|
Advanced Search Options
Money Laundering - Case Laws
Showing 281 to 300 of 2027 Records
-
2024 (7) TMI 1593
Seeking grant of bail - allegations of manufacturing and distributing spurious anti-cancer drugs - anti-cancer injections were being supplied to the Petitioner, who is running a pharmacy shop in Muzaffarpur, Bihar in the name of Popular Medicine - HELD THAT:- In Prasanta Kumar Sarkar v. Ashis Chatterjee, [2010 (10) TMI 1199 - SUPREME COURT], the Apex Court has laid down the parameters for granting or refusing bail to an accused.
In the present case, the Petitioner is in custody since 13.03.2024. Charge-sheet has been filed. The evidence is primarily documentary in nature and is already in the custody of Police. Considering the fact that that the evidence is primarily documentary in nature, the possibility of the Petitioner tampering with evidence is very remote and since most of the witnesses are official witnesses, the chance of the Petitioner threatening the witnesses is also very remote.
This Court is inclined to grant bail to the Petitioner subject to fulfilment of conditions imposed - bail application allowed.
-
2024 (7) TMI 1577
Money Laundering - predicate offence - Seeking to quash the proceedings initiated by the Enforcement Directorate - inherent powers of the High Court under Section 482 of the Code of Criminal Procedure (Cr.P.C) can be invoked to quash the proceedings initiated by the ED - HELD THAT:- Concededly, the crime registered against respondent Nos. 3 to 5 has resulted in a final report referring the case as civil in nature. The final report has been accepted by the Chief Judicial Magistrate on 05.01.2024 as per Annexure A5, which is also not disputed. In view of the above, the predicate offence does not survive any more. Since the predicate offence is not in existence, the ED cannot continue its investigation on the proceeds of crime emanating out of the predicate offence. Consequently, the ED ought to have immediately closed the case. Having not done so, petitioner is justified in approaching this Court.
Section 482 Cr.P.C saves the inherent power of the High Court. The said provision clothes this Court with the power to make such orders as may be necessary to give effect to any order under the Cr.P.C to prevent abuse of the process of any Court or to even secure the ends of justice. A reading of section 482 Cr.P.C itself is sufficient to comprehend the profound extent and scope of the power vested upon this Court. Any order passed under the provisions of the Cr.P.C can be given its full effect by issuing appropriate orders under section 482 Cr.P.C. The scope of the power under section 482 Cr.P.C is not limited or constricted by the character or nature of the order under challenge. Even an administrative order can be quashed in exercise of the power under section 482 Cr.P.C, if it is required to give effect to an order issued under the Cr.P.C or if it is necessary to secure the ends of justice.
The final report in the predicate offence did not reveal the commission of any criminal offence. The order of the learned Chief Judicial Magistrate, Thrissur accepting the final report as RC.No. 73/2023 on 05.01.2024 is an order issued under the Cr.P.C. To give full effect to such an order, this Court can exercise its inherent powers to quash a proceeding, including an administrative document like the ECIR, when it continues to exist, without legal authority.
Conclusion - The existence of a predicate offence is essential for proceedings under the PML Act. The High Court has inherent powers under Section 482 Cr.P.C to quash proceedings to prevent abuse of process and secure justice.
Application allowed.
-
2024 (7) TMI 1566
Money Laundering - provisional attachment order - scheduled offence - appellant submitted that the properties attached by the respondent were acquired much prior to the alleged offence in the year 2015, and in July 2016 to January 2017 - whether the property under attachment were acquired prior to the commission of the crime? - HELD THAT:- The issue aforesaid has been dealt with by this Tribunal in the case of Ayush Kejriwal vs. The Deputy Director, Directorate of Enforcement, Kolkata, [2024 (6) TMI 451 - APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI] where it was held that 'The fact is that the property was originally belonging to the accused Nirmal Kumar Kejriwal, the grandfather of the appellant. A gift was made in the year 2020 in favour of the appellant whereas the FIR was registered in the year 2017 followed by the ECIR in the year 2019. The way property was given to the appellant has been noticed and as it was earlier belonging to one of the accused thus, the documents were seized by the respondent and we do not find any illegality in it. The words “the value of such property” does specify it to be earlier to the crime or subsequent and we can insert words “thus value of such property” would mean the property acquired prior or subsequent to the crime.'
It is not that only those properties which have been were derived or obtained directly or indirectly out of the crime can be attached rather in case of non-availability of the property derived or obtained directly or indirectly rather when it is vanished or siphoned off, the attachment can be of any property of equivalent value.
It is necessary to clarify that the proceeds of crime would not only include the property derived or obtained directly or indirectly out of the criminal activity relating to the scheduled offence but any other property of equivalent value. The word “or” has been placed before “the value of any such property” and is of great significance. Any property of equivalent value can be attached when the proceeds directly or indirectly obtained out of the crime has been vanished or siphoned off. Here,the significance would be to the property acquired even prior to commission of crime - The word “the value of any such property” signifies without any embargo that it should be the property purchased after the commission of crime or prior to it rather it would apply in both the eventuality in the given circumstance. Thus, the counsel for the appellant not agreed upon, who has questioned the attachment in reference to the property acquired prior to commission of crime.
Finding no merit in any of the issue raised, the Appeal would fail and is dismissed.
