Directorate Of Enforcement vs M. Shamba Shiva Rao
2011 Latest Caselaw 2120 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Crl. L.P. No. 167/2011

                                     Date of Decision : 20.04.2011

Directorate of Enforcement                           ......Appellant
                         Through:          Mr.Rajesh  Manchanda,
                                           Advocate.

                                Versus

M. Shamba Shiva Rao                               ...... Respondent
                               Through:    Nemo


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.      Whether Reporters of local papers may be
        allowed to see the judgment?                  YES
2.      To be referred to the Reporter or not ?       NO
3.      Whether the judgment should be reported
        in the Digest ?                               NO

V.K. SHALI, J. (Oral)

1. This is a leave to appeal under Section 378 sub clause (4)

Cr.P.C. against the order of acquittal dated 13.10.2010

passed by the learned ACMM-01, New Delhi in complaint

case bearing no. 64/1/1996.

2. Briefly stated the allegations against the respondent are

that on 30.08.1996 the appellant herein had served

summons on the respondent through his counsel under

Section 40 of the Foreign Exchange Regulation Act, 1973

(hereinafter referred as the 'Act') requiring him to appear on

30.08.1996 itself at 9.00 P.M. in Enforcement Directorate,

Office of Foreign Exchange Regulation, Lok Nayak Bhawan,

Khan Market, New Delhi. The summons were served at

8.35 P.M. by the appellant on the respondent who was in

Jail no. 2 through his counsel who made an endorsement

on the summons that the respondent would appear on

31.08.1996 at 2.00 P.M. It is alleged that the respondent

neither appeared on 30.08.1996 nor on 31.08.1996, this

led to filing of a complaint under Section 56 of the Act

against the respondent. Since the complaint was filed by

the appellant through Enforcement Officer Mr. J. P. Kujur

in the official discharge of his duty, therefore, summons

were straightway issued against the respondent and he was

put to trial for having committed an offence under Section

56 of the Act.

3. The appellant in order to prove his case examined three

witnesses PW-1/Sh. J. Shankar, Enforcement Officer, PW-

2/Sh. J.P. Kujur, Enforcement Officer and PW-3/Sh. Sushil

Kumar, Assistant Enforcement Officer. The statement

under Section 313 Cr.P.C. was recorded, and thereafter, the

respondent examined seven witnesses in support of his

defence, namely, DW-1/Sh. K. K. Taneja, Assistant L.G.

Secretariat, Raj Niwas, DW-2/Sh. A. K. Roy, Assistant

Manager Hindustan Times, DW-3/Sh. Har Prashad, Jail

Supdt., DW-4/Sh. B. C. Tiwari, Ahalmad in the Court of

Sh. B. S. Mathur, the then Special Judge, CBI, DW-5/Sh.

K. C. Abraham, Enforcement Officer, DW-6/Sh. J.P.Singh,

Enforcement Officer, DW-6/Sh. Rakesh Paliwal, Additional

Director, DW-7/Mr. Roshan Lal Hathwal, Sr. S.S.O Central

Telegraph Officer.

4. After hearing the arguments, the learned ACMM acquitted

the respondent of the offence under Section 56 of the Act

on the ground that the respondent could not be expected to

appear at 9.00 P.M. in the Enforcement Directorate when

the summons itself were served on him at 8.35 P.M. near

the Central Jail when he had been released after about 90

days from the Jail. It was stated by the learned ACMM that

the respondent did not have any speed vehicle with him so

as to appear on the same day at 9.00 PM and moreover the

officers of the appellant themselves reached at their office at

Lok Nayak Bhawan at 9.15 P.M. and if this was the factual

situation, it is unreasonable to accept, the respondent, who

had been just released from the Jail to appear before the

officials of the appellant at 9.00 P.M. So far as the non-

appearance of the respondent on 31.08.1996 is concerned,

it has been observed by the learned ACMM that as the

respondent has been released from Jail after 90 days, there

were certain much more important family matters, which

required immediate attention apart from this. The

appellant had not issued any direction to the respondent to

appear on 31.08.1996 and keeping in view the totality of

circumstances, the learned ACMM did not consider it to be

a case where the allegations against the respondent were

established and he had voluntarily disobeyed the summons

or directions issued by the appellant or its officers

warranting his conviction under Section 56 of the Act.

