# M/s Fiserv India Private Ltd., Noida v. The Assist. Director, Directorate of Enforcement, Zonal Office, Lucknow, Govt. of India & Anr

- **Citation:** (2021) 9 ILRA 1028
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-05
- **Case number:** Writ C No. 494 of 2021
- **Bench:** Manoj Misra, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-fiserv-india-private-ltd-noida-v-the-assist-director-directorate-of-47344
- **Pages:** 9

## Headnote

A. Company Law - Foreign Exchange
Management Act, 1999 - Section 13 -
Foreign
Exchange
Management
(Adjudication Proceedings and Appeal)
Rules, 2000: Rule 4

Initially, in the present case, the company was
incorporated as M/s Results India Systems
Private Limited and later on acquired by Fiserv
Group. To which the Court observed that it is
not the case that the M/s Results India stood
liquidated and changed its name and therefore
the control of the company was taken over by
different group. The company is a body
corporate
notwithstanding
change
of
its
management
its
existence
continues.
Therefore, in the eyes of the law, the legal
person committed the contravention of the
provisions of the FEMA with continued even
after changing its name. (Para 18)

The proceedings against the petitioner company
have been initiated in respect of not utilizing,
within
stipulated
period,
certain
export
advances. As utilization of those advances might
have to be proved by submitting information
and documents to the authorized dealer i.e., the
Bank, whether any export advance has been
utilized or not, within the prescribed period,
might not, on expiry of the stipulated period,
automatically come in the knowledge of the
enforcement directorate or the prosecuting
agency as it would depend on the mode and the
manner in which the information is shared with
the relevant authorities. Thus, whether the
enforcement
directorate
was
lethargic
in
prosecuting the defaulter is pure question of
fact and cannot be the basis of quashing a
show-cause notice at the threshold, which
otherwise discloses all the ingredients necessary
for initiated proceedings under FEMA. (Para 19,
20)

Writ Petition Rejected. (E-10)

List of Cases cited:

## Text

1028 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)09ILR A1028
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE RAVI NATH TILHARI, J.

Writ C No. 494 of 2021

M/s Fiserv India Private Ltd., Noida
 ...Petitioner
Versus
The
Assist.
Director,
Directorate
of
Enforcement, Zonal Office, Lucknow, Govt.
of India & Anr. ...Respondents

Counsel for the Petitioner:
Sri Rahul Agrawal

Counsel for the Respondents:
C.S.C.

A. Company Law - Foreign Exchange
Management Act, 1999 - Section 13 -
Foreign
Exchange
Management
(Adjudication Proceedings and Appeal)
Rules, 2000: Rule 4

Initially, in the present case, the company was
incorporated as M/s Results India Systems
Private Limited and later on acquired by Fiserv
Group. To which the Court observed that it is
not the case that the M/s Results India stood
liquidated and changed its name and therefore
the control of the company was taken over by
different group. The company is a body
corporate
notwithstanding
change
of
its
management
its
existence
continues.
Therefore, in the eyes of the law, the legal
person committed the contravention of the
provisions of the FEMA with continued even
after changing its name. (Para 18)

The proceedings against the petitioner company
have been initiated in respect of not utilizing,
within
stipulated
period,
certain
export
advances. As utilization of those advances might
have to be proved by submitting information
and documents to the authorized dealer i.e., the
Bank, whether any export advance has been
utilized or not, within the prescribed period,
might not, on expiry of the stipulated period,
automatically come in the knowledge of the
enforcement directorate or the prosecuting
agency as it would depend on the mode and the
manner in which the information is shared with
the relevant authorities. Thus, whether the
enforcement
directorate
was
lethargic
in
prosecuting the defaulter is pure question of
fact and cannot be the basis of quashing a
show-cause notice at the threshold, which
otherwise discloses all the ingredients necessary
for initiated proceedings under FEMA. (Para 19,
20)

Writ Petition Rejected. (E-10)

List of Cases cited:

