ISIMDAR AHMAD Vs. FOREIGN EXCHANGE REGULATION APPELLATE BOARD

JUDGEMENT

(1.) This writ petition has been filed to quash the order dated 20-9-1995 passed by the Chairman, Foreign Exchange Regulation Act Appel late Board, to quash the complaint dated 27-8-1993 in Criminal Case No. 257 of 1993 pending in the Court of Chief Judicial Magistrate, Allahabad, to quash the ex pane order passed by the respondent No. 2 in Adjudication case No. SDE (R) 11/21/1990 and to issue a direction in the nature of mandamus commanding the respondent No. 1, the Appellate Board, to decide the Appeal No. 16 of 1994 of the petitioner on merit. On 31-7-1983 the officers of the En forcement Directorate Foreign Exchange Regulation Act, in short FERA, searched the residential premises of the petitioner and seized some incriminating documents showing the petitioner dealing in making compensatory payments under instruc tions from one Abdul Jabbar staying at Singapore. The officers interrogated the petitioner on different dates in 1984. A show cause-notice was issued to him on 2-5-1986 under Section 61 (2) (ii) of the FERAas to why Adjudication proceedings under Section 51 of the Act should not be started against him. On 28-6-1986 the petitioner sent a reply to that notice deny ing that the documents seized from his residence did not belong to him. He also denied having made any payment to any body on behalf of Abdul Jabbar or any other person residing outside India. Ad judication case being No. S. D. E. (R) 11/21/1990 was started and in view of Rule 3 of the Adjudication Proceedings and Ap peal Rules, 1974 a notice was issued to the petitioner by registered post fixing 19-11-1990 for hearing. It is alleged by the petitioner that he was not present in his house from 20-10- 1980 to 31-10-1990. The petitioner did not receive notice and was not aware of the said proceeding. Respondent No. 2 decided the matter ex. pane on 29-11-1990 on the basis of the statement of the petitioner dated 28-6-1986. The petitioner was found guilty as he contravened Section 9 (1) (d) of the Act and imposed penalty to the extent of Rs. 75, 000 under Section 30 of the Act. 3. A notice intimating the order was despatched by registered post on 3-12-1990 which was received by the petitioner on 26-4-1991 asking him to make payment within 45 days. The petitioner filed a writ petition against that order but it was dis missed on 30-7-1991 as an alternative remedy was available to the petitioner under Section 52 of the Act. The petitioner preferred an Appeal, being No. 16 of 1994. A memo of appeal was sent by registered post which was received by the appellate board on 11-1-1994. An application sup ported by affidavit was also filed for con donation of delay. 4. During pendency of the appeal, respondent No. 4 lodged a complaint case under Section 56 of the Act before the Chief Judicial Magistrate, Allahabad, being No. 3457 of 1986, for contravention of Section 9 (1) (d) of the Act, but the Chief Judicial Magistrate, Allahabad, acquitted the petitioner on 12- 12-1991 on the ground that the prosecution failed to es tablish the guilt against the petitioner by adducing cogent evidence. An appeal, being Civil Appeal No. 4324 of 1992 was preferred by the Enforcement Directorate before this Court which was dismissed (paragraph i 3 of the Rejoinder Affidavit ). 5. Respondent no. 4 filed complaint on 27-8-1993 before the Chief Judicial Magistrate, Allahabad, being case No. 257 of 1993 under Section 57 of the Act on the allegation that the petitioner defaulted in making payment of Rs. 75, 000 within the prescribed period, as adjudicated upon, which according to the petitioner is barred I under Section 300, Cr. F. C. and Article 120 (2) of the Constitution of India. 6. The learned Counsel Sri K. A. iqayyum, appearing for the petitioner, has (submitted that once Criminal case No. 1 (3457 of 1986) is decided in favour of the (petitioner and he was acquitted, subjacent case (No. 257 of 1993) is barred as the petitioner cannot be tried twice for the pame offence. 6, Sri S. P. Malviya, appearing for the Respondents has submitted that there is no par in conducting two prosecutions, one under Section 56 and another-Adjudication proceedings under Section 51 of the ct. He has pointed out that FERA is a special Act making provision for both prosecution in different forum and for different purpose. The Adjudication Officer 5 not a Court and accordingly Section 300, tr. P. C. has no application. 8. In A. S. G. Jothimani v. Deputy \irector, (1984) 3 ECC 319 (Mad) it was eld that: ". . . . . Criminal prosecution under Section of the Act is not dependent upon the out-be of adjudication proceedings. The losecution under Section 56 of the Act, there, can be launched when the appeal against order of adjudication proceeding is spend 9. The instant case is fully covered by this decision. It is also a case of the petitioner that a complaint under Section 56 of the FERA was filed during pendency of the Appeal against the adjudication proceeding and hence the plea taken by the learned Counsel that the accused suf fered from double jeopardy is not substan tiated. 