Order
1. Mr K.K Venugopal, learned Senior Counsel appearing on behalf of the appellants, raised several contentions in support of the appeal; one of them being that having regard to the fact that as the offence is said to have been committed by a company; and as in terms of Section 56 of the Foreign Exchange Regulation Act, 1973 (for short “the Act”), the punishment of mandatory imprisonment has to be imposed; no criminal proceedings can be initiated against the company and in that view of the matter, the company as well as the person referred to in sub-sections (1) and (2) of Section 68 thereof cannot be proceeded with.
2. In support of the said contention reliance has been placed on a recent three-Judge Bench decision of this Court in Asstt. Commr. v. Velliappa Textiles Ltd. (2003) 11 SCC 405 We do not prima facie agree with the ratio laid down in Velliappa Textiles (2003) 11 SCC 405.
3. In this case the Company is the “authorised dealer” within the meaning of Section 2(b) of the Act. The authorised dealer indisputably is required to comply with the statutory requirements contained in Sections 8, 9 and 49 of the Act read with Chapter X of the RBI Manual. The contraventions of the provisions of the Act having allegedly taken place at the hands of the authorised dealer, that is, Appellant 1, and, thus, although it is a company it is liable to be proceeded against. Section 56 of the Act provides for different punishments for commission of different offences. It is true that in an offence of this nature a mandatory punishment has been provided for but offences falling under other part of the said section do not call for mandatory imprisonment. Section 56 of the Act covers both cases where an offender can be punished with imprisonment or fine and a mandatory provision of imprisonment and fine. In the event it is held that a case involving graver offence allegedly committed by a company and consequently, the persons who are in charge of the affairs of the company as also the other persons, cannot be proceeded against, only because the company cannot be sentenced to imprisonment, in our opinion, the same would not only lead to reverse discrimination but also go against the legislative intent. The intention of Parliament is to identify the offender and bring him to book.
4. In order to make the statute workable, the court should thus take recourse to such principles of interpretation of statute as may be necessary, keeping in view the doctrine of ut res magis valeat quam pereat.
5. In that view of the matter, upon taking recourse to the principle of purposive construction as has been held by a three-Judge Bench of this Court in Balram Kumawat v. Union of India (2003) 7 SCC 628 an attempt should be made to make Section 56 of the Act workable. It is possible to read down the provisions of Section 56 to the effect that when a company is tried for commission of an offence under the Act, a judgment of conviction may be passed against it, but having regard to the fact that it is a juristic person, no punishment of mandatory imprisonment can be imposed.
6. Furthermore, even if the company cannot be punished, the same may not mean that the other persons referred to under sub-sections (1) and (2) of Section 68 cannot also be punished.
7. We may at this juncture notice that Mr Malhotra, learned Additional Solicitor General appearing for the respondents submitted that a judgment of conviction and an order of sentence pertain to two different stages of the trial. Learned counsel in support of the said contention drew our attention to Section 69 of the Act which provides for certain consequences on passing of an order of conviction and submitted that because the sentence of imprisonment cannot be imposed upon the company, the same may not mean that the company cannot be convicted.
8. We are of the opinion that the correctness of the decision of this Court in Velliappa Textiles (2003) 11 SCC 405 requires reconsideration by a Constitution Bench, and, thus the matters are referred to a Constitution Bench for an authoritative pronouncement on the subject. Records be placed before the Hon'ble the Chief Justice of India for appropriate orders.