K.K KUDA Vs CHIEF ENFORCEMENT OFFICER, ENFORCEMENTDIRECTORATE
Bench: V. GOPALA GOWDA,C. NAGAPPAN
Case number: Crl.A. No.-000014-000014 / 2015
Diary number: 5097 / 2014
Advocates: GAGAN GUPTA Vs
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 14 OF 2015 [ Arising out of SLP (Crl.) No.7067 of 2014]
K.K. Kuda … Appellant
versus
Chief Enforcement Officer, Enforcement Directorate & Anr ..Respondents
J U D G M E N T
C. NAGAPPAN, J.
1. Leave granted.
2. This appeal is preferred against the Judgment
and Final Order dated 02.09.2013 passed by the High
Court of Delhi in Criminal Miscellaneous Case
No.5096/2006, whereby the High Court dismissed the
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petition seeking to quash the complaint filed under Section
56 of Foreign Exchange Regulation Act, 1973.
3. The first respondent herein issued Show Cause
Notice dated 21.01.1994 under Section 51 of FERA, 1973
against ANZ Grindlays Bank, the Account Holder and three
bank officials for having credited Non-convertible Rupee
Funds of Rs.1,15,00,000/- (Rupees One Crore and Fifteen
Lakhs only) during the period August to December, 1991
received from Moscow, into the Non-Resident (External)
Account of Dr. P.K. Ramakrishnan in contravention of
Section 6(4), 6(5) read with Section 49 of FERA, alleging
that it had taken place with the consent, connivance of
and attributable to the negligence on the part of the said
Officials. However, by letter dated 10.7.2001 addressed
to the appellant, the respondent ordered that charges
relating to ‘consent’ and ‘connivance’ shall stand deleted
from the Show Cause Notice dated 21.01.1994.
4. In the meanwhile, Opportunity Notice, dated
12.5.2002, followed by Complaint dated 29.5.2002, was
filed under Section 56 of FERA, 1973 against the persons
abovenamed for having credited Non-convertible Rupee
Funds into the Non-Resident (External) Account of the
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person concerned, alleging contravention of Section 6(4),
6(5) read with S.49 of FERA having taken place with the
consent, connivance of and attributable to the negligence
of the Officials and the Additional Chief Metropolitan
Magistrate, New Delhi, took cognizance of the complaint
for the offence under Section 56 of FERA on 29.5.2002
itself and issued summons to the accused. Challenging
the same, the appellant herein and other Officials sought
for quashing the complaint proceedings in their petition in
Crl.M.C.No.5096/2006, on the file of the High Court, Delhi.
While the matter stood thus, the adjudicating authority
passed the final Order dated 14.5.2010 holding that the
Officials of the Bank have not consented or connived in the
performance of the official duties and they were negligent.
The High Court by the impugned order held that the
prosecution of the accused persons shall be confined to
the negligence on their part and not for they having
consented or connived in the commission of the said
offence. The said order is under challenge before us.
5. Mr. C.A.Sundaram, learned Senior Counsel
appearing for the appellant, strenuously contended that
the allegations of consent and connivance had been
dropped by the respondent vide letter dated 10.7.2001,
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despite so, complaint was lodged on the allegations of
consent, connivance and negligence on the part of the
officials of the Bank suppressing the facts and the
respondent is guilty of suppressio veri and suppressio
facto and on this ground itself, the complaint is liable to be
quashed. It is his further contention that the complaint
pertains to the allegations of consent, connivance and
negligence on the part of the officials for having credited
Non-convertible Rupee Funds of the Account Holder
concerned and the cause of action disclosed therein is
composite and inseparable and it cannot be quashed in
part and continuance of the complaint proceedings on
the allegation of negligence would tantamount to abuse of
the process of law. He also contended that taking
advantage of Sunset clause under Section 49 of Foreign
Exchange Management Act, 1999, without disclosing the
issuance of reply by the appellant to the Opportunity
Notice, the respondent in an arbitrary and mechanical
manner filed the complaint without enclosing a single
original document and in the absence of any material, the
learned Magistrate could not have applied his mind and
taken cognizance and summoning order is bad in law.
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6. Per contra, Mr. V.Shekhar, learned Senior Counsel
appearing for the respondents, contended that the
complaint consists of three components and even
eschewing the allegation of consent and connivance, the
prosecution can be continued on the allegation of
negligence and the impugned order is sustainable.
7. We carefully considered the rival submissions and
perused the documents.
8. The crediting of Non-Convertible Rupee Funds in
the Non-Resident (External) Account of Dr.
P.K.Ramakrishnan happened during the period August to
December, 1991. Three officials of ANZ Grindlays Bank
were involved in it and Show Cause Notice was issued by
Respondent No.1 on 21.1.1994 to the Bank as well as the
Officials for contravention of Section 6(4), 6(5) read with
Section 49 of FERA, alleging that it had taken place with
the consent, connivance of and attributable to the
negligence on the part of the Officials. It is true that the
respondent by letter dated 10.7.2001 ordered that the
charges relating to ‘consent’ and ‘connivance’ shall stand
deleted from the Show Cause Notice. Though FEMA came
into force on 1.6.2000, Sunset clause under Section 49 of
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the said Act provided for filing of complaints under the
FERA, 1973 till 31.5.2002. Taking advantage of it, the
Respondent No.1 issued Opportunity Notice to all the three
officials on 12.5.2002 and lodged the complaint on
29.5.2002. The Additional Chief Metropolitan Magistrate,
New Delhi, on the same day took cognizance of the
complaint for the offence under Section 56 of FERA and
issued summons.
9. In spite of having dropped the allegations of
‘consent’ and ‘connivance’, the respondent in their
complaint levelled allegations of all the three components,
namely, consent, connivance and negligence. The
contention of the appellant that the cognizance was taken
on irrelevant consideration, is to be countenanced. There
was suppression and also material omission in non-
mentioning of reply sent by the appellant to the
Opportunity Notice, in the complaint. Further, to
substantiate the averments in the complaint, not even a
single original document was enclosed. It is not known as
to, on what material the Additional Chief Metropolitan
Magistrate applied his mind, while taking cognizance of the
statutory offence. Though the allegation of negligence can
be independently looked into, considering the standard of
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proof in criminal prosecution, we are of the view that, in
the present case, the continuance of prosecution against
the appellant is not tenable in law and the proceedings are
liable to be quashed.
10. The appeal is allowed and the impugned order is
set aside and the proceedings in Criminal Complaint
No.704/2002, on the file of the Additional Chief
Metropolitan Magistrate, New Delhi, insofar as the
appellant is concerned are quashed.
……………………….J. (V. Gopala Gowda)
.………………………J. (C.Nagappan)
New Delhi; January 06, 2015