P K SUMAN Vs. JAYANTILAL SATYDEV PATEL

JUDGEMENT

(1.) This Criminal Revision Application under S.397 of the Code of Criminal Procedure is directed against the order of the Additional Chief Metropolitan Magistrate, Ahmedabad dated 25th March, 1996, whereby the learned Magistrate returned the complaint filed by the Enforcement Officer (F.E.R.A.) to be produced before the Court, at Surat.

(2.) The necessary facts giving rise to the present Criminal Revision are as follows : Accused No. 1 - Jayantilal Satyadev Patel, resident of Surat was serving as an Assistant Engineer in the Irrigation Department, at Surat at the relevant time. Accused No. 2 M/s. Kakadia Builders Pvt. Ltd. is a private limited company registered under the Companies Act having its registered office at Surat. Accused No. 3 - Shri Manharbhai Muljibhai Kakadia is the Director and In-charge of the accused No. 2 company. He is also a resident of Surat and a builder by profession. Accused No. 1 Jayantilal is the nephew of one Shri Narottambhai Jagabhai Patel who is the N.R.I. residing at Chigaco, U.S.A. since 1975. It is alleged that said N.R.I. Shri Narottambhai Patel came to India and contacted accused No. 3 and discussed his plans to invest his money in flats in Deepa Housing Society, Deepa Complex, Surat, the construction of which was undertaken by the accused No. 2. It was discussed between the said N.R.I. Mr. Patel and accused Nos. 1 and 3 that the accused No. 1 should contact few of his reliable friends and relatives, on whose names the booking of the flats could be made to avoid the requirement of obtaining prior permission of the Reserve Bank of India under the Foreign Exchange Regulations Act, 1973 (F.E.R.A.), in respect of the N.R.I. investment in the property. It was thus agreed by accused No. 1 Jayantibhai to book flats in the names of his relatives and friends in presence of Narottambhai and accused No. 3 and thus, 44 flats were booked in Building A-1, Anant Vila, Deepa Complex Co-operative Housing Society at the cost of Rs. 4,66,000.00 per flat. It was further agreed at the time that Shri Narottambhai would send money to accused No. 1 Jayantibhai Patel towards the purchase of 44 flats and the accused No. 1 Jayantilal Patel would effect the payment. Thus, 44 flats though booked in the name of persons given by the accused No. 1 Jayantilal Patel, the actual investor was the N.R.I. Narottambhai Patel. In the course of transaction, accused No. 1 had given drafts, pay orders and cash from time to time during 1990-91 to 1993 to the extent of Rs. 1,52,50,000.00 to accused No. 3 on the instructions of Narottambhai Patel. Thus, the accused No. 1 alongwith accused No. 3 in his individual capacity as well as Director of the accused No. 2, held a conspiracy in association with Narottambhai, the N.R.I. residing in U.S.A. to enter into a Havala payment and thereby, received huge amount of Havala payment amounting to Rs. 1,52,50,000.00 and after receiving the same, accused No. 1 effected the payment of the said amount. The said amount was received from unauthorised dealer and without any general or special exemption or permission from the Reserve Bank of India and thereby, committed the offence under S.9(1)(b) and under S.9(1)(d) punishable under S.56 of the Foreign Exchange Regulations Act, 1973. On this facts, a complaint was filed by the Enforcement Officer (F.E.R.A.) in the Court of the Additional Chief Metropolitan Magistrate, Ahmedabad.

(3.) The accused respondents challenged the jurisdiction of the said Court on the ground that the offence was committed at Surat, within the jurisdiction of the Judicial Magistrate, at Surat and as such, the said Court has no jurisdiction to try the offence. The learned Additional Chief Metropolitan Magistrate by the impugned order, accepted the contention and gave direction to return the complaint for presentation before the Judicial Magistrate, at Surat.