-
2024 (7) TMI 1552
Money Laundering - seeking grant of bail on medical grounds - second bail application - HELD THAT:- Since a panel of doctors headed by Dr. Jaya Nawani, HOD, Department of Psychiatry, Government Doon Medical College, Dehradun has reported that the applicant is not a Psychopathology patient and she has no signs of depression and she does not require any medication for that purpose, there is no reason to consider releasing the applicant on this ground. Therefore, the second bail application of the applicant deserves to be rejected.
The second bail application is rejected.
-
2024 (7) TMI 1525
Seeking grant of regular bail - Money laundering - proceeds of crime - wrongful sanction of 50 loans - misappropriation of public money of bank by cheating and forgery - mandatory provisions of PMLA, 2002 not followed - HELD THAT:- On going through the provisions of law and judgment passed by Apex Court in case of Vijay Mandal Choudhary Vs. Union of India and Ors. [2022 (7) TMI 1316 - SUPREME COURT], it is clear that offence under PMLA, 2002 is a separate and distinct offence. PMLA, 2002 deals with the proceeds of crime which has been obtained by accused by committing scheduled offences. Accuse possess, conceals and acquire tainted property or money claiming it to be untainted and use the proceeds of crime. Said act of accused in dealing with ill gotten money or property constitutes separate and distinct offence from earlier offence committed to get the money.
On what basis and material, reason to believe regarding guilt of applicant was formed, is not mentioned in the order. Order is accompanied by grounds of arrest. Most of the grounds of arrest are based on investigation done by CBI and on statement of applicant and other witnesses recorded under Section 17 of PMLA 2002. It is mentioned in grounds that during recording of statement, applicant did not cooperate, gave evasive answers and suppressed facts. Director failed to mention reason to believe guilt of applicant under the Act of PMLA, 2002. Under Section 19 of the PMLA, 2002, arrest is discretionary. Discretion is to be exercised wisely and arrest is not required in all cases.
No reason has been mentioned in arrest order. Reason to believe has to be more than only a prima-facie case. In absence of reference to material on which reason to believe regarding guilt is based, arrest of applicant stands vitiated. Provision of Section 19 of the PMLA, 2002 is mandatory. Provisions of PMLA, 2002 places reverse burden on the accused to show that he is not guilty and there is presumption under law that applicant has committed the offence, therefore, provision under Prevention of Money Laundering Act, 2002 is to be strictly followed.
Now, it is to be seen that if Section 19 of the PMLA, 2002 has not been complied with, then whether Court can grant bail without satisfying itself on twin conditions mentioned in Section 45 of PMLA, 2002. Due to noncompliance of Section 19 of the Act, whether rigors of Section 45 of the PMLA, 2002 will be wiped out. Arresting Officer has to asses the material available in charge-sheet of predicate offence and also unearthed during enquiry and investigation by authorized officer. Such officer must have material on basis of which he forms opinion that accused is guilty of offence under the Act only then discretion, vested in him to arrest, is to be exercised - Rights of liberty of a person may be jeopardized, if reason of belief of guilt under Act is not in writing in arrest order, as condition for grant of bail is rigorous under PMLA, 2002. In such conditions, Court while considering the bail application has to see that arrest has been made by complying with provisions of Section 19 of the Act. In this case, provisions of Section 19 of the Act has not been complied with.
It is directed that applicant shall be released on bail on furnishing a bail bond in the sum of Rs. 5,00,000/- with two solvent sureties in the like amount to the satisfaction of the trial court for his regular appearance before Court on all such dates as may be fixed in this regard - Bail application allowed.
-
2024 (7) TMI 1523
Money Laundering - scheduled offence - siphoning of funds - misappropriation of funds of the KSAMB by opening bank accounts by forging the documents and thereafter transferring to different accounts in various other banks - petitioner who is not an accused in the scheduled offence can be prosecuted for the offence under Section 3 punishable under Section 4 of PMLA in the absence of knowledge that the money transferred to his account and utilised were from the proceeds of the crime - HELD THAT:- The Hon’ble Supreme Court in the case of Sh. Satish Mehra v. Delhi Administration & Anr [1996 (7) TMI 555 - SUPREME COURT] construed the provisions of Section 226 of Cr.P.C., which obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved and Section 228 of Cr.P.C. which provides for framing of the charge upon grave suspicion of commission of offence, and opined that if a “Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to the pronounce the conclusion on a future date.” It further held that if a “Judge is almost certain that the trial would be an exercise in futility or a sheer waste of time it is advisable to truncate” the proceedings the stage of discharge under Section 227 of Cr.P.C.
The petitioner is required to rebut the presumption under Section 24 of the Act, 2002, only if there is sufficient evidence or any specific allegation to establish that the petitioner knowingly assisted in concealing the proceeds of the crime or facilitated the use of such proceeds to project illicit proceeds as untainted property.
In the case at hand, the petitioner's conduct exhibits neither indirect attempt to indulge, nor active involvement in any process connected with the proceeds of crime as to launder their illicit origin into untainted property. It is apposite to add, at the risk of repetition, that no prima facie evidence has been adduced by the prosecution indicating proof of having knowingly assisted on part of the petitioner herein or having knowingly been a party, in relation to the commission of the offence of money laundering.