10. A Division Bench of the Gujarat High Court in Mafatlal Damodardas v. Union of India, (1987) 14 ECC 217 has held that: ''in spumoni termination of the criminal 'judicial UY;w of the accused, the depend feedings by way of adjudicate toady- my be pursued further by the concurrence The Legislature has contemplated alleged contravention of the provisions Act, the concerned delinquent can be pore against departmental byway of adjudicated penalty proceedings and can also be criminal prosecuted. These are two independent proceedings and one would not impinge on the other-" 11. The contention of the learned Counsel if cal the complaint case under Section 56 of the Act and under Section 57 of the Act cannot run because both the cases emerge out of the same incident, cannot be accepted in view of the decision of Mafatlal's case (supra) as a complaint case under Section 57 of the Act is nothing but a follow up action of the Adjudication proceeding held under Section 51 of the Act in which penalty was imposed as per the provision of Section 50 of the Act. 12. In the State of A. R v. Rama Rao, AIR 1963 SC1723, the Supreme Court did not find the statement of the inquiry of ficer in the departmental proceedings to the effect that the judgment of the Magistrate holding a Criminal trial Court not always be regarded as binding in a departmental inquiry, to be erroneous. 13. The Scheme of the Act is to pro vide punishment as well as to start a paral lel proceeding to impose penalty not ex ceeding five times of the amount involved. Special provision has been made under Section 71 and 72 of the Act with regard to burden of proof and presumption, relax ing the usual provision provided in the ending and not to the stage when the Court takes up application for consideration. 16. Relying on the said decision the learned Counsel submits that when the judgment was reserved and thereafter asked for filing an application for condonation of delay, the order is bad and also barred under the law. It is true that respon dent No. 1 could have passed final order on that day without issuing another notice but for issuing a Second notice it cannot be said that the petitioner was prejudiced in any way. The appellate authority probably thought to issue a second show-cause notice before the final adjudication. Moreover, the decision referred in this connection by the learned Counsel for the petitioner has no application as the inter pretation was made in connection with Order XXI, Rule 90 (b) C. P. C. which has no impact in the facts and circumstances of this case. 17. I do not consider that the ad judication proceeding under Section 51 of the FERA is bad in law or that the decision of the Appellate Authority has any infir mity since there is a mandatory provision with regard to limitation under Section 52 of the Act. Re-assessment of the facts of this case was solicited but it is neither possible nor desirable in writ jurisdiction. So I refrain to do it. The proceeding under Section 57 of the Act is subsequent to the filing of the Adjudication proceeding made under Section 51 of the Act and the final order passed under Section 52 of the Act and it may run parallel to the case instituted under Section 56 of the Act. When Section 56 is confined to inflict punishment for violation of provision of Section 9 (1) (d) of the Act. Section 57 has provided punishment for non-payment of penalty imposed by the adjudicating authority under Section 50 of the Act. Both are on different premises. So it is neither barred under Section 300 Cr. P. C. nor is opposed to Article 20 (2) of the Constitution of India. 18. The writ petition having devoid of merit, it is dismissed. No cost. Petition dismissed. Evidence Act. The Adjudicating proceed ing and the case filed in criminal court in respect of the same matter, therefore, is legally permissible as the same is not amounting to double jeopardy under Ar ticle 20 (2) of the Constitution. The Ad judicating authority not being a court so the finding given by it cannot be construed as one falling within the ambit of Section 300, Cr. P. C. 14. An appeal was preferred under Section 52 of the Act against the order of the Adjudicating Officer, admittedly beyond 90 days with an application of con donation of delay. The Appellate Authority, respondent No. 1, Was not satisfied and passed an order dated 20-9-1990 stating that the appeal is beyond the period of limitation and asked the petitioner by issuing a notice why the con donation application filed by the petitioner shall not be dismissed. A final order was passed dismissing the Appeal on 15-3-1996 when the petitioner did not appear or show cause on the ground of limitation. By that time this writ petition was filed on 14. 2. 1996 without waiting for final order. 15. Learned Counsel for the petitioner submits that when the applica tion for condonation of delay was enter tained it should have been adjudicated upon, when the matter was heard on 29-9-1995, instead the judgment was ordered to be reserved. The application of the petitioner for condonation of delay should be considered as allowed by im plication. A prayer has also been made for issuing a mandamus for deciding the ap peal treating the petition for condonation of delay as allowed. Reliance has been placed on the decision Hindustan Com mercial Bank v. Punnu Sahu, AIR 1970 SC 1384, wherein it is held that in several decisions the word 'entertained' in proviso Order 21, Rule 90 C. P. C. has been inter preted as "adjudicated upon" or "proceed to consider on merit". In that case the application to set aside the sale was filed prior to adding of clause (b) in Rule 90 of Order XXI, C. P. C. It was contended in that case that the word "entertained" found in the proviso refers to initiation of proceed- .