1. Adjudicating Officer, Securities and Exchange
Board of India Vs Bhavesh Pabari (2019) 5 SCC
90

2. Joint Collector Ranga Reddy District & anr. Vs
D. Narsingh Rao & ors. (2015) 3 SCC 695
(distinguished)

3. Sanghvi Reconditioners Pvt. Ltd. Vs U.O.I. &
ors. MANU/MH/3805/2017 (distinguished)

4. Shrish Harshvardhan Shah Vs Deputy
Director,
E.D.

MANU/MH/0635/2010
(distinguished)

5. M/s Keshav Marble and Granites Vs U.O.I.
S.B. Civil Writ Petition No. 12937of 2020

(Delivered by Hon'ble Manoj Misra, J.)

1. By this petition the petitioner has
sought quashing of a show cause notice
dated 30th September 2020 issued by the
Assistant
Director,
Directorate
of
Enforcement, Zonal Office, Lucknow (first
respondent)
thereby
calling
for
an
explanation
from
the
noticee
(the
petitioner)
as
to
why
adjudication
9 All M/s Fiserv India Private Ltd., Noida Vs. The Assist. Director, Directorate of Enforcement,
 Zonal Office, Lucknow, Govt. of India & Anr.
1029
proceeding as contemplated in Section 13
of the Foreign Exchange Management Act,
1999 (for short FEMA) be not held against
it in the manner as provided in Rule 4 of
the
Foreign
Exchange
Management
(Adjudication Proceedings and Appeal)
Rules, 2000 (as amended), read with rules
and regulations made thereunder and as to
why penalty as provided under Section 13
(1) of FEMA be not imposed for the
contraventions
as
brought
under
the
complaint.

2. Before noticing and addressing the
issues raised it would be apposite to briefly
notice the background facts of the case, as
could be elicited from the petition -

(i) The petitioner is a private
limited company incorporated under the
Companies Act with its registered office at
NOIDA.

(ii) The company had been
engaged in the business of software
development and export of computer &
business support services. Initially, the
company was incorporated as M/s. Results
India Systems Private Limited but as it was
acquired by Fiserv Group (based in U.S.A.)
in the year 2004, with effect from
24.11.2005, the name of the company was
changed to Fiserv India Private Limited.

(iii)
On
17.08.2017,
under
Section 37 of FEMA, 1999, read with
Section 133(6) of the Income-Tax Act,
1961, a notice was issued to the petitioner
requiring it to furnish information along
with documentary evidence for not utilising
certain
export
advances
within
the
stipulated period which the petitioner
received through its authorised dealer i.e.
ICICI
Bank
Ltd.
According
to
the
petitioner, this notice was never served
upon it but, subsequently, the petitioner got
it as an annexure with the impugned show
cause notice.

(iv) On 05.12.2017, the first
respondent sent another letter to the
petitioner requiring the petitioner to furnish
information
along
with
documentary
evidence in respect of not utilising, within
stipulated period, 16 export advances that
were received by the petitioner through its
authorised dealer during financial years
2003-04 and 2004-05.

(v) The petitioner acknowledged
the said notice vide letter dated 19.12.2017
and sought two months time to collate
relevant
documents
and
information
required by the first respondent.

(vi) On 07.03.2018, the petitioner
received a reminder letter dated 26.02.2018
from the first respondent, by way of last
opportunity,
to
submit
the
required
information/documents to which, vide letter
dated 14.03.2018, the petitioner replied by
claiming that there were no export
advances outstanding in the books of
accounts of the petitioner at the end of
financial year 2003-04 and 2004-05.
However,
as
the
documents
and
information sought were from a period 13
years ago, further time was sought to
substantiate the defence and make further
submissions.

(vii) Thereafter, on 12.04.2018,
the petitioner vide letter to the first
respondent reiterated its position that there
were no non-utilised advances outstanding
in petitioner's books of accounts. The
petitioner also submitted that the details
sought by the first respondent related to a
very
old
period
and
as
relevant
employee/officers of the petitioner were no
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
more in petitioner's employment, hence, the
petitioner was handicapped in providing
details/information of such old transactions.
The petitioner also cited certain judicial
pronouncements so as to contend that
where no period of limitation is provided
for
initiation
of
proceedings,
the
proceedings could only be initiated within a
reasonable time.