The continuance of the impugned proceedings on the file of the learned Principal City Civil and Sessions Judge at Bangalore (Special Judge) shall be an abuse of process of law - petition allowed.
-
2024 (7) TMI 1406
Money Laundering - predicate offence - involvement of an illegal racket of kidney transplantation and committed various offences including the offence punishable under section 307 IPC and the offences punishable under sections 18/19/20 of TOHO Act which are scheduled offences under PMLA.
If in case an accused is acquitted/discharged in a predicate offence, in that eventuality, whether the prosecution initiated by the respondent/ED can be allowed to be continued or is liable to be quashed?
HELD THAT:- The above issue was considered by the Supreme Court in case of Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT] and it was observed that 'The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.'
A Coordinate Bench of this Court in case of Nayati Healthcare [2023 (10) TMI 822 - DELHI HIGH COURT] has also considered the issue whether the prosecution initiated by the respondent/ED can be continued in a case where the accused has already been acquitted/discharged for the predicate offence, where it was held that 'the present complaint filed by the ED and the proceedings arising therefrom cannot survive. Considering that the FIR has been quashed by this court and that it has not been challenged till date, there can be no offence of money laundering under section 3 of the PMLA against the petitioners.'
Thus, the present complaint filed by the respondent/ED and the consequential proceedings cannot survive. Considering that the co-accused Dr. Jeevan Kumar has been acquitted by the trial court vide judgment dated 22.03.2013 and that the said judgment has not been challenged till date, there can be no offence of money laundering under section 3 of PMLA against the petitioner. Accordingly, the impugned order is set aside qua the petitioner along with all consequential proceedings arising therefrom stated to be pending before the concerned court.
Petition disposed off.
-
2024 (7) TMI 1318
Seeking grant of regular bail - Money Laundering - scheduled offences - criminal conspiracy - huge amount of money was paid as kickbacks in advance to the public servants involved in the commission of alleged offences and in exchange of undue pecuniary benefits to the conspirators involved in the liquor trade - reasons to believe - mandatory twin condition of section 45 of PMLA satisfied or not - HELD THAT:- Section 45(1) of PMLA lists the twin conditions that must be satisfied before an accused can be enlarged on bail in a case of money laundering. In this context, it will be relevant to take note of the observations of Hon‟ble Apex Court in case of Vijay Madanlal Choudhary v. Union of India [2022 (7) TMI 1316 - SUPREME COURT], on the satisfaction of mandatory twin conditions under Section 45 of PMLA, which held that 'The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial'.
Thus, at the stage of consideration of bail of a person who is accused of commission of offence of money laundering under PMLA, the Court is not required to conduct a mini trial for the purpose of returning a finding of guilt, rather the material on record is to be examined to reach a conclusion as to whether there are reasonable grounds to believe that the accused is guilty of offence under PMLA.
It is clear that the present applicant was part of preparation of the old excise policy and thereafter, the new excise policy was made to suit the co-accused(s) who were to pay kickbacks to the present applicant and co-accused(s) and the party concerned, from the profit so generated due to excise policy drafted to suit them and there are specific statements that Rs. 2 crores were paid to Sarvesh Mishra for Sh. Sanjay Singh at his official residence in lieu of the new excise policy made to suit them and generate profit for them, the role at this stage of the applicant cannot completely be ruled out. The specific allegations with time, place and manner when the meetings and conversations took place between Dinesh Arora, Vivek Tyagi, Sarvesh Mishra, Vijay Nair, Sh. Sisodia, Sh, Sanjay Singh etc. cannot be disregarded at this stage.
Whether the applicant is entitled to bail on the ground that he is not an accused in the scheduled offence? - HELD THAT:- Recently, in case of Pavana Dibbur v. Enforcement Directorate [2023 (12) TMI 49 - SUPREME COURT], the Hon‟ble Apex Court has held that it is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as the accused in the scheduled offence.
During the course of arguments, learned ASG representing the respondent had pointed out that the Directorate of Enforcement had already communicated and shared, via a letter dated 13.11.2023, under Section 66(2) of PMLA, information about the investigation regarding the facts of this case with the CBI. Further, the CBI had also written a letter dated 22.12.2023 to the ED, stating that the information shared by them has been taken on record for further investigation in the predicate offence case - this Court finds no merit in the argument that applicant herein has not been made an accused in the scheduled offence.
Admissibility and an evidentiary value of statements recorded u/s 50 of PMLA - HELD THAT:- At the present stage of deciding the bail application of the accused, when the trial has yet not commenced, this Court would be required to take into consideration the material collected by the investigating agency including statements of witnesses recorded under Section 50 of PMLA, statements under Section 50 of PMLA can make out a formidable case of money laundering against an accused.
The approver has not come forward to any Court of law to state that the statements so recorded were made under any stress or pressure or threat. The approver and his statements will be put to test of cross-examination and the evidentiary value of the statement will be adjudged on the touchstone of the cross-examination itself. Therefore, a statement recorded by a Magistrate as per law of a person who has now turned approver, was earlier an accomplice or accused, cannot be disregarded at this stage on the ground that his statement is unworthy of credence or there are reasons or motives to falsely implicate the present applicant - This Court, therefore, notes that the sanctity attached to a statement recorded under Section 164 of Cr.P.C., now termed as a statement of the approver, cannot be thrown at the threshold or disregarded for the purpose of consideration as to whether there is material on record, which within the parameters of PMLA, will disentitle the accused to grant of bail when tested on the anvil of Section 45 of PMLA to pass the test of twin conditions for grant of bail.
