Decided on December 09,1995


Cited Judgements :-



- (1.)This O. P. is filed by the petitioner who was formerly residing in Saudi Arabia at Daman. He prays for a writ of mandamus to direct the first respondent, the Assistant Director of Enforcement, Trivandrum, to conduct investigation, enquiry and such other proceedings for violations of the Foreign Exchange Regulation Act committed by respon dents 4 and 5, and for prosecuting them for the violations. He also prays for the consequential relief of recoverying 95,000 Riyals which were illegally converted and brought to India through un-known source and ultimately came to be deposited in the bank account of the fifth respondent. He prays that adjudication proceedings and prosecution should be launched against respondents 4 and 5. He also prays for and direction to respondents 2 and 3, the Director General of Police, and the Circle Inspector of Police, to conduct investigation and complete it expedi tiously and file a charge sheet before the concerned Magistrate on the basis of the complaint given by him. He further prays for a writ of mandamus directing the first respondent to consider and dis pose of Ext. P5 petition.
(2.)The facts peritnent for decision of this Original Petition may be briefly stated as follows. The petitioner was employed as a salesman in Daman in Saudi Arabia. The fifth respondent is his paternal uncle. The fourth respondent is the unemployed son of the fifth respondent. The petitioner has been in Saudi Arabia for a sufficiently long time. He was well employed and he was earning a very decent salary. On the request of the fifth respondent, he took the fourth respondent at his own expenses to Saudi Arabia with a view to secure him employment. As he could not secure proper employment for the fourth respondent; the petitioner secured 95,000 Riyals with a view to start a hotel so that he can employ the services of the fourth respondent. As the fourth respondent was staying with the petitioner, he was fully aware of the fact that the petitioner was keeping 95,000 Riyals in the table drawer. The fourth re spondent had a spare key for the premises of the petitioner. During the month of Ramzan in April, 1992, all Muslim establishments would remain closed during the day time and they would be functioning from 8 p. m. to 12.30 p.m. in the night. The petitioner locked the table drawer and went to the workspot. At about 1 a.m. when he returned to the house, he found that the outer door of the flat was open, and after entering the premises he found that the lock of the table drawer was broken and money was missing. As the fourth respondent has a spare key, the peti tioner suspected the fourth respondent. He immedi ately wanted to report the matter to the police. He took the fourth respondent along with him in car to go to the police station. The movements of the fourth respondent were suspicious. When they were going to the police station, the fourth respondent was driving the car. The fourth respondent created an accident by dashing the car against a parked vehicle, and it created an incident. The fourth respondent ran away. The petitioner made his best efforts to trace the fourth respondent. He could not trace him. His suspicion got confirmed and he had a feeling that the fourth respondent would have escaped to India. Immediately, the petitioner came to India and reached his native place on 11-4-1992. The fourth respon dent came to India one week later, with two bags of foreign articles and 40 sovereigns of gold. The enquiries made by the petitioner revealed that the entire money stolen from the petitioner was ar ranged to reach India through tube money (through hawala transactions). The petitioner filed complaints before respondents 2 and 3 for registering a criminal case against the fourth respondent and to recover the theft property which was stolen in Daman. It was found that respondents 4 and 5 were spending lav ishly and investing money in various businesses. They do not have resources to spend so much money. When police started investigating into the case, various Crl. M. Cs. were filed to thwart the investigation. In Crl. M. C. No. 699 of 1994, this Court passed an order to the effect that if a notice is given, the petitioners (respondents 4 and 5 herein) shall appear before the investigating officer and allow to be interrogated. But they shall not be arrested except with the permission of the Court. Respondents 4 and 5 filed O. P. No. 2338 of 1994 and obtained interim orders in C. M. P. No. 4339 of 1994, to the following effect :
"There shall be an interim direction to respon dents 1 and 2 not to compel the petitioners to pay the amount claimed by the third respondent (the present petitioner)."
That order was later modified. The O. P. was disposed of on 10-8-1994 indicating that the second respondent may proceed with the investigation of the crime, if any crime is registered against the present respondents 4 and 5. Ext. P4 judgment directing investigation is not implemented. The investigation has not been done and no charge-sheet is filed. On the other hand, respondents 4 and 5 are at large and they are conducting business using the money stolen from the petitioner. A complaint was given to the first respondent to proceed against respondents 4 and 5 for violations of the Foreign Exchange Regulation Act, especially Sections 9 and 63. The first respondent neither investigated into the matter, nor did he recover the money. He never took steps to attach the properties of respondents 4 and 5. Hence the present writ petition, with the various prayers mentioned supra.
(3.)The first respondent filed a counter affidavit stating that the first respondent is unnecessarily made a party to this O. P. The theft of Riyals took place outside India and the department cannot make any inquiry based on the petition averments, unless there is documentary evidence. If independent in vestigation discloses violation of Foreign Exchange Regulation Act appropriate action will be taken against those who are involved in the matter, and if necessary, action will be taken against the present petitioner as well. At any rate on the basis of the averments made in the petition, the first respondent is not in a position to take any further action. On going through the petition, the first respondent found that there is no justification for taking action under Foreign Exchange Regulation Act. The various alle gations are based upon misconceptions of the pow ers of the first respondent. The first respondent cannot exercise powers of a police officer. If the first respondent obtains credible and valuable informa tion regarding the violations, he would certainly take action as per the Foreign Exchange Regulation Act.

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