(viii) On 30.09.2020, in exercise
of power under section 16(3) FEMA, a
complaint was filed against the petitioner.
As per paragraph 2 thereof, the basis of the
complaint was a report received from ICICI
Bank (authorised dealer) giving details of
10 export advances, amounting to Rs.
1,83,52,635,
which
were
pending
utilisation beyond stipulated period and
with respect to which inward remittances
were received into the account of the
petitioner, but requisite documents were
not submitted to the authorised dealer to
substantiate
actual
export
of
goods/
services/ software. In paragraph 5 of the
complaint it was mentioned that vide letter
dated 18.10.2017 an updated list was
provided by the ICICI Bank of 16 export
advances
(including
the
10
reported
initially)
pending
utilisation
by
the
petitioner bringing the total amount of unutilised advances to Rs.1,96,98,815.67.
Thus, alleging that the company had
contravened the provisions of FEMA and
the person responsible is liable to be
punished under section 7(3) of FEMA read
with Regulations 10 and 16 of Foreign
Exchange Management (Export of Goods
and Services) Regulation, 2000, complaint
was filed.

(ix) On filing of the said
complaint, the first respondent issued
impugned show cause notice bearing No.
T-4/18/FEMA/LKZO/2020/AD(RV)/2717
dated 30.09.2020, annexing the complaint
therewith and calling upon the petitioner to
show cause in writing, within 30 days from
the date of receipt of the notice, as to why
adjudication proceedings as contemplated
in Section 13 of FEMA should not be held
against the petitioner, in the manner as
provided in Rule (4) of the Foreign
Exchange
Management
(Adjudication
Proceedings and Appeal) Rules, 2000 (as
amended) read with rules and regulations
made thereunder, and as to why penalty as
provided under Section 13(1) of FEMA be
not imposed on him for the contraventions
as set out in the complaint.

3. Sri Shashi Nandan, learned senior
counsel, assisted by Sri Rahul Agarwal,
appearing for the petitioner, urged that
although section 7 of FEMA requires every
exporter of goods to furnish certain
information as specified therein and non
furnishing of that information may result in
a penalty under Section 13 of FEMA but
for initiating proceeding for imposition of
such penalty, a complaint has to be filed
before the Adjudicating Authority, under
Section
16(3)
of
FEMA,
within
a
reasonable period of such contravention,
even though no specific period of limitation
for filing such complaint has been provided
by FEMA. He submitted that the notice
dated 17.08.2017 and the subsequent notice
dated 05.12.2017 issued to the petitioner
company by the first respondent does not
disclose the date as to when the Directorate
of Enforcement came to know of nonutilisation of export advances taken by the
petitioner company. It has been urged that
in absence of disclosure of the date as to
when information with regard to nonutilisation of export advances taken by the
petitioner company was received by the
Directorate of Enforcement, the notice is
defective as it fails to disclose as to when
9 All M/s Fiserv India Private Ltd., Noida Vs. The Assist. Director, Directorate of Enforcement,
 Zonal Office, Lucknow, Govt. of India & Anr.
1031
the cause of action arose to initiate the
proceeding,
under
the
circumstances,
considering that the notice deals with
alleged contravention that took place more
than ten years ago, it is much beyond the
reasonable period for commencement of
the adjudication proceedings, resulting in
serious prejudice to the right of the
petitioner to defend itself, hence, the show
cause notice, initiating penal proceeding, at
such a belated stage, is liable to be
quashed.

4.

