http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: S.K.KAMDAR AND ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT06/09/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) NANAVATI G.T. (J)

CITATION:  1995 SCALE  (5)281

ACT:

HEADNOTE:

JUDGMENT:             (With Criminal Appeal No.523 of 1980)                          O R D E R      These appeals  are directed  against the judgment dated 27th November,  1979, passed by the High Court of judicature at Bombay  in Criminal  Revision Application No.542 of 1978. The appellants challenged the validity of the complaint made by  the   Assistant  Director  of  Enforcement  Directorate, Government of India. Bombay, against the appellants alleging commission of  offences under  Section 120B  of  the  Indian Penal Code read with Sections 4 (1), 4 (2), 5 (1) (a), 5 (1) (aa) and  5 (1)  (c) of the Foreign Exchange Regulation Act. 1947 corresponding  to Section 120B of the Indian Penal Code read with  Sections 8 (1), 8 (2), 9 (1) (a), 9 (1) (b) and 9 (1) (d)  of the  Foreign Exchange  Regulation Act, 1973. The learned  Additional  Chief  Metropolitan  Magistrate.  Third Court. Bombay, dismissed the complaint on August 11, 1978 in Case No.133/W/1977  inter alia holding that penal provisions and procedure  to be  followed for  lodging complaint  in  a criminal court  under the  Foreign Exchange  and  Regulation Act, 1947  under which  alleged violation by the accused had taken place,  being  different  and  inconsistent  with  the provisions of  the later  Act namely  Foreign  Exchange  and Regulation Act,  1973, the  complaint under  the New Act was not maintainable.      The State  of Maharashtra  thereafter  moved  the  High Court of  Bombay by  filing a  Revision Petition challenging the correctness  of the  order of dismissal of the complaint passed  by   the  learned   Additional  Chief   Metropolitan Magistrate. By  the impugned judgment, the Bombay High Court has come to the finding that there was no inconsistency with the  provisions   of  the  old  Act  i.e.  Foreign  Exchange Regulation Act, 1947 and the new Act namely Foreign Exchange Regulation Act, 1973 thereby affecting any substantive right of the accused which they had under the old Act. It has been held by  the High  Court that the complaint was maintainable and the impugned order was set aside.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

    Mr.Mahajan,   learned   counsel   appearing   for   the appellants, has  contended that the High Court has failed to appreciate the  inherent inconsistency under the old Act and the new  Act in the matter of lodging complaints in Criminal Court. He  has submitted  that  in  the  instant  case,  the offence had  been committed  under  the  provisions  of  the Foreign Exchange  and Regulations Act, 1947. The substantive right of  the appellants  to have  an  adjudication  by  the Revenue Authorities under the provisions of Foreign Exchange & Regulation Act, 1947 that the penalty in such adjudication proceeding would  not be  adequate before a complaint before the criminal court was to be made cannot be bypassed. In the absence of such adjudication by the Revenue authorities as a condition precedent  to lodge  complaint in a criminal court in the  later  Act  of  1973,  the  provisions  for  lodging complaint in  a criminal  court by  following the  procedure under later Act not only takes away the substantive right of the accused  to have  departmental adjudication but the same being inconsistent  with the  provisions relating to lodging of complaint  under  the  old  Act,  no  complaint  for  any violation of  the provisions  of the old Act is maintainable and the  learned Magistrate is fully justified in dismissing the complaint.  He has  submitted that under the old Act, no complaint could be straightaway lodged to the criminal court until and  unless in  a  departmental  proceeding  initiated under the  old Act,  the departmental authority after giving opportunity of  being heard  to the  alleged offender  would come to a decision that in the facts of the case, imposition of penalty  was  not  adequate.  Since  a  guideline  namely consideration of adequacy of penalty was there, the vires of the proviso  to sub-Section  23 D (1) (a) of the old Act was upheld by  this Court  in a decision in The Superintendent & Remembrance of  Legal Affairs,  West Bengal Vs. Girish Kumar Navalanka and  others (1975  (4) SCC  754).  Mr.Mahajan  has contended that  under the  present Act, there is a provision for initiating  departmental proceeding for imposing penalty for violation  of the  provisions of  the  Foreign  Exchange Exchange & Regulation Act, 1973 under Section 51 of the said Act. But  no guideline  has been  given  as  to  under  what circumstances,  the  departmental  authority  would  file  a complaint before  the criminal court instead of deciding the case of  violation of  Foreign Exchange  & Regulations  Act, 1973 departmentally.  Hence, Section  51 of the new Act also suffers  from   the  vice   of  excessive   and  unregulated discretionary power.      In our view, in the facts and circumstances of the case it is  not necessary  to consider  any of  such  contentions raised by  Mr.Mahajan  because  in  the  instant  case,  the complaint has  been lodged not only for the violation of the provisions of  the Foreign  Exchange & Regulation Act, 1947, but also  for an  offence under  Section 120 B of the Indian Penal Code. Such complaint of commission of an offence under Section 120  B of the Indian Penal Code, in any event, could not have  been decided  by the departmental authority either under the  old Act  or under  the new  Act, Such  complaint, therefore, was  to be  made only  before the criminal court. Incidentally, we  may also  indicate here  that  previously, before lodging the complaint in question, a finding was made by the  departmental authority  that imposition  of  penalty would  not  be  adequate  in  the  facts  of  the  case  out immediately thereafter,  no complaint  in criminal court was lodged and the complaint has been lodged after aloes of some time by which the New Act has become operative.      In the  aforesaid circumstances,  the  complaint  being maintainable, no  interference is  called for.  The  appeals

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

are, therefore, dismissed.