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Judgment
Pratap Singh, J.—The accused in E.O.C. Nos. 343/93, 346/93, 345/93 and 344/93 on the file of the Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Madras, have filed these petitions under S.482 Cr.P.C. praying to all for the records in the above cases and quash the same.
Short facts are: In E.O.C.C. No. 346 of 1993; the respondent in Criminal O.P. No. 12628 of 1993 has filed a complaint against the petitioner in that case for an offence under S. 57 of the Foreign Exchange Regulation Act, 1973 (which I shall hereafter refer to as "Act"). The allegations in it are briefly as follows:
The Special Director of Enforcement initiated adjudication proceedings against the accused firm for contravention of S. 8(1), 9(1)(c) and 18(2) of the Foreign Exchange Regulation Act, 1973 to the extent of Rs. 10,58,59-20, Rs. 1,80,050/- and Rs. 14,67,374/- respectively and by the order dated 6-2-1990, the Special Director imposed a total penalty of Rs. 2,50,000/- on the accused with a direction that the accused shall deposit the penalty imposed, within 45 days from the date of receipt of the said order, at the office of the Enforcement Directorate, Madras. The said order was served on the accused firm on 23-2-1990. The accused firm filed an appeal before the Appellate Board, but the firm has not obtained any stay against the Adjudication order or dispensation of penalty. The entire penalty of Rs. 2,50,000/- has not been paid by the accused firm in spite of reminders. Failure to pay the penalty, imposed by the Special Director of Enforcement, within 45 days from the date of receipt of the order, is an offence punishable under S. 57 of the Foreign Exchange Regulation Act, 1973. Hence the complaint.
Similarly the complaints in E.O.C.C. 342/93 Nos. 345/93, 344/93 have been filed by the respondent in Crl.O.P. Nos. 12627, 12636, and 12637 of 1993 against the respective petitions. To quash the same, these petitions were filed.
Mr. A.V. Somasundaram, learned counsel appearing for the petitioners, would submit that the principle of promissory estoppel looms large in these cases and that the respondent is precluded form filing the complaints on the principle of promissory estoppel. He would further submit that while the appeals were entertained, these complaints ought not to have been filed and they are premature. I have heard Mr. P. Rajamanicham, learned Special Public Prosecutor appearing for the respondent, on the above aspects.
I have carefully considered the submissions made by the learned counsel. To sustain his submission that the complaints are barred by the principle of Promissory Estoppel, Mr. A.V. Somasundaram would rely upon the following facts:
In the copy of the order, served on the accused, even at the beginning, it is stated as follows:
An appeal against this order lies with the Foreign Exchange Regulation Appellate Board, Ministry of Law & Justice and Company Affairs, Government of India, 4th floor, "B" Wing, Janpath (Indian Oil), Bhavan, Janpath, New Delhi - 110001, after depositing the amount of penalty imposed, within 45 days from the date on which this order is served - Refer S. 52 of Foreign Exchange Regulation Act, 1973).
The accused filed an appeal as provided u/s 52(2) of the FERA and had also filed a petition to dispense with the deposit of penalty as provided in the second proviso that the appeal was entertained, but no order was passed in the application or to dispense with the deposit of penalty and in as much as the appeal was entertained, that would amount to dispensation of deposit of penalty and while so, the complaints cannot be laid. He would add that entertaining the appeal would necessarily give impression to the accused that the petition for dispensation of deposit of penalty has been allowed and so he did not pay the penalty and while so, the complaints cannot be laid. On the above facts, he would submit that the principle of promissory estoppel will come in, in the way of filing of these complaints.
Regarding the first factor relied upon by Mr. A.V. Somasundaram namely in Note(ii) made in the primary portion of the order served on the accused, the very extracted portion will make it absolutely clear that appeal can be filed after depositing the amount of penalty imposed, within 45 days from the date on which this order is served. Thus there cannot be any misconception in the mind of the accused that he need not pay the penalty, when the appeal is filed and it was made clear to him that he was to deposit the penalty imposed within specified days before the appeal is filed.
7-A) Now, I shall pass on to the statutory provisions in the FERA, to consider the other submissions. To consider the same, S. 52(2) needs extraction. S. 52(2).
Any person aggrieved by such order may, (on payment of such fee as may be prescribed and) after depositing the sum imposed by way of penalty under S. 50 and within forty-five days from the date on which the order is served on the person committing the contravention, prefer an appeal to the Appellate Board: provided that the Appellate Board may entertain any appeal after the expiry of the said period of forty-five days, but not after ninety days, from the date of aforesaid if it is satisfied that the appellant was prevented by sufficient cause form filling the appeal in time: provided further that where the Appellate Board is of opinion that the deposit to be made will cause undue hardships to the appellant it may, in its own discretion, dispense with such a deposit either unconditionally or subject to such condition as it may deem fit.
