Madras High Court
V.Baskaran vs The Chief Enforcement Officer on 29 July, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29 / 07 /2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.246 of 2007 V.Baskaran .. Petitioner Vs. The Chief Enforcement Officer, Enforcement Directorate, No.26, Haddows Road, Shastri Bhavan, Chennai. .. Respondent PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C., to set aside the order passed by the Additional Chief Metropolitan Magistrate and Economic Offences Court-II, Egmore, Chennai dated 21.12.2006 in M.P.No.1537 of 2003 in E.O.C.C.No.411 of 2002 and consequently allow M.P.1537 of 2003 in E.O.C.C.No.411/2002, on the file of Additional Chief Metropolitan Magistrate and Economic Offences Court No.II, Egmore Chennai. For Petitioner : Mr.M.R.Thangavel For Respondent : Mr.M.Dhandapani Special Public Prosecutor ******* O R D E R
The short facts of the prosecution case is as follows:-
The respondent herein / the Chief Enforcement Officer, attached to the Enforcement Directorate, Government of India, Chennai has filed E.O.C.C.No.411 of 2002, against the three accused on the file of Additional Chief Metropolitan Magistrate and Economical Offices Court-II, Egmore, Chennai, stating that on the basis of intelligence report received, the premises of M/s.Super Duper TV Pvt. Ltd., situated at Wellington Plaza, No.90, Mount Road, Chennai was searched on 12.07.1995 and certain incriminating documents were seized by the Officers of the Enforcement Directorate. Mr.Sudhakaran (A1) was questioned. A-1 subsequently, while replying to directives, disclosed about the imports made in the name of the Proprietary concern, viz., M/s.Super Duper TV. The report indicated the import of certain items like Betacom Record Player, Betacam Video Cassette Player, Audio Mixers, Colour camera, Zoom Lens, Betacam Dockable records, AC adopter, cable battery pack and Battery Changer covered by Bill of Entry No.19882 dated 10.04.1995, the supplier being M/s.Tai Yang Electronics, 163, Tras Street 10-15, Lian Huat Building Singapore-0207. The value of the said import was S$44,040/- as per invoice No.TYE/1004/95, dated 05.04.1995 of M/s.Tai Yang Electronics, Singapore.
2. On reconnaissance, the residential premises of one Shri Anandaveloo, situated at door No.AD/90, Anna Nagar, Chennai, who was running Palani Andavar Lodge at Door No.76, Coral Merchant Street, Chennai, were searched on 26.08.1996 and certain incriminating documents were seized. These included a fax dated 30.07.1996, a gift deed and invoice received from one Mr.Kanesan of Penang and the fax copy of invoice referred to earlier. The gift deed recovered was to the effect that the subject goods were gifted by one Mr.Manickam of Singapore to Vn.Sudhagaran of M/s.Super Duper TV. Shri Anandaveloo in his statement, inter alia, stated that at the instance of Mr.Vn.Sudhagaran whom he knew from college days, he had received certain fax documents and after giving the photocopies of the same to Shri Sudhagaran, the fax copies remained at his residence.
3. The statements recorded from Mr.K.Ramachandran, who incidentally happened to be the partner of M/s.Tay Yang Electronics on 11.11.1996 and 12.11.1996 indicated that besides acting as a conduit for not only in respect of certain payments by M/s.J.Jay TV Chennai to M/s.Rimsat, Inter Sputnik etc. for unlinking facilities but also for procuring equipments from Singapore for the purpose of sending to India out of the funds made available by Mr.Bhaskaran i.e., the brother of Sudhagaran, in an unauthorized manner. As far as the goods in this case is concerned, Mr.Ramachandarn had procured them on his own from Tan Yang Electronics out of the funds made available by Mr.V.Bhaskaran through carriers and that the goods were sent in the name of Mr.Vn.Sudhagaran of M/s.Super Duper TV. Mr.Manickam of Singapore, in his letter dated 24.11.1996 addressed to the Deputy Director, Enforcement Directorate, Chennai had denied that he had made any such gift valued at S$44,040/-, to Mr.Vn.Sudhagaran and that he had signed the gift deed at the instance of one Mr.Annamalai of Malaysia who is a close relative of him. He even denied having known Mr.Sudhagaran. Mr.Manickam confirmed the same facts in his statement made on 23.06.1997 before the Officers of Enforcement.
4. Further, it was observed during investigation that Mr.V.Bhaskaran, former Director of J.Jay T.V. Pvt. Ltd., was an authorized signatory to the Bank account of M/s.Super Duper TV at Indian Bank, Abiramapuram Branch, Chennai and was taking part in the activities of the company. Mr.K.Ramachandran of M/s.Tai Yang Electronics, Singapore, in his statements dated 11.11.1996 and 12.11.1996 given before the officers of the Enforcement Directorate, Chennai stated that the foreign currency for sending the goods was provided/made available to him by Mr.V.Bhaskaran of Jay T.V., who is the brother of Vn.Sudagaran. From the foregoing, it is clear that Mr.Vn.Sudagaran, Proprietor of M/s.Super Duper TV and his authorized signatory, Mr.V.Bhaskaran, persons resident in India had contravened the provisions of Section 8(1) in as much as they had otherwise acquired the foreign exchange to the tune of S$44,040/- from the persons other than authorized dealers as well as made payment of the said amount of S$44,040/- to Mr.K.Ramachandran of Singapore who is a person resident outside India in contravention of Section 9(1)(a) of FERA 1973 and thereby rendered themselves punishable under Section 56(1) of the FERA 1973.
