DIRECTORATE OF ENFORCEMENT Vs. M. SHAMBA SHIVA RAO

JUDGEMENT

(1.) THIS is a leave to appeal under Section 378 Sub clause (4) Code of Criminal Procedure against the order of acquittal dated 13.10.2010 passed by the learned ACMM -01, New Delhi in complaint case bearing No. 64/1/1996.

(2.) BRIEFLY stated the allegations against the Respondent are that on 30.08.1996 the Appellant herein had served summons on the Respondent through his counsel under Section 40 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred as the 'Act') requiring him to appear on 30.08.1996 itself at 9.00 P.M. in Enforcement Directorate, Office of Foreign Exchange Regulation, Lok Nayak Bhawan, Khan Market, New Delhi. The summons were served at 8.35 P.M. by the Appellant on the Respondent who was in Jail No. 2 through his counsel who made an endorsement on the summons that the Respondent would appear on 31.08.1996 at 2.00 P.M. It is alleged that the Respondent neither appeared on 30.08.1996 nor on 31.08.1996, this led to filing of a complaint under Section 56 of the Act against the Respondent. Since the complaint was filed by the Appellant through Enforcement Officer Mr. J. P. Kujur in the official discharge of his duty, therefore, summons were straightway issued against the Respondent and he was put to trial for having committed an offence under Section 56 of the Act.

(3.) AFTER hearing the arguments, the learned ACMM acquitted the Respondent of the offence under Section 56 of the Act on the ground that the Respondent could not be expected to appear at 9.00 P.M. in the Enforcement Directorate when the summons itself were served on him at 8.35 P.M. near the Central Jail when he had been released after about 90 days from the Jail. It was stated by the learned ACMM that the Respondent did not have any speed vehicle with him so as to appear on the same day at 9.00 PM and moreover the officers of the Appellant themselves reached at their office at Lok Nayak Bhawan at 9.15 P.M. and if this was the factual situation, it is unreasonable to accept, the Respondent, who had been just released from the Jail to appear before the officials of the Appellant at 9.00 P.M. So far as the non -appearance of the Respondent on 31.08.1996 is concerned, it has been observed by the learned ACMM that as the Respondent has been released from Jail after 90 days, there were certain much more important family matters, which required immediate attention apart from this. The Appellant had not issued any direction to the Respondent to appear on 31.08.1996 and keeping in view the totality of circumstances, the learned ACMM did not consider it to be a case where the allegations against the Respondent were established and he had voluntarily disobeyed the summons or directions issued by the Appellant or its officers warranting his conviction under Section 56 of the Act.