In the High Court of Judicature at Madras Date :: 13..07..2010 Coram : The Hon'ble Mr. Justice V. Dhanapalan Writ Petition Nos: 15059 and 15060 of 2010 G.K. Muralikrishna Managing Director Helios & Matheson Information Technology Ltd. Adwave Towers, No: 9, South Boag Road, ... Petitioner in W.P. T. Nagar, Chennai – 17. No: 15059 of 2010 V. Ramachandran Adwave Towers, No: 9, South Boag Road, ... Petitioner in W.P. T. Nagar, Chennai – 17. No: 15060 of 2010 -vs- 1. The Special Director Directorate of Enforcement 6th floor, Lak Nayak Bhavan Khan Market, New Delhi – 110 003. 2. The Deputy Director, Directorate of Enforcement Shasthri Bhavan, 26, Haddows Road, ... Respondents in both Chennai – 600 006. the writ petitions .. .. .. Writ petitions under Article 226 of the Constitution of India praying for issuance of a writ of certiorari calling for the records pertaining to the proceedings of the 1st respondent in Proc. No: T- 4/01-CHE/2010 dated 21.01.2010 and quash the same. 1 https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr. T.S. Sridharan for M/s. Pais Lobo and Alvares For respondents : Mr. M. Ravindran Addl. Solicitor General of India for Mr. M. Dhandapani, A.G.P. C O M M O N O R D E R Heard Mr. T.S. Sridharan learned counsel appearing for both the writ petitioner and Mr. M. Ravindran, learned Additional Solicitor General of India appearing for Mr. M. Dhandapani, learned Additional Government Pleader who takes notice for the respondents. What is challenged in these writ petitions is a show cause notice dated 21.01.2010 issued by the adjudicating authority namely the 1st respondent herein. 2. Petitioner in W.P. No: 15059 of 2010 is the Managing Director of the Company by name M/s. Helios and Matheson Information Technology Ltd., a Public Limited Company, hereinafter referred to as "H & M.I.T.L.", and the petitioner in W.P. No: 15060 of 2010 is the former Chairman of the said Company. It is petitioners' case that the contravention alleged to have been committed by the petitioner in furnishing the bank guarantee to a non resident was on the ground of applicability of Section 6 (3) (1) (J) of the Foreign Exchange Management Act, hereinafter referred to as FEMA, is not sustainable in law and the issue of guarantee by a resident in India to a non-resident is permissible under Section 6 (2) of the said Act and the regulations made thereunder. The company H & M.I.T.L., in order to expand its business activities agreed to purchase 100% shares of vMoksha entities and on 11.05.2005 entered into a share purchase agreement, subscription agreement and Escrow agreement with vMoksha Technologies Ltd., Mauritius and 7 others. As per the terms of their share purchase agreement a like amount will be retransferred to the petitioner company which in turn will issue its redeemable preference shares in favour of vMoksha, Mauritius which will be redeemed 18 months from the date of the issue. For the above share purchase agreement M/s. Price Waterhouse Coopers Pvt. Ltd. acted as advisers to the transaction. vMoksha deposited the original share certificate and the share transfer form duly signed with the Escrow agents as per the terms of the agreement. The terms of the share purchase agreement provides that the petitioner shall apply and secure the approval from the Foreign Investment Promotion Board for the said investment in non- convertible preference shares in the Company by a non resident. The 2 https://hcservices.ecourts.gov.in/hcservices/ Government of India, in its proceedings dated 20.06.2005 granted approval for the aforesaid collaboration agreement subject to the condition that the consideration for the investment will be paid out of the inward remittance of foreign exchange through normal banking channels and to follow the procedure prescribed by the Government of India in Press Note No: 9 of 99 under which foreign companies will have to bring the requisite funds from abroad and not leverage the same from the funds from the domestic market. 3. While that being so, vMoksha, Mauritius, in order to remit US $ 13.5 million equivalent to Rs. 58,37,75,195/- being the consideration for the allotment of preference shares of the petitioner, availed credit facilities from the State Bank of Mauritius at Mauritius. In order to comply with the terms of the share purchase agreement, petitioners gave a letter of lien and guarantee by both Mr. G.K.Muralikrishna and Mr.V.Ramachandran in favour of Chennai Branch of State Bank of Mauritius. The entire sum of Rs.58,37,75,185/- was remitted to the account of the petitioner company at the Chennai Branch of State Bank of Mauritius on 29.06.2005 and it was credited to the account of H & M.I.T.L. and then re-transmitted to the account of vMoksha, Mauritius, towards the consideration for the purchase of three subsidiaries of vMoksha and thereby the petitioners have fulfilled the terms and conditions of the contract and in that situation vMoksha committed breach of contract and on such account dispute arose between Rajeev Shawney and Pawan Kumar, the C.E.O. of the said company. Petitioner, therefore, initiated arbitration proceedings to resolve the disputes that arose between H & T.I.M.L. and vMoksha and the same is still pending. 4. During the pendency of the above proceedings, a complaint was made by Rajeev Sawhney against the petitioner. On that basis, the Reserve Bank of India found that except the complaint pertaining to the alleged contravention of the provisions of FEMA, the other complaints were not sustainable. Based on the above complaint, the second respondent ought to have summoned the petitioners to produce the relevant records. Without doing so, the officials of the second respondent, on 12.03.2008, who came to serve the summons, raided the Corporate Office at Nungambakkam and the Branch Office at T. Nagar simultaneously and seized certain documents relating to the contract referred to above. On 27.11.2008, petitioners made a representation stating that the letter of lien and guarantee for the retransmission of the amount which would be credited to its account at Chennai have already been done and again on 15.12.2008 by way of another representation, a clarification was made. Then it was brought to the notice of the respondents that the Provisions of Section 6 (2) of FEMA is alone applicable. 