IMPORTANT POINT
Offence u/s 56 r/w section 40 is an independent offence. Complaint is maintainable in case of default of summons.

JUDGMENT

ADARSH KUMAR GOEL, J.

1. This appeal has been preferred against judgment and order dated 21st May, 2007 of the High Court of Delhi at New Delhi in Criminal Revision Petition No.554 of 2001.

2. Brief facts necessary for decision of this appeal are that the appellant was summoned by the Chief Enforcement Officer, Enforcement Directorate, under Section 40 of the Foreign Exchange Regulation Act, 1973 (“the Act”) with his passport and correspondence relating to a transaction with Flavio Briatore of M/s. Benetton Formula Ltd., London, to which the appellant, as Chairman of United Breweries Ltd., was a party. Allegation against the appellant was that he entered into an agreement dated 1st December, 1995 with the earlier mentioned English Company for advertisement of ‘Kingfisher’ brand name on racing cars during Formula-I World Championships for the years 1996, 1997 and 1998 providing for fee payable. Requisite permission of the Reserve Bank of India was not taken which was in violation of provisions of Sections 47(1) & (2), 9(1)(c) and 8(1) of the Act. Approval was later sought from Finance Ministry for payment on 19th June, 1996, which was rejected on 4th February, 1999. Since the appellant failed to appear in response to summons issued more than once, a complaint dated 8th March, 2000 under Section 56 of the Act was filed before the Additional Chief Metropolitan Magistrate, New Delhi. The trial court after considering the material on record summoned the appellant and framed charge against him under Section 56 of the Act.

3. The appellant challenged the order of the Magistrate dated 9th August, 2001 in above Criminal Complaint No.16/1 of 2000 and also sought quashing of proceedings in the said complaint before the High Court by filing Criminal Revision Petition No.554 of 2001 on the ground that willful default of the appellant could not have been inferred and that there was non-application of mind in the issuance of summons as well as in framing the charge which was in violation of procedure laid down under Section 219 of the Criminal Procedure Code. The charge related to failure of the appellant to appear on four occasions, i.e., 27th September, 1999, 8th November,1999, 26th November, 1999 and 3rd January, 2000. In respect of first date, it was submitted that the trial court itself accepted that the service of summons was after the time for appearance indicated in the summons. In respect of second and third dates, the appellant had responded and informed about his inability to appear and for the last date, summons was not as per procedure, i.e., by registered post. It was submitted that composite charge was against Section 219 of the Criminal Procedure Code.

4. The High Court rejected the contentions by holding that framing of composite charge could not be treated to have caused prejudice so as to vitiate the proceedings. It was further observed that default of the appellant in relation to summons dated 15th September, 1999 for attendance on 27th September, 1999 could not be taken into account and to that extent the charge was liable to be deleted but with regard to the defaults in relation to summons 7th 8th dated October, 1989, November, 2009 and 21st December, 1999, the proceedings were not liable to be interfered with as the appellant could contest the matter before the trial court itself in the first instance.

5. We have heard Shri F.S. Nariman, learned senior counsel for the appellant and Shri K. Radhakrishnan, learned senior counsel for the respondent.

6. When the matter came up for hearing before this Court earlier, a statement was made on behalf of the appellant that the appellant expressed regret for not responding to the summons on which learned senior counsel for the respondent took time to ascertain whether the complaint could be withdrawn. Thereafter, it was stated that withdrawal of the complaint may have impact on other matters and for that reason withdrawal was not possible. However, the question whether t