MUKESH KUMAR GUPTA Vs. STATE

JUDGEMENT

(1.) The present petition is filed by the Petitioner under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure praying inter alia for setting aside the order dated 18.3.2003 passed by the learned ACMM, by which the Petitioner's application for recalling of process issued against him in Complaint Case No. 860/1/2002 was dismissed.

(2.) Briefly stated, the facts of the case are that as per the complaint filed by Respondent No. 2/Enforcement Directorate under Section 56 of the Foreign Exchange Regulation Act,1973 (in short 'the FERA') and Sub-sections (3) and (4) of Section 49 of the Foreign Exchange Management Act, 1999 (in short 'the FEMA'), a disclosure was made by the then captain of South African Cricket Team, Mr. Hansie Cronje, to the effect that the one-day international cricket matches played in India during the Seasons (1996-1997) between South Africa and India were heavily influenced through illegal betting, etc., and consequently on revelations made by Delhi Police, a Commission of Enquiry known as 'King Commission of Enquiry', was set-up by the President of South Africa, chaired by Hon'ble Judge E.I. King, which was to look into the illegal gratification which Mr. Hansie Cronje and other South African Cricket Team members, amongst others may have received. The said Commission furnished its report on 11.8.2000, which mentioned that the Petitioner herein paid amounts to the tune of 1,10,000 US$ to Mr. Hansie Cronje. On the basis of the said report, Respondent No. 2/Enforcement Directorate sought to prosecute the Petitioner for violation of the provisions of Sections 8(1) and 9(1)(a) of the FERA read with Section 49(4) of the FEMA. Simultaneously, adjudication proceedings before the Enforcement Directorate were initiated against the Petitioner under the said Acts. In the adjudication proceedings, an order dated 11.12.2003 was passed by the Special Director, Enforcement Directorate, imposing a penalty of Rs. 2.00 crores on the Petitioner for acquisition of foreign exchange from the persons other than the authorized dealer and for making payment to persons residing outside India, without any previous general or special permission of the Reserve Bank of India, in contravention of Sections 8(1) and (9)(1)(a) of the FERA.

(3.) Aggrieved by the aforesaid adjudication order, the Petitioner preferred an appeal before the Appellate Tribunal for Foreign Exchange, registered as Appeal No. 144/2004. The aforesaid appeal was finally allowed, vide order dated 21.4.2008, and Respondent No. 2/Enforcement Directorate was directed to refund the pre-deposited amount, if any, while setting aside the impugned order. The aforesaid order passed by the Appellate Tribunal for Foreign Exchange was taken in appeal by Respondent No. 2/Enforcement Directorate by preferring a criminal appeal, registered as Crl.A. No. 525/2009. The said appeal was accompanied by an application for condonation of delay of 360 days. Vide order dated 14.9.2009, the aforesaid application for condonation of delay was dismissed, as the learned Single Judge observed that Respondent No. 2/Enforcement Directorate, Appellant therein, was unable to satisfy the court and show sufficient cause for not filing the appeal within the stipulated time. As a result, the criminal appeal also came to be dismissed. It is an undisputed position that the aforesaid order on appeal has attained finality as Respondent No. 2/Enforcement Directorate has not preferred any SLP against the said order.