MOTI RAM BHASIN Vs. ASSISTANT DIRECTOR ENFORCEMENT

JUDGEMENT

(1.) This petition has been filed under Section 482 ofthe Code of Criminal Procedure, 1973 (Code for short) for quashing a com-plaint filed by first respondent against the petitioner and others for violationof Sections 8(1), 9(1) (b) (d) & (f) of the Foreign Exchange Regulation Act,1973 (FERA for short). Theomplaint is alleged to be pending in the Courtof learned ACMM, New Delhi.

(2.) It is alleged in the complaint that in August/September, 1985officers of the Enforcement Directorate, New Delhi had carried out searchesof the residential premises of the petitioner (cited as the first accused) andco-accused 2, 3 and 5, namely, S/Shri Nanak Singh, Chanan Singh andMadan Mohan Abbot as also that of one Sh. K.S. Butalia. Certain incriminating documents were recovered and seized. The investigation revealed thatduring 1988, an association of the individuals consisting of Didar Singh andaccused 2 to 4, without the previous general or special permission from theRBI as required under Section 8(1) of the FERA acquired foreign exchangeof US Dollars 4,10.000.00and also without such permission transferred theforeign exchange for placing outside India to the credit of the petitioner, aperson other than an authorised dealer in foreign exchange. Thus the petitioner and other accused persons made themselves liable to be proceededunder Section 8(1) of the FERA. Investigation also revealed that during1980 the petitioner made payments of amounts totalling Rs. 33,87,000.00 inIndia to the said Association of individuals by order or on behalf of personsresident outside India in considerations for or in association with the receiptof payment in foreign exchange by a person outside India and therebyrenderd himself liable under Section 9(1) (d) & (f) of the FERA. Didar Singhdied on 1-1-85 and so the proceedings against him abated. Accused 2 to 5 werestated to be liable u/Sec. 68 (1) of the FERA, being a Company of individualswho at the time of the contravention were incharge of and responsible to theCompany for the conduct of its business.

(3.) I have heard arguments advanced by learned Counsel for theparties. Three contentions have been raised on behalf of the petitioner. (1)That the learned Magistrate while taking cognizance did not apply his judicialmind in order to see whether the accused was required to be summoned ornot; f2) The presumption under Section 72 of the FERA upon which thedepartment has heavily relied in support of their allegations in the complaintwas not available; (3) That from the impugned complaint dated 30-6-86 andthe documents filed in support thereof, no offence is made out against thepetitioner.