RANJIT RAJ Vs. SANJAY MISHRA

JUDGEMENT

(1.) THIS is a petition initially filed under Article 226/227 of the constitution read with Section 482 of the Code of Criminal Procedure, but, later on treated only as a petition under Section 482 of the Code of Criminal procedure for quashing complaint case No. 863/1 filed by the respondents against the petitioners, under Section 56 of Foreign Exchange regulation Act, 1973 read with sub-section (3)and (4) of Section 49 of Foreign Exchange Management Act, 1999.

(2.) IN the complaint filed by the respondent, it was alleged that on scrutiny of the documents recovered from the office of accused No. 1 - Nestle India Ltd. it was revealed that the company while ostensibly concluding certain contracts with a the Russian Company for sale of coffee, actually exported the goods to finland. Though the consignments were booked for Moscow, delivery of the goods was taken in Helsinki, en route Moscow. The scrutiny of the record of accused no. 1 also revealed that the Company had signed a contract with the Russian company for export of coffee to Russia and accordingly, Bank of Foreign economic Affairs, Moscow, had issued a LC for 100% value of goods against repayment of State credit on behalf of that Russian Company, for an amount of indian rupees 110 crores in favour of accused No. 1, but the goods exported by it never reached Russia. It was informed by RBI that funds for repayment of state credits could be utilized for export of goods to Russian Federation only and no third country exports were permitted to be financed out of these funds.

(3.) IT has been alleged in the complaint that the exports made by accused No. 1, nestle India Ltd. , are not covered under Repayment of State Credit Scheme and the said scheme was misutilized for the purpose of exploiting the benefits generated under Indo-Russian Repayment of State credit Scheme for debt reduction, by exporting the goods to NWTC at Helsinki and the Company and its Directors/persons in-charge of and responsible to the company for conduct of its business contravened Circular No. 30 dated 28th september, 1993 issued by RBI under Section 73 (3) of FERA, 1973 and thereby rendered themselves liable to action under Section 56 of FERA, 1973 read with section 49 (3) and 49 (4) of FEMA, 1999. It has been further alleged that the goods which were exported by the Company to NWTC in Finland were sold by NWTC to off-shore companies located outside Russia and thus, the goods exported to russia did not reach Russia as per declaration made by the Company and payment against these exports remain unrealized. According to the complainant, the accused persons thereby contravened the provisions of Section 16 (1), 18 (1) and 18 (2) read with Central Government Notification No. F1/67 EC/73/1 and 3 both dated 1st January, 1974 and Section 18 (3) of FERA, 1973 read with Rules 7, 8 and 9 of FERA and thereby rendered themselves liable to action under Section 56 of FERA, 1973 read with 49 (3) and (4) of FEMA, 1999. It has also been alleged that since Nestle India Limited by transferring the title in the goods to NWTC got a right to receive payment in foreign exchange equivalent to rs. 1,99,25,68,631/-, but failed to take any action to recover the said amount in foreign exchange, the accused persons also contravened Section 16 (1) of FERA, 1973 read with Section 68 thereof and thereby rendered themselves liable to be proceeded action under Section 56 of fera, 1973 read with Section 49 (3) and (4) of FEMA, 1999.