in any of the manner specified here- in-above, that the law permits a kind of substituted service by affixing a copy of the notice on the outdoor or some conspicuous part of the premises in which the person is residing or was known to be residing or where he was known to be carrying his business.
13. In the recent judgment of High Court in the case of Sudhir Goel Vs. U.O.I in Cri. M.C. No. 2668/2004 decided on 19.04.2012, it has been observed that the Enforcement Directorate cannot straightaway resort to the mode of service by affixation without first showing to the Court that they had made efforts to deliver or tender the notice to the person by registered post etc. is he envisaged in Rule (a) and (b) of Rule
3.
14. In the present case as well, neither PW1 nor PW2 have deposed about having made any efforts to serve the said Opportunity Notice by way of registered post. There is no record what-so-ever produced by the Department to show that the notice was sought to be served by way of registered post. The department has also not placed on record any document to show that the notice was ever sought to be served upon the respondent at his residential address which was very much on CA No. 29/12 Page No. 8 Dir. Of Enf. Vs Sanjay Jolly the record and was available with the Department. In the absence of having made any attempt to serve the respondent at his residential address or through registered post, the straightaway affixation of the opportunity notice at the official address of the respondent which was known to be lying closed cannot be deemed proper service of opportunity notice in terms of Rule 3 of FERA.
15. In the case of Sudhir Goel Vs. U.O.I in Cri. M.C. No. 2668/2004 decided on 19.04.2012 our Hon'ble Delhi High Court has held that:
" No complaint against any person can be filed under Foreign Exchange Regulation Act,1973 unless and until the person who is alleged to have committed the offence is given an opportunity of showing that he had a requisite permission of doing the act alleged to be done by him. Meaning thereby, the service of notice on the offending person is a pre condition and it is a mandatory provision. Non compliance of the said provision therefore, is fatal"
16. In view of this judgment, it is absolutely evident that if the Opportunity Notice is shown to have not been served, then it is fatal and no prosecution against the respondent can be maintained. The most vehement argument was that the issue of service of Opportunity Notice was no longer in question then the summoning order was challanged by the respondent on the same ground and his contention was rejected. This order was further challanged in High Court of CA No. 29/12 Page No. 9 Dir. Of Enf. Vs Sanjay Jolly Delhi where also the respondent did not get any relief. Therefore, this issue of service of Opportunity Notice at the stage of framing of charge where the documents were required to be proved to show proper service. This argument extended on behalf of the Department cannot be considered to be having any merit.
17. It is also significant to mention that the only evidence which has been sought to be produced on record against the respondent were his statement under Section 40 of the Act. The said statement could have been treated as substantive evidence provided that they had been proved on record by the person who had record those statements. These statements have been recorded by one Mr. D.L. Vaid. PW3 K.C. Abraham has proved the statement of the respondent under Section 40 of FERA dated 20.02.2002, 22.02.2002 and 17.05.2002 as Ex. PW3/2, Ex PW3/3 and Ex PW3/4. In his cross examination, however, he had admitted that those statements were not recorded by Mr D.L. Vaid in his presence. The original statements have not been placed on record. They have not been proved by the officer who had recorded those statements . Besides these statements, there is no other cogent evidence which is sought to be placed on record against the respondent.
18. Considering the entire circumstances and also the fact that there is no service of opportunity notice upon the respondent which is mandatory without which no prosecution under Sec. 56 FERA can be maintained, learned Additional Chief Metropolitan Magistrate has rightly discharged the respondent.
CA No. 29/12 Page No. 10Dir. Of Enf. Vs Sanjay Jolly
19. In view of above discussion, there is no illegality or infirmity shown in the order of the learned Additional Chief Metropolitan Magistrate which call for any interference. Present appeal is hereby, dismissed.
20. Trial court record be sent back along with the copy of this order.
21. Revision file be consigned to record room. Announced in the open Court on 16.07.2012 ( Neena Bansal Krishna ) ASJ-01/PHC/New Delhi CA No. 29/12 Page No. 11 Dir. Of Enf. Vs Sanjay Jolly