5. The complainant further stated that an opportunity Notice No.T.9/41/CHN/56/2001, dated 03.05.2002 have been issued to them requiring them to furnish the permission from RBIC if any, obtained by them in respect of the contraventions alleged, in the notice. No reply had been received till date from Mr.Sudhagaran, Mr.Bhaskaran. In his reply dated 10.05.2002, he denied the allegations besides raising some legal points. However, they did not produce any copy of the permission from the RBIC in respect of the transaction referred to in the Opportunity notice. Hence, the above case had been levelled against the accused. The prosecution has listed two witnesses supporting their complaint.
6. Under these circumstances, the first and second accused, viz., M/s.Super Duper TV and the second accused Mr.Vn.Sudhagaran, Proprietor of first accused company have filed a petition in Crl.M.P.No.348 of 2004, to dismiss the complaint filed by the complainant or otherwise discharge the first and second accused from the said prosecution case. The complainant had filed a counter statement and resisted the said discharge petition. The learned Magistrate after hearing the arguments of the learned counsels for the accused 1 and 2 and learned Special Public Prosecutor for the complainant and on considering the averments of both parties, dismissed the said petition in Crl.M.P.No.1537 of 2003 filed by the accused seeking discharge.
7. Against the said order, the accused has filed the above revision and challenged the impugned order passed by the learned Magistrate.
8. The learned counsel for the revision petitioner argued that as per the prosecution case, the role of the petitioner/third accused was that he was the authorized signatory in the proprietary concern and he had taken part in the activities of the Company. Therefore, the third accused has been wrongly implicated in the said prosecution case. As per the ingredients of the prosecution case he has made payment on behalf of the first accused company, therefore, he has no connection with the purchasing of goods from foreign countries. The prosecution case disclosed some persons who are involved in the said case, viz., Anandaveloo, Manickam, Ramachandran, Annamalai who are interconnected with the said transaction, but the third accused / revision petitioner has no nexus with them. The revision petitioner herein is the blood brother of the second accused, therefore, his name has falsely been implicated in the instant case without any documentary proof. The invoice is also not in the name of the third accused, further he has no connection with the first accused firm as proprietor or any major role. He is only an authorized signatory in the relevant period, therefore, he is entitled for discharge.
9. The learned counsel further contended that the learned Magistrate failed to note that the complaint filed under Sections 8(1), 9(1)(a), 68 and 56(1)(i) of the FERA Act, 1973, are, inconsistent with the preamble of the Foreign Exchange Management Act, 1999 and is further specifically barred under Section 49(5) of the FEMA Act, 1999. Further, the learned Magistrate failed to note the preamble and the intention of the legislation in both the enactments, i.e., FERA and FEMA. As per FERA, the intention of the legislature is to punish the socio economic offenders and to regulate the Foreign Exchange in the country in the interest of economic development of the Country and the intention of the latter enactment is not to punish the offenders, but with an object to regulate the external trade and maintenance of foreign exchange market in India. Further, the learned Magistrate erred in rejecting the contention of the petitioner that the application of Section 49(3)(4) of the FEMA is subject to the condition of fulfillment of Section 49(5) and the same was not even discussed. In addition there is clear expression that no prosecution should be initiated or permitted for socio economic offences, even as per Section 6 of the General Clauses Act, the prosecution cannot be initiated after the implementation of FEMA Act, 1999. It was contended that the learned Judge erred in holding that the grounds raised in M.P.No.1537 of 2003 is covered by the order of this Court in a batch of writ petitions. Instead, the core issue involved in such batch of writ petitions is with regard to the adjudication proceedings and would not apply to the criminal prosecution. Hence, as per this Court order, the entire prosecution case is not maintainable. The very competent counsel further contended that the petitioner has filed a quash petition in Crl.O.P.No.21935 of 2002, on the file of High Court for quashing the said complaint, which is pending.
10. On verifying the factual position of the case and arguments advanced by the learned counsels for the petitioner and on perusing the impugned order of the trial court, this Court does not find any discrepancy in the said impugned order. This Court's further view is that the prosecution case discloses that one Manickam of Singapore had gifted the said goods by way of "gift deed". Further, one Ramachandran had procured goods on his own through Tai Yang Electronics out of the funds made available by the revision petitioner herein through carriers and that the goods were sent in the name of the second accused and therefore, there is no crystal clear statements on the side of the accused. Hence a trial is necessary to decide the issue. Even though the petitioner has a minor role, he could not be discharged from the said case as a lacuna could arise in the final verdict, if he is so discharged from the main case. Hence, this Court is not inclined to entertain the above revision. Since the case in E.O.C.C.No.411 of 2002 is pending for over 10 years before the trial Court, it is seen that inconvenience has been caused to the petitioner herein / third accused and therefore, his presence is dispensed with before the trial Court. However, he has to appear before the trial Court if his presence is absolutely necessary, if decided so, by the trial Court. This Court further directs the learned Magistrate to dispose the main case on merits without being influenced with the discussions of this Court and dispose the case on the top most priority basis.
11. In the result, the above revision is dismissed. Consequently, the order passed in Crl.M.P.No.1537 of 2003 in E.O.C.C.No.411 of 2002, on the file of Chief Metropolitan Magistrate and Economic Offences Court No.II, Egmore Chennai, dated 21.12.2006 is confirmed. Accordingly ordered.
r n s To
1.The Chief Enforcement Officer, Enforcement Directorate, Government of India, Shastri Bhavan, No.26, Haddows Road, Chennai.
2. The Additional Chief Metropolitan Magistrate-II, Egmore