The law regarding such admissibility and the stage when such admissibility can be examined and adjudicated has not been carved out by this Court, but by the enactment of the provisions of Code of Criminal Procedure and Indian Evidence Act and catena of judgments of the Hon‟ble Apex Court in this regard.
The court is bound by law and cannot be influenced by the position of any petitioner - HELD THAT:- In the eyes of the law, it is of paramount importance to maintain impartiality and treat all individuals equally, regardless of their status as public figures or private citizens. While public figures may wield influence or hold positions of authority, their legal rights and obligations are subject to the same standards and principles as those of any other individual in society - The principle of equality before the law is based on the notion that justice should be blind to factors such as fame, wealth, or social standing. At the same time, orders are not passed only at the asking of the State but through legal proceedings and outcomes are determined solely based on the merits of the case and the application of relevant laws, without favouritism or discrimination.
Thus, no ground for grant of bail is made out, at this stage - application disposed off.
-
2024 (7) TMI 1172
Power of the High Court or Sessions Court to grant an interim order of stay of operation of an order granting bail till the disposal of the application for cancellation of bail under Sub-Section (2) of Section 439 of the Code of Criminal Procedure, 1973 - Sub-Section (3) of Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 - HELD THAT:- When a person is arrested, the rights guaranteed by Article 21 of the Constitution of India get substantially curtailed. The law permits arrests of the accused as provided in the CrPC or the BNSS. The effect of the grant of bail under the provisions of Sections 437 and 439 of the CrPC (Sections 480 and 483 of the BNSS) is that the liberty of the undertrial accused is restored pending the trial, subject to the accused complying with the conditions of bail. When the High Court or Sessions Court stays such an order, it amounts to taking away the liberty granted under the order of bail. When an application for cancellation of bail is filed, the High Court or Sessions Court should be very slow in granting drastic interim relief of stay of the order granting bail.
The undertrial is not a convict. An interim relief can be granted in the aid of the final relief, which could be finally granted in proceedings. After cancellation of bail, the accused has to be taken into custody. Hence, it cannot be said that if the stay is not granted, the final order of cancellation of bail, if passed, cannot be implemented. If the accused is released on bail before the application for stay is heard, the application/proceedings filed for cancellation of bail do not become infructuous. The interim relief of the stay of the order granting bail is not necessarily in the aid of final relief.
An exparte stay of the order granting bail, as a standard rule, should not be granted. The power to grant an exparte interim stay of an order granting bail has to be exercised in very rare and exceptional cases where the situation demands the passing of such an order - Liberty granted to an accused under the order granting bail cannot be lightly and causally interfered with by mechanically granting an exparte order of stay of the bail order.
The exparte order staying the order of bail passed without considering merits cannot continue to operate for one year without the appellant getting a hearing on the issue of continuation of the interim order. All Courts have to be sensitive about the most important fundamental right conferred under our Constitution, which is the right to liberty under Article 21.
The appellant has made out a case in terms of Section 45(1)(ii) of the PMLA on the power to grant bail - There are no allegation of the misuse of liberty granted under the bail order in the said application.
The impugned orders passed by the High Court granting the stay of the order granting bail, is set aside - appeal allowed.
-
2024 (7) TMI 1171
Money Laundering - criminal conspiracy - taking illegal money to influence a public servant and for exercise of personal influence with public servant and abuse of official position by public servant against accused persons - constitutional vaidity of Section 50 (2) of Prevention of Money Laundering Act, 2002 - ultra vires and violative of Articles 14, 20 and 21 of Constitution of India and Section 132 of Indian Evidence Act, 1872 - HELD THAT:- In the present case, during the course of investigation by ED, Satish Babu Sana and Pradeep Koneru in their respective statements recorded under Section 50 of PMLA, admitted having paid crores of rupees to Moin Akhtar Qureshi through his employee Sh. Aditya Sharma for obtaining illegal favor from govt. servant(s) after using his influence. Aditya Sharma was also confronted with the facts and evidences on record, who confirmed the monetary transactions received by him. The same were also found in tandem with the contents of BBM messages retrieved by forensics lab, CERT-In. These amounts were found to be sent for Hawala Transactions through Delhi based Hawala Operators which reflected in the BBM messages of Aditya Sharma and Ex. CBI Director AP Singh.
Satish Babu Sana and Pradeep Koneru have, thus, prima facie committed offence of money laundering as defined in Section 3 of the PMLA, 2002 by directly or indirectly indulging in, knowingly assisting, knowingly a party and actually involved in all or any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property.
The petitioners have challenged the constitutionality of Section 50 of PMLA, which has already been put to rest by the Hon’ble Supreme Court in its Three Judge Bench decision in Vijay Madanlal Choudhary Vs. UOI [2022 (7) TMI 1316 - SUPREME COURT] wherein it is held that 'We fail to understand as to how article 20 (3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of sub-section (3) of section 50 of the 2002 Act. The criticism is essentially because of sub-section (4) which provides that every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the IPC. Even so, the fact remains that article 20 (3) or for that matter section 25 of the Evidence Act, would come into play only when the person so summoned is an accused of any offence at the relevant time and is being compelled to be a witness against himself. This position is well-established.'