To
support
the
aforesaid
submissions, the learned counsel for the
petitioner has placed reliance on the
following decisions:-

(i)
Adjudicating
Officer,
Securities and Exchange Board of India v.
Bhavesh Pabari : (2019) 5 SCC 90;

(ii) Joint Collector Ranga Reddy
District and another v. D. Narsingh Rao
and others : (2015) 3 SCC 695 (paragraph
32 thereof);

(iii) Sanghvi Reconditioners Pvt.
Ltd. v. Union of India and Ors., decided
on 12.12.2017 by High Court of Bombay,
reported in MANU/MH/3805/2017;

(iv) Shirish Harshavadan Shah
v. Deputy Director, E.D., decided on
28.01.2020 by High Court of Bombay,
reported
in
MANU/MH/0635/2010
Equivalent to 2010 (254) ELT 259 (Bom.);
and

(v) An interim order dated
20.11.2020 passed by Jaipur Bench of
Rajasthan High Court in S.B. Civil Writ
Petition No. 12937 of 2020 (M/s. Keshav
Marble and Granites v. Union of India
and another).

5.

We
have
considered
the
submissions of the learned counsel for the
petitioner and have perused the petition
carefully.

6. Before we address the submissions
advanced, it would be apposite to notice the
relevant provisions of FEMA. FEMA was
enacted as an Act to consolidate and amend
the law relating to foreign exchange with
the objective of facilitating external trade
and payments and for promoting the
orderly development and maintenance of
foreign exchange market in India.

7 . Section 3 of FEMA, 1999, inter
alia, provides that save as otherwise
provided in the Act, rules or regulations
made thereunder, or with the general or
special permission of the Reserve Bank, no
person shall deal in or transfer any foreign
exchange or foreign security to any person
not being an authorised person. Clause (c)
of section 3 of FEMA, 1999 further
mandates that no person shall receive
otherwise through an authorised person,
any payment by order or on behalf of any
person resident outside India in any
manner.

8. Section 2 (c) defines authorised
person as follows:-

"Authorised person" means an
authorised dealer, money changer, offshore banking unit or any other person for
the time being authorised under sub-section
(1) of section 10 to deal in foreign
exchange or foreign securities."

9. Section 7 casts certain obligations
on exporters of goods and services. Subsection (3) of section 7 provides that every
exporter of services shall furnish to the
Reserve Bank or to such other authorities a
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration in such form and in such
manner as may be specified, containing the
true and correct material particulars in
relation to payment for such services. Subsection (1) of section 7 casts a similar duty
on exporter of goods.

10. Section 10 of FEMA, 1999, inter
alia, provides in respect of authorisation of
any person to be known as authorised
person to deal in foreign exchange or in
foreign securities, as an authorised dealer,
money changer or off-shore banking unit or
in any other manner as it deems fit. Subsection (2) of section 10 confers power on
the
Reserve
Bank
to
make
such
authorisation subject to conditions laid
down therein and sub-section (4) thereof,
inter alia, casts a duty on the authorised
person to comply with such general or
special directions or orders as the Reserve
Bank may, from time to time, think fit to
give.

11. Sub-section (5) of section 10, inter
alia, enables an authorised person, before
undertaking any transaction in foreign
exchange on behalf of any person, to
require
that
person
to
make
such
declaration and to give such information as
will reasonably satisfy him that the
transaction will not involve, and is not
designed
for
the
purpose
of
any
contravention or evasion of the provisions
of this Act or of any rule, regulation,
notification, direction or order made
thereunder.

12. Sub-section (6) of section 10, inter
alia, provides that any person, other than an
authorised person, who has acquired or
purchased foreign exchange for any purpose
mentioned in the declaration made by him to
authorised person under sub-section (5) does
not use it for such purpose or does not
surrender it to authorised person within the
specified period or uses the foreign exchange
so acquired or purchased for any other
purpose for which purchase or acquisition of
foreign exchange is not permissible under the
provisions of the Act or the rules or
regulations or direction or order made
thereunder
shall
be
deemed
to
have
committed contravention of the provisions of
the Act for the purpose of this section.

13. Section 11 of FEMA, 1999, inter
alia, empowers the Reserve Bank to issue
directions to authorised person for the
purpose of securing compliance with the
provisions of the Act and of any rules,
regulations, notifications or directions made
thereunder. Sub-section (2) of section 11
empowers the Reserve Bank to direct any
authorised
person
to
furnish
such
information, in such manner, as it deems fit
for the purpose of ensuring compliance of the
provisions of the Act or of any rule,
regulation, notification, direction or order
made thereunder. Sub-section (3) of section
11 confers power on Reserve Bank of India
to impose penalty on the authorised person in
the event of contravention of any such
direction. Section 12 empowers Reserve
Bank of India to inspect the authorised
person.

