Page 114 - ELT_15th August 2020_Vol 373_Part 4

448 EXCISE LAW TIMES [ Vol. 373

to be guilty of the contravention. Had the legislature intended that all the Direc-
tors irrespective of their role and responsibilities shall be deemed to be guilty of
contravention, the section could have been worded in different manner. When a
person is proceeded with for committing an offence and is to be punished, neces-
sary ingredients of the offence as required by Section 68 should be present.
38. We may notice that Section 141 of the Negotiable Instruments Act,
which was inserted in Negotiable Instruments Act by amendment in the year
1988 contains the same conditions for a person to be proceeded with and pun-
ished for offence as contained in Section 68 of FERA, 1973. Section 141(1) of Ne-
gotiable Instruments Act uses the same expression “every person, who, at the
time the offence was committed, was in-charge of and was responsible to the
company for the conduct of the business of the company, as well as the company,
shall be deemed to be guilty of the offence”. Section 68 of FERA, 1973 as well as
Section 141 of the Negotiable Instruments Act deals with the offences by the
companies in the same manner. The ratio of the judgments of this Court on Sec-
tion 141 of Negotiable Instruments Act as noted above are also clearly relevant
while interpreting Section 68 of FERA Act. We, thus, hold that for proceeding
against a Director of a company for contravention of provisions of FERA, 1973,
the necessary ingredient for proceeding shall be that at the time offence was
committed, the Director was in-charge of and was responsible to the company
for the conduct of the business of the company. The liability to be proceeded
with for offence under Section 68 of FERA, 1973 depends on the role one plays in
the affairs of the company and not on mere designation or status. This Court in
S.M.S. Pharmaceuticals Ltd. (supra) while elaborating the ambit and scope of Sec-
tion 141 of Negotiable Instruments Act has already laid down above in para-
graph 10 of the judgment as extracted above.
39. It is true that with regard to any offence punishable under Section
138 of Negotiable Instruments Act with respect to offences by companies, a com-
plaint in writing has to be filed as required by Section 142 of the Negotiable In-
struments Act. A complaint as contemplated for offence under Section 138 needs
to be necessarily contain all allegations constituting offence. In FERA, 1973 for
imposing a penalty under Section 50, the adjudicating officer is required to hold
an enquiry after giving the person a reasonable opportunity for making a repre-
sentation in the matter. Even though, FERA, 1973 does not contemplate filing of a
written complaint but in proceedings as contemplated by Section 51, the person,
who has to be proceeded with has to be informed of the contravention for which
penalty proceedings are initiated. The expression “after giving that person a reason-
able opportunity for making a representation in the matter” as occurring in Section 51
itself contemplate due communication of the allegations of contravention and
unless allegations contains complete ingredients of offence within the meaning of
Section 68, it cannot be said that a reasonable opportunity for making a represen-
tation in the matter has been given to the person, who is to be proceeded with.
40. Learned ASG is right in his submission that FERA, 1973 does not
contemplate any complaint but the Scheme of the Act indicate that a person, who
is to be proceeded with has to be made aware of the necessary allegations, which
may constitute an offence on his part. This Court in N. Rangachari (supra) has
observed that a person in the commercial world having a transaction with com-
pany is entitled to presume that the Directors of the company are in charge of the
affairs of the company. The presumption of a person in the commercial world is
a rebuttable presumption and when adjudicating authority proceeds to impose a
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