Admittedly, in the present case, the petitioners in the case registered by the CBI were arrayed as the witnesses to a case under scheduled offences. However, during the process of investigation, case under the provisions of PMLA has been registered wherein they have been arrayed as accused - The ratio of law laid down by the Hon’ble Supreme Court in Vijay Madanlal, clearly spells out that it may happen in cases that a person who is witness in offences related to scheduled offences, during his interrogation, may put-forth some material which would indicate his involvement in the commission of offence under PMLA. This Court in a catena of decisions has already held that proceedings under the scheduled offences and PMLA are separate and distinct and have no binding upon each other.
Having regard to the Supreme Court’s decision in Vijay Madanlal Choudhary and the fact that the petitioners are involved in the case of money laundering, it is found that proceedings under PMLA have been rightly initiated against them. The petitioners have challenged their summoning, which in our opinion is just and proper to unearth the roots of the money trail - Finding no merit in the averments raised by the petitioners, these petitions and pending applications are accordingly dismissed.
-
2024 (7) TMI 1170
Validity of provisional attachment order - no notice issued to the petitioner, who was the lawful owner of the property - violation of principles of natural justice - HELD THAT:- When the records before the Registering Authorities, as well as the Revenue Authorities, reveal that the petitioner herein is the lawful owner of the property, there was a duty cast on the Adjudicating Authority to issue a notice, before confirming the provisional attachment under Section 5 of the Act. In the absence of any such notice, the entire exercise of attaching the petitioner's property, would be in violation of the mandatory requirements of serving the provisional attachment order under Section 5, as well as the prior show cause notice under Section 8(1) of the Act, on the petitioner, apart from violation of the principles of natural justice and therefore cannot be legally sustainable.
In the case of R. AMARABALAN VERSUS DIRECTORATE OF ENFORCEMENT (CHENNAI ZONE) , JOINT DIRECTORATE OF ENFORCEMENT (CHENNAI ZONE) , [2022 (4) TMI 1619 - MADRAS HIGH COURT] a Coordinate Bench of this Court had dealt with a similar situation and set aside the attachment over the property therein.
When the petitioner had lawfully purchased the property on 28.11.2018, much before the Provisional Attachment Order dated 29.05.2019 and has been in peaceful possession and enjoyment of the same, the subsequent attachment under Section 5 (1) of the Act and the confirmation under 6 of the Act, without prior notice, cannot be legally sustained.
The impugned impugned Provisional Attachment Order passed by the respondent, which was subsequently confirmed by the Adjudicating Authority - Petition allowed.
-
2024 (7) TMI 1169
Seeking extension of an interim bail which was granted to him by the learned Trial Court - grant of interim bail sought on the ground of medical condition of his wife who was suffering from “acute calculus cholecystitis” in her gall bladder and had been advised to undergo a “laparoscopic cholecystectomy” - main argument of the applicant now is that the applicant has been advised to undergo surgery for his left knee namely “Arthroscopic Medial Meniscal Repair Surgery” - HELD THAT:- In the opinion of this Court, the medical condition of the applicant wherein he has been advised to undergo a surgery of left knee cannot be categorized as “life-threatening situation”, and the surgery which is to be undergone by the applicant is not of such nature which necessitates the applicant's release on interim bail only. For the same, the applicant can be taken to the concerned hospital, for him to undergo the surgery while in custody, as per the scheduled date.
Even during the course of arguments, learned Senior Counsel for the applicant had prayed that in case interim bail is not granted to the applicant, he be allowed to get his surgery performed while being in custody, and learned Special Counsel for the Directorate of Enforcement had stated that he had no objection to this prayer made by the applicant.
This Court notes that since the applicant had surrendered on 17.02.2024, after his extension application was rejected by the learned Trial Court vide order dated 16.02.2024, the date which was scheduled for the surgery of the applicant i.e. 26.02.2024 has already passed.
Considering the medical condition of the applicant and medical documents filed on record, this Court is of the opinion that the present applicant can be allowed to undergo the required surgery while being in custody of the Jail Superintendent. However, a perusal of the documents filed on record also reveals that the date of surgery has not been re-scheduled which was earlier scheduled for 26.02.2024. Thus, the applicant will be at liberty to get the date of the surgery rescheduled and thereafter move a fresh application before this Court for seeking appropriate directions.
Petition disposed off.
-
2024 (7) TMI 1117
Interpretation of statute - Section 88 of the Criminal Procedure Code - necessity of arrest before filing a complaint - HELD THAT:- It is not in dispute that the question of law raised in this appeal is covered by the dictum of this Court in TARSEM LAL VERSUS DIRECTORATE OF ENFORCEMENT JALANDHAR ZONAL OFFICE [2024 (5) TMI 837 - SUPREME COURT], wherein, it has been held that if the accused person is not arrested prior to filing of the complaint, he has to only file a bond under Section 88, Cr.P.C., and, therefore, there is no need for arrest.
The impugned order is set aside, and the appeal stands allowed.
