Criminal proceedings are unsustainable if the accused have been exonerated in prior adjudicative proceedings, reflecting an abuse of court process, as established under FERA.

JUDGMENT :

Tirthankar Ghosh, J.

1. The present revisional application has been preferred challenging the proceedings being Case No. C-2482/2002 pending before the learned Metropolitan Magistrate, 9th Court, Calcutta under Sections 56 and 68 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as “ FERA , 1973”).

2. The allegations as made in the petition of complaint, are reproduced as follows:

“3. On the basis of search warrants issued by the competent authorities of the Enforcement Directorate under Section 37 of Foreign Exchange Regulation Act, 1973 searches were conducted on 30.10.96, 31.10.96, 6.11.96, 10.11.96 and 12.11.96 at the office premises of various Divisions of M/s ITC Ltd./ITC Bhadrachalam Paper Board Ltd. and their associated companies in and at the residential premises of the Chairman, Ex-chairman, Directors and Executives at the Calcutta, Delhi, Bombay, Madras, Guntur, Hyderabad and Secandrabad covering 36 premises in execution of search warrants, a large number of documents were seized as per Panchanama/Search lists/ Mahazar on the respective dates.

4. That during the course of investigation, documents and information(s) were called for and/or collected from M/s ITC Ltd. and other sources from time to time under Section 33 (2) of the Foreign Exchange Regulation Act, 1973 and statements of Directors and Executives of M/s ITC Ltd. and/or other persons under Section 40 of the Foreign Exchange Regulation Act, 1973 on the various dates, were recorded.

5. It further transpired that the Chairman, Ex-chairman and directors of different Divisions of M/s ITC Itd., such as IBD, ILTD, ITD, ITC Bhadrachalam (hereinafter referred to as ITCBPBL) BAT nominee Directors and directors of financial institutions were examined on various dates and their statements were recorded under Section 40 of the Foreign Exchange Regulation Act, 1973.

6. During the course of investigation, it has been revealed that M/s ITC Ltd. exported various Agro products commodities viz cashew and coffee to the extent of Rs. 130 crores during the period 1991-93 against Counter Trade agreements with and understanding between M/s. ITC Ltd. EST Group of Chitalia of USA and various other ultimate overseas buyers, that M/s ITC Ltd would receive 3 to 4% Counter Trade Premium on the total volume of business.

7. That it transpired from the statements dated 26.10.96 of Sri G.K.P. Reddy, Chairman of IBD, M/s ITC Itd. in which he admitted that during the period 1991-93 in respect of export of the said commodities to the tune of Rs. 130 Crores, M/s ITC Ltd. was to receive 3 to 4% premium on the Counter Trade Business and as per instructions from Mr. K.L. Chugh, he authorised Dr. E. Rabindranath, Vice-president (operation) of Agro Business of M/s ITC Ltd.to remit/transfer funds generated through Counter Trade to various M/s ITC Ltd., companies in Singapore and EST Group of Chitalias in USA and total amount of US $ 2 Million generated out of said counter trade business was transferred directly by counter Trade Business overseas through Chitalia group of companies in USA.

8. It further transpired from the statement of Dr. E. Rabindranath, Vice-president (operation) of IBD, M/s ITC Ltd, that since 1990 they have been doing counter trade business and that he was instructed by Sri G.K.P. Reddy to remit the counter trade fund to M/s ITC Ltd Singapore and EST group of companies in USA and EST Rotterdam A/s and that he pleaded ignorance about the purpose for which thos