14. Section 13 of FEMA, 1999 provides
for the penalties. It, inter alia, provides that if
any person contravenes any provision of the
Act, or contravenes any rule, regulation,
notification, direction or order issued in
exercise of the powers under the Act, or
contravenes any condition subject to which
an authorisation is issued by the Reserve
Bank, he shall, upon adjudication, be liable to
penalty.

15. Section 16 of the Act deals with
appointment of Adjudicating Authority and
9 All M/s Fiserv India Private Ltd., Noida Vs. The Assist. Director, Directorate of Enforcement,
 Zonal Office, Lucknow, Govt. of India & Anr.
1033
the process of adjudication on any
complaint in writing made by any officer
authorised by a general or special order by
the Central Government.

16. We have neither been taken
through nor we could find any provision in
FEMA which may provide a limitation for
initiation of the adjudicatory proceeding for
imposition of penalty. No doubt, where no
provision of limitation is provided then the
action is to be taken within a reasonable
period. But as to what would be the
reasonable period is to depend upon the
facts and circumstances of each case, the
nature of the Statute, prejudice caused and
whether third party rights have been
created, etc.

17.

In
the
instant
case,
the
proceedings are against a company. Section
42 of FEMA specifically provides that
where a person committing a contravention
of any of the provisions of the Act or of
any
rule,
direction
or
order
made
thereunder is a company, every person
who, at the time the contravention 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 contravention and shall be liable to
be
proceeded
against
and
punished
accordingly.
Provided
that
nothing
contained in that section would render any
such person liable to punishment if he
proves that the contravention took place
without his knowledge or that he exercised
all
due
diligence
to
prevent
such
contravention.

18. From the averments made in the
petition, it does not appear that erstwhile
company, namely, M/s. Results India
Systems Pvt. Ltd., stood liquidated or
dissolved though it appears from the
pleadings that the control of the company
was taken over by a different group and
consequent thereto its name was changed.
As the company is a body corporate
notwithstanding change of its management
its existence continues. Thus, in the eyes of
law, the legal person that committed
contravention of the provisions of the
FEMA continues to exist albeit with a
changed name. As to who had been
responsible for the affairs of the company
at the given time is a matter of evidence
and that issue can be raised and even set up
as a defence in the proceedings pursuant to
the complaint.

19. The proceedings against the
petitioner company have been initiated in
respect of not utilising, within stipulated
period,
certain
export
advances.
As
utilisation of those advances might have to
be proved by submitting information and
documents to the authorised dealer i.e the
Bank, whether any export advance has been
utilised or not, within the prescribed period,
might not, on expiry of the stipulated
period,
automatically
come
in
the
knowledge of the enforcement directorate
or the prosecuting agency as it would
depend on the mode and the manner in
which the information is shared with the
relevant authorities. Thus, whether the
prosecuting agency or the enforcement
directorate had been unduly lethargic in
prosecuting the defaulter is a pure question
of fact which cannot be made basis to
quash a show-cause notice at the threshold,
which,
otherwise,
coupled
with
the
complaint, discloses all the necessary
ingredients with regard to contravention of
the
provisions
of
FEMA
warranting
adjudicatory proceedings. More so, when
the primary duty of furnishing information
is on the person who takes export advance
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
and secondary duty, might perhaps be, of
the
authorised
dealer
to
share
the
information with the relevant authorities.
Only when information is received by the
prosecuting agency, which in the present
case
would
be
the
Directorate
of
Enforcement, that proceedings for penalty
might be initiated.