-
2024 (7) TMI 1116
Seeking grant of bail - money laundering - proceeds of crime - fraudulent acquisition of land which was in possession of Ministry of Defence, Government of India - reasons to believe - twin conditions laid down u/s 45 PMLA, 2002 - HELD THAT:- The documents seized according to the Enforcement Directorate manifested in a trail designating the role of the petitioner in the illegal acquisition and possession of 8.86 acres of land situated at Shanti Nagar, Baragain, Bariatu Road (near Lalu Khatal). It is, therefore, the case of the Enforcement Directorate that the provisions of PMLA, 2002 would apply since the petitioner had derived or obtained property as a result of a scheduled offence and had indulged himself in an activity connected with the said property. The factual aspects of the case would negate the submission of the learned Senior Counsel for the petitioner that there has been no schedule offence and, therefore, no case of money laundering is made out.
The involvement of the petitioner as per the prosecuting agency is primarily through the angle of conspiracy though according to the Enforcement Directorate Section 120B was struck off in the formal FIR at the behest of the Police in spite of conspiracy playing a predominant role in the predicate offence which led to institution of Sadar P.S. Case No. 272 of 2023. The prelude to the entire episode culminating in submission of prosecution complaint and supplementary prosecution complaint by the Enforcement Directorate is the recovery of huge quantity of incriminating documents showing forgery, manipulation and tampering of government records and mutilation of government revenue records.
Reasons to believe - HELD THAT:- The statement u/s 50 PMLA, 2002 is admissible in evidence as such statement is deemed to be recorded in a judicial proceeding as envisaged in sub-Section 4 of Section 50 PMLA, 2002. This Court is aware of the fact that meticulously delving into such evidence is the domain of the learned trial court and, therefore, only a fleeting reference has been made of the statements recorded u/s 50 PMLA, 2002 of the relevant persons. However, the same does not put an embargo upon the Court to disregard such statements in its totality particularly in a situation when the plea of bail of an accused is being considered. However, the contours of such statements can be taken into consideration in order to ascertain as to whether "reason to believe" that the petitioner is not guilty is fulfilled as enshrined in Section 45 PMLA, 2002.
In Vijay Madanlal Choudhary & Others versus Union of India [2022 (7) TMI 1316 - SUPREME COURT], the broad probabilities based on the materials collected during investigation is to be considered and while reiterating the observations made in Ranjitsing Brahmajeetsing Sharma [2005 (4) TMI 566 - SUPREME COURT], it was concluded thus 'The court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the court based on available material on record is required. The court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial.'
The overall conspectus of the case based on broad probabilities does not specifically or indirectly assign the petitioner to be involved in the acquisition and possession as well as concealment of 8.86 acres of land at Shanti Nagar, Bargain, Ranchi connected to the "proceeds of crime". None of the registers/revenue records bare imprint of the direct involvement of the petitioner in the acquisition and possession of the said land. As it has been noticed above, the statement of some of the persons u/s 50 PMLA, 2002 designated the petitioner in the acquisition and possession of the property in question in the year 2010 without any material worth consideration and for all this while none of the ousted persons had approached the competent authority by registering any complaint which has conveniently been discounted by the Enforcement Directorate that the approaches though made to the Police proved futile.
The consequence of the findings recorded by this Court satisfies the condition as at Section 45 PMLA, 2002 to the effect that there is "reason to believe" that the petitioner is not guilty of the offence as alleged - Though the conduct of the petitioner has been sought to be highlighted by the Enforcement Directorate on account of the First Information Report instituted by the petitioner against the officials of the Enforcement Directorate but on an overall conspectus of the case there is no likelihood of the petitioner committing a similar nature of offence.
The twin conditions as prescribed u/s 45 PMLA, 2002 having been fulfilled, this application is allowed. Accordingly, the petitioner is directed to be released on bail on furnishing bail bond of Rs. 50,000/- with two sureties of the like amount each, to the satisfaction of learned Additional Judicial Commissioner-I-cum-Special Judge, PMLA, Ranchi in connection with ECIR Case No. 06/2023, arising out of ECIR/RNZO/25/2023 dated 26.06.2023.
Bail application allowed.
-
2024 (7) TMI 1044
Money Laundering - Provisional Attachment Order - possession of proceeds of crime - petitions have been filed on the primary ground that the respondents lack jurisdiction to initiate action under the Prevention of Money Laundering Act, 2002 - reasons to believe.
Whether, even assuming that the respondents have material to show that there was illegal sand mining and it had generated huge proceeds, they would be entitled to initiate action under PMLA, in the absence of a scheduled offence investigated by any other investigation agency and determination of proceeds of crime?
HELD THAT:- The respondents have proceeded on the premise that a scheduled offence has been committed and that it has generated proceeds of crime. Neither in their counter nor in any of the Provisional Attachment Orders, the respondents have spelt out the exact scheduled offence committed by the petitioners. That apart, they have also not spelt out as to whether an FIR has been registered for a scheduled offence said to have been committed by either the petitioners or someone else whose proceeds of crime are held by the petitioners. Above all, the exact proceeds of crime, have not been determined.
In the instant case, neither the FIRs relied upon by the respondents nor the reasons given by the respondents for initiating proceedings under PMLA warrant an emergent action. It is noted that though the Provisional Attachment Orders were passed as early as in January 2024, the respondents have not taken any action to inform the concerned jurisdictional Police about the commission of any scheduled offence by the petitioners or any other person through whom the petitioners are dealing with the proceeds of crime.
