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TMI Blog2019 (12) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... mal Chakravarty (A-4) Dharmendra Kumar Dhiraj (A-5) and Naresh Kumar Kejriwal (A-6) wherein cognizance has already been taken by the Hon ble Special Court for the offence under section 3, punishable under section 4 of the PMLA and the same is pending for trial before the Hon ble Special Court. It is no doubt true that the complaint has been made by the respondent only in pursuant to the scheduled offence. In a given case, the complaint may emanate from a registration of a case involving scheduled offence. But the fate of the investigation in the said scheduled offence cannot have bearing to the proceedings under the Prevention of Money Laundering Act, 2002. Section 2(u) of the Act merely speaks of a criminal activity relating to a scheduled offence. Therefore, we are concerned with the criminal activity qua a scheduled offence. Going through the averments made in the complaint petition and submissions advanced on their behalves and also the judgments relied upon by them and considering the fact that cognizance has already been taken against the petitioner in this case, at this stage, the document which have been relied by the petitioner and the filed by the petitioner for quashing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T/2012 & 13/PAT/2012 in Complaint Case No. 02 of 2018, pending in the court of learned Additional Judicial Commissioner-I-cum-Special Judge for PMLA at Ranchi, so far petitioner is concerned was stayed. On 02.08.2019, learned Hon'ble Coordinate Bench directed the office to list this case before another Bench after obtaining necessary approval of Hon'ble the Acting Chief Justice, but in the meanwhile, it appears that I.A. No. 8028/2019 was filed on behalf of the opposite party on 22.08.2019 with a prayer to recall / modification of the order dated 02.08.2019 passed in Cr.M.P. No. 1399/2019 and the Hon'ble Coordinate Bench after hearing the parties under order dated 03.09.2019 allowed the I.A. No. 8028/2019 and further re-called the paragraph no. 3 of the order dated 02.08.2019 as the protection has already been granted by the Hon'ble Supreme Court. Thereafter, this case was assigned to this Court and the matter was listed on 06.09.2019 and thereafter on 18.09.2019 and subsequent dated and finally the matter was heard on 11.11.2019 and order was reserved. 4. The fact giving rise to the instant writ petition is as under :- A complaint being ECIR no. 02/2018 ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint, it has been concluded that Naresh Kumar Kejriwal was involved in acquisition, concealment, transfer of proceeds of crime and remained involved in the activity connected with the proceeds of crime and projected the same as untainted. As such, it was alleged that Sri Naresh Kumar Kejriwal has committed offence of Money Laundering as defined under section 3 of the PMLA and punishable under section 4 of the PMLA Act. 5. Learned senior counsel appearing for the petitioner during course of argument would submit and also made averment in his petition that the petitioner is quite innocent and has been falsely implicated in this case with some ulterior motive and mala fide intention that too without any evidence on record. 6. It was further stated that the predicate offense of the instant case is one of the case instituted by the CBI vide RC- 01/A/2011-R registered against Dr. Pradeep Kumar, I.A.S. who was the then Secretary, Health Department, Govt. of Jharkhand, Ranchi. 7. The allegation against Dr. Pradeep Kumar, IAS was that during the period November 2000 to August 2009, he was in possession of pecuniary resources or property disproportionate to his known source of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble High Court of Jharkhand was not challenged by the CBI and therefore, has attained finality. Consequently, the allegations against the petitioner made by the CBI under Charge-Sheet No. 12/2013 dated 31.08.2013 stands quashed. 13. Learned senior counsel for the petitioner further submitted that the foundation of the impugned complaint ECIR no. 02/2018 arising out of ECI/12/PAT/2012 and ECIR/13/PAT/2012 was filed by the Directorate of Enforcement dated 03.11.2018, so far as the petitioner is concerned, is the aforesaid CBI Charge Sheet No. 12/2013 dated 31.08.2013 [see para. 2(iii) of the complaint]. Undeniably, the foundational CBI charge sheet stands quashed so far as the Petitioner is concerned. 14. Once that be so, the very substratum of the impugned ED complaint has been removed and therefore, the same is liable to be quashed so far as the petitioner is concerned. 15. In view of the quashing of the CBI charge sheet against the petitioner, no offence whatsoever is made out under sec. 3 of the PMLA Act against the Petitioner. 16. That the impugned complaint is liable to be quashed on the ground that even if all the allegations in the impugned complaint (being based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made out against the petitioner under sec. 3 of the PML Act even if the allegations in the impugned ED complaint is taken to be correct in its entirety. 18. In State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335, the Hon'ble Supreme Court held (at para. 102 SCC) that where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, the same is liable to be quashed. 