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(i) CRL.M.C.3459/2002 & Crl.M.As. 738/03 & 19347/12
PARAG DALMIA & ORS. ..... Petitioners
Through: Mr. Sanjeev Anand, Mr. Shubham Tripathi and Mr. Abhas Kumar, Advocates for petitioner No.1
Mr. Akhil Sibal and Mr. Javaid Muzzafar, Advocates for petitioner
No.2
Through: Mr. P.K. Sharma, Special Public Prosecutor with Mr. Bakul Jain, Advocate
(ii) CRL.M.C.3254/2002 SANJAY DALMIA ..... Petitioner
Through: Mr. Akhil Sibal and Mr. Javaid Muzzafar, Advocates
Through: Mr. P.K. Sharma, Special Public Prosecutor with Mr. Bakul Jain, Advocate
2014:DHC:171 In the above captioned two petitions, quashing of criminal complaint No.705/1 of 2002 under Section 56 of Foreign Exchange
Management Act, 1973 read with Section 49 (3), (4) of Foreign Exchange
Management Act, 1999 and the summoning order of 29th May, 2002 is sought on identical grounds and therefore, with the consent of learned counsel for parties, both these petitions were taken up together for hearing and by this common order, they are being disposed of. While entertaining these petitions, the proceedings were stayed vide order of
10th October, 2002.
At the hearing, learned counsel for petitioners relied upon decision of 6th July, 2012 in Crl. Appeals No.52, 53 & 59 of 2011 titled Parag
Dalmia and Ors. v. Special Director of Enforcement, Enforcement
Directorate 192 (2012) DLT 17 arising out of adjudication proceedings exonerating petitioners. During the course of hearing, reliance was also placed upon Apex Court’s decision in Radheshyam Kejriwal v. State of
West Bengal and Another (2011) 3 SCC 581 to contend that in case of exoneration in adjudication proceedings on merits, continuance of criminal proceedings on the same subject matter is an abuse of process of the court.
Attention of this Court was drawn to paragraphs No.8, 9 and 14 of
Crl. Appeals No.52, 53 & 59 of 2011 titled Parag Dalmia (supra) to submit that exoneration of petitioners-J. H. Dalmia and Sanjay Dalmia is on merits whereas exoneration of petitioner-Parag Dalmia is on the ground of delay. It was submitted by learned counsel for petitioners that
Appellate Court’s decision in Crl. Appeals No.52, 53 & 59 of 2011 titled
Parag Dalmia (supra) has attained finality.
Attention of this Court was also drawn by learned counsel for petitioners to order of 18th October, 2013 whereby Appellate Tribunal has exonerated petitioner-Sanjay Dalmia as well while relying upon
Appellate Court’s decision in Crl. Appeals No.52, 53 & 59 of 2011. It was submitted on behalf of petitioners that Appellate Court’s decision in
Crl. Appeals No.52, 53 & 59 of 2011 titled Parag Dalmia (supra) and
Appellate Tribunal’s order of 18th October, 2013 have attained finality and in view of dictum of Apex Court in Radheshyam (supra), the complaint and the proceedings arising out therefrom, deserve to be quashed. It was also submitted on behalf of petitioners’ that in the adjudication proceedings, penalties have been imposed upon co-accused of petitioners, which have not been challenged. Thus, quashing of complaint in question is also sought on the ground of inordinate delay seriously prejudicing petitioners.
In support of the above submissions, reliance was placed upon decisions in Crl. Appeals No.52, 53 & 59 of 2011 titled Parag Dalmia
(supra); Government of India v. Citedal Fine Pharmaceuticals, Madras
& Ors. (1989) 3 SCC 483; Bhagwandas S. Tolani v. B.C. Aggarwal &
Ors. 1983 (12) E.L.T. 44 (Bom.); State of Madhya Pradesh v. Bani Singh
& Anr. 1990 (Supp) SCC 738; State of Punjab & Ors. v. Chaman Lal
Goyal (1995) 2 SCC 570; Radheyshyam Kejriwal v. State of West Bengal
& Anr. (2011) 3 SCC 581; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla
JUDGMENT
(2005) 8 SCC 89; National Small Industries Corpn. Ltd v. Harmeet Singh Paintal (2010) 3 SCC 330; Saroj Kumar Poddar v. State (NCT of Delhi) (2007) 3 SCC 693; Central Bank of India v. Asian Global Limited (2010) 11 SCC 203; N.K. Wahi v. Shekhar Singh (2007) 9 SCC 481; Shirish Harshavadan Shah v. Deputy Director, E.D., Mumbai 2010 (254) E.L.T. 259 (Bom.); Abdul Rehman Antulay & Ors. v. R.S. Nayak & Anr. (1992) 1 SCC 225; W.P.(C) No.2053/2012 titled Rajesh Babu v. Ministry of Information and Broadcasting & Ors. rendered on 9th April, 2013 and State of Andhra Pradesh v. P.V. Pavithran (1990) 2 SCC 340. On behalf of first respondent, it was submitted by learned Special Public Prosecutor that averments made in the complaint in question make out a prima case against petitioners and unless statutory presumption under Section 8(3) of Foreign Exchange Management Act, 1973 is rebutted by petitioners-accused persons, they are deemed to be guilty of the offences in question. It was pointed out that petitioners are being prosecuted in the complaint in question on the basis of communication of 13th June, 1989 of Reserve Bank of India and prosecution of petitioners in the instant complaint is based upon documentary evidence and so, no prejudice is caused to petitioners on account of delay occasioned and