20. The contention of the learned
counsel for the petitioner that neither in the
investigation process nor in the show cause
notice, the date of receipt of information
with regard to contravention of the
provisions of FEMA has been mentioned,
therefore, the show cause notice is liable to
be quashed because it fails to disclose a
jurisdictional fact, cannot be accepted
because
FEMA
and
the
Rules
and
Regulations framed thereunder do not fix a
time limit within which the proceeding is to
be initiated. Under the circumstances, it
cannot be said that the show cause notice
fails to disclose a jurisdictional fact
necessary
to
commence
adjudicatory
proceeding. Rather, the jurisdictional facts
necessary
to
bring
adjudicatory
proceedings under FEMA, for imposition
of penalty, have been adequately disclosed
in the impugned notice coupled with the
complaint by alleging that the fact of
utilisation of specified export advances
within the specified period was not
provided by the noticee by furnishing
requisite information within the stipulated
period. Hence, in our considered view, the
notice does not suffer from any such
fundamental defect which may warrant its
quashment at the threshold.

21. Now, we shall examine the
decisions cited by the learned counsel for
the petitioner. In Sanghvi Reconditioners
Pvt. Ltd.(supra), in a matter arising out of
Customs Act, the Bombay High Court had
closed the proceedings by taking notice of
the fact that the Revenue/Department was
not able to justify its failure to adjudicate
upon a show cause notice for more than 15
years. In that case, a show cause notice was
issued on 28th March 2002. The same was
replied by the petitioner on 14th September
2002. The petitioner was called for
personal hearing in the year 2004 but,
thereafter, there was no communication
from the respondents. As the respondents
had slept over their right and took no steps
for as long as 15 years, despite submission
of reply, the proceedings were closed.

22. In the instant case, information
was sought from the petitioner in the year
2017 and when, despite letters, information
was not provided and a prima facie case
with regard to contravention of the
provisions of FEMA, 1999 was made out, a
complaint was filed in the year 2020 on
which the impugned notice has been issued.
The facts of the present case are therefore
totally distinguishable from those which
were there before the Bombay High Court
in the case of Sanghvi Reconditioners Pvt.
Ltd. (supra).

23. Similarly, in the case of Shirish
Harshavadan Shah (supra), which arose
out of Foreign Exchange Regulation Act,
1947 and FEMA, 1999, the facts before the
Bombay High Court were that consequent
to search operations in the month of March,
1990, a memorandum dated 18th March
1991 relating to acts and omission
chargeable under the Acts was drawn
arising out of certain work carried out by
the company in the year, 1982, whereas,
notice for hearing on the memorandum was
issued to the company and its Director in
the month of January, 2004. In those facts,
the Bombay High Court took the view that
as for a period of 12 years no steps were
9 All M/s Fiserv India Private Ltd., Noida Vs. The Assist. Director, Directorate of Enforcement,
 Zonal Office, Lucknow, Govt. of India & Anr.
1035
taken by the respondent to proceed with the
adjudication, such a belated proceeding
was liable to be quashed.

24 . The facts of the instant case are
clearly distinguishable from that case
inasmuch
as
here,
after
receipt
of
information in respect of contravention of
the provisions of FEMA, 1999, notice was
issued
calling
for
information
and,
thereafter, within 3 years, a complaint was
filed and impugned notice was issued soon
thereafter.

25 . In Adjudicating Officer, Securities
and Exchange Board of India (supra), the
apex court in paragraph 35 of its judgment
had not taken any specific decision to close
the proceeding on the ground of delay but it
only reiterated the general legal principle
that when for taking certain action the
period of limitation is not prescribed, then
such action must be taken within a
reasonable time. As to what would be the
reasonable time would depend upon the
facts and circumstances of the case, nature
of the default/statute, prejudice caused,
whether the third party rights had been
created, etc.

