ASSISTANT DIRECTOR ENFORCEMENT DIRECTORATE MADRAS Vs. HAMEED JAHUFFER ALIAS S A HAMEED NO 75 MELA STREET WEST STREET KEELAKARAI RAMNAD DISTRICT

JUDGEMENT

(1.) THE above appeal has been filed against the order of the learned single Judge, dated 30. 8. 1993 in W. P. No. 16175 of 1993, where under the learned single Judge has issued directions as hereunder, while finally disposing of the main writ petition, even at the stage of hearing for admission, on hearing the counsel for the 1st respondent herein/ writ petitioner: 'after hearing the learned counsel for the petitioner and after perusing the affidavit filed herein, without going into the merits of the case, I think it suffice to direct the 1st respondent to dispose of the petitioner's petition filed under Sec. 52 of the. Act for dispensing with the pre-deposit of the penalty amount, on merits and in accordance with law, within eight weeks from the date of receipt of a copy this order, if the same has not been disposed of already, till such time, the further proceedings before the Additional Chief Metro- politan Magistrate's court in S. O. C. C. No. 309 of 1993 shall stand stayed. However, it is open to the said Magistrate to proceed further, if the respondents are able to establish that the petitioner's application for dispensing with the pre-deposit of the penalty has given a disposal. Ordered accordingly. No costs.'

(2.) THE relevant facts necessary to appreciate the issue raised before us are that, for the alleged contravention of certain provisions of the Foreign Exchange Regulation Act, 1973, herein after referred to as'the act'the respondent was proceeded against and apart from ordering the confiscation of the seized Indian currency of Rs. 50,000 a penalty of rs. 5,00,000 (Five lakhs) came to be imposed by the Special Director, enforcement Directorate (Foreign Exchange Regulation) Act, New Delhi by his order dated 7. 8. 1990. As per the said order, the penalty imposed should be paid at the office of the Enforcement Directorate by means of a Demand Draft in favour of the Additional Director, Enforcement Directorate, Madras-6. within 45 days of receipt of the order. THEre is no controversy over the position that the said order of adjudication was duly served on the respondent and he also further filed an appeal to the Foreign Exchange Regulation Appellate Board on 3. 9. 1990, stated to have been registered also as Appeal FERA. B/683-1990- as per communication dated 25. 6. 1992 from the Assistant Registrar of the Board and the appeal is still pending. According to the respondent, along with the said appeal he also filed an application to dispense with the pre-deposit of the penalty under Sec. 52 of the Act and the Appellate Board has not passed any orders on the said petition also. In the meantime, after giving a notice dated 27. 9. 1990, calling upon the respondent to remit the penalty within 10 days, on threat of action under Sec. 57 of the Act, which was acknowledged by the respondent on 10. 10. 1990. THE Assistant Director, Enforcement Directorate, madras also filed a complaint under Sec. 57 of the Act before the court of the additional Chief Metropolitan Magistrate, Economic offences, Egmore, Madras-8 and the respondent was served with summons, dated 14. 7. 1993 in the said proceedings in E. O. C. C. No. 309 of 1993.

(3.) ON a careful consideration of the relevant provisions of the Act, we are of the view that the pendency of the re-assessment proceedings cannot act as a bar to the institution of the criminal prosecution for offences punishable under Sec. 276-C or Sec. 277 of the Act. The institution of the criminal proceedings cannot in the circumstances also amount to an abuse of the process of the court. The High Court was, therefore, right in refusing to quash the prosecution proceedings in the four cases instituted against the petitioner under Sec. 482 of the Code of Criminal Procedure.' 7. We have carefully considered the scheme underlying the provisions contained in Secs. 52,56 and 57 of the Act in the light of the various decisions placed before us for our consideration. In our view, the ratio of the decision of the Supreme Court reported in P. Jayappan v. S. K. Perumal, A. I. R. 1984 S. C. 1693: 1984 Tax. LR. 1197: (1984)149 I. T. R. 696 would squarely apply to the case on hand and the decision of the learned single judges referred to supra are quite in conformity with the principles and ratio laid down by the Apex Court. Whatever may be the course that might be adopted by the criminal court on entertaining a complaint under Sec. 57 of the Act in exercise of its discretionary powers to await or postpone the proceedings before it pending disposal of the Appeal Proceedings under the Act which may have a bearing on the proceedings before the criminal court, the pendency of such proceedings under Sec. 52 of the Act does not affect in any manner the maintainability of the prosecution and the prosecution launched cannot be interfered with either on merit or on the ground that it is a pre-mature move. As a matter of fact, even the very learned Judge (Bakthavatsalam, J.), in the earlier decision, has taken such a view and it is only in the case now under challenge in this appeal has adopted a different approach. The discretion to proceed further in the matter by the criminal court on the prosecution launched under Sec. 57 of the Act has to be left to the said court itself and it is not for this Court exercising jurisdiction under Art. 226 of the Constitution of india to interfere with or impede the course of such proceedings.