Strangely, the respondents have chosen to write a letter purporting to be communication under Section 66 (2) of the PMLA, on 13.06.2024, to the Director General of Police. In the said letter, the materials that were available to the respondents as early as January 2024 were reiterated. There was no reason as to why the respondents had suddenly discovered the need to send a letter on 13.06.2024, when the matters were heard by this Court on 12.06.2024.
An attachment of property would result in serious consequences for the concerned persons and cannot be based on assumptions made by the respondents as observed by the Hon'ble Supreme Court. The FIRs relied upon by the respondents are not even remotely connected to the petitioners. There are no other FIRs as on date to connect the alleged proceeds of crime in the possession of the petitioners in connection to any scheduled offence - There is absolutely no discussion as to what is the proceeds of crime and how they had arrived at that figure. Even if there is proceeds of crime, the respondents cannot assume jurisdiction to attach all other properties on the premise that they were ill-gotten. The Schedule to the Attachment Order suggests that all the money that is lying in the bank accounts were also subject matter of the attachment.
The respondents' case is that there are other FIRs and the State of Tamil Nadu is refusing to share those particulars with the respondents. If that is the case, the remedy lies elsewhere. We are also informed that the respondents have filed a petition before the Hon'ble Supreme Court for a direction to the State of Tamil Nadu to share the information - unless an information with regard to any case in the scheduled offence is registered and such an offence has generated proceeds of crime, which is dealt with by the petitioners, no action can be initiated. As stated earlier, the materials collected and the reasons shown in the Provisional Attachment Order, even if accepted to be true only suggests that the respondents have unearthed large scale illegal sand mining and that may have generated illegal money.
The Hon'ble Supreme Court in Vijay Madhanlal Choudhary's case [2022 (7) TMI 1316 - SUPREME COURT], has observed that even assuming that the money obtained by the petitioners is ill-gotten, in the absence of any scheduled offence, that has resulted in proceeds of crime, the respondents cannot assume jurisdiction to initiate action under PMLA. However, we would also make it clear that the respondents would have every right to initiate such action to ensure that the scheduled offence is registered and is investigated. Till such time, the properties of the petitioner cannot be subjected to attachment and the respondents otherwise cannot initiate any action under the PMLA. One cannot put the cart before the horse.
The impugned actions, which are challenged in the Writ Petitions, are without jurisdiction and they are liable to be quashed and as such, stand quashed - Provisional Attachment Orders impugned in the Writ Petitions are quashed - Petition disposed off.
-
2024 (7) TMI 1003
Rejection of bail - Money Laundering - whether there are reasonable grounds for pleading before and impressing this court that the petitioner is not guilty of such offence, and he is not likely to commit any offence while on bail? - it was held by High Court that 'The petitioner is hereby granted bail subject to the terms and conditions of furnishing personal bond to the tune of rupees ten lacs to the satisfaction of the Superintendent of Jail concerned and surety bond of two sureties of like amount to the satisfaction of Registrar Judicial, Srinagar of this court' - HELD THAT:- It is not required to interfere with the impugned order passed by the High Court.
The Special Leave Petition is, accordingly, dismissed.
-
2024 (7) TMI 866
Money Laundering - proceeds of crime - sale of seized vehicle - Interplay between Section 17 & 8 of PMLA and Rule 3 & 4 of PMLA Rules of 2013 - Whether the proceedings carried out in this case by the Directorate of Enforcement are as per law? - HELD THAT:- This Court is of the opinion that in the present case, in order to collect the records relating to the money laundering and to trace proceeds of crime involved in money laundering, the Directorate of Enforcement had carried out search under Section 17 of PMLA at several locations and premises. In this process, a total of 26 luxury and high-end cars were found and seized by the respondent, which were prima facie found to have been purchased out of the “proceeds of crime” generated out of the criminal activities of Mr. Sukash Channdersekhar.
A bare perusal of the record leads to only one conclusion that the procedure followed by the respondent was in accordance with the provisions of PMLA and the Rules of 2013. Even the petitioner, neither through the contents of the petition nor during the course of arguments, has been able to point out any infirmity in the above-mentioned process followed by the respondent. Further, the validity of the relevant rule(s) of Rules of 2013, as referred hereinabove, has also not been assailed before this Court by the petitioner herein.
Whether Vehicles are subject to natural decay? - HELD THAT:- The depreciation of vehicles is a well-recognized phenomenon in the automobile industry. From the moment a car is driven out of the showroom, its value begins to decrease. This depreciation accelerates with each passing year, and the resale value drops substantially. After some years, most vehicles lose a significant part of their original value, making them less economically viable to maintain or sell.
By converting the sale proceeds of a movable property subject to natural decay, such as a vehicle, into an interest-bearing fixed deposit, the Rule ensures that the value of seized properties is preserved and potentially increased, thereby ensuring equal justice to either of the party, regardless of the trial’s duration. In this manner, both the right of an accused as well as the right of the investigating agency is protected, since a piece of junk or scrap is of no use to either of them.
