Chanda, J. - (1.)By the instant application, A. K. Ghosh, Director Enforcement Directorate, Government of India, has prayed for setting aside the order No.21 dated 29.1.72 passed in Case No.C/943 of 1970 by the learned Presidency Magistrate, 10th Court, Calcutta by which the learned Magistrate has discharged Section 253(1) Cr. P.C. holding that prosecution under Sec. 23F of the Foreign Exchange Regulation Act is not maintainable and the materials on record are not sufficient to warrant the conviction of the accused. Dharam Chand Jain, O.P. No.2, under
(2.)The circumstances under which the complaint was filed may be briefly stated: - Dharam Chand Jain, O. P. No.2, was one of the Directors of M/s. Missirlal Dharam Chand (P) Ltd. engaged in the business of export of manganese ore with a foreign company namely, Messrs Ferro Metal and Chemical Corporation Ltd., having its office at London and New York. On the allegation that M/s. Missirlal Dharam Chand (P) Ltd. was maintaining and operating accounts in foreign countries illegally, adjudication proceedings were started by the Director of enforcement under Section 23 (1) (a) and 23D of the Foreign Exchange Regulation Act after issuing a show cause notice to Missirlal Jain, father of Dharam Chand Jain, as Director of M/s. Missirlal Dharam Chand (P) Ltd. In reply to the show cause notice it was stated by the Company that certain contraventions had taken place due to ignorance of law and the adjustments had been made without the prior permission of the Reserve Bank of India. It was also stated that the case might be taken up for adjudication immediately. On receipt of this reply to the show cause notice, the Director afforded an opportunity for personal hearing to Missirlal Jain as Director of the company and 31.10.63 was fixed for the purpose. On 30.9.63 as it appears from the record, Dharam Chand Jain with one C. R. Banerjee, for and on behalf of M/s. Missirlal Dharam Chand (P) Ltd. Company appeared before the Director. On 30.9.63, Dharam Chand Jain in his personal capacity pleaded guilty to the charges contending that contraventions arose due to ignorance of law. It was further submitted by him that all transactions were undertaken by him alone and none of the Directors of the company was responsible for the contraventions and he added - ?I would therefore, be grateful if you would take up the case for adjudication to-day itself and I would abide by the decision taken by the Director of Enforcement. Further I state that I would not prefer any appeal against the order passed by the Director of Enforcement and as such would be grateful if you would pass orders for the release of the documents on the strength of the undertaking given by us?. Dharam Chand Jain at the relevant time was an M. P. The Director swallowed the proposal made by Dharam Chand Jain and returned all the seized documents, it seems, in unseemly hurry, to Dharam Chand Jain. The Director passed the following order on the submission of Dharam Chand Jain. Admittedly Sri Dharam Chand Jain has contravened the provisions of Section 4(1) read with Section 9 and 5 (1) (a) of the Act and I find him guilty. But in view of the facts and circumstances under which the contraventions were committed by Sri Dharam Chand Jain, I take a lenient view and impose on him a penalty of Rs.175000/- only under Section 23(1) (a) of the Act as under: - (a) for contravening the provisions of Section 4(1) read with Section 9 of the Act. A penalty of Rs.1,50,000/- is imposed. (b) for contravening the provisions of Section 5(1) (a) of the Act; A penalty of Rs.25,000/- is imposed. I further direct under Section 23(1B) of the Act that the entire foreign currency in ? and which is lying in his credit in U. K. and U.S.A. be repatriated to India within one month of the date of this order and that a certificate of repatriation be filed in this Directorate within the same period. The penalty imposed should be deposited in the Calcutta office of this Directorate within 30 days of the date of this order?.
(3.)Thereafter, Dharam Chand Jain paid Rs.20,000/- in cash towards the penalty and as regards balance of Rs.1,55,000/- he authorized the Director to repatriate the foreign exchange and appropriate the same towards the balance amount of the penalty. Accordingly, the requisite amount of foreign exchange due to him was repatriated and the entire amount of penalty has since been paid.