DEOKI NANDAN PRASAD, J. - (1.) THIS application under Article 226 of Constitution of India has been filed for quashing the entire criminal prosecution initiated as against the petitioner including the order dated 31st May, 2002, whereby and whereunder the. learned Special Judge took cognizance for the offences under Section 56 of the Foreign Exchange Regulation Act, 1973 r/w Sections 49(3) and (4) of the Foreign Exchange Management Act, 1999 in connection With Case No. FEMA 2 of 2002.
(2.) ONE Complaint case has been filed against the accused persons including the petitioner for defrauding a huge amount of Government money to the extent of Rs. 7,09,92,000/ - during the period 1980 -90 on the basis of fake allotment letters and the petitioner took active part in getting money by way of certain foreign exchange remittance in total of US $ 3,15,000/ - and Pounds 1000 as detailed in Annexure -1 during the year 1991 -92. It was found that it was not actually the genuine gift but were suspected to be involved in violations of the provisions of Foreign Exchange Regulation Act. The petitioner admitted to had opened bank accounts in the names of five children of Dr. K.M. Prasad, the main accused, with Punjab National Bank, Roshnara Road, New Delhi in December, 1991 and he helped those persons to deposit and withdraw the money from the said accounts. He had also helped the children of Dr. K.M. Prasad for filing the Declaration Forms before the Income Tax Department and he had deposited the foreign exchange drafts and exchanges received in the name of his children. He further admitted that he used to bring money from Patna to Delhi for the purpose of Dr. K.M. Prasad and sometimes in 1995 he had carried huge amount of about one crore to Bombay for his sons. Accordingly, the case was filed before the learned Chief Judicial Magistrate but later on make over the case to the Court of Special Judge, who took cognizance by the order impugned for the offences. Mr. M.M. Banerjee, the learned counsel for the petitioner made three fold submissions in challenging the order impugned. Firstly, the petitioner though has not filed his show cause as yet but without forming any opinion in the adjudication proceeding, this case has been filed when it is well settled under the provisions of FERA, the prosecution will be launched only when during the adjudication proceeding the authority comes to the conclusion that the penalty provided in the said adjudication proceeding is not sufficient as well as in the present case no adjudication proceeding has yet been initiated, rather merely a show cause notice had been issued to the petitioner and in hot haste a prosecution report was filed before the Court of the Chief Judicial Magistrate, Ranchi. Secondly, he submitted that under the provisions of FERA, the offence is exclusively triable by the Court of Judicial Magistrate, Ist Class or any Metropolitan Magistrate as envisaged under Section 61 of FERA. But, in the instant case, the Special Judge took cognizance by the order impugned who has got no jurisdiction. Lastly, he submitted that the Special Judge was empowered only to try the case and he had no jurisdiction to take cognizance, as Special Judge was not empowered to take cognizance under the provisions of FERA but the complaint has been registered as FEMA case and the Special Judge has got no authority or jurisdiction to take cognizance of an offence and, therefore, order taking cognizance is fit to be quashed.
(3.) ON the other hand, Mr. A.K. Das, learned counsel for the respondents contended before me that the learned Special Judge has rightly took cognizance in the matter and there is no illegality in the order impugned as the learned Special Judge has been duly notified by the Law Department, Government of Jharkhand vide Notification dated 17th May, 2002 for trying the case under Foreign Exchange Management Act, 1999. It is further submitted that ad - judicatory proceedings and criminal trial are two separate aspects with which a criminal Court addresses the criminal justice system and that is entirely different from that of a Tribunal or an adjudicatory proceeding and filing of criminal case cannot be said to be illegal, as it is well settled that even if a person is exonerated of his charges in adjudicatory proceedings, there cannot be any bar for a criminal prosecution against the said person. The Complainant (Enforcement Officer) has been authorized to institute the present prosecution vide Notification No. 50715 E dated 24.9.1993 issued by the Government of India, Ministry of Finance, Department of Revenue and in pursuant to Sub -clause (2) of Sub -section (2) of Section 61 of the Foreign Exchange Regulation Act published in the Gazette of India, the complainant has been duly empowered to file the present complaint petition and the whole matter will be thrashed out in the trial itself. The learned counsel also drew the attention of the Court to Section 460 of the Code of Criminal Procedure which provides that even if there is irregularity in taking cognizance that will not vitiate the entire proceeding. Therefore, there is no illegality in the order impugned.;