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TMI Blog2015 (4) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... n which was accepted vide order dated 21.08.2014 as well as the order of the High Court of Uttrakhand dated 13.10.2014 quashing the entire proceedings qua the accused, Mr. Arun Kumar Mishra in the said case and in the light of Crl. M.C. No.5581/2014 Page 13 of 13 the retrospective aspect this Court finds no merit in the allegation of the respondent. Consequently, the provisional attachment of properties of the petitioner vide provisional attachment order No.01/2012 dated 25.10.2012 and vide provisional attachment order No.02/2013 dated 30.08.2013 does not hold good and the respondent is directed to release the properties and give the possession back to the petitioner. - CRL. M.C. No. 5581/2014 - - - Dated:- 9-4-2015 - Hon'ble Mr. Justice Ved Prakash Vaish Mr. Siddharth Aggarwal Mr. Rahul Kumar Advocate For The Petitioner. Mr. Sanjay Jain, Sr. Adv. with Mr.Ajay Digpaul, CGSC with Mr. P.K. Sharma, Advocate. For The Respondent. JUDGMENT 1. By way of the present petition under Section 482 of the Code of Criminal Procedure 1973 (hereinafter referred to as Cr.P.C.‟) the petitioner seeks quashing of the proceedings in ECIR No. 03/DZ/2011/AD(SC)/SDS d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence under Section 3 of PMLA punishable under Section 4 of the said Act. On the basis of the said facts, the respondent concluded that as they cheated the PNB by manipulating the records of the bank by abusing their official position for their personal gain, it is therefore essential to conduct investigation under the provisions of PMLA since the amount involved is more than ₹ 30 lakhs which is the threshold limit of Part B of PMLA-2002. 5. On the basis of the FIR, CBI, Dehradun investigated the matter and during the course of investigation, CBI arrested Arun Kumar Mishra on 27.04.2011 and his police remand was granted to the respondent on 05.08.2011. However, vide order dated 01.10.2011 passed by learned District Additional Sessions Judge, Karkardooma Courts, Delhi, bail was granted to him. 6. On completion of investigation into the first set of 5 accounts, CBI filed a charge sheet on 09.09.2011 before the learned Special Judge, CBI, Dehradun against the two original accused and Arun Kumar Mishra for offences committed u/s 13(2) r/w 13(1)(d) PC Act and Sections 120-B, 420, 471 r/w 468, 409 and 477-A IPC. Three other accused were not charge sheeted. In the said charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a Joint Development Agreement with S.P. Mishra, Tara Mishra and Anurag Mishra (Mishra family) for construction of the apartment complex on their property bearing address No. 23/22 Balbir Road, Dehradun. To facilitate this transaction, the petitioner inducted Arun Kumar Mishra‟s brother Anurag Mishra as a Director in the company on 27.06.2006 who resigned barely 9 months later on 07.05.2007. However, following non-compliance by the Mishra family with the terms of the Agreement after the petitioner had cleared their debt through a cheque payment, the petitioner filed a Civil Suit O.S. No. 543/2011 for specific performance against the Mishra family. The petition has been proceeded against only on the basis of allegations made by the respondent that as the Mishra family is involved in a business transaction with the petitioner herein, Arun Kumar Mishra had deposited his alleged ill-gotten gains in the account of the petitioner. The respondent has falsely attributed petitioner‟s properties to Arun Kumar Mishra based upon CBI‟s charge sheet. Even if the allegations of laundering are accepted in full, there would have been no necessity to further attach multiple proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of them. In an offence it is necessary for each person at each stage to have the necessary mens rea to launder money that is tainted. If however, at that point of time, such an act was not contrary to law, then, even if such mens rea existed no offence would be made out. The brokers and vendors of the attached properties have made statements under Section 164 Cr.P.C. to the learned Special Judge stating that they were coerced by the respondent enforcement directorate to make false statements and they do not know anybody called Arun Kumar Mishra. 15. Per Contra, learned Senior Counsel for the respondent contended that the investigation in the present case is at the final stage and there is every likelihood that the respondent may file a criminal prosecution against the petitioner under PMLA. The order dated 08.12.2014 is causing prejudice to the respondent. Therefore, it may be recalled. The petitioner has filed multiple petitions for release of its property bearing no. 11, Prithviraj Road before this court which have been dismissed. Out of the said writ petitions, Ms. Amrita Rai, petitioner in writ petition bearing number W.P. (C) No. 4013/2014 challenged the judgment of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Prevention of Money Laundering Act. Section 3 of PMLA defines the offence of money laundering as under: - 3. Offence of money-laundering. Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering 19. The term proceeds of crime‟ has been defined in Section 2(u) of PMLA, which reads as under: - 2. Definitions.- (1) .. xxx xxx xxx (u) proceeds of crime means any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property; 20. At the outset it may be mentioned that the ECIR discloses the commission of the alleged offences during the period from November, 2005 to December, 2006. Section 3 of the PMLA specifically mandates that the act of money laundering should be intentional, therefore, it has to be traced to the point of time when the actual transactions took place. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d closure report that the said accounts and disproportionate assets were a subject matter of investigation by the SIT UP Police in FIR No. 04/2013 dated 03.05.2011. 24. Arun Kumar Mishra when challenged the charge sheet dated 09.09.2011 and the entire proceedings pursuant to it before the High Court of Uttrakhand, the said charge sheet and the entire proceedings pursuant to it were quashed qua Mr. Arun Kumar Mishra vide order dated 13.10.2014. 25. The counsel for the petitioner also contended that the petitioner company, M/s. Ajanta Merchants Pvt. Ltd. has no role in the entire FIR except that they are being used as a scapegoat to avenge the accused Arun Kumar Mishra. 26. Learned counsel for the petitioner referred to the statements of witnesses relied upon by the Enforcement Directorate and has further submitted that the statements of witnesses have exposed the investigating officer, who in spite of knowing the truth has used illegal means in an attempt to implicate the petitioner to serve some larger interests. The witnesses namely Anil Vaid, Devki Nandan Taneja and Ravindra Taneja in their statements under Section 164 of Cr.P.C. made before Special JM, CBI, Lucknow have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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