S.K. KAMDAR AND ANR.versusSTATE OF MAHARASHTRA

A                          S.K. KAMDAR AND ANR.
                                         v.
                         STATE OF MAHARASHTRA

                              SEPTEMBER 6, 1995

B                   [G.N. RAY AND G. T. NANAVATI, JJ)

          Foreign Exchange Regulation Act, 1947: Sections 4(1)(2) and S(l)(a),
    (aa) (c).

C          Foreign Exchange Regulation Act, 1973 Section 8(1) (2) and 9(1)(a),
    (b), (d).

          Indian Penal Code, 1860: Section 120-B.

          Offences committed under the 1947 Act-Complaint in Oiminal Court
D under 1973 Act-Maintainability orAdjztdication by Revenue auth01ities as
    to inadequacy of penalty to be imposed-Complaint held maintainable as
    offence under section 120-B !PC could not have been adjudicated by Revenue
    Auth01ities either under the old or new Act.

          The appellants are alleged to· have com.milted offences under Sec-
E   tions 4(1)(2) and 5(1)(a), (aa), (c) of the Foreign Exchange Regulation Act,
    1947 read with section 120-B of the Indian Penal Code, 1860. A complaint
    lodged against them under the corresponding provisions of the Foreign
    Exchange Regulation Act.1973 read with section 120-B of the Indian Penal
    Code was held not maintainable by Trial Court on the ground that there
F   was inherent inconsistency between the 1947 and 1973 Acts in the matter
    of lodging complaint in the Criminal Court. On revision the High Court
    set aside the Judgment of Trial Court holding that the complaint was
    maintainable. Hence these appeals.

G         Dismissing the appeals, this Court

          HELD : The complaint has beenI
                                            lodged not only for the violation of
    the provisions of the Foreign Exchange and Regulation Act, 1947, but also
    for an offence under Section 120-B of the Indian Penal Code. The complaint
    under latter provision in any event, could not have been decided by the
H   departmental authority either under the old Act or under the new Act. Such
                                        360
              S.K. KAMDAR v. STATE OF MAHARASHTRA                      361

complaint, therefore, was to be made only before the Criminal Court. Even     A
otherwise before lodging the complaint in question, a finding was made by
the departmental authority that imposition of penalty would not be ade-
quate in the facts of the case but immediately thereafter no complaint in
Criminal Court was lodged. The same was lodged after lapse of some time
by which the new Act has become operative. In these circumstances, the
complaint being maintainable, no interference is called for. (363-C-E]
                                                                              B

      The SupeTi11te11dent & Rememberancer of Legal Affairs, West Bengal v.
Gilish Kumar Navalakna and Others, (1975) 4 SCC 754, referred to.

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
522 of 1980.
                                                                              c
     From the Judgment and Order dated 27.11.79 of the Bombay High
Court in Cr!. A No. 542 of 1978.

      Krishan Mahajan and P.H. Parekh for the Appellants.
                                                                              D
      V.N. Ganpule, S.M. Yadav and A.S. Bhasme for the Respondent.

      The following Order of the Court was delivered :

       These appeals are directed against the judgment dated 27th Novem-
ber, 1979, passed by the High Court of judicature at Bombay in Criminal E
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 F
Exchange Regulation Act, 1947 corresponding to section 1208 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 Addi-
tional Chief Metropolitan Magistrate. Third Court, Bombay, dismissed the
complaint on August 11, 1978 in Case No. 133/W/1977 inter alia holding G
that pen. . : t:rovisions 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.                                                     H
    362                   SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A          The State of Maharashtra thereafter moved the High Court of Bom-
    bay 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
B
    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 main-
    tainable and the impugned order was set aside.

c        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
D Exchange and Regulations Act, 1947. The substantive right of the appel-
  lants to have an adjudication by the Revenue Authorities under the
  provisions of Foreign Exchange & Regulations 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 by passed. In the
  absence of such adjudication by the Revenue authorities as a condition
E 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 compliant under the old Act, no
F complaint for any violation of the provisions of the old Act is maintainable
  and the learned Magistrate is fully justified in dismis~ing the complaint. He
  has submitted that under the old Act, no complaint could be straightaway
  lodged to the criminal court until and un.less in a departmental proceeding
  initiated under the old Act, the departmental authority after giving oppor-
  tunity of being heard to the alleged offender would come to__a decision that
G in the facts of the case, imposition of penalty was not adequate. Since a
  guideline namely constitution of adequacy of penalty was there, the vires
  of the proviso to sub- Section 23-D (i)(a) of the old Act was upheld by this
  Court in a decision in The Supe1intendent & Rememberancer of Legal
  Affairs, West Bengal v. Gi1ish Kumar Nava/alma and Others, [1975] 4 SCC
H 754. Mr. Mahajan has contended that under the present Act, there is a
             S.K. KAMDAR v. STATE OF MAHARASHTRA                      363

provision for initiating departmental proceeding for imposing penalty for A
violation of the provisions of the Foreign 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 com-
plaint before the criminal court instead Of deciding the case of violation of
Foreign Exchange & Regulations Act, 1973 departmentally. Hence, Section
                                                                              B
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 C
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. D
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
put immediately thereafter, no complaint in criminal court was lodged and
the complaint has been lodged after lapse of some time by which the New E
Act has become operative.

      In the aforesaid circumstances, the complaint being maintainable, no
interference is called for. The appeals are, therefore, dismissed.

1'.N.A.                                                Appeals dismissed.