2019 (5) TMI 1572 - AT - Money Laundering

Offence under PMLA - prosecution complaint against the dead person - release the property seized - HELD THAT - There is no force for the respondent, the intent of the said provision is that in case the trial cannot be conducted by the reason of death of the accused or otherwise, the Special Court shall on an application moved by any party claiming to be entitled to the possession of a property in respect of which an order has been passed under sub-section (3) of section 8 of the Act in the offence of moneylaundering. Late Amlendu Pandey was not convicted in the matter. He was not charge-sheeted. As far as the mandate of sub-section 7 of section 8, no doubt, there is no dispute. However, in order to pass the order by the Special Court under the said provision, there must be a prosecution complaint against the person concerned. In the present case, the prosecution complaint has been filed against the dead person. Therefore, the complaint itself against the dead person is null void against the late Amlendu Pandey. The question of passing any order in the pending complaint against the dead person does not arise. Therefore, in the facts of the present case, the provision of sub-section 7 of section 8 cannot be revoked by the respondent in the absence of pending valid complaint against him. Admittedly, the prosecution complaint has not been filed in the above said appeal under section 8 of sub-section 3(a) of the Act even against the legal representative before the Special Court within the knowledge of the respondent. Thus, in case no action is taken under the provision of sub-section 3(a) of Section-8, the retention of seizure/ property lapses under the mandatory provisions of law. Therefore, the present appeal is allowed. The impugned order is set aside, the property

Summary

Issues Involved:
1. Legality of prosecution against a deceased person.
2. Validity of property attachment proceedings post-death of the accused.
3. Compliance with procedural requirements under the Prevention of Money Laundering Act (PMLA), 2002.

Detailed Analysis:

1. Legality of Prosecution Against a Deceased Person:
The judgment addresses the issue of whether legal proceedings can continue against a deceased individual. The appellant argued that since Amlendu Pandey expired on May 25, 2017, all proceedings against him should abate. It was contended that no prosecution complaint was filed during his lifetime, and thus, any complaint filed posthumously is not maintainable. The Tribunal referred to the Supreme Court's decision in U. Subhadramma & Ors. Vs. State of Andhra Pradesh, which underscored that prosecution cannot continue against a dead person and any findings or proceedings against a deceased are null and void. Consequently, the Tribunal held that the prosecution complaint filed on July 17, 2018, against Amlendu Pandey, who had already expired, was null and void.

2. Validity of Property Attachment Proceedings Post-Death of the Accused:
The Tribunal examined whether the attachment of property could continue after the death of Amlendu Pandey. Referring to the Supreme Court's interpretation of the Criminal Law Amendment Ordinance, 1944, it was highlighted that attachment proceedings require the existence of the person whose property is being attached. The Tribunal noted that Section 3 of the Ordinance necessitates that such applications be made concerning a living person, and therefore, attachment proceedings against a deceased person are not permissible. Additionally, the Tribunal emphasized that the presumption of innocence persists until conviction, and this presumption does not dissipate upon the death of the accused. Thus, the attachment order against Amlendu Pandey was deemed invalid.

3. Compliance with Procedural Requirements Under PMLA, 2002:
The Tribunal scrutinized the procedural adherence under PMLA, 2002. The respondent's counsel argued that under Section 8(7) of PMLA, only the Special Court could release the property. However, the Tribunal clarified that for the Special Court to pass any order, a valid prosecution complaint must exist. Since the complaint against Amlendu Pandey was filed posthumously, it was invalid, and thus, the Special Court could not act upon it. The Tribunal also noted that the statutory period for filing a complaint had expired, and no action was taken under Section 8(3)(a) of PMLA, leading to the lapse of property retention. Consequently, the Tribunal set aside the impugned order and allowed the appeal, declaring the retention of seized property as null and void.

Conclusion:
The Tribunal concluded that the prosecution complaint against the deceased Amlendu Pandey was null and void, and the attachment proceedings could not continue posthumously. The procedural requirements under PMLA were not met, leading to the lapse of property retention. The appeal was allowed, and the impugned order was set aside. No costs were awarded.