Enforcement Directorate vs Nemi Chand [email protected] Chandraswami
2012 Latest Caselaw 4798 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Crl.L.P.82/2009

                                        Decided on :   16th August, 2012

ENFORCEMENT DIRECTORATE               ..... Petitioner
              Through: Mr. A.K. Vali & Mr. Naveen Matta,
                       Advs.

                              versus

NEMI CHAND [email protected] CHANDRASWAMI            ..... Respondent
               Through: Mr. Ashok Bhan, Sr. Adv. with
                        Mr. Santosh Chaurasia, Adv.

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

V.K. SHALI, J. (ORAL)

1. This is a petition under Section 482 Cr.P.C. filed by the

Enforcement Directorate against the order dated 8.10.2008,

by virtue of which the complaint filed by the petitioner under

Section 56 of the Foreign Exchange Regulation Act

(hereinafter referred to as 'FERA') [since repealed] against the

respondent has been dismissed.

2. Briefly stated, the facts of the case are that the Enforcement

Directorate (Foreign Exchange Regulation Act), Ministry of

Finance, Government of India, New Delhi (hereinafter referred

to as the petitioner) filed a complaint against the respondent

under Section 56 of FERA, holding that 10 summons were

sent to the respondent, requiring him to appear before the

petitioner for the purpose of interrogation. All these notices

were duly served on the respondent, but every time

respondent sent a request, in writing, raising one plea or the

other for his non-appearance. The pleas, which were raised by

the respondent for his non-appearance before the concerned

officer, were back injury, Maunvrata, religious ceremonies,

high blood pressure and various other reasons. It has been

alleged in the complaint that the respondent was deliberately

avoiding the appearance before the petitioner to avoid

interrogation and accordingly, it constituted an offence under

Section 56 of FERA. It may be pertinent to mention here that

all these summons were issued under Section 40 of FERA.

3. For reference, both Sections 40 and 56 are reproduced as

under:-

40. Power to summon persons to give evidence and produce documents.--

(1) Any gazetted 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) A summon to produce documents may be for the production of certain specified documents or for the production of all documents of a certain description in the possession or under the control of the person summoned.

(3) All persons so summoned shall be bound to attend either in person or by authorised 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. (4) .....

(5) .....

......

56. Offences and prosecutions.--(1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any

person contravenes any of the provisions of this Act[ other than section 13, clause (a) of sub- section (1) of section 18, section 18 A, clause (a) of sub- section (1) of section 19, sub- section (2) of section 44 and sections 57 and 58], or of any rule, direction or order made thereunder he shall, upon conviction by a court, be punishable-

(i) in the case of an offence the amount or value involved in which exceeds one lakh of rupees, 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."

4. After filing of the complaint, the petitioner examined PW1,

Balvinder Singh and PW2, Satpal, an LDC of the petitioner.

PW2 proved the entries in the dispatch register regarding the

issuance and dispatch of summons to the respondent, while

as PW1, Balvinder Singh proved the complaint and the

summons as well as the replies purported to have been sent

by the respondent, giving therein various excuses for his non-

appearance.

5. The learned ACMM, Dwarka Courts, New Delhi, after hearing

the arguments of both the sides, dismissed the complaint by

holding that Balvinder Singh, PW1 himself has admitted in his

statement that as and when the reply to the summons was

received, giving therein the reasons for the non-appearance,

fresh summons were issued. This was treated by the learned

Trial Court as the satisfaction of the witness PW1 with regard

to the genuineness of the pleas raised by the respondent for

his absence. It was also observed that one of the essential

ingredients in order to bring guilt of the respondent home is

that there must be existence of mens rea, i.e., there must be

an intention or knowledge to avoid the appearance. On this

score also, the learned Trial Court observed that there was

absence of mens rea and, therefore, the non-appearance did

not constitute an offence.

6. The contention of Mr. A.K. Vali, the learned counsel for the

petitioner, is that the non-appearance of the respondent

before the petitioner was deliberate, as he was taking very

funny grounds for his non-appearance. These were not only

medical grounds of being a patient of high blood pressure,

diabetes etc., but also for having observed Maunvrata and

performing the religious ceremonies etc. It has been further

contended that there was a deliberate attempt on the part of

the respondent to avoid appearance so as to escape the

interrogation by the petitioner. It has been contended that the

grounds on which the non-appearance was sought, was never

stated by the witness to be a genuine ground and accordingly,

the Trial Court had faltered by observing that there was

satisfaction of the witness and hence the present petition.

These submissions have been vehemently contested by the

learned counsel for the respondent.

7. I have carefully considered the submissions made by the

learned counsel for the petitioner.

8. No doubt, the summons were served on the respondent for

his appearance and the grounds, on which he had sought his

inability to appear before the petitioner, are varied, but all

these grounds cannot be said to be without any basis.

Moreover, on inability being shown by the respondent, the

petitioner ought not to have gone to the extent of issuing

summons as many as ten times. A person may express his

inability to appear once, twice or thrice but if any person goes

beyond that, it is obvious that he is avoiding appearance. In

such cases, the authority seeking appearance of the

respondent ought to have taken a firm stand and warned him

of the serious consequences of law. There are provisions in

Cr.P.C. wherein if a person is not cooperating with the

investigating agency, the help of the Court could be taken.

The Court in such cases may take coercive steps by issuing

bailable warrants or non-bailable warrants against the

respondent. The petitioner had not resorted to any of such

procedure. The petitioner themselves are to be blamed for the

non-appearance of the respondent by taking a lukewarm

stand and not resorting to coercive processes and by issuing

fresh summons, every time a request was sent/made by the

respondent.

9. The matter pertains to the period from 3.8.1998 to 4.1.1999.

From the last date, i.e., 4.1.1999, more than 13 years have

elapsed and it is too late in the day now to reverse that

finding of fact and hold the order of the learned ACMM bad

and start the process afresh against the respondent. I do not

feel that it is a case worth consideration, apart from the fact

that no infirmity can be found in the order of the learned

ACMM holding that the PW1 had himself been accepting the

explanation for absence of the respondent and yet initiating

the process for prosecution.

10. Accordingly, the petition is dismissed.

V.K. SHALI, J.

August 16, 2012 'tp'