VIJAY KUMAR MALLIK Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS application under Article 226 of Constitution of India has been filed for quashing the entire criminal prosecution initiated as against the petitioner including the order dated 31st May, 2002, whereby and whereunder the. learned Special Judge took cognizance for the offences under Section 56 of the Foreign Exchange Regulation Act, 1973 r/w Sections 49(3) and (4) of the Foreign Exchange Management Act, 1999 in connection With Case No. FEMA 2 of 2002.

(2.) ONE Complaint case has been filed against the accused persons including the petitioner for defrauding a huge amount of Government money to the extent of Rs. 7,09,92,000/ - during the period 1980 -90 on the basis of fake allotment letters and the petitioner took active part in getting money by way of certain foreign exchange remittance in total of US $ 3,15,000/ - and Pounds 1000 as detailed in Annexure -1 during the year 1991 -92. It was found that it was not actually the genuine gift but were suspected to be involved in violations of the provisions of Foreign Exchange Regulation Act. The petitioner admitted to had opened bank accounts in the names of five children of Dr. K.M. Prasad, the main accused, with Punjab National Bank, Roshnara Road, New Delhi in December, 1991 and he helped those persons to deposit and withdraw the money from the said accounts. He had also helped the children of Dr. K.M. Prasad for filing the Declaration Forms before the Income Tax Department and he had deposited the foreign exchange drafts and exchanges received in the name of his children. He further admitted that he used to bring money from Patna to Delhi for the purpose of Dr. K.M. Prasad and sometimes in 1995 he had carried huge amount of about one crore to Bombay for his sons.

(3.) ON the other hand, Mr. A.K. Das, learned counsel for the respondents contended before me that the learned Special Judge has rightly took cognizance in the matter and there is no illegality in the order impugned as the learned Special Judge has been duly notified by the Law Department, Government of Jharkhand vide Notification dated 17th May, 2002 for trying the case under Foreign Exchange Management Act, 1999. It is further submitted that ad - judicatory proceedings and criminal trial are two separate aspects with which a criminal Court addresses the criminal justice system and that is entirely different from that of a Tribunal or an adjudicatory proceeding and filing of criminal case cannot be said to be illegal, as it is well settled that even if a person is exonerated of his charges in adjudicatory proceedings, there cannot be any bar for a criminal prosecution against the said person. The Complainant (Enforcement Officer) has been authorized to institute the present prosecution vide Notification No. 50715 E dated 24.9.1993 issued by the Government of India, Ministry of Finance, Department of Revenue and in pursuant to Sub -clause (2) of Sub -section (2) of Section 61 of the Foreign Exchange Regulation Act published in the Gazette of India, the complainant has been duly empowered to file the present complaint petition and the whole matter will be thrashed out in the trial itself.