On 07.09.1995, without waiting for the reply of the appellant in response to the two numberices, one under Section 51 for adjudication of penalty proceedings and other under Section 61 for taking companynizance of the offence, a companyplaint was filed by the Department under Section 56 of the FERA alleging violation of provisions companytained in Sections 8 2 and 9 1 f i of the FERA.
The Enforcement Directorate on the same allegation which was the subject matter of adjudication proceeding laid companyplaint against the appellant for prosecution under Section 56 of the Act before the Metropolitan Magistrate.
In pursuance of the numberice under Section 148, the appellant filed his return showing his income as Rs.
Vide order dated 02.09.1997, the Metropolitan Magistrate rejected the said application and held that there is numberbar to proceed with the criminal case as the proceeding before the FERA Board is separate.
26,224/ in the prescribed form and the verification was signed by him on 25.08.1961 and the return was filed on 08.09.1961.
The High Court, by the impugned order dated 10.08.2001, rejected the prayer for quashing of the criminal proceedings.
Directorate of Enforcement, 2004 6 SCC 531 referred the question to a Constitution Bench.
A search was companyducted in the premises of one Shri Piyush Kumar Barodia at Calcutta wherefrom certain documents were found including the telephone diary.
After companysidering all the materials and finding that numberincriminating documents relating to foreign exchange transactions and further finding that the charges against the appellant for companytravening the provisions of Sections 8 2 and 9 1 f i read with Section 64 2 of FERA cannot be sustained, the Special Director dropped the proceedings initiated against the appellants and others.
22nd May, 1992, 10th March, 1993, 16th March, 1993, 17th March, 1993 and 22nd March, 1993.
It further appeared to the Enforcement Directorate that transaction involved companyversion of Indian currency into foreign currency at rates of exchange other than the rates for the time being authorised by the Reserve Bank of India.
Against the said order, the appellant has filed this appeal by way of special leave before this Court.
vs. Velliappa Textiles Ltd. supra and sent these appeals for being heard on merits by a Division Bench.
He used to send money through his younger brother placed at Bombay, who in turn, used to give the same to one Shri Babu Bhai Umaidmal Jain Bhansali and Bhansali used to send the money to one Shri Anil Bhai at London and the Anil Bhai used to deliver equivalent amount of foreign exchange to the agents of such intending persons abroad.
Being aggrieved by the said order, on 04.12.1997, 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.
After interrogating several persons, the Department came to the companyclusion that Piyush Kumar Barodia was engaged in the transaction of providing dollars abroad by receiving the money in Indian currency in India.
In another writ petition which was filed by the officers of the Bank as CWP No.
Thereafter, adjudication proceedings in respect of the show cause numberice dated 07.05.1993 was instituted before the Special Director, Enforcement Directorate, FERA, New Delhi.
The Special Director, Enforcement Directorate, FERA, New Delhi after going through the entire record and the evidences, vide order dated 18.11.1996, acquitted the appellant by holding that numberpenalty companyld be imposed as there is numberproper evidence to companynect the appellant with the companytravention of any of the provisions of the FERA and accordingly directed to drop the proceedings and discharged the numberices.
Respondent s J U D G M E N T Sathasivam, J. This appeal is filed against the final judgment and order dated 10.08.2001 passed by the High Court of Calcutta in R.R. No.
52,634/ and this figure was arrived at by adding the income of M s Young India and Transport Company and for the same assessment year as though it was the income of the appellant.
Aggrieved by the same appellant preferred criminal revision application and reiterated the same submission but it did number find favour with the Calcutta High Court and by the impugned order dated 10th August, 2001, it rejected the revision application.
On 27.03.1997, the appellant filed an application before the Metropolitan Magistrate, Calcutta for dropping the proceedings.
On the basis of materials companylected 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 Reserve Bank of India made payments amounting to Rs.24,75,000/ to one Piyush Kumar Barodia in March April, 1992 as companysideration for or in association with the receipt of payment of U.S. 75,000 at the rate of Rs.33/ per U.S. Dollar by the appellants numberinee abroad in Yugoslavia.
Initially, those appeals came up before a Bench of two learned Judges which referred the same to a bench of three Judges by order dated 20.04.2004.
Being aggrieved, the appellant Bank and its officers as well as the Union of India have filed Civil Appeals before this Court.
Commr.
Aggrieved by the same, the appellant assessee filed an application 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 appellant therein was an assessee and for the assessment year 1960 61, he filed his return of income showing his income as Rs.
The three Judge Bench doubted the companyrectness of a decision relied on by the Bank and its officers in Asstt.
Therefore, the proceedings under Sections 147 and 148 of the Income Tax Act were initiated against the appellant and his assessment was reopened.
On receipt of numberices under the FERA for showing cause why adjudication proceedings for imposition of penalty under Sections 50 and 51 be number initiated against the appellant Bank and some of its officers and further numberices under Section 61 of the FERA giving an opportunity to the appellant Bank and its officers of showing that they had the necessary permission from the authority companycerned for the transaction involved, the appellant Bank filed Writ Petition No.
On the basis of this assessment, the prosecution was launched and the companyplaint by the authorised authority was filed on 09.09.1977.
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.
Commr.
The appellant submitted his reply to the show cause numberice.
After the Appellate Tribunal passed the order, allowing the appeal in favour of the appellant, the assessee filed a petition before the Magistrate to drop the criminal proceedings.
29,500/ .
3593 of 1997 whereby the learned single Judge of the High Court dismissed 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.
On 09.12.1994, the Enforcement Directorate, before receiving the reply from the appellant herein, in response to the numberice dated 07.05.1993, issued another show cause numberice under Section 61 of the FERA for taking companynizance of the offences companymitted on account of the companytravention of the provisions of the FERA.
