FIRST GLOBAL STOCKBROKING PVT. LTD. Vs. ANIL RISHIRAJ

JUDGEMENT

(1.) FACTUAL ASPECTS : The Foreign Exchange Management Act, 1999 (for short, 'FEMA') was brought into force with effect from 1/6/2000. By virtue of sub-sec. (1) of Sec. 49 of FEMA, the Foreign Exchange Regulation Act, 1973 (for short, 'FERA') stood repealed. On 11/2/2002, the first respondent, who was an Enforcement Officer appointed under clause (e) of Sec. 3 of FERA, filed a complaint in the Court of the learned Chief Metropolitan Magistrate, Esplanade, Mumbai, against the appellants for various offences punishable under FERA and Sec. 120B of the Indian Penal Code. Cognizance was taken by the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, on the said complaint on 11/2/2002 by passing an order of issue of process.

(2.) The appellants made separate applications for discharge, but the learned Additional Chief Metropolitan Magistrate rejected the applications. A revision application preferred against the order of rejection, was also dismissed. Being aggrieved by the said order, an application under Sec. 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr.PC') was filed by the appellants which has been dismissed by the impugned judgment dtd. 3/2/2010 by the learned Single Judge of the High Court of Bombay.

(3.) Mr. Siddhartha Dave, the learned senior counsel appearing for the appellants has taken us through the relevant provisions of the FERA and the FEMA. As the High Court has not dealt with the merits of the complaint, even the learned senior counsel has not made submissions on the merits of the complaint. He submitted that under clause (ii) of sub-sec. (2) of Sec. 61 of FERA, cognizance of the offence punishable under Ss. 56 and 57 could be taken by a Court only on a complaint in writing made by an officer specified under sub-clauses (a) to (c) of clause (ii) of sub-sec. (2) of Sec. 61 of FERA. He submitted that under subclause (b) of clause (ii) of sub-sec. (2) of Sec. 61, only an officer authorised in writing on this behalf by the Director of Enforcement or the Central Government was empowered to file a complaint. The learned senior counsel pointed out that Sec. 3 of FERA provided for the appointment of different classes/categories of officers of Enforcement. He submitted that the appointment of officers made under Sec. 3 of FERA has not been saved by Sec. 49, which is a saving and repealing provision under FEMA. He submitted that the first respondent-Enforcement Officer was appointed under clause (e) of Sec. 3 of FERA and thus, with effect from 1/6/2000, the said officer is not empowered to exercise powers of an Enforcement Officer under FERA as the said powers have not been saved. The learned senior counsel submitted that assuming that cognizance is taken within the sunset period provided under sub-sec. (3) of Sec. 49 of FEMA, in view of clause (ii) of sub-sec. (2) of Sec. 61 of FERA, only an authorised officer could have filed the complaint and in the facts of the case, the Enforcement Officer who may have been authorised earlier, cannot perform duties of his office as from 1/6/2000, he ceased to be an Enforcement Officer. He would, therefore, submit that the Court was powerless to take cognizance of the complaint which was filed by an officer who was not authorised.