3 https://hcservices.ecourts.gov.in/hcservices/ 5. While that being so, the respondents, without considering the representations made by the petitioners, proceeded further based on the complaint made by Rajeev Sawhney and called upon the petitioners to explain the charges framed vide its letter dated 21.01.2010. Through various representations, petitioners sought for certain documents including those documents seized by the respondents from petitioner's office. But, by a letter dated 18.05.2010, the 1st respondent refused to provide any document as requested by the petitioners for the return of documents seized by them. Subsequently, the 1st respondent, by its letter dated 10.06.2010, received by the petitioners on 15.06.2010, required the petitioners to submit explanation and also fixed the date of enquiry at New Delhi either on 12.07.2010 or on 14.07.2010 or on 16.07.2010. Though the petitioners have offered their explanation by letter dated 01.07.2010, since the respondents are determined to go ahead with the enquiry without considering the representations / explanations of the petitioners, are before this Court in these writ petitions challenging the show cause notice. 6. The learned counsel for the petitioners would vehemently contend that when there is no prima facie case established before the respondents in respect of the alleged contravention of the provisions of the FEMA Act and when the petitioners have established that the guarantee was executed only at Chennai, the action of the respondents in proceeding further with the matter is unsustainable. Learned counsel appearing for the petitioners, by pointing out the provisions contained in Section 6 (2) Clause 3 (2) (d) of FEMA Act, would submit that the action of the petitioners in executing a guarantee by a person resident in India in favour of a person resident outside India is well within the permissible Capital Account Transaction prescribed by the Reserve Bank of India and hence, the provisions of Section 6 (3) (j) of FEMA is not applicable to the petitioners and that, the show cause notice issued is in contravention of the said provisions of the Act. Learned counsel for the petitioners would also add that the respondents have not responded to the request of the petitioners to return the documents seized by them from H & M.I.T.L. Office or furnished xerox copies inspite of several requests made. According to the learned counsel, by this act of the respondents which compelled the petitioners to submit their explanation only with the available records, the respondents have violated the principles of natural justice and hence, this Court has to interfere with the impugned proceedings though it is only a show cause notice. 7. Mr. M. Ravindran, learned Additional Solicitor General, appearing for the respondents would, at the outset, raise the question of maintainability of the writ petitions filed challenging the show cause notice issued. He would submit that the petitioners 4 https://hcservices.ecourts.gov.in/hcservices/ having offered their detailed explanation on 01.07.2010 cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India. 8. I have heard the learned counsel on either side at length and perused the materials available on record. It is the case of the petitioners that the respondents have issued the impugned show cause notice in contravention of the Provisions of Section 6 (2) of the FEMA Act and that the respondents have violated the principles of natural justice by refusing to either furnish or return the documents seized by them from the office of H & T.I.M.L., thereby much prejudice had been caused to the petitioners by compelling them to offer their explanation only based on the available records. On the other hand, according to the learned Additional Solicitor General, the petitioners have already offered their explanation on 01.07.2010 and only by way of providing an opportunity of personal hearing, petitioners have been called upon to appear before the respondents vide its letter dated 10.06.2010 and therefore, it cannot be said that the respondents have violated the principles of natural justice. 9. In this regard, it would be relevant to refer to the decision rendered by the Hon'ble Supreme Court in the case of Special Director vs. Mohd. Ghulam Ghouse, reported in A.I.R. 2004 Supreme Court 1467 wherein the Supreme Court held that, " 5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning the legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court." In view of the ratio laid down by the Hon'ble Supreme Court in the decision cited supra, it is clear that this Court under Article 226 5 https://hcservices.ecourts.gov.in/hcservices/ of the Constitution of India cannot interfere with the impugned show cause notice. Though the learned counsel for the petitioner very strongly contends that the respondents have violated the principles of natural justice, nothing has been brought on record to substantiate his claim. At this juncture, learned counsel appearing for the petitioner would submit that the petitioners have submitted their detailed representation to the respondents based on the documents available with them and as the respondents have refused either to return the documents seized by them from the office of H. & T.I.M.L. or to furnish the documents sought for by the petitioners, the petitioners are not in a position to state anything further in the matter. He would make a plea that if the objection of the petitioners that Section 6 (3) (j) of FEMA is not applicable and only the provisions of Section 6 (2) of FEMA will alone apply is considered by the respondents, then the grievance of the petitioners would stand redressed. 10. Considering the facts and circumstances of the case, while declining to interfere with the show cause notice impugned in these writ petitions, as the petitioners have limited the extent of their prayer in the writ petitions, without adverting into the merits and demerits of the contentions raised on either side, the respondents are hereby directed to consider petitioners' objection as to the applicability of Section 6 (3) (j) of Foreign Exchange Management Act and pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order. Both the writ petitions stand disposed of accordingly. Connected miscellaneous petitions are closed. There shall be no orders as to the costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gp 6 https://hcservices.ecourts.gov.in/hcservices/ To 1. The Special Director Directorate of Enforcement 6th floor, Lak Nayak Bhavan Khan Market, New Delhi – 110 003. 2. The Deputy Director, Directorate of Enforcement Shasthri Bhavan, 26, Haddows Road, Chennai – 600 006. +2ccs to M/s.Pais,Lobo & Alvares, SR 50259 +2ccs to Mr.M.Dhandapani, Advocate Sr 50836 MRD(CO) km/29.7. W.P. No: 15059 of 2010 and 15060 of 2010 7 https://hcservices.ecourts.gov.in/hcservices/