petitioners are responsible for the offence committed by accusedcompany. Reliance was placed by learned Special Public Prosecutor for first respondent upon decisions in Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. (2002) 3 SCC 269; Smt. Om Wati & Anr. v. State 2001 A.D. (Crl.) SC 693; Maratt Rubber Ltd. v. J.K. Marattuklam (2000 AD (Crl.) SC 1; State of M.P. v. S.B. Johri & Ors. (2004-I) AD Cr.) SC 421; R.S. Nayak v. Anthalay & Ors. (1986) 2 SCC 716; State of Maharashtra v. Priya Sharon Maharaj & Ors. (1997 Crl.L.J.) 2248; M. Samba Siva Rao & Ors. v. Enforcement Directorate & Anr. 2000 (2) Crime 308 (SC); Shakiri Vasu v. State of UP (2008) 2 SCC 409 and Standard Chartered Bank v. Directorate of Enforcement 1999 Crl.L.J. 2970 to contend that exoneration in adjudication proceedings cannot be made the basis of quashing the criminal proceedings and that offence in question is a continuing offence and so, it is not a fit case to invoke the inherent jurisdiction of this Court under Section 482 of Cr.P.C. to quash the proceedings arising out of the complaint in question. The submissions advanced by both the sides, the material on record and the decisions cited have been duly considered and thereupon, it becomes evident that in the instant complaint, petitioners are being prosecuted on account of their failure to furnish the requisite permission from Reserve Bank of India. The purported lapse on the part of petitioners or accused-company came into knowledge of first respondent in June, 1989 as is evident from the communication of 13th June, 1989 of Reserve Bank of India. The alleged offence purportedly took place in April, 1987 and petitioners have been summoned in the complaint case in question after more than 14 years i.e. in November, 2001. In response to Opportunity Notice issued to petitioners, they had sent letters of 6th and 19th April, 2002 respectively to explain their stand regarding the purported violation and it was brought to the notice of the authorities concerned that petitioners did not have the required documentary proof, due to lapse of considerable time. Attention of this Court was drawn to Apex Court’s decision in Radheyshyam (supra) to assert that in case of exoneration on merits in the adjudication proceedings, continuance of criminal proceedings would be an abuse of the process of court. The pertinent observations made by Apex Court in Radheyshyam (supra) are as under: - “In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court.” It was pointed out that order of Appellate Tribunal regarding the alleged violation relating to Reserve Bank of India’s communication of 13th June, 1989 has been already quashed in Parag Dalmia and Ors. v. Special Director of Enforcement, Enforcement Directorate 192 (2012) DLT 17 by holding that a serious prejudice is caused to petitioners on account of delay occasioned. The finding returned by a coordinate Bench of this Court in Parag Dalmia (supra) is as under: - “In view of the fact that the alleged offence took place on 28th April, 1987 and for the first time summons were issued to Appellant Parag Dalmia for appearance on 16th July, 2001 i.e. after more than 14 years, I am of the considered view that serious prejudice is caused to the Appellant in leading his defence. This is not a case of delay on account of the facts of the Appellants but because of a casual approach adopted by the Respondent. Hence Crl.A. 52/2011 is required to be allowed on this account.” The issues which arose for consideration in adjudication proceedings as noticed and considered in Parag Dalmia (supra) reveal that exoneration of petitioners in the adjudication proceedings on identical issue as in complaint in question, is on merits. By applying the afore-noted dictum of the Apex Court in Radheyshyam (supra), the complaint in question is liable to quashed qua petitioners. Even on the ground of unexplained and inordinate delay in launching of the proceedings in the complaint in question, the complaint in question deserves to be quashed. On the aspect of inordinate delay violating the fundamental rights of a citizen guaranteed under Article 21 of the Constitution of India, the dictum of the Apex Court in Abdul Rehman Antulay (supra) has been reiterated by the Apex Court in Vakil Prasad Singh v. State of Bihar
“Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time-frame for conclusion of trial.” Since first respondent has not been able to show any exceptional circumstances which could possibly explain the callous and inordinate delay of more than 14 years in launching the prosecution, and upon finding that purported offence is not a continuing offence, therefore this Court is constrained to quash the complaint in question and the proceedings arising out of it on the ground of unexplained inordinate delay as well as it seriously prejudices petitioners. Consequentially, the above captioned two petitions and the applications are allowed while quashing the complaint in question and the proceedings emanating therefrom.
JUDGE JANUARY 09, 2014 s