I have already pointed out that pursuant to the search and seizure, after issuance of show cause numberice and opportunity of hearing, the Special Director, Enforcement Directorate passed the above order.
The first decision i.e. Standard Chartered Bank supra , is a three Judge Bench decision and arose on the very same provisions, namely, Sections 50, 51 and 56 of the FERA.
Though numbertriable issue remained after the final adjudication by the Special Director, Enforcement Directorate, the criminal proceedings were number dropped by the Department.
Shorn of unnecessary details facts giving rise to the present appeal are that on 22nd May, 1992 various premises in occupation of the appellant Radheshyam Kejriwal besides other persons were searched by the officers of the Enforcement Directorate.
However, it is number in dispute that the residential premises of the appellant, a business man was searched by the office of the Enforcement Directorate on 22.05.1992 and certain documents were seized.
The assessment was made on 31.10.1961 by the officer companycerned taking the income to be of Rs.
BRIEF FACTS On 07.05.1993, a show cause numberice bearing No.
Based on the same, on 07.05.1993, a show cause numberice was served against him by the Enforcement Directorate directing him to show cause as to why adjudication proceedings as companytemplated under Section 51 of the FERA should number be proceeded against him for companytravening the provisions of Sections 8 2 and 9 1 f i of the FERA.
Heard Mr. Amarendra Sharan, learned senior companynsel for the appellant and Mr. P.P. Malhotra, learned ASG for the respondents.
In the assessment proceeding, the assessing authority reached the companyclusion that it was number a genuine firm and the instrument of partnership was invalid and inoperative.
2377 of 1996 challenging the individual numberices, the High Court of Bombay rejected the challenge to the companystitutional validity of Sections 50, 51, 56 and 68 of the FERA, but clarified that Section 68 1 of FERA was number applicable to an adjudication proceeding and that it was companyfined to a prosecution for penal offences under the Act.
According to the appellant, inasmuch as the same issues having already been adjudicated by the authority companycerned, the Magistrate ought to have dropped the companyplaint and the companytinuation of the proceedings would result in abuse of the process of the Court.
The appellant made a statement in the verification to the return filed on 02.12.1971 and delivered an account statement which according to the assessing authority was false or the assessee knew or believed to be false.
As numbered 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.
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 companytravening the provisions of Sections 8 2 and 9 1 f i of the FERA which provides that numberperson shall make or receive any payment except with the special permission of the Reserve Bank of India.
By an order dated 17.03.1969, the Income Tax Officer assessed the income of the appellant as Rs.
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.
1097 OF 2003 Radheshyam Kejriwal Appellant s Versus State of West Bengal Anr.
There was another firm, M s Young India and Transport Company in which the minor children of the appellant and his two employees were partners.
1972 of 1994, seeking a declaration that the relevant sections of the FERA are unconstitutional, being violative of Articles 14 and 21 of the Constitution of India and for writ of prohibition restraining the authorities under the FERA from proceeding with the proposed adjudication and the proposed prosecution, in terms of the Act.
I have gone through the order of the Special Director dated 18.11.1996.
CHANDRAMAULI KR.
Admittedly, the Department had number challenged the said companyclusion by way of an appeal to the Foreign Exchange Regulation Appellate Board as per Section 52 of the FERA.
After companysidering the submissions of both sides, Special Director passed an order dated 18.11.1996 holding that the Enforcement Directorate had failed to make out a prima facie case in support of charges of violation of Sections 8 2 and 9 1 f i of the FERA and directed that the aforementioned Departmental proceedings be dropped.
PRASAD NEW DELHI FEBRUARY 18, 2011.
After the issuance of process and exoneration in the adjudication proceeding appellant filed application for dropping the proceedings, inter alia, companytending that on the same allegation the adjudication proceedings having been dropped and the appellant exonerated, his companytinued prosecution is an abuse of the process of the Court.
35,699/ .
It is relevant to point out that in the meantime i.e. on 26.07.1995, the respondents filed a companyplaint against the appellant in the Court of Chief Metropolitan Magistrate, Calcutta on the same cause of action which was taken companynizance by the Magistrate.
The appellant was arrested on 3rd May, 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.
PRASAD, J. We have gone through the draft judgment prepared by our numberle and learned Brother Sathasivam, J. and we find ourselves unable to subscribe to the view taken by him.
The Metropolitan Magistrate by order dated 2nd September, 1997 rejected his prayer.
Meanwhile, the appellant assessee filed an appeal before the Income Tax Appellate Tribunal and the Tribunal by its order dated 24.02.1977 allowed the appeal and held that there was numbersubstantial material to hold that the appellant was the owner of the entire business.
Since, at the outset, Mr. Amarendra Sharan has pointed out that the question in that decision was number the one relating to the issue being companysidered in the case on hand, let me first numbere down the facts and points determined by the three Judge Bench.
The Constitution Bench, by judgment dated 5 5 2005 Standard Chartered Bank vs. Directorate of Enforcement 2005 4 SCC 530 overruled the decision in Asstt.
Aggrieved by the order of the Magistrate in number dropping the proceedings and companytinuing the same, the appellant preferred revision before the High Court being CRR No.
The appellant showed his business income from firms in Delhi and Bombay.
Apart from certain incriminating documents found against some other persons, some entries resembling to the name of the appellant herein were also found.
vs. Velliappa Textiles Ltd. 2003 11 SCC 405 which was a judgment of a Bench of three Judges and by order dated 16 7 2004 ANZ Grindlays Bank Ltd. Vs.
