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2021 (6) TMI 428 - HC - Money LaunderingMoney Laundering - scheduled offences - Material present to constitute offence - amendment of PML Act in the year 2009 - applicability of schedule offences is concerned to an act committed prior to amendment - HELD THAT - Part B of the Schedule provides that in Paragraph one, besides several offences under the Indian Penal Code, Sections 120-B, 419 and 420 are included vide Section 13 of the Prevention of Money Laundering (amendment) Act, 2009 (since repealed by Repealing and Amending Act, 2019 (31 of 2019) - It is apt to note that the Complaint of the ED in S.C.No.1 of 2019 impugned and is challenged under Section 482 of the Cr.P.C., simply adopts the Charge Sheet contents/accusations against the Accused No. 13 therein who is the Petitioner/Accused No. 12 in this Criminal Petition. There was a Charge Sheet and Supplementary Charge Sheet filed by the CBI. The offences cited against the Petitioner herein (A13 in that charge sheet) in that original Charge Sheet are Sections 120B, 420, 409 and 477-A IPC. Interestingly, the accusations made in that charge sheet against A-13 therein (petitioner herein) are replica of the allegations made in the impugned complaint filed before the Special Court by the ED under the PML Act. This Court finds reasons to accept the contentions of Sri Mukul Rohatgi, learned Senior Counsel for the Petitioner that according to the findings in Crl.P. No. 3995 of 2016, the scheduled offences are not made out and the Charge Sheet is quashed against the Petitioner and therefore, and in consequence thereof, there cannot exist any more scheduled offences for the purpose of prosecution under Sections 3 and 4 of PML Act, 2002 (as amended) - there is no material to proceed against the petitioner under Sections 3 and 4 of Prevention of Money Laundering Act, 2002 and that there are no schedule offences committed by him to proceed under the provisions of PML Act in view of the Order of this Court in Crl.P. No. 3935 of 2016 dated 5.1.2018. Whether the amendment of PML Act in the year 2009 so far as schedule offences is concerned, can be applied to an act committed prior to amendment? - HELD THAT - Certain High Courts have already taken a view that the amendment to PML Act in 2009 has no retrospective effect. Those decisions are challenged by the ED before the Supreme Court and an interim order has been passed by the Supreme Court in favour of the ED. According to Article 20 of the Constitution of India, as observed by the Supreme Court referred to above, the general power of legislature to make law with retrospective effect is not available in case of criminal law. These conflicting views are yet to be finally decided by the Apex Court - But whether the amendment in 2009 would make the acts committed in the period earlier to amendment falls within the purview of the PML Act or not cannot be answered because the question is pending for final decision before the Apex Court. Petition allowed.
Issues Involved:
1. Whether there is material to constitute the offence of 'money laundering' under the PML Act against the Petitioner (Accused No. 12)? 2. Whether there is a 'scheduled offence' to be proceeded with against the Petitioner under the provisions of the Prevention of Money Laundering Act in view of the Order of this Court in Crl. Petition 3935 of 2016 dated 05.01.2018? 3. Whether the amendment of PML Act in the year 2009 regarding 'scheduled offences' can be applied to an act committed prior to the amendment? Issue-Wise Detailed Analysis: 1. Whether there is material to constitute the offence of 'money laundering' under the PML Act against the Petitioner (Accused No. 12)? The petitioner, Accused No. 12, was alleged to have received USD 1,40,000 from Challa Suresh and USD 2,50,000 from P.S. Parthasarathy, which were considered proceeds of crime. The petitioner argued that he received these amounts for investment in Dubai real estate and returned them subsequently. The court noted that the Enforcement Directorate (ED) did not collect additional material beyond what was provided by the CBI. The court previously quashed the CBI charge sheet against the petitioner, finding no evidence of criminal conspiracy or knowledge of proceeds of crime. The same facts and allegations were used in the ED's complaint under the PML Act, leading the court to conclude that the necessary elements to attract the offence of money laundering were absent. 2. Whether there is a 'scheduled offence' to be proceeded with against the Petitioner under the provisions of the Prevention of Money Laundering Act in view of the Order of this Court in Crl. Petition 3935 of 2016 dated 05.01.2018? The court had previously quashed the CBI charge sheet against the petitioner, which included offences under Sections 120B, 409, and 420 IPC. The ED's complaint under the PML Act relied on the same allegations. The court emphasized that without the existence of scheduled offences as determined in the previous order, there could be no basis for prosecution under Sections 3 and 4 of the PML Act. The court found no new material or allegations in the ED's complaint that would justify proceeding against the petitioner under the PML Act. 3. Whether the amendment of PML Act in the year 2009 regarding 'scheduled offences' can be applied to an act committed prior to the amendment? The court noted that the alleged offences occurred before the 2009 amendment, which included Sections 120B, 409, and 420 IPC as scheduled offences under the PML Act. The court referred to the Delhi High Court's decision in Arun Kumar Mishra v. Directorate of Enforcement, which held that the PML Act's amendments could not be applied retrospectively to acts committed before the amendment. The court also cited Article 20 of the Constitution, which prohibits ex-post facto criminal laws. Thus, the court concluded that the 2009 amendment could not be applied to the petitioner's alleged acts. Conclusion: The court found no material to proceed against the petitioner under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002. The court also determined that there were no scheduled offences committed by the petitioner to proceed under the PML Act in view of the previous order in Crl. Petition 3935 of 2016. Additionally, the court concluded that the 2009 amendment to the PML Act could not be applied retrospectively. Consequently, the proceedings against the petitioner in S.C.No.1 of 2019 were quashed.
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