In these cases, appeals were filed and also applications for dispensing with the deposit of penalty have been filed under the second proviso to S. 52(2) of the Act. According to Mr. A.V. Somasundaram, appeals have been entertained, but no orders were passed in the applications to dispense with the deposit of penalty amount and so, the impression gained is that the applications to dispense with the deposit of penalty were allowed. In this regard, Mr. P. Rajamanickam, learned Special Public Prosecutor, would submit that appeals were merely numbered, but not admitted, pending passing of orders in the applications filed under the second proviso and so, such impressions as claimed by Mr. A.V. Somasundaram, cannot be gained by the accused. In this regard, Mr. Rajamanickam would rely upon K.M. Mohamed Yousuf Sulaikha Ummal v. Assistant Director (1991 (56) E.L.T. 324 Mad). In paragraphs 11 and 12, the learned Judge held as follows:
From the fact that the appeal had been entertained by the Board, learned counsel for the petitioner would say, that it is to be inferred by way of implication that the pre-requisite of the deposit of the penalty amount has been dispensed with by the Board and by virtue of such dispensation, it is to be construed that there was no failure on the part of the petitioner to obey the direction of the adjudicating authority, in the sense of not remitting the penalty amount within the period specified by it. As a consequence he would urge, that the prosecution, being premature, is liable to be quashed.
Such a submission, in the absence of any deeming provision, in the FERA and the Rules cannot at all be acceded to, unless and until there is specific order by the Board dispensing with the deposit of the penalty amount. The fact that the appeal had been entertained by assigning a specified number is not by itself sufficient to indicate even by way of implication that the deposit of the penalty amount had been dispensed with and the appeal had been taken on file and if at all, in the circumstances it would indicate that a number had been assigned to the appeal for the purpose of conveniently referring the same in future correspondence.
Then again, in paragraph 13 the learned Judge has stated as follows:
In the absence of any order dispensing with the deposit of the penalty amount by the Board, the contravention amounting to an offence under S. 56 of the FERA gets fruition by the elapse of forty five days from the date of receipt of the adjudication order, which in fact happened in this case, as already adverted to, on 11-11-1986. In this view of the matter, the petitioner has to undergo the order of trial before the Court below.
With great respect, I am in entire agreement with the view expressed by my learned brother Justice Janarthanam. This ruling squarely applies to the facts of the case.
It is not in dispute that no order dispensing with the deposit of penalty amount was passed in this regard. The appeal is numbered. When the petition was filed by the accused to dispense with the deposit of the penalty amount and when no order has been passed on it and that too, particularly in the force of indication given in the order of adjudication itself that an appeal can be filed after deposit of the penalty amount, by no stretch of imagination can it be said that the accused was led to the impression that he need not deposit the penalty amount and that it has been dispensed with. I am unable to accept the submission of Mr. A.V. Somasundaram in this regard.
Mr. A.V. Somasundaram would rely upon Express Newspapers Pvt. Ltd. and Others Vs. Union of India (UOI) and Others, for the position that the doctrine of promissory estoppel which is envisaged in S. 115 of the Evidence Act (Act 1 of 1872) stood settled and on the facts of that case, it was applied. In para 175, the Apex Court has pointed out as follows:
In my considered opinion the Express Newspapers Pvt. Ltd., having acted upon the grant of permission by Sikander Bakht, the then Minister for Works & Housing and constructed then new Express Building with an increased FAR of 360 and a double basement in conformity with the permission granted by the lessor i.e. the Union of India, Ministry of Works & Housing with the concurrence of the Vice-Chairman, Delhi Development Authority on the amalgamation of plot Nos. and 10, as ordered by the Vice-Chairman by his order dated October 21, 1978 as on "Special Appeal" as envisaged in the Master plan having been directed, the lessor is clearly precluded from contending that the order of the Minister was illegal, improper or invalid by application of the doctrine of promissory estoppel.
That is the accepted principle of law. But, that principle cannot be extended to the facts of this case because there is no permission granted by any body, and nobody acted upon such promise in this case so as to say something contrary to the earlier promise. Three elements which are required to apply the principle of promissory estoppel, are all totally absent in the case and hence it cannot be applied.
Mr. A.V. Somasundaram would further rely on AIR 1986 S.C. 6 (Union of India and others vs. Godfrey Philips India Ltd.,). In this case, the Apex Court has held that there can be no doubt that the doctrine of promissory estoppel is applicable against the Government in the exercise of its Governmental, public or executive functions and the doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat the applicability of the doctrine of promissory estoppel. In view of what I have stated earlier, namely that none of the three elements which are required to make out a case of promissory estoppel, is available in this case before me, those rulings are not applicable to the facts of this case.
The other submission is that when appeal is already filed and when there is possibility of success there, the complaints initiated under S. 57 after FERA are premature, has been negatived by me in Criminal O.P. No. 9755 of 1993 (A. Shamsudeen Vs. The Special Director, Enforcement Directorate New Delhi). Hence I do not accept either this ground.
Since none of the submissions made by Mr. A.V. Somasundaram finds acceptance with me, the inevitable result is that the petitions fail and shall stand dismissed.
In view of the fact that the appeals are pending before the Appellate Board, the trial of all the above four cases shall stand stayed for a period of four months from to-day.