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2023 (12) TMI 528 - HC - Money LaunderingMoney Laundering - proceeds of crime - double jeopardy - prosecuting the person accused of an offence under Section 13(1)(e) of the Prevention of corruption Act and for an offence u/s 3 of PMLA - mandatory inquiry under Section 202 (2) Cr.P.C., not conducted, before issuing the summons - HELD THAT - The point raised by the petitioner has been answered by the Hon'ble Supreme Court in Vijay Madan Lal Choudhary's case 2022 (7) TMI 1316 - SUPREME COURT case where it was held that the offence under the PMLA is a distinct offence and it concerns only with the proceeds of crime which had been derived as a result of the criminal activity in relation to a scheduled offence. Therefore, the possession of proceeds of a crime is still an offence and therefore, is not hit by Article 20(1) of the Constitution of India - the question whether the petitioner has indulged in dealing with the proceeds of the crime (scheduled offence) is factual and is a matter for trial. Whether the prosecuting the petitioner for an offence under Section 3 of the PMLA would amount to double jeopardy? - HELD THAT - The offence under Section 13(1)(e) PC Act, which is possession of disproportionate assets, can arise even if a public servant spends the entire money derived illegally while holding office as a public servant. However, the ingredients of the offence under Section 3 of the PMLA are different - The ingredients of Section 3 of PMLA would indicate that the offence under Section 3 of PMLA has nothing to do with the criminal activity / commission of a scheduled offence. If a person indulges or continues to indulge in dealing with proceeds of crime, he is liable to be prosecuted under the PMLA. Even in the case of holding disproportionate assets punishable under Section 13(1)(e) of the PC Act, if the offender continues to possess or conceal the proceeds of crime, after the check period, the offence of money laundering is made out. Therefore, the two offences are distinct and different and it cannot be said that the offence under PMLA is subsumed within the PC Act - the submission of the learned counsel for the petitioner that prosecuting the person accused of an offence under Section 13(1)(e) of the PC Act and for an offence under Section 3 of PMLA would amount to double jeopardy, is untenable. Both the reasons cited by the learned counsel for the petitioner for issuance of a certificate for appeal to the Hon'ble Supreme Court, are not sustainable. The instant case does not involve any unanswered substantial question of law and hence, we are not inclined to grant the certificate for appeal, as prayed for by the learned counsel for the petitioner. As regards the Criminal Original Petition, the primary contention of the learned counsel for the petitioner is that Section 202 (2) Cr.P.C was not followed because the Special Court is deemed to be a sessions Court - this argument cannot be countenanced. Section 44 of PMLA is an exception to Section 190 of Cr.P.C., which provides for cognizance only by the Magistrate. Section 193 of Cr.P.C., provides that the Sessions Court can take cognizance of any case only if the Code or any other law permits it to do so. Both the Criminal Revision Case and the Criminal Original Petition are liable to be dismissed and accordingly, dismissed.
Issues Involved:
1. Challenge to the dismissal of the discharge petition. 2. Challenge to the order of summons. 3. Request for issuance of a certificate for appeal to the Supreme Court. 4. Argument on double jeopardy. 5. Compliance with Section 202(2) Cr.P.C. Summary: 1. Challenge to the Dismissal of the Discharge Petition: The petitioner challenged the order dated 10.08.2023 dismissing his discharge petition related to charges under Sections 3 and 4 of the Prevention of Money Laundering Act (PMLA). The petitioner argued that since the offence under Section 13(1)(e) of the Prevention of Corruption Act (PC Act) became a scheduled offence only in 2009, his pre-2009 actions could not be treated as proceeds of crime under PMLA. The trial court, referencing the Supreme Court's decision in Vijay Madan Lal Choudary vs. Union of India, held that the PMLA offence is distinct and concerns only with the proceeds of crime derived from a scheduled offence, making the petitioner's argument untenable. 2. Challenge to the Order of Summons: The petitioner also challenged the summons issued on 11.04.2022. He initially argued that no complaint was filed by the respondent, but later conceded that a complaint had been filed. He further contended that the Special Court did not conduct the mandatory inquiry under Section 202(2) Cr.P.C. before issuing the summons, citing Supreme Court judgments in Anil Kumar vs. M.K.Aiyappa and Rosy vs. State of Kerala. 3. Request for Issuance of a Certificate for Appeal to the Supreme Court: The petitioner sought a certificate for appeal to the Supreme Court under Article 134(A)(b) of the Constitution, arguing that a review petition was pending in the Supreme Court regarding the Vijay Madan Lal Choudary judgment and citing a contrary judgment in Union of India vs. Ganpati Dealcom Pvt. Ltd. The court denied this request, stating that the issue was already settled by the Supreme Court and that the facts of Ganpati Dealcom's case were not comparable. 4. Argument on Double Jeopardy: The petitioner argued that prosecuting him under both the PC Act and PMLA amounted to double jeopardy. The court rejected this argument, explaining that the offences under Section 13(1)(e) of the PC Act and Section 3 of PMLA are distinct. The former pertains to the possession of disproportionate assets, while the latter involves dealing with the proceeds of crime. Thus, prosecuting under both statutes does not constitute double jeopardy. 5. Compliance with Section 202(2) Cr.P.C.: The court addressed the petitioner's contention that the Special Court did not follow Section 202(2) Cr.P.C. The court clarified that Section 44 of PMLA provides a separate procedure for Special Courts, allowing them to take cognizance without committal proceedings. Therefore, Section 202(2) Cr.P.C., which applies to Magistrates, is not applicable to Special Courts under PMLA. Conclusion: Both the Criminal Revision Case and the Criminal Original Petition were dismissed, and the connected Criminal Miscellaneous Petitions were closed.
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