5. I have heard the learned counsel for the appellant and have

also gone through the record.

6. I do not consider it to be a fit case where leave to appeal

should be granted to the appellant. The first reason is that

Section 40 of the Act laid down that the Enforcement

Officer is competent enough to summon any person to give

evidence or produce document.

7. Relevant portion under Section 40 sub clauses (1) and (3)

reads as under:

40. Power to summon person to give evidence and produce documents:-

(1) Any gazette officer of Enforcement shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document during the course of any investigation or proceeding under this Act.

(2) ................... (3) All persons so summoned shall be bound to attend either in person or by authorized agents, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required;

Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section.

8. Section 56 of the Act deals with offences and prosecutions

lays down as under:

                (1)      ................
                (2)      If any person convicted of an offence under

this Act (not being an offence under Section 13 or clause (a) or sub-section (1) of (section 18 or section 18A) or clause (a) of sub-

section (1) of section 19 or sub-section (2) of section 44 or section 57 or section 58) is again convicted of an offence under this Act (not being an offence under Section 13 or clause (a) of sub-section (1) of (section 18 or section 18A) or clause (a) of sub-section (1) of section 19 or sub-section (2) of section 44 or section 57 or section 58), he shall be punishable for the second and for every subsequent offence with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;

Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months."

9. The case of the appellant is that the respondent has

committed an offence by willfully disobeying the summons

issued to him.

10. A perusal of these sections show that before a person can

be held to be guilty of disobeying the summons, the

summons must be served on him and he must have

willfully disobeyed the summons with a view to hamper the

investigation or not to produce the document. In the

instant case, admittedly the summons were not served on

the respondent himself which I feel was the first infirmity in

the entire process. If the service of summons on the

counsel is treated as service of the summons on the

respondent even then the learned ACMM has rightly

observed that the summons required the respondent to

appear at 9.00 P.M. while as the same was served on the

counsel at 8.35 P.M., when the respondent was still in Jail

or was about to be released. The possibility of the

respondent being in Jail is reflected by the endorsement of

the counsel, who mentions Jail no. 2 on his endorsement

which prima facie can be taken to show that at the relevant

time the respondent was in Jail. The learned ACMM has

rightly observed that when the summons were served at

8.35 P.M., it is unreasonable to expect from the respondent

to appear at 9.00 P.M. in their office which was at a

distance of approximately 15 kms. and more so when the

officials who had gone to serve the summons had

themselves reached at 9.15 P.M. or so. Apart from this, a

person on being released from the Jail after about three

months would not be in a proper mental frame to appear

before the investigating agency, instead he would like to go

home and take rest rather than appearing in response to

the summons. It is because of this reason probably that

the counsel is purported to have made an endorsement on

the summons that the respondent would appear on the

next date i.e. 31.08.1996 at 2.00 P.M. which he did not do.

Although, he ought to have appeared on the next date, but

even if it is taken that he had not kept his assurance for

appearance on the next date that cannot be taken as a

ground for initiating prosecution against him under Section

56 of the Act because under Section 56 when summons are

issued to a person to appear or produce a document, a

command thereby is issued to such a person which has the

sanction of law rather than voluntary assurance purported

to have been given by the respondent.

11. For these reasons, I feel that there is no infirmity, illegality

or incorrectness in the judgment of the learned ACMM

which would warrant interference of this Court. So far as

the judgment which has been cited by the learned counsel

for the appellant is concerned, that was a case where the

respondent had refused to accept the service of summons

itself & therefore is distinguishable from the facts of the

present case.

12. In view of the above-mentioned facts and circumstances, I

am of the view that it is not a fit case where the leave to

appeal ought to be granted. Accordingly, the petition is

dismissed.

V.K. SHALI, J.

APRIL 20, 2011 KP