In the present case, the petitioner herein has not made any request whatsoever in terms of proviso to Rule 4 (2) that in exchange of any fixed deposit receipt equivalent to the value of cars furnished by her, the cars in question be not sold by the Directorate of Enforcement.
There is no merit in the argument that the sale of seized vehicles in this case is against the mandate of Section 8(6) of PMLA. Needless to say, as per Section 8(6), if the accused persons in this case are found not guilty of offence of money laundering, they would be entitled to receive the amount generated from selling the movable property i.e. cars in the present case, which the Directorate of Enforcement is obliged to keep deposited in the nearest Government Treasury or branch of the State Bank of India or its subsidiaries or in any nationalised bank in fixed deposit.
This Court finds no infirmity with the orders impugned by way of this petition - Petition dismissed.
-
2024 (7) TMI 817
Money Laundering - Criminal conspiracy - petitioner was convicted for the predicate offences under Sections 120B, 409 r/w 109 of the IPC - it was held by High Court that 'Since the respondent has no jurisdiction to invoke the provisions of PMLA, as there are no proceeds of crime relating to any scheduled offence, the proceedings impugned in the Writ Petition is also liable to be set aside.' - HELD THAT:- There are no reason to interfere with the impugned judgment and, hence, the special leave petitions are dismissed.
-
2024 (7) TMI 760
Money Laundering - proceeds of crime - reasons to believe - violation of Section 19 of the Prevention of Money Laundering Act, 2002 or not - It is contended that the arrest was illegal, which makes the order of remand to custody of the DoE passed by the Special Court dated 01.04.2024 also illegal.
HELD THAT:- The power of judicial review shall prevail, and the court/magistrate is required to examine that the exercise of the power to arrest meets the statutory conditions. The legislature, while imposing strict conditions as preconditions to arrest, was aware that the arrest may be before or prior to initiation of the criminal proceedings/prosecution complaint. The legislature, neither explicitly nor impliedly, excludes the court surveillance and examination of the preconditions of Section 19(1) of the PML Act being satisfied in a particular case. This flows from the mandate of Section 19(3) which requires that the arrestee must be produced within 24 hours and taken to the Special Court, or court of judicial/metropolitan magistrate having jurisdiction. The exercise of the power to arrest is not exempt from the scrutiny of courts. The power of judicial review remains both before and after the filing of criminal proceedings/prosecution complaint. It cannot be said that the courts would exceed their power, when they examine the validity of arrest under Section 19(1) of the PML Act, once the accused is produced in court in terms of Section 19(3) of the PML Act.
Power to arrest under Section 19(1) is not for the purpose of investigation. Arrest can and should wait, and the power in terms of Section 19(1) of the PML Act can be exercised only when the material with the designated officer enables them to form an opinion, by recording reasons in writing that the arrestee is guilty.
Section 45 of the PML Act does not stipulate the stage when the accused may move an application for bail. A bail application can be submitted at any stage, either before or after the complaint is filed. Whether the charge is framed or evidence is recorded or not recorded, is immaterial. Clearly, the fact that the prosecution complaint has not been filed, the charge has not been framed, or evidence is either not recorded or partly recorded, will not prevent the court from examining the application for bail within the parameters of Section 45 of the PML Act - It is only on establishing the three facts that the offence of money laundering is committed. When the foundational facts of Section 24 are met, a legal presumption would arise that the proceeds of crime are involved in money laundering. The person concerned who has no causal connection with such proceeds of crime can disprove their involvement in the process or activity connected therewith by producing evidence or material in that regard. In that event, the legal presumption would be rebutted.
Undoubtedly, the opinion of the officer is subjective, but formation of opinion should be in accordance with the law. Subjectivity of the opinion is not a carte blanche to ignore relevant absolving material without an explanation. In such a situation, the officer commits an error in law which goes to the root of the decision making process, and amounts to legal malice.
The principle of parity or equality enshrined under Article 14 of the Constitution cannot be invoked for repeating or multiplying irregularity or illegality. If any advantage or benefit has been wrongly given, another person cannot claim the same advantage as a matter of right on account of the error or mistake. However, this principle may not apply where two or more courses are available to the authorities. The doctrine of need and necessity to arrest possibly accepts the said principle. Section 45 gives primacy to the opinion of the DoE when it comes to grant of bail. DoE should act uniformly, consistent in conduct, confirming one rule for all.
Arvind Kejriwal is an elected leader and the Chief Minister of Delhi, a post holding importance and influence. We have also referred to the allegations. While no direction given, since it is doubtful whether the court can direct an elected leader to step down or not function as the Chief Minister or as a Minister, it is left to Arvind Kejriwal to take a call. Larger Bench, if deemed appropriate, can frame question(s) and decide the conditions that can be imposed by the court in such cases.
The Registry is directed to place the matter before the Hon’ble Chief Justice of India for constitution of an appropriate Bench, and if appropriate, a Constitution Bench, for consideration of the aforesaid questions. The questions framed above, if required, can be reformulated, substituted and added to.
-
2024 (7) TMI 623
Grant of anticipatory bail - appellant not arrested during the investigation - HELD THAT:- Admittedly, the appellant has not been arrested during the investigation and as of now a complaint has been filed.
The impugned order is set aside and the appellant is granted anticipatory bail on terms and conditions to the satisfaction of the trial court - Appeal allowed.
............
|
9911796707