19. That without prejudice to the aforesaid submission, even if it be presumed only for the sake of arguments that the ED can maintain a complaint against the Petitioner even in absence of sec. 109, IPC being not declared a scheduled offence, yet, the the impugned complaint is liable to be quashed vis-à-vis the Petitioner in view of the following: a. The amount involved in so far as the Petitioner is concerned is only ₹ 25.95 lakhs. b. Sec. 2(u) of the PML Act makes it clear that a schedule offence ought to have been committed so as to generate 'proceeds of crime', which would then make it an offence under sec. 3. It is clear that a person can only be made acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement and balance-sheet were filed before the Income Tax Authorities in the name of Hindustan Credit Corporation for the Financial Year 2008-09 and Assessment Year 2009-10. 25. That Hindustan Credit Corporation has provided loan amounting to ₹ 1,95,000/- to Nandlal HUF on 31.7.2009 and said amount was transferred from the account of Hindustan Credit Corporation to the Account of Nandlal HUF and said transaction were duly reflected in their balance-sheet under the heading of loan and advance and same was filed before the Income Tax Authority while filing the Income Tax Return of Hindustan Credit Corporation for the Financial year 2009-10 and Assessment Year 2010-11. 26. That against the above mentioned loan of ₹ 5,95,000/- provided by Hindustan Credit Corporation to Nandlal HUF, same was returned with interest by Nandlal HUF on 29.9.2011 in the account of Hindustan Credit Corporation amounting to ₹ 7,98,000/- and the said transaction has also been reflected in the balance-sheet of Hindustan Credit Corporation which has been filed with the Income Tax Return for the Assessment Year 2012-13. 27. Learned senior counsel for the petitioner mentioned that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax return had not shown the said transaction but the said allegation is completely false and same can be ascertained from the income tax return filed for the assessment year 2012-13. 32. Learned senior counsel for the petitioner submitted that the loan were advance by Pathak Telecom Pvt. Ltd. and Hindustan Credit Corporation to Nandlal HUF and said amount of loan has also been returned with interest by Nandlal HUF to the above mentioned two companies and the process was purely transparent and complete, as such it can not be said that the said amount was generated by schedule offence. 33. Learned senior counsel for the petitioner submitted that the complete false allegation has been leveled by the complainant that loan of ₹ 20 lakhs advanced by Pathak Telecom Pvt. Ltd. on 18.7.2009 and ₹ 4 lakhs from Hindustan Credit Corporation on 26.12.2008 and ₹ 1,95,000/- by Hindustan Credit Corporation on 31.7.2009 but payments were made to Mr. Arun Kumar Agrawal confirming party of the flat much prior to the above loans advanced to Nandlal HUF, but the same is completely false and it appears that the complainant has not properly verified the bank statement of Nandlal HUF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which is sine qua non for alleging an offence under section 3 of the PMLA Act, 2002. It is not the case of the respondent/opposite party that the petitioner had knowingly involved in a process or activity connected with "proceeds of crime". The Hon'ble Apex Court has delivered a judgment in case of Nikesh Tarachand Shah Vrs. Union of India, (2018) 11 SCC 1 has held at para-11 as under: "11 ……. Section 3, therefore, contains all the aforesaid ingredients and before somebody can be adjudged as guilty under the said provision, the said person must not only involved in any process or activity connected with proceeds of crime, but must also project or claim it a being untainted property." 39. That in the facts and circumstances stated above, it would be expedient for the ends of justice to quash the entire criminal proceeding arising out of arising out of ECIR No. 02/2018 as well as the order dated 19.11.2018 by which the cognizance has been taken against this petitioner and other accused for the offence alleged to have been committed under section 3 of the PMLA Act which is punishable under section 4 of the PMLA Act. 40. That in view of the facts stated above, en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radeep Kumar for the only purpose of concealment of proceeds of crime so that tainted property could be projected as untainted; v) Rajendra Kumar stated that he took loan from M/s (Pathak Telecom Co. (P) Ltd. (Proprietor Sitaram Pathak) and Hindustan Credit Corporation (a firm managed by Naresh Kumar Kejriwal) for acquisition of immovable property but he could not produce any loan agreement and he does not know these persons individually. Moreover, all the payment for acquisition of this immovable property had already been done much prior to receipt of the loans. These loans haw not been reflected in the books of account. Both the transfer were made to the bank account of Rajendra Kumar from Pathak Telecom Co. (P) Ltd. (Proprietor - Sitaram Pathak) and Hindustan Credit Corporation (a firm managed by Naresh Kumar Kejriwal) was arranged by Naresh Kumar Kejriwal, the Chartered