26. In the instant case, as we have
already noticed, the information in respect
of default by the petitioner company cannot
be deemed to be with the Directorate of
Enforcement, that is the prosecuting
agency, therefore, the reasonable period to
commence the adjudicatory proceeding
would be counted from the date when that
information
was
received
by
the
prosecuting agency. As this is a pure
question of fact and it is not shown to us
that the default had been in the knowledge
of the prosecuting agency far in excess of
the reasonable period, the issue whether
there had been an unreasonable delay in
drawing adjudicatory proceeding would
have to be raised and dealt with at the
appropriate stage of the adjudicatory
proceeding and not at this stage, while
addressing a challenge to the show cause
notice because the show cause notice, by
disclosing the institution of the complaint
and specifying the contravention of the
provisions of FEMA, discloses all the
necessary requirements to warrant initiation
of adjudicatory proceeding against the
petitioner.

27. Another submission of the learned
counsel for the petitioner is that in Joint
Collector Ranga Reddy District and
another (supra), the apex court in
paragraph 32 of its judgment had observed
that the notice to initiate proceeding for
correction of fraudulent entries ought to
have disclosed as to when the alleged fraud
was discovered by the State therefore,
applying that principle, the impugned show
cause notice, which fails to disclose the
date of receipt of information with regard
to contravention of the provisions of
FEMA, 1999, is liable to be quashed.

28. Upon a careful perusal of the
judgment of the apex court in Joint
Collector Ranga Reddy District and
another (supra), it appears that the apex
court in that case was dealing with a case
where the entries in revenue records were
long standing and in public domain and
made by Government employees therefore
it could be presumed that the entries were
made in ordinary course of official
business. But, by exercising revisional
power suo-motu, long standing entries were
sought to be corrected. In that fact scenerio,
the
Apex
Court
finding
the
delay
inordinate, in absence of any explanation in
the notice, held the delay fatal to the
proceeding. In our view, the decision of the
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
apex court in Joint Collector Ranga Reddy
District and another (supra) is on entirely
different set of facts because there the
information of incorrect entries was in
public domain and with the authorities, as
custodian of the records, who sought their
correction, whereas in the instant case the
information
with
regard
to
nonreconciliation of the export advances was
either with the authorised dealer or with the
noticee itself and not with the Enforcement
Directorate or the complainant, therefore
the principle of law laid down by the apex
court in Joint Collector Ranga Reddy
District and another (supra) would not
come to the aid of the petitioner in
maintaining a challenge to the show cause
notice.

29. In view of the discussion made
above, as we find that the complaint
discloses all the necessary ingredients to
make out a prima facie case with regard to
contravention of the provisions of FEMA,
the impugned show cause notice issued for
adjudication of that complaint does not
suffer from any legal infirmity which may
justify its quashing, as has been prayed for.
The petition is dismissed.

30. It is made clear that dismissal of
this petition and any observation made in
this order will not prejudice the right of the
petitioner to set up its defence, as may be
advised,
to
the
notice
and
in
the
adjudicatory proceeding.
----------
(2021)09ILR A1036
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAVI NATH TILHARI, J.

Writ C No. 1037 of 2021

Dr. Mukesh Tandon ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Avneesh Tripathi, Sri Anoop Trivedi
(Senior Adv.)

Counsel for the Respondents:
C.S.C., A.S.G.I.,Sri Arvind Kumar Goswami,
Sri Arvind Kumar Singh, Sri Suryabhan
Singh, Sri Madhukar Ojha

A. Practice & Procedure - Natural Justice -
The non issuance of show cause notice to the
petitioner's hospital before passing the order of
de-empanelment and imposition of the penalty
has resulted in breach of principle of natural
justice. (Para 18)

Writ Petition Disposed of. (E-10)

List of Cases cited:

1. Uma Nath Pandey & ors. Vs St. of U.P. & anr.
(2009) 12 SCC page 40

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
& Hon'ble Ravi Nath Tilhari, J. )

1. Heard Sri Anoop Trivedi, learned
Senior Advocate, assisted by Sri Avneesh
Tripathi, learned counsel for the petitioner,
Sri Suryabhan Singh, learned Counsel for
the respondent Nos. 1 and 5, Sri Arvind
Kumar
Goswami,
learned
Central
Government Counsel for the respondent
Nos. 2 and 4 and Sri Madhukar Ojha,
learned counsel for the respondent Nos. 3,
6, and 7.

Order
on
Impleadment
Application