Accountant of Dr. Pradeep Kumar. This makes evident that Dr. Pradeep Kumar has invested proceeds of crime for acquisition of immovable properties and Naresh Kumar Kejriwal has arranged transactions involved in money laundering through Pathak Telecom Co. (P) Ltd. and Hindustan Credit Corporation without any ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his makes it evident that proceeds of crime were layered through the bank account of this firm by Dharmendra Kumar Dhiraj for acquisition of immovable property to project the tainted property as untainted; ix) Shyamal Chakravarty was partner of Rajendra Kumar in M/s Essar Enterprises, he was granted General Power of Attorney by Dr. Pradeep Kumar for purchase of property at Udaipur. Shyamal Chakravarty arranged the deal in respect of this transaction. Moreover, for repayment of transferred amount to the firms owned by Sitaram Pathak and Inderlal Kejriwal, money was credited to the account of Nand Lal HUF from M/s Rhea Enterprises which is controlled by Shyamal Chakravarty. As per statements of Rajesh Kumar Fogla under section 164 Cr. P.C. by the Magistrate I-Class which was also corroborated by Shri Vikash Khetan (who too made his statement under section 164 of Cr.PC) as an accused, Shyamal Chakravarty used to receive the bribe money for Dr. Pradeep Kumar. Thus, it is evident that Shyamal Chakravarty has knowingly parked and concealed the proceeds of crime acquired by Dr. Pradeep Kumar to project the tainted properties as untainted; x) Both Dr. Pradeep Kumar and Rajendra Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stan Credit Corporation. This shows that Naresh Kumar Kejriwal is knowingly providing accommodation entry to disguise the actual purchase of property through proceeds of crime so that tainted properties can be projected as untainted. Hence, it is established that Naresh Kumar Kejriwal is knowingly assisting Dr. Pradeep Kumar in concealment and transfer of proceeds of crime so as to project the tainted properties as untainted. 43. That, from the above para, it is evident that Dr. Pradeep Kumar, Rajendra Kumar, Nandlal HUF, Shyamal Chakravarty, Dharmendra Kumar Dhiraj, Naresh Kumar Kejriwal, Inderlal Kejriwal and Sitaram Pathak are knowingly involved in acquisition, concealment and transfer of proceeds of crime and are knowing involved in projection of tainted properties as untainted; 44. That, during the investigation under the PMLA, the Provisional Attachment Order (PAO) No. 04/2018, dated 20.02.2018 was issued by the Directorate of Enforcement, Patna Zonal Office under section 5 (1) of the PMLA whereby movable and immovable properties of Dr. Pradeep Kumar Rajendra Kumar, Nand Lal HUF and Shyamal Chakravarty amounting to ₹ 1,76,38,527/- were provisionally attached . The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted with proceeds of crime and projection of the same as untainted. 50. Therefore, Naresh Kumar Kejriwal has committed the offence of money laundering, as defined under section 3 of the PMLA, and punishable under section 4 of the PMLA. This is evident from the following: I. During investigation under PMLA, it has been established that Nand Lal HUF was created only for the purpose of laundering of proceeds of crime on the advice of Naresh Kumar Kejriwal, a fact confirmed by Dr. Pradeep Kumar in his statement under section 50 of the PMLA. Rajendra Kumar, the Karta of Nand Lal HUF, admitted during his statement under section 50 of PMLA that he doesn't know the beneficiaries of this HUF and the person who filed the Income Tax Returns of Nand Lal HUF. He is not aware of the bank accounts of the Nand Lal HUF also. This shows that Rajendra Kumar is a dummy Karta, who is acting on behalf of Dr. Pradeep Kumar to launder the proceeds of crime. Rajendra Kumar has also stated that the books of accounts of Nand Lal HUF were being managed by Naresh Kumar Kejriwal, the Chartered Accountant of Dr. Pradeep Kumar. This firmly establishes the fact that Naresh Kumar Kejriwal has played ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 53. Learned ASGI appearing on behalf of the opposite party Directorate of Enforcement submitted that cognizance has been taken against the petitioner and trial is in progress, so no interference is required in the instant case and the instant Cr.M.P. is fit to be dismissed. 54. Learned ASGI further referred to para-23 of the judgment of the Hon'ble Supreme Court passed in the case of Rohit Tandon Vs. Enforcement of Directorate reported in AIR 2017 SC 5309, whereby the Hon'ble Supreme Court had taken note of the fact that the predicate offence is included in Part A in paragraph 1 of the Schedule in the Act of 2002, in particular, Sections 420, 467, 471 and 120-B of the I.P.C., but expression "criminal activity" has not been defined. 55. Learned ASGI further relied on the Division Bench judgment of the Madras High Court passed in Criminal Original Petition No. 9796/2019 and Criminal Original Petition No. 5129 of 2019 in the case of M/s VGN Developers P Ltd. & Another Vrs. The Deputy Director, Directorate of Enforcement (The Prevention of Money Laundering Act, 2002) dated 04.10.2019 and referred to para-7, wherein it is stated that learned Additional Solicitor General ..... X X X X Extracts X X X X X X X X Extracts X X X X
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